Payslips without work: FWC decides on worker's unfair dismissal claim
The Fair Work Commission (FWC) recently dealt with a jurisdictional objection in an unfair dismissal case that explores the boundaries of casual employment relationships.
A worker challenged his apparent dismissal, arguing he had been "stood down" rather than terminated. He pointed to the fact that his employer continued to send him weekly payslips showing zero hours for months after his last shift, which he believed indicated an ongoing employment relationship.
The worker also claimed he was singled out when no shifts were offered to him, while other workers, including visa holders, continued to receive work assignments. He maintained that "ample work" should have been available to him during this period.
The worker filed an unfair dismissal application on 1 November 2024, claiming he was dismissed by his employer on 16 October 2024, based on his final payslip. The employer, Isologics Pty Ltd, argued the worker was not dismissed, and alternatively, if found to have been dismissed, his last day of work was 14 March 2024, making his application late.
The employment contract stated the worker was employed "on a casual basis" with "no guarantee of regular or ongoing work." It specifically noted that even if the worker might "work a substantial number of hours and/or have a regular pattern of work," this would not create "any expectation of ongoing work."
A key clause stated: "Each occasion that you work for the Company will be a separate contract of employment (in the same form as this Contract) which ceases at the end of each engagement and stands on its own." This provision became central to the FWC's decision.
The worker's last shift was on 14 March 2024. The employer was experiencing delivery delays, and a supervisor informed the worker via text message that he would not be needed for upcoming shifts. Despite not working, the worker continued to receive weekly payslips showing zero hours worked until October 2024.
The worker argued he had been "stood down" rather than dismissed in March 2024, and that the continuous issuing of payslips indicated the employer considered him still employed until October.
In his submission to the FWC, the worker stated: "To state it was just in incompetence of pay roll or it pay roll programming system does not absolve the companies of there responsibilities. There actions resulted when the application was made."
The worker pointed to an Employment Separation Certificate dated 31 October 2024 that listed the reason for separation as "resignation," arguing that the employer was "playing it off as [resignation]" despite never having resigned. He also noted that the employer's People and Culture Manager made no mention of resignation in her statement, which he took as confirmation that he had not resigned nor was considered to have resigned.
The employer cited several legal precedents regarding casual employment, including the case of City of Sydney RSL v Balgowan, where the Full Bench had overturned a finding of dismissal in a case involving the reduction of casual shifts.
In that case, the Full Bench cited a principle from Kim v ORC International Pty Ltd, which stated: "It is difficult to see how this common law concept of repudiation has any work to do in relation to casual employees. At common law, a casual employee's contract of employment ceases at the end of each engagement. An employer of a casual employee does not repudiate that contract when it fails to offer another shift."
The employer also referenced Moutevelidis v ICC Sydney Pty Ltd, where Deputy President Roberts found regarding a casual employee: "The Agreement that governed her employment expressly provided that she was employed by the hour with no firm advance commitment to continuing and indefinite work according to an agreed pattern of work... Each engagement was separate, and the employment would come to an end at the conclusion of each engagement."
The FWC found the worker was clearly a casual employee, noting the contract language, casual loading in his pay, and payslip descriptions all confirmed this status.
The FWC rejected the worker's "stand down" claim: "I do not accept that [the worker] was 'stood down' from his employment. If that were the case, then he would be entitled to be paid for the duration of the stand down. On the basis that [the worker] was a casual employee, whose employment commenced and concluded on a daily basis, no stand down was warranted or required."
Based on the "undisputed common law principle that a casual employee's employment ceases at the conclusion of each shift," the FWC found that the worker was not dismissed and had no capacity to submit an unfair dismissal application.
The FWC also addressed the employer's unusual payroll practice: "Why [the employer] would issue a casual employee a payslip when they perform no work in the pay period is beyond my comprehension. However, to be employed, a casual employee must utilize their skills and competencies and actually perform work for which they are remunerated."
The final ruling stated: "[The worker] signed a contract to say that he was a casual employee, was paid a casual loading and worked a variety of hours and shifts in the manner of a casual employee. [The worker's] employment ended on 14 March 2024 because he was not offered any future shifts due to a downturn in work."
The worker's unfair dismissal application was dismissed on jurisdictional grounds.
