Employer argues worker 'walked off the job'
The Fair Work Commission (FWC) recently dealt with a case involving an employee who claimed she was unfairly dismissed from her position after her employer cancelled her appointments with clients.
The decision sheds light on the factors considered by the FWC when determining whether an employee has been dismissed and the effective date of the dismissal.
Sally Plew worked as a permanent part-time beauty therapist at Cristol Pty Ltd's salon. On September 27, 2023, Plew did not attend her regular shift and subsequently filed an unfair dismissal claim with the FWC, asserting that she had been dismissed without explanation.
Plew claimed she became aware of her dismissal by discovering she had been locked out of the online appointment portal and that her appointments for her next shift had been cancelled.
Cristol Pty Ltd, managed by its sole director, Ms. Cristol, objected to the application on jurisdictional grounds, arguing that there was no dismissal and that Plew had "walked off the job."
Cristol provided evidence that prior to Plew's absence, she had attempted to contact Plew regarding allegations of theft and misconduct but was unable to reach her. Cristol stated that she made the "difficult decision" to reschedule Plew's clients booked for September 27, 2023, after being unable to contact her.
On October 5, 2023, Cristol sent a letter to Plew formally terminating her employment, citing unauthorized absence from work, theft of cash and retail products, and breach of trust and ethical standards as the reasons for the termination. The termination was purportedly made effective as of September 27, 2023.
The FWC focused on determining whether Plew had been dismissed within the meaning of the Fair Work Act 2009. The Commission found that there was no termination at the initiative of the employer at the time Plew asserted her employment had been terminated (September 27, 2023).
The FWC accepted Cristol's evidence that the client appointment application was not used to advise employees when to attend work and that Plew was a permanent part-time employee with fixed shifts.
However, the FWC determined that there was a clear termination of employment conveyed by Cristol to Plew in the correspondence dated October 5, 2023.
Despite this communication occurring after Plew had filed her unfair dismissal application, the FWC found that the employer's action was the principal contributing factor leading to the termination of the employment relationship.
Consequently, the FWC dismissed the employer's jurisdictional objection asserting there was no dismissal. The Commission concluded that the relevant date of dismissal must be October 5, 2023, as a dismissal cannot take effect until the termination is communicated to the employee.
