Australia: Dismissing on-hired employees: A cautionary tale

In Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee [2017] FWCFB 1714 (18 May 2017) (Tasports), a Full Bench of the Fair Work Commission has clarified the obligations of labour hire employers when dismissing an employee.

The decision in Tasports makes it clear that, when determining whether to dismiss an employee, labour hire companies cannot simply rely on the process adopted by a host business.


Tasmanian Ports Corporation Pty Ltd (Tasports) is a State-owned company which owns and operates a number of ports in Tasmania. It also engages in a number of other commercial activities, including supplying labour to privately-owned ports. Amongst its clients is Grange Resources Limited (Grange), a mining company which processes and ships iron pellets on the north coast of Tasmania.

Mr Gee was an employee of Tasports for a number of years, and was assigned to work for Grange from 2009 until his dismissal in August 2015.

The termination of Mr Gee's employment occurred following advice from Grange to Tasports that it would be terminating Mr Gee's access to its premises with effect from 17 August 2015. That decision was triggered by an investigation into Mr Gee's alleged failure 'to follow a reasonable work and deployment directive' on 13 August, and into earlier incidents allegedly involving:

  • the posting of unauthorised photos of Grange's assets and work sites, circumventing Grange's reporting protocols; and
  • being in unauthorised possession of a mobile phone.

Although Tasports was made aware of this investigation, Mr Gee was not advised of its existence or given any opportunity to respond to the matters that were considered as part of the investigation.1

While Tasports subsequently gave Mr Gee an opportunity to respond to these allegations, there was no evidence to suggest that Mr Gee's responses were ever communicated to Grange.2

On 28 August, Tasports wrote a letter to Mr Gee advising him that:

  • he had been excluded from Grange's premises and was therefore unable to perform the 'inherent requirements' of his position;
  • there were no alternative available positions/duties he could perform at Tasports; and
  • in consequence, he had been removed from Tasports' employment roster.3

Mr Gee subsequently lodged a claim for unfair dismissal with the Fair Work Commission (FWC).


Her Honour Wells DP accepted Mr Gee's evidence as to the relevant course of events, and found that his dismissal was unfair, having regard to the fact that the investigation conducted by Grange was procedurally flawed, and that Tasports had not made sufficient effort to redeploy him in an alternative position.

Deputy President Wells also found that Tasports had failed to take into consideration all of the matters set out in section 387 of the Fair Work Act 2009 (Cth) (FW Act).

In reaching these conclusions, Wells DP referred to two recent FWC decisions: Pettifer v MODEC Management Services Pty Ltd (Pettifer) and Kool v Adecco Industrial Pty Ltd T/A Adecco (Adecco).4 Her Honour did not consider that the decisions were inconsistent with each other, or that they impelled a conclusion that Mr Gee's dismissal was fair.

A brief summary of the Pettifer decision

This case concerned Mr Pettifer, an employee of labour hire company Modec Management Services Pty Ltd (Modec), who had been assigned to work for BHP Billiton Petroleum Inc (BHPB) on a 'floating production, storage and offloading vessel'.

Following a 'near-miss' incident, BHPB directed Modec to remove Mr Pettifer from the vessel on which he had been working. BHPB was entitled to issue this direction by force of a provision in the labour supply contract between it and Modec. Although Modec did not agree that Mr Pettifer's conduct justified his removal from the vessel, they facilitated his removal in accordance with the contract. Modec then endeavoured to find alternative work for Mr Pettifer, but decided to terminate his employment because of its inability to identify a suitable role for him. Mr Pettifer was given an opportunity to respond to this conclusion, but ultimately Modec proceeded with the termination.

A Full Bench of the FWC found that the dismissal was not unfair on the basis that Mr Pettifer's 'capacity' was a factor in determining whether there was a valid reason for termination, and that there were no practical alternative means by which he could have been retained. In reaching this conclusion, the Full Bench distinguished Adecco on its facts, but endorsed the understanding of the relevant principles upon which it was based.

A brief summary of the Adecco decision

Adecco was handed down shortly before Pettifer, and also concerned a labour hire company that was required to remove one of its employees from the host employer's workplace. In Adecco, however, the FWC had not been provided with access to the contract between the labour hire company and its client, so that it was not clear whether the host had the contractual capacity to direct Adecco to remove its employee from its workplace.

Further, Adecco did not make any attempt to find alternative work for the displaced employee. In finding that the applicant had been unfairly dismissed, Asbury DP stated that:

The contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such relationships to abrogate their responsibilities to treat employees fairly. If actions and their consequences for an employee would be found to be unfair if carried out by the labour hire company directly, they do not automatically cease to be unfair because they are carried out by a third party to the employment relationship. If the Commission considers that a dismissal is unfair in all of the circumstances, it can be no defence that the employer was complying with the direction of another entity in effecting the dismissal. To hold otherwise would effectively allow labour hire employers to contract out of legislative provisions dealing with unfair dismissal.5

Tasports' Appeal

Tasports sought to appeal Deputy President Wells' decision on a number of grounds, including that:

  • the Full Bench decision in Pettifer had established that, in cases where an employee is unable to perform work as a result of the actions of a third party, the employer will have a valid reason for dismissal related to the employee's incapacity to perform the inherent requirements of their job; and
  • it was not the role of the Commission to determine whether the decision of that third party was correct or fair but to consider whether the dismissal was unfair.6

The Full Bench granted leave to appeal – although, as we explore below, the appeal was dismissed on its merits.7


Applying the statement of principle in Adecco to the circumstances of Tasports, the Full Bench of the FWC upheld the decision of Wells DP to the effect that Mr Gee had been unfairly dismissed.

In doing so, it decisively rejected Tasports' arguments by finding that the Deputy President had correctly distinguished Mr Gee's case from the facts in Pettifer, on the grounds that Tasports:

  • did not provide the FWC with a copy of its contract with Grange, and had therefore failed to establish that Grange did in fact have a legal right to require Mr Gee's removal from the site;
  • did not form its own independent view as to whether Mr Gee had committed misconduct, but instead essentially adopted the outcome of Grange's procedurally flawed investigation; and
  • failed to adequately investigate options for Mr Gee's redeployment (especially in light of the fact that Tasports operates and employs workers in its own ports).


If a host employer wishes to have an unrestricted right to require the removal of an on-hired employee from workplaces controlled by it, it should ensure that its contract with the relevant labour hire provider expressly invests the host with the capacity to do so.

Even if a host employer has a clear right to require the removal of an on-hired employee, it does not necessarily follow that a subsequent dismissal of the employee by the labour hire provider would be fair. In all instances, the fairness or otherwise of the termination will be determined on the merits, and by reference to the s 387 criteria in the FW Act.

If an employee is dismissed on the basis of their lack of capacity to perform the requirements of their job, the dismissal must be genuine. Further, a labour hire provider must make a bona-fide and far reaching attempt to redeploy the employee to another position, whether within the provider's own organisation, with another client, or with another employer.


1[1] [2017] FWCFB 1714, [3].

2 [2017] FWCFB 1714, [6].

3 Tasports did not in fact discuss the possibilities for alternative work with Mr Gee – [2017] FWCFB 1714. [8].

4 [2016] FWCFB 5243; [2016] FWC 925.

5 [2016] FWC 925, [49].

6 [2017] FWCFB 1714, [16].

7 [2017] FWCFB 1714, [25].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions