Aminiasi Meo v 360 Personnel Pty Ltd [2026] FWC 1818

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Aminiasi Meo v 360 Personnel Pty Ltd (U2025/20435) COMMISSIONER SIMPSON BRISBANE, 25 JUNE 2026 Application for an unfair dismissal remedy – Jurisdictional objection - Applicant not dismissed – Jurisdictional objection dismissed - Applicant dismissed – Dismissal Unfair – Compensation Ordered. [1] On 23 December 2025, Mr Aminiasi Meo (the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with 360 Personnel Pty Ltd. [2] I listed the matter for a directions hearing on 7 April 2026. The matter was listed for hearing on 19 May 2026. At the commencement of proceedings on 19 May 2026 the parties agreed for the matter to proceed as a determinative conference rather than a hearing. [3] The Applicant was represented by Ms Samantha Gill, an Industrial Officer for the United Workers’ Union. Mr Anuj Khanduire, Human Resources Manager, appeared on behalf of the Respondent. [4] The Applicant filed two of their own witness statements, the first dated 24 April 2026,1 and a further statement of 11 May 2026.2 The Applicant also relied on a statement3 from Ms Margaret Te Awa an Organiser for the United Workers’ Union. [5] The Respondent relied on a statement from Mr Elijah Nader (Recruitment Partner and Account Manager) dated 24 April 2026.4 [6] The Respondent raised the jurisdictional objection that the Applicant was not dismissed from employment but instead was only stood down from working for the host employer due to a decrease in workload at the site at the time. Submissions and Evidence [2026] FWC 1818 DECISION -- 1 of 18 -- [2026] FWC 1818 2 [7] The Applicant commenced working for the Respondent in November 2024 after successfully applying for a role advertised on Seek for a High Reach Forklift Operator at Allied Pinnacle, based at its Tennyson location. Specifically, the Respondent was seeking employees to work the night shift at Allied Pinnacle. [8] The Respondent submits that it is a labour hire employer, which does not control the operational requirements or work conditions imposed by its client. [9] In an email sent to the Applicant by the Respondent’s representative Ms Emilia Orsztynowicz, during the recruitment process, Ms Orsztynowicz confirmed that the available shifts are either from 6:00 AM to 2:00 PM, Monday to Friday, or from 10:00 PM to 6:00 AM, Sunday to Thursday. The Applicant selected the latter option. [10] The Applicant submits that the Respondent characterised the employment opportunity as “a great opportunity for someone looking for stable, ongoing work with strong potential to transition into a permanent role”. Further, the Respondent highlights that they can offer “ongoing temp-to-perm opportunity” and “weekly pay and consistent hours”. [11] The Applicant submits that the language used in the advertisement characterises the role as being long-term, indefinite in nature, and offering regular shifts, which was practically affirmed by the Applicant working in the role for a period of 13 months and being rostered to work a regular roster of approximately 37.5 hours per week from Sunday to Thursday. [12] Therefore, the Applicant submits that it can reasonably be held that he was working as a casual on a regular and systematic basis and had a reasonable expectation of continuing employment at Allied Pinnacle. [13] The Respondent submits that six months of the Applicant’s working hours are not consistent with 37.5 hours per week. The Applicant contends that the Respondent does not indicate how many hours per week would be an accurate assessment of hours worked. [14] The Applicant provided payslips for the first 8 months of his employment, and the Respondent submitted the Applicant’s payslips from September to December 2025. The average hours worked across this period were 37.1 hours per week. [15] Ms Te Awa gave evidence she had been the Organiser for the Allied Pinnacle site for 9 years. Ms Te Awa said that on 9 December 2025 she asked Allied Pinnacle by email to consider converting Mr Meo to a permanent employee with it, as he had been working on site for more than 12 months. [16] Ms Te Awa said there were four employees working in the warehouse on night shift since the Applicant had left, and someone had replaced the Applicant. Ms Te Awa agreed she did not know if the Applicant was replaced on 12 December 2025. Ms Te Awa said “David” the site manager had informed her that Allied Pinnacle were short on night shift from 12 December. Whether the Applicant was dismissed -- 2 of 18 -- [2026] FWC 1818 3 [17] On 9 December 2025, the Applicant’s name was provided to Allied Pinnacle by his Union Organiser as someone that was interested in being permanently employed at Allied Pinnacle. [18] At approximately 1:00 PM on 12 December 2025, the Applicant received a telephone call from the Respondent. The Applicant submits that during this phone call he was dismissed from his employment due to “performance and attendance issues”. The Applicant further asserts that during this call, the