Employer didn't return worker's calls, FWC notes
The Fair Work Commission (FWC) recently dealt with a case involving a dispute between a casual support worker and a disability support services provider. The case centred around whether the worker was dismissed from his employment, which would allow him to pursue a general protections claim.
In this complex case, the Commission had to navigate through conflicting accounts and evidence to determine if a dismissal had actually occurred.
The outcome hinged on interpreting the actions of both parties and how they aligned with employment law principles. This decision sheds light on the nuances of casual employment relationships and what constitutes a dismissal in such arrangements.
Dispute over dismissal in casual employment
The case began when the worker lodged an application with the FWC on 21 April 2024, claiming he was dismissed in violation of general protections provisions. The employer objected, arguing that no dismissal had taken place. This jurisdictional issue needed to be resolved before the Commission could proceed with examining the alleged general protections breach.
The key question before the FWC was whether the worker's employment "has been terminated on the employer's initiative" as per section 386(1)(a) of the Fair Work Act. This required a careful examination of the events leading up to the end of the employment relationship.
The worker had been employed as a casual support worker since 1 December 2023. He was typically available and rostered for shifts three days a week - Tuesday, Wednesday, and Thursday. However, after March 2024, the worker stopped receiving shifts and encountered issues accessing the company's scheduling app called Brevity.
Conflicting accounts and evidence
Both parties presented differing versions of events. The worker claimed he was effectively dismissed after raising pay concerns about a 19-hour shift worked on 5-6 March 2024 and reporting alleged misconduct by another employee on 14 March 2024. He also stated he was locked out of the Brevity app from 4 April 2024 and his calls to the employer went unreturned.
The employer countered that the worker was still considered an employee, but had failed to input his availability into the Brevity app as required. They also claimed some clients had requested the worker not be assigned to them.
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"[The employer] gave evidence that although three clients had informed [the former] that they did not wish for [the worker] to care for them and [the worker] was on the 'do not roster' list for another three clients, [the employer] had about another 28 clients."
This statement highlights the complexity of the situation, as the employer argued there were still opportunities for shifts despite some client restrictions.
FWC’s analysis
The FWC weighed the evidence presented by both sides. It found the worker's account more credible on several key points, including his consistent work pattern without entering availability and his inability to access the Brevity app after 4 April 2024.
The Commission emphasised that determining whether a dismissal occurred doesn't depend on the parties' subjective views:
"The question of whether an employment relationship has ceased to exist does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position."
This principle guided the FWC's assessment of the situation. The Commission also considered the fact that the worker's wife, who also worked for the employer, had her employment terminated on 4 April 2024, the same day the worker was locked out of the Brevity app.
Is there dismissal?
Ultimately, the Commission concluded that the worker had been dismissed within the meaning of the Fair Work Act. The decision outlined several factors contributing to this finding:
"I am comfortably satisfied on the evidence that [the worker]'s employment with [the employer] did come to an end and it was action on the part of [the employer] that was the principal contributing factor which resulted in the termination of [the worker]'s employment."
The FWC highlighted the combination of actions that led to this conclusion:
"First, [the worker] was not offered, and did not work, any shifts for [the employer] in the period after 14 March 2024, even though he continued to be available to work for [the employer] on Tuesday, Wednesday and Thursday of each week and, according to [the employer], there were shifts that could have been offered to [the worker] during this time."
"Secondly, [the worker] was effectively locked out of the Brevity app from 4 April 2024 until 19 June 2024. Thirdly, nobody from management within [the employer] returned [the worker]'s calls following his inability to log in to the Brevity app on and from 4 April 2024."
These factors, taken together, led the Commission to determine that the employer's actions had effectively terminated the employment relationship.
As a result, the jurisdictional objection was rejected, allowing the general protections claim to proceed to the next stage. The case was listed for a conciliation conference on 4 July 2024.