Communication breakdown and unsigned contracts: FWC weighs in
The Fair Work Commission (FWC) recently dealt with a general protections dispute where a worker claimed she was dismissed after raising concerns about her employment contract and workplace conduct.
The case highlighted important questions about what constitutes dismissal in casual employment relationships.
The worker argued she was dismissed in three different ways, while her employer maintained no dismissal had occurred.
The worker taught gifted and talented students at a prestigious Sydney college's Futures Centre on Saturday afternoons during school terms. Her employment started in April 2021 and her last working day was in June 2024.
While she had received and worked under employment contracts in 2021 and 2022, a dispute started when she was asked to sign a new contract in February 2024.
Initially, there was confusion about her employment status. When asked to provide course resources in April 2024, the worker wrote to her manager: "I have not signed, and do not intend to sign, the employment agreement provided, as my role is clearly one of an independent contractor and not an employee." Both parties later agreed she was indeed an employee.
The employer tried multiple times to resolve the contract issue. The Principal offered to meet with tutors who had questions, and the newly appointed Head of HR was brought in to help address the matter. Despite these efforts, the contract remained unsigned.
Tensions rose on 15 June 2024 when the worker discovered her name on the website for Semester 2 courses without prior consultation.
During an interaction that day, her manager said: "I think it would be best if you didn't return next semester." The worker's name was later removed from the website.
After this incident, the Principal met with the worker and assured her of continued employment. They discussed various resolution options, including mediation or a formal investigation into the manager's conduct.
The situation escalated when the Principal wrote to the worker on 18 July 2024, stating that the employer "cannot continue to engage you unless you agreed to the terms and conditions on the published contract."
The worker then suggested postponing her return until 2025, writing: "Upon deliberation, I am concerned that the timeframe between receiving the contract and the commencement of the program may be insufficient for me to consider properly before term commencement... I would prefer to focus on the opportunity to return in 2025."
The FWC found that the relationship hadn't ended through dismissal, noting:
"At its highest, there was an agreement for [the worker] to delay her return until 2025 while concerns about her contract and [the manager] were resolved."
The Commission explained: "If the employment relationship has indeed come to an end, it is by reason of a decision made by [the worker] not to return to [the employer] in 2025."
This finding emphasised that when workers voluntarily choose to end their employment, it does not constitute dismissal under the Fair Work Act. The application was dismissed.
