When is saying 'no' to a shift considered quitting?
The Fair Work Commission (FWC) recently dealt with a case where a casual worker claimed she had been unfairly dismissed after being unavailable for one shift.
The worker argued she never quit her job and that her employer had wrongly told the leadership team she had resigned.
The case examined whether requesting a separation certificate automatically ended the employment relationship, and if unavailability for a single shift could lead to dismissal.
The worker performed casual work for a Sydney-based traffic control business from 2020 until August 2024. She took a break from late January 2024 to the end of June 2024 due to personal matters, during which she requested a separation certificate to access social services.
The situation escalated after a text exchange about shift availability. When the worker told her employer she was already scheduled to work elsewhere, she later heard from colleagues that she had supposedly quit her position.
This prompted her to message her employer: "Hey can I get a separation certificate cause [I’ve] heard from others [I’ve] apparently quit." The director responded with: "Sure."
The worker then sent a follow-up message stating: "Hi, just would like to clear the air here. I did not voluntarily cease employment. I had a rostered shift with my primary employer Lack group for the previous Thursday... You went ahead and told your leadership team I quit. A straight up lie."
The Commission examined two separation certificates as evidence. The first covered employment from October 2022 to March 2024, while the second showed employment from June 2024 to August 2024. Both certificates indicated the worker had left voluntarily.
The case referenced the Full Bench decision in Shortland v Smiths Snackfood, which established that casual employment doesn't automatically start and end with each engagement.
Instead, casual workers often transition between irregular and regular work patterns while maintaining continuous service.
The Commission found that the March 2024 separation certificate request effectively ended the first employment period. As stated in the decision: "I accept that [the worker] believes that the separation certificate did not end the employment relationship, and that the separation certificate was a necessary pre-condition to enable her to receive support from essential government services. However, the legal effect of [the worker] requesting the separation certificate, and the separation certificate then being provided by [the employer], was that the employment ended."
Given the traffic control business had only nine employees, it was classified as a small business under the Fair Work Act. This classification meant the worker needed 12 months of continuous service to qualify for unfair dismissal protection.
The Commission noted: "[The worker] did not contest that [the employer] had only nine employees when her employment ended on 12 August 2024. That means [the worker] needed to have completed the longer minimum employment period of 12 months for a small-business employer."
The decision ultimately found: "I find [the worker] was not 'dismissed' by [the employer]. I find [the worker] voluntarily resigned when she requested a separation certificate on 12 August 2024... It is not enough to rely on hearsay evidence from another employee. [The worker] could have sought clarity from [the director] about whether she would be offered further shifts prior to requesting a separation certificate and ending the employment."