Employment by labour hire company on a job-share scheme
A 64-year-old Coal Mine Operator was deployed by a labour hire company at an open cut coal mine in central Queensland. The operator lived in New South Wales and he operated a Haul Truck on two “swings” which meant he worked seven days straight in the day shift, took seven days off and then worked the next seven nights straight before going on five weeks off.
On the weeks that the operator was off, his job was shared by another employee of the labour hire company under a job-share scheme. The operator had been working for the labour hire company since 2015 and he had been deployed in several mines. At the Daunia Mine, he was hired by the labour hire company first as a casual but in September 2019, his employment became permanent.
Travel restrictions prevented the operator working his roster
From 1 -8 April 2020, the operator worked his shift. After that, he was to take his five weeks’ off and so he was next rostered to work on 6 May 2020. However, travel restrictions were imposed by the Queensland Government preventing people from crossing over from NSW because of Covid-19. The area where the operator lived was declared a Covid-19 hotspot.
The operator called the labour hire company to inform him that he was unsure if he will be able to get to the mine to work on his next rostered shift. He was informed that he was not classified as an essential worker and he did not have a statutory ticket so he would not be able to cross the border.
The operator then informed his immediate supervisor at the mine that he had been told by the labour hire company that he would not be able to work his rostered shifts from 6-12 May and from 20-26 May because of the Covid-19 travel restrictions.
Sometime on 15 June 2020, the operator telephoned the Superintendent of the mine to inquire if there was a possibility of getting JobKeeper benefits as he had not worked for four weeks. The Superintendent told him that there was no reason that the operator could not report for work. So, on his next rostered shift on 18 June, the operator crossed the border from NSW to Queensland and reported for work. He worked his shift from 17-23 June 2020.
Mining company announced downsizing and lay-off of labour hire employees
At a meeting before his shift started on 17 June, the superintendent of the mine informed all the workers then present that 5 people will be laid off from each crew and only the workers from the labour hire will be laid off. The operator worked his shift and went home for his weeks off.
Only the Operator and his job-share partner, 64- and 65- year-olds were laid off
He received a phone call from the labour hire company that he was one of those who will be laid off because the mining company will be downsizing their operations. The operator and the other worker on their job-share scheme were both made redundant by the labour hire company. He was not allowed to work his next rostered shift on 2 July. He was given four weeks’ pay in lieu of notice.
Labour hire company did not find an alternative position for the operator
The operator spoke with representatives of the labour hire company about four times. The first two times were conversations about his being laid off by the mining company and that he was being made redundant by the labour-hire company. The other two conversations involved the labour-hire company’s representatives asking if he was interested in another job at another mine and if he were willing for the labour-hire company to put his name forward for the position for mining operator that was open. The last conversation was to inform the operator that they had put his name for the position but that his application for the job was unsuccessful.
Operator was made redundant, terminated by the labour-hire company
The operator’s employment with the labour hire company was terminated on 28 July 2020. He was paid his wages until the day he was terminated and received a gross amount of $16, 612.00 which included the payment in lieu of notice.
Application for unfair dismissal
The operator filed an application for unfair dismissal claiming that he was made redundant but that there was no genuine redundancy because in the months of June and July the labour hire company deployed ten other operators at the same mining company. The operator then felt that his position was not made redundant at all but he was terminated because he was 64 years old and at high risk for Covid-19 just as the other operator with whom he shared his job who was over 65.
Labour hire company failed to prove genuine case of redundancy
The Fair Work Commission (FWC) found that the operator was employed by the labour hire company and not by the mining company. The burden of proving that it was truly the mining company that had changed its operational requirements fell on the labour hire company. Of course, the labour hire company failed to provide this evidence.
Labour hire company failed to consult and mitigate loss of employment
The FWC inferred that the decision to terminate the employment of the operator was made by the labour hire company only on the say-so of the mining company. By making the operator redundant, the labour hire company was obligated to consult with the operator under an Enterprise Agreement to mitigate the effects of the operator’s redundancy. It was apparent that the labour hire company failed to give the operator an opportunity to explore all options that may have been open to him as an alternative to being terminated.
Labour hire company failed to deploy the operator when a position opened
The FWC found as well that a position at another mining company opened at around the time that the operator was made redundant and that the operator had the skills and experience to fill that position and yet, the labour hire company filled the position with another employee instead of deploying the operator.
Covid-19 restrictions would have allowed the operator a small window to work
The operator was unable to find alternative employment to mitigate his loss but he should not be faulted for this because there were several lockdowns declared during the time immediately following his termination. But in determining how much he is to be awarded to compensate him for lost income, the FWC considered that because of the pandemic and the further border restrictions implemented by Queensland, there was only a window between 10 July and 8 August that the operator could have travelled to Queensland to work had he been given that position in the mine in Queensland.
Unjust termination, compensation for lost income awarded
The FWC concluded that there was no genuine redundancy.
The termination of the operator was harsh, unjust and unreasonable (e.g. he won his unfair dismissal claim).
The operator was awarded financial compensation.
