After 17 years of working for 'non-responsive' company, worker files claim
The Fair Work Commission (FWC) recently dealt with a worker’s unfair dismissal claim after his employer ignored him when he tried to clarify his employment status. He also tried asking for tasks, but they did not give him any duties.
In this case, the Commission noted that the employer could be encountering “cash flow problems” that might explain its failure to be responsive to the worker, but an employer had an “obligation” to “provide work and wages.”
Around June 2006, the worker started working for Tricon Security Pty Limited, taking up the role of a security officer in the cash-in-transit industry. The worker's responsibilities included safeguarding public schools and businesses in the regional expanse of New South Wales.
The employer was a small enterprise, with a typical workforce consisting of solely the worker or, occasionally, one additional employee. According to records, throughout the worker's tenure with the employer, he had no negative performance reports.
The worker last worked for the employer in January 2023 when they held a full-time position. However, after that time, the employer did not assign any tasks to the worker, resulting in non-payment for their services.
Despite the worker's repeated efforts to reach out to the employer for clarification on their work status and potential return to work, the employer remained unresponsive to text and email messages.
With no meaningful response received from the employer, by 27 April 2023, the worker took action and filed an unfair dismissal application.
According to the worker’s evidence, after his final working day with the employer in January 2023, he made multiple attempts to reach out to the employer.
His intentions were to “raise issues about outstanding entitlements, obtain more work or have his employment status confirmed.”
The worker's attempts to communicate with the employer received “little response.” In response to a text message sent by the worker, the employer said, “Your super will be paid as soon as I can.”
When the worker pointed out that the inquiry was about returning to work and not unpaid superannuation, the employer replied, “How am i going too pay you if you work you would take me too court for unpaid wages. (sic)”
Later, the worker received a message from the employer saying that “all super has been lodged and recorded with the Australian Taxation Office for a number of months and will be paid as soon as possible.”
Throughout this period, from the last date the worker worked in January 2023 until the submission of the unfair dismissal application in April 2023, there was no documented evidence of any communication from the employer to the worker, aside from the exchanges mentioned.
In its decision, the Commission noted the worker’s “willingness” to work despite the employer’s failure to inform him of his employment status.
“Despite repeated attempts by the [worker] to contact the [employer] about returning to work or seeking advice on their employment status, the [employer] failed to meaningfully respond to the [worker] between January 2023 and the filing of the application on 27 April 2023,” it said.
“The [employer] did not provide the [worker] with any work during that period and did not pay the [worker] any wages. The [worker] was ready and willing to work, actively seeking a return to work.”
“It appears the [employer] had formed the view that, due to cash flow problems for the business, they could simply ignore the [worker’s] messages, refrain from providing work, and thereby avoid any liability to pay wages to the [worker],” the Commission added.
The Commission then went on to say that the employment relationship “was brought to an end by the action of the [employer] in not providing work or wages to the [worker] for a period of approximately 16 weeks.”
“The obligation to provide work and wages is fundamental to both the employment relationship and the contract of employment. The failure to meet that obligation is also a repudiation of the contract of employment between the parties,” it explained.
“Had the employer not refused to meet that obligation, the employment relationship would likely have continued. The [worker] indicated in their message of 15 February that he had 'no intention of resigning.' However, the failure of the [employer] to provide work and wages meant that the employment relationship had come to an end by 27 April 2023. It had ended because of the actions of the [employer] whose conduct resulted, directly or consequentially, in bringing the relationship to an end,” it said.
“The [employer] maintained that the company was unable to pay the [worker] because of a downturn in the business. That may well have been the case, but it did not excuse the [employer] from the obligations it had as the employer of the [worker],” the Commission said.
“The [employer] could have terminated the employment of the [worker] when it became unable to pay the [worker]'s wages. That would have at least given the [worker] some certainty about their position. It would have allowed the [worker] to apply for Centrelink payments or alternative employment. The [employer] chose not to do that. Instead, the [employer] simply ignored the [worker],” it added.
Thus, after considering that the worker served almost 17 years with the employer, the FWC concluded that the worker was unfairly dismissed.
