s.394 - Unfair dismissal

Application for relief from unfair dismissal - casual employee of labour supplier - lifting restrictions due to pregnancy - light duties provided and then withdrawn - employee placed "on hold" - was the applicant dismissed - communications and conduct of the employer - no conduct by the employer after placing the employee "on hold" that was consistent with the continuation of the employment relationship - the applicant was dismissed - no valid reason found - no procedural fairness provided - dismissal was harsh, unjust and unreasonable - remedy - utility of a reinstatement order for a casual employee of a labour hire business - reinstatement ordered - payment for remuneration lost.

• [1] On 11 June 2025 Ms Dupinder Kaur made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth), alleging that she had been unfairly dismissed from her employment with Adecco Industrial Australia Pty Ltd.

• [2] Adecco is a labour supplier and Ms Kaur was employed on a casual basis as a "pick packing associate." Despite being employed as a casual Ms Kaur consistently worked full time hours over a 7 month "assignment" in Amazon's distribution centre at Kemps Creek, Sydney.

• [3] On 25 May 2025 Ms Kaur told her employer that she was 7 weeks pregnant. Ms Kaur's shifts were placed "on hold", including shifts on which Ms Kaur was to undergo training to work in a different position. A few days later Ms Kaur worked two shifts on "light duties" and then received an SMS advising, amongst other things, that:

"... no light duties are available, and since you're not trained in other areas, we cannot place you elsewhere. After careful consideration of your safety and discussions with operations, there are no light duties to be offered, so your shifts will be put on hold."

• [4] Ms Kaur claimed that she was dismissed from her employment within two weeks of advising her employer that she was pregnant.

• [5] Adecco argued that Ms Kaur was not dismissed, that she is still employed, and that there is work available for her at the Amazon site.

• [6] For the following reasons I am satisfied that Ms Kaur was dismissed, that the dismissal was harsh, unjust and unreasonable, and that Adecco must reinstate Ms Kaur to the position it says is still available to her, with backpay.

• [7] Adecco led almost no direct evidence about the events in issue. One witness gave evidence for Adecco, Ms Madison Rea. Ms Rea is the Onsite Manager at the Amazon distribution centre and said that her role is to manage the Adecco Onsite team, including employee matters that occur at the Amazon distribution centre. Ms Rea was cross examined by Mr Singh, who is Ms Kaur's husband.

• [8] I am satisfied that under cross-examination Ms Rea was a cooperative and reliable witness who gave honest evidence regarding the matters about which she was asked. However, Ms Rea's written evidence was vague and imprecise about the events she described. Of particular concern was that Ms Rea's written statement predominantly contained Ms Rea's descriptions of conduct by others and Ms Rea's summaries of conversations she was not party to.

• [9] After Ms Kaur told Adecco that she was pregnant most, if not all, communication between Ms Kaur and Adecco was by SMS or email. The following summary of the evidence is drawn principally from Ms Kaur's evidence and the email and SMS correspondence. I have taken into account Ms Rea's direct evidence about events that she was able to speak to but have only taken into account Ms Rea's indirect evidence (of actions and conversations by others) where that indirect evidence is supported by or consistent with other direct evidence.

• [10] Ms Kaur commenced casual employment at Amazon's distribution centre in Sydney on 30 October 2024. Ms Kaur was employed on a casual basis as a "pick packing associate" which involved picking parcels, using a step ladder and scanning picked parcels.

• [11] Ms Kaur earned, she said, on average $1,426 per week.

• [12] Ms Kaur received no formal warnings or complaints during her employment.

• [13] There does appear to have been a written contract of employment between Ms Kaur and Adecco however the contract was not in evidence. Ms Kaur did receive an "Associate Welcome Kit" by email that included information about Amazon's business at its Kemps Creek distribution centre and listed Ms Kaur's "key responsibilities" including "lifting and moving products up to 20kg in weight with team lift and pallet jacks available."

• [14] Ms Rea said that Ms Kaur's assignment "mandates a lifting requirement of 12kg, requires constant lifting at this weight, and the requirement of constant bending and use of stairs."

• [15] Ms Kaur worked night shifts which, according to the Welcome Kit, start at 6:00pm or 6:30pm.

• [16] Shortly before 8:30pm on Sunday 25 May 2025, Ms Kaur advised an Adecco employee that she was pregnant. In cross-examination Ms Kaur said that she did so because "I was using the ladder that day and I [felt] dizzy. So I can't work there. That's why I told them." Ms Kaur also agreed under cross-examination that she was concerned about whether she could safely perform the role due to her pregnancy.

• [17] Ms Kaur didn't finish the rest of her shift. At approximately 8:30pm Ms Kaur sent a medical certificate to Adecco by email. The medical certificate was dated 20 May 2025 and said:

she is adv not to climb ladder /lift heavy weights"

• [18] Ms Kaur was asked to provide another medical certificate. On Monday 26 May 2025 Ms Kaur provided a second medical certificate that said:

• [19] It appears that Ms Kaur had been scheduled to undertake training on Thursday 29 May 2025 but was not allowed to do so. The training was described by Ms Kaur in later correspondence as "for Packing."

