Employer learns casual contract terms don't override dismissal protections
The Fair Work Commission (FWC) recently dealt with a case where a casual worker challenged the end of his employment.
The worker filed an application with the FWC under section 365 of the Fair Work Act 2009, alleging his employer had dismissed him in contravention of Part 3-1 of the Act.
The employer, a labour hire company, argued that no dismissal had occurred since the worker was employed as a casual. Before examining the worker's claims, the FWC had to first determine whether a dismissal had taken place.
The employment began on 31 October 2024. On 4 November 2024, the manager sent an email to the worker stating:
"Please be advised that you are no longer required to return to site. If you would like to discuss this further, please feel free to arrange a visit to our office at your convenience. I am also available for a call during standard business hours."
After the worker indicated he would take legal action, the company's chief executive officer wrote back: "Don't be so silly [worker] – I would advise you to review your contract and stop making idle threats. As per [the manager's] note – You are most welcome to come and see me personally at our offices. You will be paid for all work completed and based on feedback I have received you will not be engaged via [the employer] for any future work."
The employer submitted documentation stating the worker "was engaged as a casual employee with no reasonable expectation of continuous or ongoing work" and that "he was also engaged for three days with appropriate notice provided."
The Fair Work Act 2009 defines dismissal in Section 386. A person has been dismissed if their employment was terminated on the employer's initiative, or if they resigned due to the employer's conduct.
In their written submissions, the employer stated: "The decision to terminate [the worker's] employment was made based on operational requirements and aligned with the terms of his casual employment agreement. Casual employees, by definition, are not guaranteed ongoing work, and the notice period was consistent with his contract and the Fair Work Act."
The employer also noted: "The termination of [the worker's] casual employment was conducted professionally, with payment in lieu made instead of the 1 day notice period."
The Commission referenced the Mohazab v Dick Smith Electronics Pty Ltd decision, which established that employer-initiated termination occurs when "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."
The Commission found the employer's position contradictory, stating: "Given the above statements from [the employer], it is a mystery how they press their jurisdictional objection that [the worker] was not dismissed."
The Commission explained: "[The employer] relies on clause 3.1 of [the worker's] employment contract, which provides that they do not give casuals any advance commitment to continuing and indefinite work and that [the employer] is not required to offer any further work. This is not some loophole that means casuals cannot be dismissed."
The Commission concluded that "it is clear from the undisputed evidence and from [the employer's] own submissions that [the worker's] employment ended at [the employer's] initiative."
Having determined that a dismissal occurred, the Commission proceeded with a conference under section 368 of the Fair Work Act to address the substantive claims.