Is it unfair dismissal? Fair Work probes other factors to check worker's status
The Fair Work Commission (FWC) recently dealt with a dispute over whether a worker had been dismissed, highlighting the complexities that can arise in casual employment relationships.
The case centred around a cook who had been employed on a casual basis at a café since July 2023. In February 2024, the worker informed her employer that she was unfit for work due to a back injury. She provided medical certificates covering her absence until 16 April 2024.
On 15 April, the worker texted her employer about an upcoming appointment to obtain a medical clearance for returning to work. This led to a series of text messages and emails between the two parties, which ultimately resulted in the worker believing she had been dismissed.
The employer, however, maintained that no dismissal had taken place. They argued that they were simply waiting for the promised medical clearance before allowing the worker to return.
The key issue before the FWC was whether the worker had actually been dismissed within the meaning of the Fair Work Act 2009. This determination was crucial, as it would decide whether the FWC had jurisdiction to hear the worker's general protections application.
The worker believed she had been dismissed based on several factors:
The employer countered these claims, explaining that:
The FWC found that the worker had been on medical leave since late February 2024. During a meeting in early March, the employer and worker had agreed that a medical clearance would be required before the worker could return to work.
On 15 April, the worker sent a text message to her employer stating: "Hey [employer], quick update. I have Dr appointment later this week for return to work cert. Will be pumped to get back into the kitchen next week." This message also included a request for the employer to review past timesheets and payslips due to alleged discrepancies.
The employer responded with surprise, stating they hadn't heard from the worker in six weeks and didn't think she was returning. This led to a series of text exchanges where the worker clarified her intention to return, and the employer questioned the timeline and requested more information.
Read more: How many sick days can you take without a doctor's certificate in Australia?
The FWC also noted the evident breakdown in communication between the parties:
"It is regrettable that the [worker] rejected [the employer's] request for a direct discussion as it might have provided an opportunity for both the [worker] and [employer] to clarify their respective understanding and intentions. It is also regrettable that [the employer] did not clearly disabuse the [worker] of her belief that she had been dismissed."
This observation underscores the importance of clear, direct communication in employment relationships, particularly when dealing with sensitive issues like extended leave and return-to-work arrangements.
After considering the evidence, the FWC ultimately determined that no dismissal had occurred. The Commission found that there was "insufficient evidence to conclude that at the date of the alleged dismissal the [employer] had made clear to the [worker] that it would no longer offer her casual engagements."
The FWC also noted that even if a termination had occurred, it was not primarily due to the employer's actions:
"If it were accepted in the alternative that the employment relationship has been terminated, for the [worker] to succeed it would require a finding that the action of the employer was the principal contributing factor that led to the termination of the employment relationship. I am unable to conclude in the circumstances of this case that the principal contributing factor to the dismissal of the [worker] was the conduct of the [employer]."
This finding highlights the importance of considering all factors when determining whether a dismissal has occurred, particularly in casual employment relationships. Clear communication is crucial, especially during periods of extended leave or when discussing return-to-work arrangements.