• [20] On Wednesday 28 May 2025 Ms Kaur sent an email to an Amazon employee in the following terms, attaching the medical certificate dated 26 May 2025:

Actually I just want to discuss about my shifts for this week. Last week I told Adecco team about my pregnancy and they ask me about medical certificate and last Sunday they sent me home early and hold my shift on Monday. I already provide my certificate to Adecco by email but they cancel my Thursday and Friday shifts as well. I wanna come back to work on this week and I wanna get my training for packing. I want you to talk to them about my shifts please. And please find the attached certificate."

• [21] Ms Kaur received a reply later that day from the Amazon employee:

"Thank you for the email, I have copied in Adecco consultant in the email. I suggest to please follow up with Adecco on how they can support .. I wish you all the best for this exciting journey."

• [22] Ms Kaur worked a night shift starting on Sunday 1 June 2025 on "light duties". Ms Rea said that she "rostered Ms Kaur on a light duties shift to accommodate her medical restrictions." Beyond this, there is no evidence about how Ms Kaur came to work this shift on light duties.

• [23] At 6:51pm on 1 June 2025, shortly after Ms Kaur's light duties shift started, Ms Diana Tong, whose email footer says she is a "BWU2 Onsite Consultant", sent an email to Ms Kaur in the following terms:

I have attached the COC down below for you let your Dr fill it out and return it back to us via email, Thanks."

• [24] The "COC" referred to appears to be a Certificate of Capacity document used for workers compensation purposes. Ms Rea's evidence was that "Amazon directed the Adecco Onsite Team to have Ms Kaur complete a Certificate of Capacity."

• [25] Ms Kaur worked a second night shift on light duties starting in the evening on Monday 2 June 2025.

• [26] On Tuesday 3 June 2025 Ms Kaur received a follow-up SMS at 11:23pm regarding the Certificate of Capacity:

Are you able to get your Dr to fill out the COC paperwork and bring it back with you on your next shift on Thursday. If you have any questions feel free to call us or email us if you have any questions"

• [27] The reference to Ms Kaur's "next shift on Thursday" seems to be a reference to a shift starting on Thursday evening, 5 June 2025.

• [28] On Wednesday 4 June 2025 at 10:59am Ms Kaur replied to Ms Tong's email:

I had chat with my doctor, she advised that this certificate is for injury and there is a different certificate for pregnancy related duties.

• [29] Ms Tong did not reply to Ms Kaur's email.

• [30] At 2:04am on Thursday 5 June 2025 Ms Kaur received the following by SMS from Adecco:

"Due to your lifting restrictions of "My training was due for Packing last Thursday but I was asked for medical certificate before that which I have provided and told can lift up to 10 kg

Training can be provided at this stage as well rather than saying that no work is available as I am not trained in any other department of work

Also, I was given light duty work since my last 2 shifts but now I have been told that no work is available due to my pregnancy situation which is unfair and discriminated behaviour

I informed about that so I can get support, not to get laid off from work and it is illegal to cut shifts or reduce hours after knowing that an employee is pregnant

In such circumstances, it does not matter if an employee is permanent or casual, they have same work entitlements

Please let me know if any accommodation can be done

Otherwise I have to take this matter further to Fair Work Commission"

• [33] Nobody from Adecco replied to Ms Kaur's SMS.

• [34] The next day she sent the same message by email. Nobody from Adecco replied to Ms Kaur's email either.

• [35] Ms Kaur provided evidence of her efforts to find other work outside of Adecco. That evidence showed that Ms Kaur started applying for new positions from 10 June 2025 onwards.

• [36] On Wednesday 11 June 2025 Ms Kaur made her unfair dismissal application.

• [37] There is no evidence at all, either direct or indirect evidence, of any action taken by Adecco between 5 June 2025 (after sending the SMS to Ms Kaur) and 11 June 2025.

• [38] Ms Rea said in her witness statement:

"Ms Kaur's assignment at Amazon and profile remains active to date. In addition, her medical capacity is able to be accommodated on light duties currently as confirmed by Amazon to the Onsite Team. These light duties shifts are available to Ms Kaur currently."

• [39] Under cross-examination Ms Rea clarified:

"... So we do have light duties shifts available now. We were able to get it accommodated on two shifts a week for now just because there is a lot of other associates on light duties that would take place before Ms Kaur. Unfortunately, because it's Amazon being able to give us the duties. But we wouldn't be able to get [Ms Kaur] back on site this week because [she has] been off site for a while.

So we need to make sure that everything is good to go for [Ms Kaur] to come back on site if that makes sense.

.... So we have to go to Amazon to check if there is any light duties that can be accommodated for the associate.

