Long-term casual worker cries unfair dismissal after no contact

The Fair Work Commission (FWC) recently dealt with a case involving a young casual worker's claim of unfair dismissal against his former employer, an indoor play centre and trampoline park.

The dispute centered around whether the worker was actually dismissed and if he had met the minimum employment period to be eligible for unfair dismissal protections.

This case highlighted important considerations around casual employment, regular and systematic work patterns, and what constitutes a dismissal under Australian employment law.

Background of the case

The worker, a high school student, began working for the employer in September 2022. His mother had also worked there, and his parents had invested $80,000 in the business with plans to purchase it from the director, who was the worker's godfather. However, the purchase fell through and the worker's mother's position was made redundant in early February 2024.

The worker claimed he worked until 9 February 2024, after which he was not given any more shifts. The employer raised two objections: first, that the worker was not dismissed, and second, that he did not meet the minimum employment period to qualify for unfair dismissal protections.

Initially, the worker started as a supervisor on the floor, ensuring children were using the trampolines and equipment safely. In March 2023, he was promoted to the position of Ninja Coach for children aged two to five years, teaching them proper trampoline manoeuvres.

This program ran during school terms, with the worker typically employed each week on Monday, Tuesday, and Wednesday.

The parties' arguments

The employer argued that while the worker had some regularity in his shifts, there was never a promise of ongoing work. They contended the worker's hours and duties were too sporadic and varied to constitute a regular and systematic pattern of work.

The employer's manager stated that he tried to give the worker the same kinds of shifts when available, as it was operationally easier and avoided retraining across different areas of the business.

The worker provided evidence that from July 2024, he had worked a consistent pattern of Monday, Tuesday and Wednesday shifts for several weeks, in addition to other shifts. He also worked most Saturdays in the employer's café, except when he had car racing commitments.

Key issues in dispute

The main issues the FWC had to determine were:

1. Whether the worker was actually dismissed

2. If dismissed, whether he had completed the minimum employment period

3. Whether the worker's casual employment was regular and systematic

The FWC examined text message exchanges and evidence about the worker's final shifts in February 2024. A key point of contention was the worker's absence from scheduled shifts on February 12-14, for which he later provided a medical certificate.

The employer's manager claimed he had not spoken to the worker since 11 February 2024 and that the worker had not contacted him since 10 February 2024.

The manager also stated that he had removed the worker from the company's group chat around 14 February 2024, assuming the worker was no longer interested in working at the business based on his failure to show up for three shifts and the situation with his mother.

The Commission's findings

After considering the evidence, the FWC found that the worker had been dismissed. The Commissioner stated:

"The steps taken by [the employer] were inconsistent with maintaining the [worker's] employment with the [employer]."

The FWC highlighted that the employer had removed the worker from the rostering system and group chat before receiving his medical certificate. Even after receiving the certificate, the employer took no steps to reinstate the worker or contact him about future shifts.

On the issue of minimum employment period, the FWC examined whether the worker's casual employment was regular and systematic. The Commissioner applied the reasoning from previous cases, noting:

"It is the 'engagement' that must be regular and systematic; not the hours worked pursuant to such engagement."

The FWC also considered the employer's rostering system, 'Deputy', which was used to allocate shifts and allow employees to accept or decline them. The worker's removal from this system effectively prevented him from being rostered for future shifts or indicating his availability.

Ultimately, the FWC found the worker had satisfied the minimum employment period, stating:

"I am satisfied that the [worker] was dismissed and has completed the required minimum employment period. The [employer's] jurisdictional objections are dismissed, and the matter will now be subject to further programming."

This case serves as a reminder for employers about the importance of clear communication and proper processes when ending a casual employee's engagement, especially for long-term casual workers who may have unfair dismissal protections.

It also highlights the complexities of determining regular and systematic casual employment in the context of unfair dismissal claims.