Employer's email exchange with worker under fire in dismissal claim

The Fair Work Commission (FWC) recently dealt with an application made by a worker, claiming that he had been dismissed from his casual employment.

The case revolved around a series of email exchanges between the worker and the employer, which culminated in the employer stating that they “did not wish to have any further communication with the worker” and saying, “We wish you nothing but the best in your future endeavours.”

The FWC had to determine whether these emails constituted a dismissal, given the casual nature of the employment relationship.

Defining ‘dismissed’

The employer maintained that the worker had not been dismissed and that they had stopped offering the worker work at his request.

The FWC noted that it could only deal with the application if it was properly made under s.365, which required the worker to be "a person who has been dismissed."

The Commission said the meaning of "dismissed" is defined in s.386 of the Act, which states that a person has been dismissed “if their employment has been terminated at the employer's initiative or if they have resigned due to conduct engaged in by the employer.”

Email exchange about enterprise agreement

The worker had been employed by the employer since December 2022 as a casual basketball coach, working between 5 and 25 hours each week. He had raised concerns about his rate of pay on several occasions throughout 2023.

In December 2023, a series of nine emails were exchanged between the worker and the employer over two days. The worker asked about his pay and requested a copy of his employment contract and the enterprise agreement.

According to records, the employer “became defensive”, criticising the worker's performance and conduct, and suggesting that they "part ways" if the worker was not satisfied with the pay arrangements.

The worker then asked to "pause doing [his] regular shifts" until a resolution could be reached. The employer replied by reallocating all of the worker's future shifts and requesting the return of company equipment.

The worker expressed concern that he had been fired, but the employer stated, "We haven't fired you," followed by assertions that they did not need to fire him as a casual employee.

Was it dismissal?

The FWC considered the context of the email exchange, noting that the employer had invited the worker to leave his employment if he was not satisfied with the pay arrangements and had made unrelated criticisms of the worker's conduct and performance immediately after he raised legitimate queries about his pay.

The FWC found that the employer's final email, which stated, "We do not wish to have any further communication with you. We wish you nothing but the best in your future endeavours," brought the employment relationship to a permanent end.

The FWC determined that "an objective person in [the worker's] shoes would reasonably have understood that no further work would be offered to him and therefore that the employment relationship with [the employer] was terminated."

Thus, the FWC concluded that the dismissal was at the initiative of the employer and not the worker. As such, the worker was "an employee who was dismissed" at the time he made his general protections application, and the FWC had jurisdiction to deal with the application.

It then said that it would schedule the matter for a conference at a later date.