Respondent did not advise that the Applicant would remain employed by the Respondent, nor did the Respondent advise they would look for alternative placements. Mr Nader for the Respondent gave oral evidence that it was more the attendance issue that was discussed, not performance. Mr Nader said there was no discussion about it being the reason for the end of the assignment. [19] At 1:13 PM on 12 December 2025, the Applicant sent a follow up email to the Respondent stating: “Hi Elijah, Can I please get a written confirmation of the end of my employment, including the reason provided (“attendance and performance”) I am also requesting an Employment Separation Certificate for Centrelink purposes. Please provide this at your earliest convenience. Appreciate it.” [20] The Applicant asserts that the action of requesting written confirmation of the end of his employment and an employment separation certificate are not consistent with the actions of an employee who has been told over the phone that their employment at their regular jobsite was ended due to a decrease in workload, and their employer would be actively looking for alternative assignments. [21] At 2:05 PM the Respondent replied, stating: “I can confirm that I have already provided written confirmation of the end of your assignment. There is no additional separation letter required for casual labour-hire arrangements. Please find attached your completed Employment Separation Certificate for Centrelink purposes. If you require anything further that is specifically requested by Centrelink, please let me know” [22] The ‘written confirmation' the Respondent refers to is an email sent on 12 December 2025 at 1:07 PM. This email was not sent to the Applicant’s email address as part of the Applicant’s email address was omitted. As such, the Applicant did not receive this email and was unaware of its existence until the Respondent filed its submissions. The 1:07pm email which was never received by the Applicant reads as follows: “Hi Aminiasi, -- 3 of 18 -- [2026] FWC 1818 4 This email confirms your assignment with Allied Pinnacle has been completed as of 12/12/2025, following the employers request. As per labour-hire arrangements, there is no requirement for written notice or further detail. We will keep your details on file and will contact you when suitable future assignments become available. Thankyou for your hard work and we will be in contact with you as soon as we have another suitable role. Regards, Elijah Nader” [23] The Employment Separation Certificate include that the date the employment ceased was 12 December 2025, and a box was ticked describing the reason for separation as “other”, and the words “End of assignment – no further work available” was written on the form. [24] Mr Nadar said it did not occur to him that the Applicant may have understood that he had been dismissed as he also relied on the telephone conversation between himself and Mr Meo and claimed in his oral evidence that he said if other work was available, it would be provided. The Applicant’s evidence was that he was told due to his attendance and performance he was no longer required on site. [25] The Respondent submits that the Applicant was not dismissed but rather that the removal of the Applicant from the site was an end of assignment in line with the separation certificate provided to the Applicant. [26] The Respondent submits that the separation certificate was issued at the Applicant’s request, which is more consistent with a resignation than a dismissal. [27] The Applicant submits that the error regarding his email address should have become apparent to the Respondent when the Applicant requested ‘written confirmation’ of the end of his employment. Further, the Applicant contends that the non-receipt was expressly identified in an email sent by the Applicant at 2:18 PM on 12 December 2025, in which he advised the Respondent that he had “double checked” his emails and could not find the ‘written confirmation’ referred to by the Respondent. [28] Mr Nader said during his oral evidence he could not recall if he received the email from the Applicant sent at 2:18 PM. [29] The Respondent seeks to rely on the email sent at 1:07 PM to support that they made assurances to the Applicant that he would be considered for another suitable assignment should one become available. [30] The Applicant submits that similar statements, presented without evidence that the Respondent was looking for alternative assignments for the Applicant, have been referred to by -- 4 of 18 -- [2026] FWC 1818 5 the Full Bench of the Fair Work Commission as “being little more than paying ‘lip service’ to this contention”.5 [31] At 4:56 PM on 12 December 2025 the Applicant sent an email to Mr Massimo Nicholas who he said was associated with the Union, with the subject heading “360 seek ad for same role”. The email referred to Seek advertisements being online that were advertising the same role as his at the Tennyson site. The Applicant said he saw this advertisement on Seek in the same