... we have been following up and we do have light duties available now."

• [40] Ms Kaur did find some work in June 2025 but it only lasted for 2 weeks.

• [41] Ms Kaur submitted that being told that there was no suitable work available and that there is no guarantee of work in the future (in the SMS on 5 June 2025) was a dismissal. Ms Kaur said there was no follow up by the employer after the SMS, calling into question whether Adecco was actively and genuinely looking for suitable work as it claimed.

• [42] Ms Kaur said that there was no procedural fairness or genuine exploration of alternative duties despite her ongoing willingness to work. Therefore, Ms Kaur said, there was no valid reason for dismissal and reasonable accommodations should have been explored further within a reasonable time frame.

• [43] Ms Kaur submitted that Adecco's reliance on "safety" does not excuse the failure to provide ongoing work or redeployment. The obligation under the FW Act is not simply to suspend an employee indefinitely but to genuinely explore reasonable adjustments and alternative assignments.

• [44] Pointing to the fact that Ms Kaur worked two shifts on light duties, Ms Kaur submitted that Adecco's claim that accommodation of her lifting restrictions was impossible is not supported by evidence.

• [45] Moreso, Ms Kaur said, Adecco's reliance on "active profile" status and the short period between the 5 June 2025 SMS and lodgement is misplaced and does not reflect the reality that Ms Kaur's shifts ceased indefinitely, with no genuine attempt at redeployment.

• [46] Ms Kaur submitted that the reason for the dismissal was her temporary medical restriction due to her pregnancy, which is protected under discrimination laws. It was said that it all happened after she disclosed her circumstances and that "if she was a normal active regular person she would have continued the work."

• [47] Ms Kaur said she was not given any opportunity to respond or provide alternative solutions.

• [48] Adecco said that Ms Kaur is still employed but that it has not offered her any further work because her unfair dismissal application has not resolved. Adecco said that at no time did the acts of Adecco in this matter result "directly or consequentially in the termination of the employment", referring to Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.

• [49] Adecco submitted that at no time did the "Adecco Onsite Team" refer to Ms Kaur's assignment as having ended. To the contrary, Adecco submitted that it took "proactive and positive steps to continue the employment relationship."

• [50] In the SMS on 5 June 2025 Adecco confirmed to Ms Kaur that its "priority is ensuring your safety", that "your shifts are on hold until we are able to find accommodations for you" and "if no accommodations can be found with Amazon due to your restrictions, we will try our best to get you work elsewhere".

"Central to the Respondent's Submission in this matter is that the Respondent is a labour hire agency and its employees are assigned to particular clients based on client requirements. Inherent to the nature of the Respondent's operations (and all labour hire agencies) is that employees are assigned to a particular client at one point in time and are withdrawn and reassigned to other clients from time to time whilst maintaining their employment."

• [52] Adecco submitted, without any supporting evidence, that in the "mere six (6) days" between the SMS of 5 June 2025 and the lodgment of the unfair dismissal application, "it had not yet been reasonably possible for Amazon nor Adecco to accommodate Ms Kaur's medical restrictions by securing light duties and no alternative labour assignments could have reasonably been able to be identified".

• [53] Adecco submitted that the email and SMS exchange on 3 and 4 June 2025 was evidence of engagement between Ms Kaur and Adecco about reasonable adjustments that would allow Ms Kaur to continue working safely. Adecco submitted that "there was an ongoing exchange [that] was interrupted ... days later by the unfair dismissal application."

• [54] Adecco submitted that it does not follow that Ms Kaur could lodge an application stating that she had been dismissed, yet engage in further dialogue with Adecco for further shifts shortly after receiving the SMS on 5 June 2025. Ms Kaur's decision to continue to engage with Adecco after the SMS on 5 June 2025 showed that Ms Kaur did not believe that she had been dismissed by SMS on 5 June 2025.

• [55] Adecco said that the two medical certificates provided by Ms Kaur clearly stated that Ms Kaur could not perform the role, relying on the reference to lifting up to 20kg in the Welcome Kit and also Ms Rea's evidence that Ms Kaur's assignment mandated a lifting requirement of 12kg, required constant lifting at this weight, and required constant bending and use of stairs.

• [56] Adecco's explanation for why Ms Kaur has not been offered any shifts since she made her unfair dismissal claim was:

"The shifts can be offered, but the applicant has simply stated she is being dismissed and so there would be no reason for the respondent to offer shifts. But they are sitting there waiting for the applicant and they have been this entire time. But the fact of the matter is she's brought the unfair dismissal claim and claims the relationship has ended. So I think it stands to reason that the respondent would never expect an answer, even if they were offered because the applicant states she was dismissed."

• [57] Adecco said that "it shouldn't be incumbent on an employer to offer shifts until [the allegation that Ms Kaur has been dismissed] is resolved by the Commission" and asked rhetorically why would an employer be in a feasible position to offer shifts until that allegation is resolved.

