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Kool v Adecco Industrial Pty Ltd T/A Adecco

Kool v Adecco Industrial Pty Ltd T/A Adecco

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Case Copied 17 February 2016 46 min read

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[2016] FWC 925

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Jayleen Kool
v
Adecco Industrial Pty Ltd T/A Adecco
(U2015/4381)
DEPUTY PRESIDENT ASBURY	BRISBANE, 17 FEBRUARY 2016
Application for relief from unfair dismissal.

1. BACKGROUND

[1] Ms Jayleen Kool applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair

dismissal remedy with respect to her alleged dismissal by Adecco Australia Pty Ltd T/A

Adecco (Adecco). Adecco is a labour hire business that provides labour to its clients in

various industries, including the food manufacturing industry.

[2] Ms Kool initiated contact with Adecco on 18 October 2012 with a view to undertaking

work for its clients. On 22 October 2012, Ms Kool was assigned to work for one of Adecco’s

clients – Nestle Chalet Patisserie (Nestle). Ms Kool worked at the Nestle site from this time

until 11 March 2015. Ms Kool asserts that she was unfairly dismissed because she worked at

least 38 hours per week at the Nestle site for two years and five months without any issues

being raised in relation to her conduct and work performance. Ms Kool contends that she was

removed from that site without any warning or valid reason, at the request of Nestle’s site

manager, because of issues involving other employees in which she had no involvement. Ms

Kool further asserts that no real efforts were made by Adecco to place her in another position

after her removal from the Nestle site.

[3] Adecco objects to Ms Kool’s application on the basis that she has not been dismissed.

The objection, as articulated in Adecco’s Form F3 Response to Ms Kool’s application, was

that Ms Kool’s assignment at the Nestle site ended but Ms Kool continued to be employed by

Adecco, evidenced by the fact that she was offered and accepted further assignments with

other Adecco clients after her Nestle assignment ended. Adecco contended that Ms Kool’s

application should be dismissed and that Ms Kool should be ordered to pay its costs in

relation to her application.

[4] Ms Kool’s application for an unfair dismissal remedy was made within the period

required in subsection 394(2) of the Act. No other jurisdictional issues arise. Ms Kool is a

person protected from unfair dismissal as defined in s.382 of the Act. Adecco is not a small

business employer and the dismissal was not a case of genuine redundancy. The matter was
[2016] FWC 925

listed and dealt with on the basis that the hearing would encompass both the jurisdictional

objection raised by Adecco and the substantive question of whether, if the jurisdictional

objection was dismissed, Ms Kool was unfairly dismissed. A hearing was conducted on the

basis that it was considered that this was the appropriate course, having taken into account the

matters set out in s.399 of the Act and the views of the parties.

[5] Ms Kool was represented by her mother, Ms Pam Kool, who on behalf of her daughter

was involved in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 925
Decision Date: 17 February 2016

CaseChat Overview and Summary

In the matter of Kool v Adecco Industrial Pty Ltd T/A Adecco, the court was required to determine whether the applicant, Ms Kool, had been unfairly dismissed by the respondent, Adecco Industrial Pty Ltd. The primary issue was whether Ms Kool had been dismissed, and if so, whether the dismissal was unfair. The court found that Ms Kool had been dismissed and that the dismissal was unfair. Ms Kool had been assigned to work at a Nestle site by Adecco, a labour hire business. After working there for two years and five months, Ms Kool was removed from the site by Adecco at the request of Nestle management, who alleged misconduct related to clocking off. Adecco did not provide evidence to show that Ms Kool had accepted the terms of her employment, which included the possibility of being removed from a site without notice. The court found that Ms Kool's removal from the Nestle site constituted dismissal, as her long-term placement was terminated due to allegations of misconduct. The court also found that the dismissal was unfair, as there was no valid reason for the dismissal, and Ms Kool was not given an opportunity to respond to the allegations against her. Additionally, Adecco failed to make reasonable efforts to find alternative work for Ms Kool after her removal from the Nestle site.

Orders