week that his employment was ended. Mr Nader said the Respondent does not get much notice if an assignment is coming to and end. [32] The Applicant again followed up with the Respondent via email on 15 December 2025, asking for the ‘written confirmation’ and seeking clarification as to why his employment was ended. The further email from the Applicant raised an inconsistency between what the Applicant said he was told during the telephone conversation with Mr Nader on 12 December that the end of work with Pinnacle was because of attendance, and what was said in the separation certificate provided to him by the Respondent stating the reason was no work being available. [33] During his oral evidence Mr Nader accepted that he had received the 15 December 2025 email from the Applicant, however said he could not recall whether he responded to it. [34] The evidence supports the conclusion that the Respondent did not reply to the Applicant’s emails, and the Applicant notes that he has not received any further contact from the Respondent since 12 December 2025. [35] The Respondent submits that in all correspondence, the term ‘end of assignment’ is used rather than ‘termination’. [36] During the hearing the Applicant’s representative, Ms Gill, noted that the Respondent’s witness, Mr Nader, utilised the word ‘termination’ twice in his witness statement stating the following: “The termination was directly related to the assignment ending and was not connected to performance or conduct… These matters did not form part of the termination decision and were not relied upon in ending the assignment.” [37] Ms Gill put to Mr Nader that in light of this, was there the possibility that he had used the word ‘termination’ during the phone call to the Applicant on 12 December 2025. [38] Mr Nader denied that this was a possibility stating that: “No, definitely didn’t use the word on the phone. End of assignment was the only word we used because that’s what it was, end of assignment.” [39] The Applicant submits that this evidence can be used to argue that ‘end of assignment’ and ‘termination’ has been used interchangeably throughout this process. -- 5 of 18 -- [2026] FWC 1818 6 [40] The Applicant submits that he was dismissed by way of both removal from site and not being offered any ongoing work elsewhere by the Respondent. [41] The Respondent submits that the Applicant was not terminated but was stood down from the assignment at the request of the host employer and that the reason for ending the assignment was fluctuations in workload, insufficient increase or decrease. [42] The Respondent relies on the Commission’s decision in Dillon Stocks v Phoenix Source & Select Pty Ltd6 in support of the following: • It is not uncommon for casual employees of labour hire firms to have gaps in between assignments. Such gaps do not, necessarily, mean that the employment relationship has ended, and that the employer has dismissed the employee. • At no point has the Respondent stated that the Applicant’s employment with Respondent, as distinct from his assignment with host employer, had been terminated. [43] The Applicant submits that other than the witness statement of Mr Nader, the Respondent has provided no evidence that the Applicant’s assignment at Allied Pinnacle ended due to a decrease in workload. [44] In the Respondent’s submissions, the Respondent refers to an attached email, dated 20 April 2026, sent to a representative of Allied Pinnacle. The Respondent asks the representative, Mr Stefan Ekvall, to provide a short witness statement confirming: • The Applicant’s assignment ended in December as he was no longer required onsite; and • No replacement labour hire worker was requested or supplied by 360 Personnel following the end of his assignment. [45] The Applicant notes that he is unsure why this email was included in the Respondent’s submissions, as it seems to demonstrate that Mr Ekvall presumably refused to provide said witness statement, which is not supportive of the Respondent’s position in accordance with the rule in Jones v Dunkel.7 [46] The Applicant also directs the Commission’s attention to the wording of the request, noting that Allied Pinnacle confirming that the Applicant’s assignment ended “as he was no longer required onsite” does not confirm the reason why the Applicant was no longer required onsite, and whether it was conduct or workload related. [47] With regards to the Respondent not providing a replacement labour hire worker to Allied Pinnacle until 17 April 2026, the Applicant submits that Allied Pinnacle engaged a new full- time employee to work on the night shift as of 5 December 2025, who he understands to be a direct hire. Mr Nader clarified that the paragraph in his evidence on page 159 did not mean that the Respondent had provided a replacement for the Applicant to Allied Pinnacle in April 2026. -- 6 of 18 -- [2026] FWC 1818 7 [48] The Applicant submits it is unlikely that Allied Pinnacle would request the Respondent provide a replacement for him, as it can be argued that his