• [58] Adecco made alternate submissions that if Ms Kaur was dismissed then the dismissal was not unfair. It was said that there was a valid reason for dismissal, "being the Applicant's capacity." Adecco submitted that Ms Kaur was notified of the valid reason in the SMS on 5 June 2025, that she responded to that reason, and that there was no unreasonable refusal of a support person during any discussion to do with the dismissal.

• [59] If the Commission found that Ms Kaur was dismissed, and found that the dismissal was unfair, Adecco submitted that the Commission must consider Ms Kaur's medical capacity to perform work since the dismissal and submitted that there was "clear medical evidence that the substantive assignment could not have continued in any case [because] the applicant cannot perform and still cannot perform the role which she is allegedly being dismissed from."

Meaning of Dismissal - statutory provisions and general principles for casual employment

• [60] An "unfair dismissal" can only occur if a person has been dismissed (per s.385). Section 386 defines when a person has been dismissed and includes the following:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

• [61] Section 386(1) has two key elements that are necessarily applicable to casual employment as well as permanent employment. First, it must be established that the employment is terminated, and second, that the termination occurred on the employer's initiative, or by way of a resignation forced by the employer's conduct. In relation to this second element, see Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47]- [48], [2017] FWCFB 3941; (2017) 271 IR 245 at 268-9).

• [62] Due to the impermanence of casual employment, disputes arise from time to time about whether casual employment has been terminated at all, let alone at the initiative of the employer. As the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A Manly Fast Ferry [2018] FWCFB 7224 (Manly Fast Ferry) observed:

"[20] A casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer. Irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability are the usual manifestations of an absence of a firm advance commitment."

• [63] The Full Bench in Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709 at [8]- [13], [2010] FWAFB 5709; (2010) 198 IR 237 at 240-1 (Shortland) observed that "it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa" (at [10]). The Full Bench, when considering whether Mr Shortland had served the minimum employment period, observed that some periods of service as a casual employee might be regular, systematic and so on, and count towards the minimum employment period, and that some periods of service as a casual employee might not count (at [12]).

• [64] The analysis in Shortland is relevant for present purposes because it illustrates how casual "employment" might change from time to time as casual employees move between intermittent and regular periods of "service" during the one unbroken period of employment. Crucially, in many situations a change in employment arrangements for casual employees does not amount to dismissal if those changes are consistent with the nature of that particular casual employment.

• [65] If an employer decides that it is no longer willing to offer any more work at all to a casual employee, the employment relationship is invariably terminated by that decision. If the casual work is regular and systematic at the time, the work will stop and in most instances it is clear to all involved that the casual employee has been dismissed.

• [66] However, if the casual work is not regular and systematic at the time, and there is no expectation of any specific future work, it will not be so obvious that the employer has decided to terminate the employment relationship and that the employer has put its decision into effect.

• [67] Most employers will tell the casual employee that they will not be offered any more work, however, some employers do not. The result for the employee is the same, but it can be much harder to recognise that the dismissal has taken effect if the employer simply does not offer any further work and does not communicate their decision to the employee.

• [68] The difference between a change in an unbroken period of employment (as described in Shortland and Manly Fast Ferry) and a dismissal at the initiative of the employer is essentially a matter of fact. Determining whether a casual employee was in fact dismissed will invariably involve a close examination of the employer's conduct and communications, in the context of the particular employment arrangement.

(a) a casual employee has no firm advance commitment from the employer to continuing and indefinite work;

(b) work arrangements under an unbroken period of casual employment might change from time to time, including transitions into or out of periods of regular and systematic work;

(c) the cessation of a period of regular and systematic casual work may or may not end the employment relationship; and

(d) identifying whether a casual employee was in fact dismissed will invariably involve a close examination of the employer's conduct and communications, in the context of the particular employment arrangement.

Adecco's Submissions, Direct Evidence and Indirect Evidence

• [70] The Commission is an administrative tribunal that is not bound by the rules of evidence (s.591). The Commission can be flexible in how it conducts matters (s.577) and how it informs itself about matters in dispute (s.590). However the Commission must act judiciously and afford parties a fair hearing. As a matter of fairness, factual disputes cannot be decided on untestable assertions or by submissions that are not supported by objectively testable evidence.

• [71] The direct evidence from Ms Rea on Adecco's behalf was very narrow in scope. The indirect "evidence" provided by Ms Rea (about the actions and conversations of other unnamed people) was vague and untestable.

• [72] Many of the submissions made on Adecco's behalf were not supported by testable evidence at all. For example, Adecco submitted that "the only reason for a 'hold' on the Applicant's shifts [on 5 June 2025] was that it remained unsafe for the Applicant to continue in her assigned duties based on the medical evidence provided by her." Noting that Ms Kaur had worked light duties under exactly the same medical restrictions on 1 and 2 June 2025, there was no testable evidence at all to support Adecco's submission. There was no evidence of, for example:

(a) the identity of the person who decided to place a 'hold' on Ms Kaur's shifts on 5 June 2025; or

(b) the information available to the person who decided to apply the 'hold'; or

(c) the decision maker's reasons for placing Ms Kaur on 'hold'; or

(d) the availability of light duties at that time; or

(e) the availability of light duties in the foreseeable future, particularly given that light duties had been available, and so on.

