FWC looks as case involving manager who says she was pushed out of job without proper explanation
The Fair Work Commission (FWC) recently dealt with a case involving a small business hotel in Western Australia and a worker who claimed unfair dismissal.
The worker argued that her shifts were drastically reduced without proper explanation, and that she was effectively pushed out of her job.
She pointed to a series of events, including meetings about her performance and sudden changes to her roster, as evidence of the employer's intention to end her employment. The employer, on the other hand, maintained that the worker had resigned voluntarily.
From bartender to duty manager
The worker started at the hotel in February 2022 as a bartender, quickly moving into a duty manager role. She initially worked on a casual basis, converted to part-time in December 2022, but then reverted to casual status in July 2023 at the employer's request. Evidence showed she typically worked 25-30 hours per week.
In February 2024, the hotel received fines from the Liquor Enforcement Unit. One fine related to the worker's failure to file an incident report months earlier when she was the approved manager on shift. This led to a meeting where the worker accepted responsibility and apologised for the oversight.
A week later, a second meeting took place. The hotel owner accused the worker of gossiping about her personal life with customers. The worker denied this, and the meeting ended with an agreement that there should be no discussion of the owner's personal life.
Sudden shift reductions and job ads
Following these meetings, the worker's shifts were drastically reduced. Text messages revealed that management had instructed:
"[The worker]'s shift will need to be cancelled and replaced with [another employee] or someone else, she can still work the Sunday but no other days moving forward..."
Despite the employer claiming this was due to a business downturn, the hotel posted job advertisements for similar positions. One ad, posted on Facebook, stated that 30+ hours were available for bar staff.
In April 2024, the situation escalated when the employer asked the worker to return her keys to the premises. This led to the following exchange:
"[The employer]: Hi [worker]. Are you able to return the pub keys please. Thank you
[The worker]: Am I fired? Just curious
[The employer]: Just need them back as I am s[h]ort"
Is it dismissal?
The FWC determined that the employer had dismissed the worker. The Commissioner rejected the employer's claim that they only wanted a spare set of keys, finding this explanation unconvincing.
The decision emphasised that for casual employees, a significant reduction in hours can amount to dismissal:
"It is well-established that a reduction in hours or pay for a casual employee can constitute termination of employment at [the employer]'s initiative."
The FWC also noted that even if the worker had resigned, it would have been considered a "forced" resignation under the Fair Work Act:
"The test for a 'forced' resignation under the second limb of s 386(1) is whether [the employer] engaged in the alleged conduct with the intention of ending the employment or whether termination of employment was the probable result of [the employer]'s conduct because [the worker] had no effective or real choice but to resign."
This decision serves as a reminder for businesses about the importance of clear communication and proper procedures when making changes to casual employees' work arrangements.