replacement commenced work the week prior to his termination. [49] The Applicant relies on the following propositions that arise from the Commission’s findings in Star v WorkPac Pty Ltd,8 and Nagy v ProQuest Recruitment Pty Ltd:9 (a) Removal from a host site can constitute dismissal where: i. the employee has no realistic prospect of redeployment; and ii. the labour hire employer makes no genuine effort to find alternative work. (b) 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. (c) Where the engagement is: i. site specific, ii. ongoing in nature, iii. with no redeployment framework in practice, then removal from the site ends the employment relationship (d) Even where a host requests removal the labour‑hire employer must still ensure procedural fairness; (e) There is unlikely to be a dismissal where the labour hire employer maintains the employment relationship and is actively seeking redeployment opportunities. [50] As found by Deputy President Asbury “[69] … in some cases the employment relationship between the labour hire company and its employees may subsist in periods where the employee is not placed at a client company. However, whether this is so depends on the contractual arrangements and the factual matrix in which they operate.”10 [51] The Applicant further relies upon a previous finding by the Commission, that the end of a long-term, indefinite assignment can amount to the end of the employment relationship between an employee and labour-hire company.11 [52] In Tait v Spinifex Australia Pty Ltd T/A Spinifex Recruiting (Tait),12 a decision upheld by the Full Bench of the Fair Work Commission, Senior Deputy President Hamberger found that the employee was dismissed by Spinifex Recruiting when they told her that her assignment -- 7 of 18 -- [2026] FWC 1818 8 at the Department of Justice (NSW) had ended, but that they would continue to look for new opportunities, because: (a) the only work the employee performed for Spinifex Recruiting was for the Department of Justice (NSW); (b) the employee had worked at the Department of Justice (NSW) for period of 7 months i.e. the placement was not short-term or ad-hoc; and (c) the assignment was understood to be of an indefinite duration. [53] Deputy President Asbury considered similar circumstances in Kool v Adecco Industrial Pty Ltd T/A Adecco (Kool),13 where the employee was hired by a labour-hire company Adecco to work at host employer Nestle for a period of 2.5 years. After Nestle advised Adecco that the employee was no longer required on site, Adecco told the employee that her assignment would end effective immediately, but they would attempt to find her alternative employment. In this instance, Adecco did find the employee short-term (1 or 2-day) placements following her removal from the Nestle site. On this basis, Adecco submitted that the applicant had not been dismissed. [54] Deputy President Asbury found that because the employee had enjoyed a long term assignment in which she worked full time hours; was removed from the assignment at the behest of Nestle, and, was offered no further work for several weeks, and the work that was offered was fundamentally different to the work she had performed while at Nestle i.e. it was sporadic and uncertain, that the employee had been dismissed from Adecco when she was removed from the Nestle site. [55] The Applicant submits that Tait and Kool consider dismissals in circumstances analogous to his, with the labour-hire employees assigned to one site for an extended period, and the assignment is presumed to continue indefinitely. The labour-hire employers told the employees they would attempt to find the employee an alternative assignment, but either provided no evidence to support this assertion, or offered short-term, ad-hoc assignments for a day or two. In Kool and Tait, with the latter being upheld by the Full Bench of the Commission,14 the employees were found to have been dismissed at the end of their assignment with the host employer. The Applicant submits that these decisions support a finding in this matter that he was dismissed by the Respondent when the contract with Allied Pinnacle ended. [56] The Applicant also seeks to distinguish the circumstances of this matter from the circumstances recently considered by Deputy President Masson in a matter involving the Respondent, Mr Za Thawng v Goodride Tyres Pty Ltd v 360 Personnel Pty Ltd (Za Thawng). [57] In Za Thawng, Deputy President Masson found that 360 Personnel had not dismissed the employee for several reasons, including: • The respondent acted in a way that made clear to the employee that further engagements would be offered to him, including responding to the applicant’s interest in an advertised role and offering the applicant a new assignment; -- 8 of 18 -- [2026] FWC 1818 9 • the assignment was for a brief period of time, advertised as running from 17 March 2025 to 2 May 2025. The assignment was for less than two months, and it was noted that the employee was absent from work for medical reasons between 8 to 22 April 