Worker claimed employer's conduct forced impossible choice about pet's medical care
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a casual worker who claimed he was unfairly dismissed. The worker argued that despite his casual status, he was regularly working an average of 43 hours weekly before his shifts suddenly stopped.
The worker claimed the employer had effectively dismissed him by failing to offer shifts after he raised concerns about pay rates, missing payslips, and superannuation issues. He also refused to use a required workplace app on his personal phone, which he believed led to him being replaced.
The employer denied any dismissal took place, arguing that as a casual employee, the worker had no guaranteed hours and that legitimate operational reasons explained why no shifts were offered during the period in question.
The worker was employed as a casual security officer from November 2022 until mid-2024, primarily performing security work with his own dogs. When starting employment, he informed the employer he preferred security work with dogs rather than interacting with the public at venues.
A key tension emerged around the workplace health and safety policy requiring security officers to use a mobile application called "Uni Guard" for location tracking. The worker refused to install this app on his personal phone citing digital security concerns and suggested alternative arrangements.
The employer accommodated his choice by not offering him shifts where clients required the app's use. Throughout his employment, the worker also raised concerns about superannuation, timesheets, and payslips, with early payments made through direct bank transfers.
In April 2023, after the worker stated he wouldn't download the app, the company offered him regular weekend shifts at locations not requiring the Uni Guard app. Instead, he took site photographs during shifts for documentation purposes.
On 26 June 2024, a miscommunication led to three security officers, including the worker, being sent to the same site. The company apologized and paid him four hours' compensation. The worker performed his last shift on 29 June 2024.
On 2 July, he received a text message explaining he would be replaced for an upcoming shift because the client was "insisting on the UniGuard app being used every 30 minutes for patrols," though he was told the employer had "more K9 work coming up shortly." Following this, no further shifts were offered despite his previous 43-hour weekly average.
From late July to mid-August 2024, the worker exchanged emails with the employer regarding missing payslips, superannuation, and pay calculations under the Security Services Industry Award 2020. The employer provided most payslips but four from November 2022 remained missing.
On 12 August 2024, the worker's dog needed emergency surgery that he couldn't afford. After having the dog euthanized, he blamed the employer, claiming proper payment would have covered the surgery costs. On 16 August, the employer suggested meeting to resolve their issues.
The worker responded on 17 August stating he would not continue working for the company: "Sadly, with what has happened now (losing my boy) and my absolute distrust with you and [the director] I have no interest working with you, that is irreversibly destroyed." Following this, the employer reviewed payroll records and made a payment to the worker, though he disputed receiving all entitlements.
The FWC rejected the worker's argument that non-allocation of work entitled him to end his employment contract. The Commissioner emphasized that as a casual employee, the worker "had no contractual entitlement to be offered, or work, any particular hours or shifts each week."
Despite averaging 43 hours weekly previously, the FWC found this "did not give rise to any obligation on the part of [the employer], or a right on the part of [the worker], to work regular or systematic hours of work into the future." A text message about future work was deemed typical communication, not a contractual promise.
The Commissioner noted valid reasons for not offering shifts: the client had insisted on using the Uni Guard app following thefts, which the worker refused to use. The FWC determined the employer's communications suggested they wanted the employment relationship to continue.
The FWC found the worker resigned on 17 August 2024 but was not forced to do so by the employer's conduct. The Commissioner explained: "I am satisfied that [the employer] did not engage in any conduct with the intention of bringing its employment relationship with [the worker] to an end."
The FWC identified other options available besides resignation, including taking casual work elsewhere while remaining available for shifts or addressing payment concerns through proper channels. "[The worker] could also have raised a dispute under the dispute resolution procedure in the Security Award or sought the assistance of the Fair Work Ombudsman."
The Commissioner concluded the main reason for resignation was emotional distress over the dog's death: "the predominant reason he resigned from his employment with [the employer] is because he was very upset at the death of his dog on 12 August 2024 and he blamed [the employer] for that death."
The FWC dismissed the application, ruling the worker was not dismissed within the meaning of s 386 of the Act.
