Employer who fired worker over Mother's Day plans loses unfair dismissal claim

The Fair Work Commission (FWC) has dealt with an employee who was dismissed because she failed to show up during a shift, reportedly because of her family’s Mother’s Day plans.

What are some issues for HR leaders to consider when accommodating similar last-minute requests or absences? Is there a definitive blueprint to follow to ensure that the interests of both the employer and the worker are protected?

Background of the case

The case involved a casual shop employee who had initially agreed to work an afternoon shift on Mother’s Day this year. The employer was then notified that she accepted the schedule and agreed to her shift before the holiday. At the time when they were confirming their roster, the employee was not aware that her adult children had planned something for her on Mother’s Day. She later found that they organised a surprise lunch for her on the day itself.

To ensure the success of the family’s surprise, one of the employee’s children, her daughter, contacted the employer’s manager on Mother’s Day eve and informed the company that their mother would not make it during the agreed shift on Mother’s Day. The daughter then requested a shift swap or cancellation for her mother’s shift. The manager informed her that her mother needed to notify the employer of the “shift off” herself.

The dilemma that caused the dismissal

The employee informed the employer the following day that she would be unable to fill the afternoon shift. The employer responded by saying there would be “some ramifications” and that the month’s roster would need to be redone to “suit the demands of the business.”

A week after, when the month’s roster was reissued, the employee, who had been rostered for about three shifts each week, had all her shifts for the month withdrawn and reassigned to other employees. Her access to the rostering app was also blocked, and she was not assigned any shifts for the following month. It was then that the employee decided to file an unfair dismissal claim.

The employer’s defences

The employer claimed she was not fired since they had “not requested [her] to surrender her work keys or clothing.” Additionally, it said that as a casual employee, there is no assurance of continued employment. The employer further argued that the employee had a “systematic tendency” to cancel shifts at the “last minute.”

The FWC’s decision

Removing the employee from the roster was an act of dismissal, the FWC said. It explained that what’s crucial in this case is the employer’s conduct of leading the employee, or any reasonable person, to believe that employment was terminated.

The FWC also noted that the employee’s late withdrawal might have caused inconvenience on the employer’s part, but it did not concretely establish a “systemic habit” that would make her an unreliable member of her team.

Thus, the FWC ruled that there was unfair dismissal, and the employer’s process was further found to lack “procedural fairness.”

Takeaways for HR leaders

• There is no clear-cut list or criteria in deciding to grant or deny sudden or urgent changes in shifts. Treat each case according to the context and circumstances
• Implement a transparent system that would map out a step-by-step process of how the management approves and entertains special requests, including relevant timeframes
• Inform and notify employees of each part of the accommodation process, so that they are not kept in the dark
• And finally, be fair, reasonable, and avoid giving preferential treatment