2025; and • the employee remained a ‘live’ employee in the 360 system, had not been issued a letter of termination, nor did he receive a separation certificate. [58] The Applicant submits that Za Thawng can be distinguished from the current matter as: • The Respondent cut off contact with him on the day of termination and has not offered the Applicant any new assignments, including his previous assignment at Allied which became available in April 2026; • the assignment was for a longer period of time (13 months), was advertised to be for an indefinite period, and was for exclusive deployment at Allied Pinnacle; and • the Respondent provided the Applicant with an employment separation certificate on 12 December 2025. [59] The Applicant notes that their employment was at one worksite and was not characterised by being moved around between sites, usually typical of true labour hire. In the case of the Applicant, the job was advertised as work for a ‘High Reach Forklift Operator’ at a ‘fast paced warehouse team in Tennyson’. The Applicant applied with the Respondent for that work and performed work solely in that job for a period of thirteen months. The work was ongoing and continued to be required by the Respondent’s client. [60] The Applicant, therefore, submits that his employment was intrinsically linked to the Allied Pinnacle – Tennyson worksite and that on removal from that site, with no alternative redeployments offered by the Respondent, this constitutes a dismissal. [61] The Applicant further notes that his employment terms and conditions do not specify when the assignment ends, merely stating that “if you accept a role, you will be expected to complete it”. [62] The Applicant submits that such an open-ended obligation implies that an employee should have knowledge of when their role is expected to be completed by. Being placed onto what can be characterised as open-ended role, that is ongoing in nature, gives rise to procedural fairness issues when an employee does not know when a role must be ‘completed by’ and is dismissed with shifting and inconsistent reasons provided. [63] The Applicant further submits that there is no evidence of any available work or any attempts to redeploy the Applicant to alternative work available with the Respondent’s client based. [64] Therefore, the Applicant submits that the Commission should find that the Applicant was dismissed at the initiative of the Respondent. -- 9 of 18 -- [2026] FWC 1818 10 [65] The Respondent submits that there was no suitable work available for the Applicant between 12 December 2025 and 7 January 2026 and all advertisements posted during this period were very few and unsuitable for the Applicant. [66] The Respondent submits that its payroll records indicate that the Applicant remains active in its system. [67] The Respondent submits that the following reasons support a finding that the employment relationship was not terminated, and the Respondent never communicated any termination of the Applicant employment: • The end of a host assignment does not automatically constitute dismissal; • casual labour hire employees commonly experience periods without assignments; • an employment relationship may continue despite there being no active assignment, no immediate redeployment, and reduced work availability; and • communication by the agency that: the assignment has ended, the employee remains active/on the books, and future suitable work may be offered. [68] The Respondent submits that the Applicant has mistaken the end of an assignment for a termination of employment and that it remains willing to offer the Applicant future assignment with other host clients should the Applicant decide to remain on the Respondent’s books as an active employee and express interest in current or future suitable roles. Was the Applicant Dismissed? [69] The facts in that case are somewhat analogous to those in Tait and Kool. The Applicant’s role was advertised as a specific role at the Tennyson site, the assignment was at one site for an extended period over 13 months, and the employer indicated it would attempt to find alternative assignment but provided no evidence of doing so. [70] The Respondent did not respond to attempts made by the Applicant to seek clarity of his situation, and the Respondent did not offer the Applicant any new assignments. [71] It was reasonably apparent from the communications from the Applicant that he understood he had been dismissed. The Respondent did not take appropriate steps to refute this understanding on the part of the Applicant and instead acceded to his request for a separation certificate. [72] The separation certificate itself does not assist the Respondent’s case. I am satisfied the facts when considered in their totality support the conclusion that the Applicant was dismissed at the initiative of the Respondent. Whether the dismissal was harsh, unjust, or unreasonable -- 10 of 18 -- [2026] FWC 1818 11 [73] The Applicant submits that the Respondent initially stated by phone call to the Applicant, words