• [73] Ms Rea's witness statement included indirect summaries of conversations between other people, some of whom appear to be members of the "Adecco Onsite team" that Ms Rea manages. Adecco could have led direct evidence from members of the "Adecco Onsite team", but chose not to.

• [74] There must be an appropriate evidentiary basis for the Commission's findings about whether Ms Kaur was dismissed. The employer maintains that the applicant was not dismissed and that she remains employed. The employer bears the burden to provide the appropriate evidentiary basis upon which the Commission can be satisfied that the applicant is still employed, because the employer carries the risk of failure if the Commission is not satisfied (per Teterin v Resource Pacific Pty Ltd [2014] FWCFB 4125 at [25]- [29], [2014] FWCFB 4125; (2014) 244 IR 252 at 262-263 and Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Chan [2019] FWCFB 5104 at [43]).

• [75] Ms Kaur was employed on a casual basis by a labour supply company. Ms Kaur regularly worked full-time hours for the same host client at the same location. At a particular point in time the regular hours at the host client reduced to zero. In identifying whether Ms Kaur was dismissed it is necessary to consider the following matters:

(a) the nature of the particular employment relationship, including whether the regularity of the work did change or could change from time to time;

(b) the terms of the employment contract at the time of the alleged dismissal;

(c) the events that led to the reduction or change in the hours of work, including the conduct of the parties and communication between the parties;

(d) whether the conduct and/or communication of the parties was consistent with the nature of the employment relationship and the terms of the contract of employment; and

(e) whether the employer's conduct and/or communication was consistent with the continuation of the employment relationship.

• [76] Ms Kaur worked at Amazon's premises for seven months without significant breaks in service. However it is clear from the evidence that Ms Kaur's hours of work at Amazon's premises were determined by Amazon. There was no direct evidence about the arrangement between Amazon and Adecco but I have assumed that:

(a) Ms Kaur could only work at Amazon's premises with Amazon's approval. If Amazon decided that Ms Kaur could no longer work at its premises then Adecco had no discretion to offer work to Ms Kaur at Amazon's site; and

(b) even if Amazon was content for Ms Kaur to work at its premises, Adecco retained a discretion to not offer Ms Kaur work at the premises.

• [77] There is no evidence of Amazon's preparedness in May and June 2025 to allow Ms Kaur to work at its premises on an ongoing basis after she announced that she was pregnant.

• [78] In her witness statement Ms Rea said:

"At 2:00am on 5 June 2025, following discussions between the Adecco Onsite Team and Amazon, Amazon directed the Adecco Onsite Team to advise Ms Kaur that that Amazon could not accommodate Ms Kaur's medical restrictions by providing light duties when she was next rostered."

• [79] This paragraph provides no direct evidence at all, and I have not given it any weight in my deliberations. I have reproduced the paragraph because the words "when she was next rostered" raise important questions about the availability of suitable duties.

• [80] The most that can be said from this 'evidence', if anything can be said at all, is that somebody at Amazon told somebody at Adecco that Amazon could not provide light duties for the one shift that Ms Kaur was due to start on 5 June 2025.

• [81] There is evidence that Amazon had light duties available for Ms Kaur from an unspecified point in time after she made her unfair dismissal claim.

• [82] In the context of the employment relationship between Ms Kaur and Adecco, I am satisfied that from October 2024 until late May 2025 Amazon was content for Ms Kaur to work at its premises on a regular, systematic and ongoing basis. Ms Kaur was entitled to have a reasonable expectation of ongoing work at Amazon's premises.

• [83] I am satisfied that after Ms Kaur advised Adecco and Amazon that she was pregnant and that she had certain medical restrictions, Ms Kaur's work at Amazon was not as certain or as predictable as it was before Amazon knew that she was pregnant.

• [84] I am not satisfied that on 5 June 2025 Amazon had withdrawn its approval for Ms Kaur to work at its premises indefinitely. In the context of the employment relationship, and on the evidence provided, I am not satisfied that Adecco had a proper basis to place Ms Kaur 'on hold' indefinitely on that day.

• [85] Recognising from Shortland that casual employment might change from time to time within the one unbroken period of employment, Adecco's decision to place Ms Kaur on hold indefinitely on 5 June 2025 was not consistent with maintaining an unbroken period of employment.

• [86] In general terms, if a particular change or drop in casual hours is permitted by the contract of employment, it is less likely that such a change will terminate the employment.

• [87] There was a reference in the cross examination of Ms Rea to a written contract of employment between Ms Kaur and Adecco. Ms Rea said she had seen the contract. The written contact was not tendered in evidence.

