Case highlights importance of communication even during disputes
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application of a worker who claims their employer wrongly blocked her from accessing their work roster, which allegedly “brought the employment relationship to an end.” This case serves as an important reminder that even during disputes, it’s still crucial that all communication channels between an employer and its employee remain open so that both parties can clarify their respective intentions and positions.
The worker has been an early childhood educator since August 2020 for the employer’s education centre. Due to the premature birth of the worker’s son, she was forced to take unpaid parental leave from 13 January 2022. As a casual employee, she was not entitled to paid parental leave and then applied for access to federal government-funded paid parental leave, which she received.
Following her son’s birth, the employee maintained contact with the employer and, at a point, even reported to the latter that her health was compromised by a difficult pregnancy and a bout of COVID-19. According to the FWC’s records, she also confirmed that she expected to return to work when her health and caring responsibilities allowed it.
The employer uses a “live” rostering application called “Tanda,” which allows it to plan and communicate rosters and changes to those rosters. According to the employer’s representative, a “live” roster system is necessary when shift coverage requirements are constantly changing due to fluctuating child numbers at the center.
While most employees use Tanda, the employer emphasised that its use is not a condition of employment, and not all employees use the application due to its incompatibility with their phones or simply due to personal preference. The worker, in this case, confirmed that she usually received notice via Tanda of her roster for a particular week in the prior week.
Due to an internal turmoil rooted in unanticipated staff absences and miscommunication, the worker confronted the employer’s representative after the latter sent an email to all the staff, expressing “general disappointment at the high rate of absenteeism.” The present employees allegedly took this email negatively on those absent during that fateful day.
“While the email did not single out any individual staff member, the [employee] states that the email provoked a ‘negative reaction’ from certain staff towards absent members, which the [employee] regarded as unfair.” Since the employee’s circumstances also required her to take absences, she took it upon herself to make a public comment on the Tanda app to confront the employer’s representative. She said “she felt that she needed to stand up” for those affected and defend them.
Immediately after the incident, the employee recalled that when she checked the app, she saw that her shift for the following day (one that had been previously rostered) had been deleted. She then rechecked the app and saw that all her shifts for the relevant week had been cancelled. She also found later that she could not log in and had an inactive Tanda account.
The worker claims she was unfairly dismissed due to her confronting the employer about the email it sent to the staff regarding absences.
For its defence, the employer raised jurisdictional objections, stating that the worker was not dismissed and she had not served the minimum period under the law.
The FWC was satisfied that cancelling the worker’s shifts and withdrawing her access to the rostering app without notification “had the probable result of bringing the employment relationship to an end, even if it was not the employer’s intention.”
The rostering app, Tanda, was an essential communication tool; no alternate form of shift notification was provided, the Commission ruled. “At no previous time was an entire week of shifts cancelled by the employer,” the FWC noted, only during this incident that came before an obvious dispute between parties.
Thus, the FWC said the worker was dismissed. It also found that she had met her minimum employment period of six months and had a reasonable expectation of “continuing employment on a regular and systemic basis.”
Despite the employer’s claim that the public comment made by the worker on Tanda was “inappropriate,” the FWC said that it “could not find that [her] use of the rostering app constituted misconduct.” Therefore, there was no valid reason for dismissal, and the FWC ordered the employer to compensate the worker.