to the effect that there were conduct and performance concerns, leading to the Applicant being removed from site at ‘the client’s request’. [74] The Applicant submits that he was not advised of what these purported conduct and performance issues were. [75] The Applicant notes that the Commission has previously held that a mere request by a client for removal from the site is not a valid reason for dismissal. [76] Furthermore, where the labour hire agency employer makes little to no effort to find an alternative position when an employee is removed from site, this also goes to whether there was a valid reason. As found by the Commission in O’Grady v WorkPac Pty Ltd, a statement that the Labour Hire agency will work with the employee to source an alternative assignment, is capable of proving there has not been a dismissal.15 [77] The Applicant submits that the Respondent in this instance made no genuine effort, or made any statement to the effect thereof, to find the Applicant placement at a different client site or any alternative employment whatsoever. [78] The Applicant further submits that he was not told by the Respondent in sufficiently clear terms of the reason for his dismissal. [79] The Applicant submits that he also asked the host employer, Allied Pinnacle, for the reasons behind his termination. The host employer referred the Applicant back to the Respondent for a response. In addition, the Applicant notes, it is not clear that there was truly ‘no further work’ when the Respondent was actively advertising for labour hire to fulfil the Applicant’s own role, at the site he worked at, on the same day that he was dismissed. Further, there were three other labour hire workers, that worked the same shift as the Applicant, who were not removed from the site, and who remain working at the host employer. [80] In addition, the Applicant submits that the Respondent has not articulated a sound basis for the advertising for roles at Allied Pinnacle, online, the same day that the Applicant was dismissed. [81] As a result of the above, the Applicant submits that the Respondent failed to notify the Applicant of the reason for his dismissal. [82] The Applicant submits that the Respondent did not convene a meeting or other opportunity for the Applicant to respond to the claimed performance and conduct allegations made against him, or in advising him of his termination. [83] The Applicant submits that he had 13 months of service with the Respondent and has not previously been subject to any disciplinary actions or warnings. [84] The Applicant submits that the Respondent is a large enterprise with employees across Australia and has dedicated human resources expertise. Accordingly, neither the Respondent’s -- 11 of 18 -- [2026] FWC 1818 12 size nor access to expertise ought to have impacted adversely on the procedure effected in dismissing the applicant. [85] The Applicant submits that he is the only employee that has been dismissed despite other labour hire employees remaining on site, including a labour hire employee that started after the Applicant and therefore, if it was “end of assignment – no further work available” it stands to reason that there should not be any other labour hire employees on site. [86] Therefore, the Applicant submits that he was treated differently from other labour hire employees. [87] The Respondent submits that no replacement was sent to the host employer after the Applicant’s assignment ended. [88] The Applicant submits that the Respondent failed to afford him the opportunity to respond to any claimed ‘performance and conduct issues’ and further, provided inconsistent reasons for the removal from site, in circumstances where other labour hire employees remain, doing the same job as the Applicant. [89] Further, the Applicant notes that his employment terms and conditions with the Respondent specify limited circumstances in which termination from a client site occurs being: • Under the influence of drugs/alcohol; or • theft from the host employer. [90] There are no other terms or conditions that govern removal from the site. [91] The Applicant further relies on Deputy President Asbury’s findings in Star: “[99] However, 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 contractual relationships to abrogate their responsibilities to treat employees fairly. If actions and the 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 directions of another entity in effecting the dismissal.”16 [92] The Applicant submits that the following factors of his personal or economic situation may be taken into account: • He has caring responsibilities for a 1-year-old and a 7-year-old on the weekends; • he is restricted to the types of jobs he can apply for being limited to nighttime work, due to caring for the 1-year-old during the days while the mother is at work; and -- 12 of 18 -- [2026] FWC 1818 13 • he is actively searching for alternative employment but has so far been unsuccessful. Relevant Legislation [93] Section 385 of the Act states that a person has been