• [88] The SMS sent to Ms Kaur on 5 June 2025 included these words:

"... As you are a casual employee, there are also no guarantee of work and no obligations to provide you with shifts. If no accommodations can be found with Amazon due to your restrictions, we will try our best to get you work elsewhere, however we cannot guarantee you anything. ..."

• [89] Adecco could have tendered the written contract of employment but chose not to do so. In the circumstances I will assess the words of the SMS of 5 June 2025 according to their ordinary meaning and I will not infer that the terms of the written contract allow Adecco to place Ms Kaur on hold indefinitely. I am not prepared to assume that these words accurately describe the contractual terms between Ms Kaur and Adecco or that the SMS was consistent with the contract of employment. There is no evidence about who sent or who authorised the SMS, whether the person who authorised the SMS had any knowledge of the terms of any employment contract with Ms Kaur or the like.

• [90] The text messages on 25 May 2025 and 5 June 2025 refer to putting Ms Kaur's shifts "on hold." There is no evidence about whether Ms Kaur's contract of employment allows Adecco to place Ms Kaur's hours, shifts or even employment "on hold", nor is there any evidence of the legal consequences for the contract of employment or the employment relationship if Ms Kaur's shifts are put on hold.

The events that led to the reduction in hours of work

• [91] The SMS and emails between Ms Kaur and Adecco were in evidence and have been reproduced above.

• [92] The absence of direct evidence from Adecco about the events leading up to the SMS of 5 June 2025 has made it difficult to closely assess the employer's conduct. Very little direct evidence was provided about Adecco's dealings with its client, or the conduct of Adecco's managers and decision maker(s).

• [93] Ms Kaur was able to do some work at Amazon's premises in her role as a "pick packing associate" within her medical restrictions. Amazon allowed Ms Kaur to do some work within those medical restrictions. Ms Kaur was scheduled to undertake training to work as a packer, but that training was withdrawn when Ms Kaur indicated that she was pregnant.
• [94] The availability of light duties and the possibility that Ms Kaur could retrain to do packing work were important features of the exchanges leading up to the SMS of 5 June and Adecco placing Ms Kaur's employment on hold indefinitely.

• [95] Crucially, there was very little evidence about the availability of duties that were within Ms Kaur's medical restrictions and there was very little evidence about training.

• [96] Ms Kaur provided a medical certificate dated 26 May 2025 that advised that she was not to lift weights heavier than 5 kg (see [18] above). On 1 June 2025 Amazon and Adecco asked for a Certificate of Capacity, which Ms Kaur tried to obtain from her doctor. Ms Kaur was cooperative and sent a clarifying email to Adecco on 4 June 2025 asking Adecco to provide a different form for her doctor to complete. Adecco did not provide another form to Ms Kaur or respond to her request.

• [97] Ms Kaur worked two shifts on "light duties" that Ms Rea rostered for her. Presumably those duties were within Ms Kaur's restrictions, and the shifts were worked with Amazon's approval.

• [98] It is clear in the evidence that after receiving the SMS on 5 June 2025 Ms Kaur politely but firmly pushed back on the information that she had been given by Adecco (see [32] above). Ms Kaur pointed out that Adecco could have followed through with training her for other duties "rather than saying that no work is available", which is a reference to training that was already scheduled but was immediately withdrawn when Ms Kaur announced that she was pregnant. In her response Ms Kaur also identified the inconsistency in the information provided by Adecco about light duties, being that Adecco said without any explanation at all that "due to your lifting restrictions of "... After careful consideration of your safety and discussions with operations, there are no light duties to be offered."

• [111] The SMS also announced with finality that light duties were no longer an option, asserting that:

"... efforts were made to find a solution, but your restriction, combined with only having P2R training, limits available options. Unfortunately, no light duties are available, and since you're not trained in other areas, we cannot place you elsewhere."

• [112] Ms Kaur pushed back the next day by SMS and email, referring to being "laid off" and that "no work is available". If there was any doubt about the finality of Adecco's SMS, Adecco did not correct Ms Kaur's characterisations at all.

• [113] The words used in Adecco's SMS, Adecco's election not to correct Ms Kaur's complaint about being laid off, and the fact that Adecco took no steps after 5 June 2025 that were consistent with the continuance of the employment relationship, are all consistent with someone at Adecco deciding to dismiss Ms Kaur on 5 June 2025.

• [114] The balance of the SMS, in which Adecco said its priority is to ensure Ms Kaur's safety and would "try our best to support you" and so on, is a mixture of people and culture puffery and lawyerly disclaimers that there is "no guarantee of work" and that "we cannot guarantee you anything." The form of the SMS said that Ms Kaur's shifts were "on hold", but the substance of the SMS was that Ms Kaur's employment was on hold from 5 June 2025 until the 12th of Never.

• [115] In the circumstances I am satisfied that Ms Kaur was dismissed on 5 June 2025.

