Worker claims they were also removed from employer's scheduling app
The Fair Work Commission (FWC) recently dealt with a case where a casual worker argued that the sudden removal of his regular shifts and access to the workplace scheduling system amounted to dismissal.
The worker said his employer effectively ended his employment by stopping his shifts without explanation and removing his access to the workplace scheduling app.
The employer disagreed, saying operational needs and reduced business led to the changes. The case raised questions about casual employment rights and what actions could constitute dismissal.
The dispute arose at a children's acrobatic and parkour coaching business in Melbourne that employed 14-16 staff members, mostly casual workers except for two permanent employees. The majority of staff were young adults attending school or university, with three employees over 40.
The worker started as a casual acrobatic coach in February 2024, covered by the Fitness Industry Award 2020 at $28.26 per hour. When he started, he told the director and business manager he could only work Tuesdays and Wednesdays due to other job commitments. While the director never promised weekly shifts, the business typically gave coaches 1-2 shifts weekly when possible.
After his initial training period of working one shift per week, the worker began working two regular shifts weekly. He said he later told the director he could work additional shifts, including during holiday programs.
However, both the director and business manager maintained they only remembered him saying he was available anytime on Tuesdays and Wednesdays.
Problems began in late July 2024 when the director took over a senior coach role on Tuesday and Wednesday evenings. The director said this change allowed him to train junior coaches, and cited reduced student numbers as another factor in changing shift arrangements.
The worker first noticed his scheduled shifts had disappeared from the roster. His concerns were evident in his message to the director:
"[The worker] sent a follow up message to [the director] at 9.55pm on 6 August 2024 in the following terms: 'Look...I don't mean to possibly sound rude or pushy here but the fact that I have gone from two set shifts a week where we were considering upping the hours as well to nothing all of sudden is concerning. So have I basically lost my job or will I be getting shifts in the coming weeks?'"
The director's response was delayed and unclear, stating: "If work is available casuals get work if required to have more hours they get more hours. At this stage, I don't have any work for you on a Tuesday and a Wednesday. That may not always be the case."
The situation escalated in August 2024 when the worker found he could no longer access the Deputy rostering app. The business manager said she removed several inactive users to reduce costs, as Deputy charged per user.
The July invoice showed 34 registered employees at $8 each, while August's invoice listed 30 employees at $5.50 each.
During the hearing, the business manager could not identify any other available workers who had been removed from Deputy during this period.
She acknowledged that removing the worker's access without communication "was a mistake and apt to create an impression in [the worker's] mind that his employment was at risk."
The FWC considered several factors in determining whether a dismissal had occurred. While accepting some operational reasons existed for the shift changes, the Commission noted:
"While no documentary evidence was provided, I accept that student numbers were down as [the worker] also confirmed that had been the case in the weeks prior to his loss of shifts. That said, there was no evidence of the actual reduction in student numbers and how that had more broadly impacted on the availability of shifts for [the employer's] casual employees."
The Commission found the lack of communication significant:
"[The director's] failure to explain this to [the worker] prior to the removal of [the worker's] rostered shifts lends weight to [the worker's] belief that he had been dismissed, particularly in circumstances where he had been consistently working Tuesday and Wednesday evenings for several months."
The FWC ultimately found that the employer's actions effectively ended the employment relationship. The Commission concluded:
"[The employer] made clear to [the worker] that no further shifts would be offered to him...by removing [the worker's] rostered shifts without prior notice or explanation after he had consistently worked those shifts for several months, by removing his access to the Deputy rostering app without prior notice or explanation, and through the inaccurate and delayed responses...to [the worker's] employment status concerns."