unfairly dismissed if: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. [94] The questions for determination are firstly whether there was a dismissal at the initiative of the Respondent, and if there was, whether the Applicant’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act. Consideration Was the dismissal harsh, unjust or unreasonable? [95] The criteria in section 387 of the Act are as follows: “387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and b) whether the person was notified of that reason; and c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and -- 13 of 18 -- [2026] FWC 1818 14 g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and h) any other matters that the FWC considers relevant.” (a) Valid reason [96] A request by a client for removal from the site is not a valid reason for dismissal. The Respondent did not make a genuine effort to find the Applicant placement at a different client site or any alternative employment whatsoever. [97] The Respondent did not explain in clear terms the reason for the Applicant’s removal from site. To the extent that the evidence indicated the client had a concern about the Applicant’s performance the evidence does not support a conclusion that the Respondent sought to explore this issue for itself. [98] As stated above the Respondent did not respond to attempts by the Applicant to obtain an explanation of the reason for his employment at Allied Pinnacle ending. The fact of another employee commencing on the night shift just prior to the termination of the Applicant tends to weigh against the Respondent’s claim that the termination was based on a reduction in workload at the site of the Respondent’s client. [99] Based on the evidence, I am satisfied the Respondent did not have a valid reason for dismissal. (b) Notification of reason [100] The evidence supports the conclusion that the Respondent failed to notify the Applicant in clear terms of the reason for his dismissal. (c) Opportunity to respond [101] The Respondent did not convene a meeting or take appropriate steps to give the Applicant an opportunity to respond to the claimed performance and conduct allegations made against him. (d) Refusal of a support person [102] The Respondent did not refuse a request from the Applicant to have a support person present for discussions relating to his dismissal, however equally the Applicant had no realistic opportunity to make such a request. (e) Whether the applicant was warned about unsatisfactory performance [103] The Applicant was not warned about unsatisfactory performance. -- 14 of 18 -- [2026] FWC 1818 15 (f) – (g) Size of enterprise and availability if human resource specialists [104] The Respondent is a large employer and has internal human resource expertise. These considerations are neutral matters. (h) Other considerations [105] The Applicant has caring responsibilities for a 1-year-old and a 7-year-old on the weekends. His loss of income has had a significant impact on him. Conclusion on Harsh, Unjust or Unreasonable [106] I have weighed each of the matters I am required to consider. I have determined there was no valid reason for dismissal and the dismissal was procedurally unfair. I am satisfied the dismissal was harsh, unjust and unreasonable. Remedy [107] The Applicant submits that reinstatement is unlikely to be a satisfactory remedy. Previous decisions of the Commission have determined the inherent difficulties of reinstating labour hire workers to a worksite, as the labour hire employer has no right to insist that their client accept the employee.17 In those circumstances, reinstatement is unlikely to be an appropriate remedy. I accept reinstatement would not be an appropriate remedy given it is not sought by the Applicant. [108] The Applicant submits that the Commission should award compensation as: • there is no indication that an award of compensation would affect the viability of the Respondent’s enterprise; • the Applicant’s length of service is 13 months; • the Applicant would have been likely to earn significant remuneration but for the dismissal and to have worked indefinitely; • the Applicant’s ability to seek alternative employment is hampered by their family and caring responsibilities. However, the Applicant has taken proactive steps in applying for multiple positions without success to date; • the Applicant has not had earnings from employment following his dismissal; • there is no basis on which to conclude that the Applicant is likely to earn substantially more remuneration in the future; • there has been no misconduct before or after the dismissal. Therefore, the Commission should not reduce any amount of compensation on account of misconduct; and • the Applicant typically earned $1,758.08 gross per week in their employment. -- 15 of 18 -- [2026] FWC 1818 16 [109] The Applicant relies upon the approach first established in Sprigg v Paul’s Licensed Festival Supermarket,18 and subsequently adopted by the Commission in Haigh v Bradken Resources Pty Ltd,19 for determining compensation