employment law labour hire unfair dismissal?

Question

Hi Y'all, I have a Q bout unfair dismissal, and contracts...
See, my partner, she's been sacked from her job, for nothing really, far lower than gross misconduct.
No problem proving that...
But she's been working through a labour hire company.
But wait, there's more...
She applied for the job 6 months ago, and they contacted her and offered her the job.
The company she was working for, in a similar role was closing down, and she would have recieved a redundancy about $16k.
She was not interested in contract work, only full time permanent positions.
So the company contacted her, offered her employment, but said she has to do the first 3 months through a labour hire company. then the position would become permanent.
She did 4 months, then was subjected to an informal performance review, then sacked a week later.
The mananger that did the deed was very sorry, offered her references, said she'd done such  a good job, even offered her work on a different shift. That does not spell gross misconduct to me, but anyway.
My question is If the company initially offered her employment, is that not a binding contract, albiet oral, and deferring to labour hire is just a defacto probationary period, which elapsed anyway.
The way I see it, they formed an employment relationship with her, offering her the employment.
I believe there's a case to answer here. the usual definiton of labour hire is set term or temporary, with no expectation of ongoing employment. However that's not the case here...
I tink t's wrong that companies continue to use labour hire companies in lieu of a probationary period, a situation which is open to abuse, bullying and harrassment...
I want to take them to the Industrial relations, but first want some opinions on the above.
Did the company actually form a contract when they offered her employment?

rosagallica2002 · Accepted Answer

I think you're absolutely correct  in everything you suspect. 

In this country, we call what you are describing "bait and switch".  They offer a position and contract, but because the contract is not in writing and the time she worked was as a "temp" (through a "hire company" or an agency), it doesn't "count" as time as a true employee of the company, meaning technically, once she is "really" hired, she is still technically on probation and can be fired at will during the probationary period.  The threat to "fire her" sounds like it was simply a ploy to get her to take a less attractive position and shift.  If she wasn't good enough to work in the position for which she was hired, why is it that she's good enough for a less attractive position -- unless this was their goal all along??

If she does not have a written contract, she probably has little recourse unless this has been done to several employees and she can get them to complain with her.  Oral contracts are binding but almost impossible to prove.  They are not going to sit there and admit what they've done.  However, if this is a widespread problem in that company, and if there is a labor union involved, either a lawyer or a union representative might be able to help.  

She has nothing to lose by complaining if she plans to leave and not accept the other job, but if she is desperate for work and really wants the other position, there are other considerations.  In the US, she would be protected from retaliation by our "whistleblowers" legislation.  If she does plan to stay but really wants her original position, she should speak with an attorney first and understand the laws involved and what her rights before she jumps into a battle with a company that probably can afford a legal battle a lot better than she can.

If this is something that can be corrected with legislation, she might contact the legislators in your area.

Jack · Answer

There are many implications to what you have mentioned. So far as the labour hire part is concerned, the oral contract will be very difficult to prove as the company will definitely not admit it. Since she worked through a labour hire agency, she will not be deemed to be a permanent employee of the company and can be fired any time. 
However, she should approach a union representative and if there are a number of similar cases involving the company a case of unfair labour practice can be made out. But before anything, ask her to meet a lawyer and find out how strong her case is. Remember, the company will be better prepared in a protracted legal battle in terms of resources to stay the full course.

employment law labour hire unfair dismissal?

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