Worker claims unfair dismissal over employer's failure to provide jobs
A worker recently filed a dismissal claim against his employer, alleging that he was unjustly terminated when the latter stopped offering him shifts.
The worker, Anthony Peter Mouat, filed an application before the Fair Work Commission (FWC), seeking an unfair dismissal remedy against his employer, Kelly Logistics Pty Ltd. Mouat argued that he was informed of his dismissal on 27 or 28 April 2023.
The employer is a trucking and logistics company located in Geelong, Victoria. It has around 70 employees and 30 operating trucks on a 24/7 roster. It said the worker was employed as a heavy vehicle driver and was engaged as a casual employee.
It argued that being a casual employee meant that the employer was under no obligation to provide the worker with ongoing work. Similarly, the worker was not compelled to report for duty unless he accepted a work shift offered by the employer. In March 2023, Mouat notified the employer of his unavailability for work due to medical reasons.
Around six weeks later, after his break, Mouat visited the employer's office on 21 April 2023, indicating his readiness to resume work the following week. He talked to his supervisors about the matter.
A workplace dispute then arose, caused by an incident between the worker and his co-worker. The worker said he felt threatened and raised a complaint. During their discussions, the parties disagreed, but eventually, the worker announced his intent to return to Cambodia due to a family emergency, temporarily leaving the issue unresolved.
The worker did not communicate with the employer during his overseas trip until he texted his supervisors, implying that he was waiting for the right work assignment. No further jobs were given to the worker.
Later, he requested a separation certificate, initially stating his voluntary departure. Afterward, a revised certificate indicating 'other' as the reason for separation was issued. The certificates mentioned 10 March as the worker's termination date.
According to records, the worker argued that "as the employer failed to provide him with any shifts once he was fit to return to work, he was dismissed. This is why he sought a separation certificate."
The Commission said that “as a casual employee, the [employer] was under no obligation to provide further work to the [worker] since the employment is on the basis that the [employer] makes no firm advance commitment to continuing and indefinite work.”
Additionally, it found that “this is not a case where it might be said that an employment relationship has ended where work is not offered to a casual employee over an extended period in circumstances where it is available, and the person could expect to be offered that work.”
“Here, the [worker] had not been in a position to accept any work for about 6 weeks. When he was available to accept work, the work that was offered was not accepted.”
“Having initially indicated that he would wait for his preferred work to become available, it appears that shortly thereafter, he had a change of mind. By seeking the separation certificate, [he] made clear he no longer wished to continue in an employment relationship,” it added.
Thus, the Commission said, “the employment relationship did not terminate on the [employer’s] initiative. It was the [worker] who brought the relationship to an end.”
Consequently, it dismissed the worker’s application.
