FWC decision: Worker claims she was dismissed when her hours were reduced to none
The Fair Work Commission (FWC) recently dealt with a case involving a casual worker who claimed to have been unfairly dismissed.
The worker had been with the employer for over a year, working consistent hours before her shifts were suddenly reduced to zero. She argued that she had been effectively dismissed, despite not receiving a formal termination notice.
The worker stated that she had not been given any warning that her employment was coming to an end. Instead, she was informed that she had been placed on a relief list and would only be contacted if shifts became available.
She maintained that this was not a temporary reduction in hours but rather a deliberate decision by the employer to cease offering her work.
The employer, however, asserted that the worker had not been dismissed but was simply not scheduled for shifts due to external factors affecting the business. They claimed that advising casual employees about potential reductions in work was standard practice.
A key issue in this case was whether the worker’s employment had ended at the employer’s initiative. Under section 386(1) of the Fair Work Act, a person is dismissed if their employer terminates their employment or if they resign because of the employer’s conduct.
The worker had been employed for over a year on a casual basis, usually working around 20 hours per week. Before the dispute arose, the employer had warned staff about a possible reduction in hours due to industry concerns. The worker argued that she was dismissed when her hours were reduced to zero and she was placed on a relief list.
The employer stated that the worker was not dismissed but was instead informed that there was a downturn in business.
They referred to a staff bulletin dated 15 April 2024, which stated: "Industry-wide concerns – You may already know that the number of student visas being approved has drastically reduced in the past few months. [The employer] and other schools are experiencing a drop in student numbers. This is already starting to show, and we predict that there will be cuts to classes/working hours for teachers as the year progresses."
On 18 July 2024, the employer emailed the worker, confirming that due to declining student numbers, she would not have a class to teach and was placed on a relief list. The employer noted that as of 26 July 2024, student numbers had dropped from 216 to 188, leading to the reduction of two full classes.
Later, in September 2024, the employer announced that its Scarborough campus would close in December, with staff and students relocating to a different campus.
The worker argued that the decision to remove her from the roster amounted to dismissal. She said she had not been told her hours would be reduced to zero and was not offered an opportunity to continue working in another capacity.
The employer said they had only advised the worker about the business downturn and had placed her on a relief list, meaning she could still be contacted if classes became available.
They maintained that this was not a dismissal but a standard response to fluctuating student numbers. They also argued that, as a casual employee, the worker was not entitled to guaranteed shifts.
After reviewing the evidence, the FWC found that the employer’s communication on 18 July 2024 indicated an intention to end the worker’s employment.
While the employer suggested that the worker might be contacted if a class became available, this was at their discretion and did not constitute an ongoing employment arrangement.
"The intended purpose of the email issued by [the employer] on 18 July 2024 was to communicate the end of the employment relationship," the FWC stated.
"The language used by [the employer] in the email reflects a clear intention to notify [the worker] that she would no longer be working at the business after 26 July 2024."
The FWC rejected the employer’s argument that this was only a temporary pause in shifts. It noted that the uncertainty surrounding the school’s operations and the failure to offer further shifts showed that the worker’s employment had effectively ended.
The FWC ruled that the worker had been dismissed at the employer’s initiative and rejected the employer’s jurisdictional objection.
The matter will now proceed to determine whether the dismissal was unfair and, if so, what remedy should be provided.
"I am not satisfied that [the employer] merely communicated that there were temporarily no shifts for [the worker]," the FWC said. "Instead, its communication amounts to a termination upon its own initiative."
The FWC clarifies how reductions in shifts, if not handled properly, may constitute a dismissal. The next stage of the proceedings will determine whether the worker is entitled to compensation or reinstatement.