• [116] In determining whether Ms Kaur's dismissal was harsh, unjust or unreasonable, s.387 of the Act requires me to take into account the following matters:

(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

(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.

Was there a valid reason for the dismissal related to the Applicant's capacity or conduct (s.387(a))?

• [117] To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. In assessing the validity of the reason(s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would have done in the same position.

• [118] The test is whether, on the evidence before the Commission, there was a valid reason for dismissal connected with the employee's capacity or conduct. In this matter there was simply no valid reason to dismiss Ms Kaur on 5 June 2025.

• [119] Adecco's alternate submission was that if Ms Kaur was dismissed then there was a valid reason for dismissal, "being the Applicant's capacity." I do not accept this submission. In the week before she was dismissed Ms Kaur worked two shifts on light duties. Ms Kaur's capacity on 5 June 2025, presumably meaning her incapacity to lift more than 5 kilograms, was not a valid reason for dismissal.

• [120] No other reason for dismissal was proffered by Adecco.

Was the Applicant notified of the valid reason (s.387(b))?

• [121] Because I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances (per Read v Cordon Square Child Care Centre [2013] FWCFB 762 at [46]- [49]).

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct (s.387(c))?

• [122] The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.

• [123] This factor is similarly not strictly relevant to the present circumstances because I have not found that there was a valid reason related to dismissal.

• [124] Adecco's direction that Ms Kaur provide a medical certificate using a workers compensation form was not an opportunity to respond to Adecco's concerns. Ms Kaur tried to comply with the direction but her GP, quite correctly, identified the unreasonableness of Adecco's request.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal (s.387(d))?

• [125] This factor is not a relevant consideration in this matter.

Was the Applicant warned about unsatisfactory performance before the dismissal (s.387(e))?

• [126] This factor is not a relevant consideration in this matter.

• [127] Adecco did not have discussions with Ms Kaur relating to the dismissal or the reason for her dismissal. The parties communicated by SMS or email and so the absence of a support person in these communications (s.387(d)) did not affect the fairness of the dismissal in this matter.

• [128] As the dismissal did not relate to unsatisfactory performance, the fact that Ms Kaur was not warned about unsatisfactory performance (s.387(e)) did not affect the fairness of the dismissal.

• [129] Similarly, the size of Adecco's enterprise (s.387(f)) and the availability of dedicated human resource management expertise (s.387(g)) do not affect the fairness of the dismissal.

• [130] There are no other relevant matters (s.387(h)) that impact upon the fairness of the dismissal of Ms Kaur.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

• [131] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.

• [132] The following key findings can be made from the direct evidence led by Ms Kaur and Adecco:

(a) Ms Kaur worked full time hours as a casual employee until she told Adecco that she was pregnant;

(b) at the time Ms Kaur told Adecco that she was pregnant she was subject to certain lifting and other restrictions;

(c) thereafter Ms Kaur's shifts were cancelled, including scheduled training shifts that would have allowed Ms Kaur to perform different duties;

(d) Ms Kaur was offered and worked two shifts on "light duties";

(e) three days later somebody employed by Adecco decided that light duties would no longer be offered to Ms Kaur. There is no evidence of any circumstances having changed in the intervening days;

(f) on or before 5 June 2025 somebody from Adecco decided to terminate the employment relationship between Adecco and Ms Kaur;

(g) on 5 June 2025 somebody from Adecco drafted and/or authorised an SMS to be sent to Ms Kaur that advised "there are no light duties to be offered, so your shifts will be put on hold";

(h) the SMS sent on 5 June 2025 put Adecco's decision to terminate the employment relationship into effect;

(i) nobody from Adecco took any action between 5 June 2025 and 11 June 2025 that was consistent with Ms Kaur still being employed by Adecco;

(j) Ms Kaur has not been offered any work for Adecco since 2 June 2025;

(k) Ms Kaur pushed back by SMS and email and raised legitimate challenges to the logic, the legality and the fairness of Adecco's decision to lay her off and/or to place her employment "on hold";

(l) Adecco did not respond at all to Ms Kaur's SMS or email;

(m) the position and identity of the person who made the decision to terminate the employment relationship was not the subject of any evidence. The decision maker's reasons were not in evidence; and

(n) the consequences for Ms Kaur were significant - Ms Kaur began looking for alternate work within a few days after 5 June 2025.

• [133] There was no evidence of any objectively valid reason to terminate Ms Kaur's employment on 5 June 2025.

• [134] Ms Kaur was not afforded any procedural fairness.

• [135] It is plainly evident from the findings above that the dismissal of Ms Kaur by Adecco was harsh, unjust and unreasonable.

• [136] Being satisfied that Ms Kaur made an application for an order granting a remedy under section 394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of section 385 of the FW Act, I may order Ms Kaur's reinstatement, or the payment of compensation to Ms Kaur, subject to the FW Act.