the amount of compensation that should be award. This approach involves the following steps: 1. estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (first step); 2. deduct monies earned since termination (second step); 3. the remaining amount of compensation is discounted for contingencies (third step); 4. the impact of taxation is calculated to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment (fourth step); and 5. the legislative cap on compensation is applied (fifth step). [110] The Applicant submits, that regarding the first step, his employment would have continued indefinitely and the amount of money that the Applicant would have been entitled to receive in the 26 weeks before the dismissal was approximately $45,710.08 gross. The Applicant was also entitled to 12% in superannuation contributions on this sum, which would total $5,485.21. [111] The Applicant had been out of employment for 22 weeks at the time of the hearing. The facts indicate Mr Nader raised an attendance issue with the Applicant but that did not inform the termination decision. I am inclined to the view that the reason for termination was in relation to the attendance issue and not because work was not available at the host employer. I am inclined to the view that had the issue between explored properly it could have potentially been resolved. [112] The Respondent has provided minimal evidence to support its claim there was not alternative work available within the Respondent’s client base. [113] Even if the issue with Allied Pinnacle, if there was one, was not able to be resolved, the Respondent is a very large national labour hire employer and could have made far greater efforts to seek to place the Applicant in other employment. [114] The Applicant said in his witness statement that he knew two agency hires that were hired before him, and one that was hired after him, who are still working at Allied Pinnacle. The Applicant said shortly after he was dismissed by the Respondent, he saw that they had advertised the role he was previously doing at Allied Pinnacle. [115] The Applicant gave evidence the casual workers currently performing the role he used to perform, are employed by other labour hire companies and not by the Respondent. -- 16 of 18 -- [2026] FWC 1818 17 [116] The Respondent said only twice did the Applicant work 37.5 hours in the last six months of his employment, and his average hours per week was much lower than 37.5 based on its records. The Applicant gave evidence this was on account of personal leave. [117] The employment relationship was not particularly long at 13 months. It was also regular and systematic casual employment, not permanent employment. In the circumstances I assessed the remuneration that the Applicant would have received if not for the dismissal was a further eight weeks. [118] I have determined to calculate the projected remuneration lost on the basis of the hours ordinarily attached to the role, rather than based on a lower amount deducted by previous personal leave that had been accessed by the Applicant prior to termination. [119] The previous accessing of personal leave is not a reliable way to assess future remuneration. [120] $1,758.08 multiplied by 8 equals $14,064.64 cents. The Applicant should also be compensated for lost superannuation based on the amount of $14,064.64. [121] The Applicant earned no remuneration in the 8 weeks since termination, so I make no further deduction on account of other remuneration earned. There are no other no contingencies that require the amount of compensation to be discounted. [122] This amount does not exceed the compensation cap. [123] The Applicant has attempted to mitigate his loss, and no further deduction is made in relation to mitigation. Conclusion [124] I have concluded that the Respondent should pay the Applicant the sum of $14,064.64 gross, taxed according to law plus the amount of 12% superannuation calculated on that amount, into his nominated superannuation fund. Both amounts are to be paid within 14 days of the date of this decision. An order will be issued separately and concurrently with this decision to that effect. COMMISSIONER -- 17 of 18 -- [2026] FWC 1818 18 Appearances: S Gill, for the Applicant A Khanduire. for the Respondent Hearing details: 2026 Brisbane 19 May Printed by authority of the Commonwealth Government Printer <PR810163> 1 Exhibit 2. 2 Exhibit 3. 3 Exhibit 1. 4 Exhibit 4. 5 Spinifex Australia Pty Ltd t/as Spinifex Recruiting v Patrice Tait [2018] FWCFB 6267, [61] (‘Spinifex’). 6 [2023] FWC 2060 [22]. 7 (1959) 101 CLR 298, 320. 8 [2018] FWD 4991 (‘Star’). 9 [2025] FWC 78. 10 Star (n viii) [69]. 11 Tait v Spinifex Australia Pty Ltd t/as Spinifex Recruiting [2018] FWC 3686 (‘Tait 2’); Tait v Spinifex Australia Pty Ltd t/as Spinifex Recruiting [2018] FWC 1363 (‘Tait 1’), [28-30]. 12 Tait 1 (n xi) [28]-[30]; Tait 2 (n xi) [14]-[19]. 13 [2016] FWC 925. 14 Spinifex (n v) [52]-[62]. 15 [2020] FWC 66. 16 Star (n viii) [99]. 17 Ibid [110]. 18 (1998) 88 IR 21. 19 [2014] FWCFB 236. -- 18 of 18 --