Commission faults employer for failure to verify worker's intention
The Fair Work Commission (FWC) recently dealt with a worker who said her employer fired her after failing to give her additional shifts even though she was eager to perform more work.
Meanwhile, the employer said the worker resigned after her request to have a separation certificate.
The worker, Ellen Pope, filed a case before the FWC, arguing she was fired from her role with Macmillan Holdings Pty Ltd, specifically trading as Gathering Events.
Pope started working for the latter, a mobile events company, around February 2022. She was employed on a casual basis and was described to have an “amicable relationship” with her employer until her alleged dismissal.
The dispute arose from a text exchange on 7 May 2023, between the worker and the employer’s events director, about the former’s unexpected absence:
Pope: “Hi, sorry to text so late. I’m worried I might be coming down with a cold; I’m having some mild symptoms which I’m hoping will clear after a night’s rest but I wanted to alert you ASAP in case they get worse. :( I’ll also do a RAT test in the morning.”
Events Director: “Ok, I’m disappointed to kind of find out now and try to replace you somehow. I guess I’ll try to do that now.”
Pope: “Hmm to clarify I’ve only just started getting a sniffle etc, I’m sure I’d be fine to work at this point. I just thought it would be better to let you know now rather than wait for more obvious symptoms. I’m ok to come in, wearing a mask, but if I wake up coughing or sneezing, that might not be so good.”
Events Director: “It’s ok. I just got a message from you and am now up trying to find a solution. I can’t wait to hear from you in a few hours once you have done a text.”
Pope: “(thumbs up emoji) all good I’ll let you know first thing.”
Later that evening, Pope received an email from her employer advising that a shift from 12pm-2pm on 31 May 2023 was cancelled.
And on the morning of 8 May 2023, the employer sent the following text: “Your shifts have now been cancelled and I have been up all night trying to replace you as you can imagine.”
The said cancelled shifts were scheduled for 8, 9 and 31 May 2023. Pope replied and said: “Sorry to hear that you had a bad night. I have just gotten up and am not feeling well so yes I think it’s best that I don’t work sick. Especially considering the customer demographic which is older.”
She was then unable to work from 8-11 May 2023. On 12 May 2023, her manager texted and said: “Just calling to see if you’re available for a shift this afternoon, service starts at 3-5 in Wahroonga.” As Pope was already doing seasonal work that day, she responded that she was not available.
And finally, on 18 May, Pope sent an email that said: “Can I ask whether you plan to offer me more shifts? If not, can you please fill out the attached separation certificate; I need it in order to apply for Centrelink.”
The employer replied with, “So I take it your (sic) quitting? I have offered you events, but you have declined all of them?”
After a series of further exchanges between the parties, the worker did not request more shifts after the separation certificate was issued.
The parties’ arguments
Pope argued that on the evening of 18 May, 2023, she reached out to the employer via email, inquiring about the possibility of obtaining a separation certificate if Gathering Events “didn't have any intention to provide her with additional shifts.”
In turn, the employer responded by issuing a separation certificate. The worker said that this action “directly and consequentially” resulted in the termination of her employment, coupled with the fact that all communication has ended between them.
Meanwhile, the employer said submitted that it filled out the separation certificate at the worker’s “request so she could claim Centrelink payments.”
It also said she was “offered work on a shift-by-shift basis,” and that she “was never dismissed, as she is a casual staff member.”
After Pope requested the separation certificate, the employer said it “continued to extend invitations for shifts,” and added that it “understands that a separation certificate is generally requested by an employee who is intending to end their employment relationship and seek financial support from government programs like Centrelink.”
“Compliance with a casual worker’s request for a separation certificate should not be misconstrued as a dismissal. It was issued in good faith, with the intention to assist [the worker] in receiving her welfare payments from Centrelink,” the employer argued.
“This act of assistance should not be interpreted as initiating termination of availability for shifts. Finally, the combination of [the worker’s] sickness, her declining a shift after recovery, and her request for a separation certificate suggest a decision on her part to end her engagement with Gathering Events, not a dismissal initiated by Gathering Events,” it added.
HRD previously reported about a dismissal claim from a worker who said she was fired after her employer texted her “all the best for the future,” coupled with a request to return the company’s keys and shirt.
In another case, another worker was left clueless after being uncertain of his date of dismissal as he only received a text message from his father, who also worked with him in the company.
Does issuing a ‘separation certificate’ mean termination?
In its decision, the FWC discussed the consequences of issuing the separation certificate, saying that “Gathering Events is correct in asserting that Pope requested the issuing of a separation certificate.”
“However, the email from Pope on 18 May 2023 makes it clear that she was requesting the separation certificate if Gathering Events was not planning to offer [her] more shifts.”
“Put another way, [she] did not require the separation certificate if Gathering Events was planning to offer her more shifts,” it said.
The FWC also noted that the worker and the employer “may have both been confused by the other’s communication on 18 May 2023, as neither of them correctly represented what had occurred with respect to offering shifts since 7 May 2023.”
“Pope claimed that no shifts had been offered while [the employer’s] email suggested that [it] had offered Pope multiple events all of which were declined,” it said.
However, the Commission focused the responsibility of clarifying the worker’s intention on the employer.
“If [the employer] was uncertain about whether [she] wished to remain employed with Gathering Events, [it] could have taken steps to verify Pope’s intentions by contacting [her] after their conversation,” it said.
“[The employer] did not do so but instead nominated the date on which Pope’s employment terminated as 24 May 2023 on the separation certificate without further discussion with [the worker], then issued the certificate.”
“The issuing of the certificate resulted in the termination of [her] employment,” the FWC found. Thus, it concluded that the worker was dismissed and directed the parties for conference at a later time.