• [137] The Commission must perform its functions and exercise its power in a manner that is fair and just and promotes harmonious and co-operative workplace relations (per s.577 of the FW Act) and must take into account the objects of the FW Act, and equity, good conscience and the merits of the matter. The power to order reinstatement is "a very drastic one" (per Slonim v Fellows [1984] HCA 51; (1984) 154 CLR 505 at 515, [1984] HCA 51, cited in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 at 548, [2005] HCA 22 at [28] (Blackadder)). As the High Court observed in Blackadder, such an order is an intrusion into the personal relationship of employer and employee, and an intrusion that is "deliberate and envisioned by the Act" (at [28]).

• [138] As the Full Court in Perkins v Grace Worldwide Australia Pty Ltd [1997] IRCA 15; (1997) 72 IR 186 at 190, [1997] IRCA 15 observed, the employment relationship is capable of withstanding some friction and doubts:

"Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party."

• [139] In some circumstances there might be a concern about the utility of an order that reinstates a casual employee into a labour hire business, particularly when the availability of work is at the discretion of the employer's client.

• [140] Section 391 gives the Commission power to order that a dismissed employee be reinstated to their "position." In Blackadder the High Court considered the term "position" in the context of reinstatement orders. Justice McHugh observed that the terms "position" and "another position" demonstrate that reinstatement orders are concerned with more than reinstating the contract of employment and its terms and conditions, and are concerned with the duties and working conditions of the occupation as well as the contractual rights and duties attached to it (at [13]). His Honour found that the power to reinstate empowers the Commission to do more than restore the contractual terms, it requires that, so far as practicable that the employee is to be given their "job" back (at [14]).

• [141] Reinstatement orders are civil remedy provisions (see s.405 and s.539(2) - Item 13). A contravention of a reinstatement order by an employer could attract an injunction, a compensation order (s.545) and/or pecuniary penalty order (s.546). Similarly, orders could be made against a person who has aided, abetted, counselled or procured a contravention of a reinstatement order (see s.550).

• [142] At the time Ms Kaur was dismissed she had regular and systematic work at Amazon's premises. When subject to lifting restrictions, Ms Kaur was nonetheless offered work on "light duties" as and when such duties were available. An order under s.391 would require Adecco to return Ms Kaur to her position by, in the words of Justice McHugh, giving Ms Kaur her job back. The enforcement provisions of the Act, referred to above, are designed to ensure that Adecco and/or Amazon do not confound the effect of the order by improperly withholding available work.

• [143] Taking all these matters into account I find that it would be appropriate to order that Ms Kaur be reinstated to her former position pursuant to s.391 of the FW Act.

• [144] Further, it is appropriate to make an order that maintains the continuity of Ms Kaur's employment (per s.391(2)(a)) and to make an order that Adecco pay to Ms Kaur an amount for the remuneration lost by Ms Kaur because of the dismissal (per s.391(3)).

• [145] In making an order under s.391(3) I am required by s.391(4) to consider:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

• [146] An order to restore lost pay pursuant to s.391(3) is a discretionary one and the Commission may take into account all of the circumstances of the case, including the conduct of the employee that led to the dismissal (see Humphries v Buslink Vivo Pty Ltd [2015] FWC 6278 citing Kenley v JB Hi Fi, Print S7235 at [36]).

• [147] In light of the above, I will make an order that Adecco pay $14,830.40 less taxation as required by law to Ms Kaur for the remuneration lost by Ms Kaur, plus an additional component for superannuation. This amount has been calculated as follows:

(a) Ms Kaur was dismissed on 5 June 2025;

(b) Adecco must reinstate Ms Kaur by no later than 19 December 2025;

(c) by 19 December 2025 Ms Kaur will have been out of work for 28 weeks;

(d) Ms Kaur worked for 2 weeks for another employer;

(e) there is no other basis to discount the payment for lost wages;

(f) Ms Kaur's uncontradicted evidence was that she earned an average of $1,426 per week, being $285.20 per shift;

(g) Adecco led evidence that work has been available for Ms Kaur at Amazon for "two shifts a week for now";

(h) the remuneration Ms Kaur was reasonably likely to earn during the period she was out of work is 26 weeks' pay (being 28 weeks minus the two weeks she worked for somebody else) at 2 shifts per week, being 26 x $285.20 x 2.

• [148] I make the following orders:
  1. Adecco Industrial Australia Pty Ltd must reinstate Ms Kaur to her position in which she was employed immediately before her dismissal on 5 June 2025.
  2. Adecco Industrial Australia Pty Ltd must reinstate Ms Kaur by no later than 19 December 2025.
  3. Adecco Industrial Australia Pty Ltd must treat Ms Kaur's employment as continuous notwithstanding the dismissal on 5 June 2025.
  4. Adecco Industrial Australia Pty Ltd must pay remuneration lost by Ms Kaur, being $14,830.40 less tax, plus superannuation.

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