Was it justifiable to dismiss a manager who failed to attend her shift?
The Fair Work Commission (FWC) recently dealt with a manager’s claim that she was wrongfully terminated after she failed to attend her shift. On the day of her absence, she said she wasn’t feeling well after an “abusive” exchange with her employer.
On August 24, 2023, the worker, Ebony White, filed a claim with the FWC, alleging unfair dismissal by her employer, Wise Guise Pty Ltd. The worker was employed by the employer from September/October 2021 until August 6, 2023, serving approximately 2 years.
She held the position of manager at the Mowbray store from March 2023 until her termination. The employer terminated her employment via SMS on August 6, 2023, after the worker expressed her inability to work her shift that evening.
According to the parties' text exchange, the worker advised her employer that she was unable to work her shift that evening and that she would seek to have another employee cover the shift.
After a series of messages, the employer, Alex Westmoreland, ultimately told her, “If your (sic) not at work, then you don’t have a job.”
According to records, the worker performed various managerial tasks, including rostering, stock ordering, and staff training.
At one point in her employment, she requested a written contract to access annual and personal leave entitlements, which she did not accrue during her employment.
She asserted that she was not engaged as a casual and should have been classified at a higher level under her relevant award. Despite her regular hours and pay rate, she said there was no written contract outlining the terms of engagement.
On August 6, 2023, the worker contacted Westmoreland about a staffing issue and was "verbally abused" over the phone.
She said that Westmoreland also operates a part of the business known as Central Kitchen where food is prepared for the other stores.
On the day of the incident, the worker became aware that Westmoreland had directed the same pizza delivery driver to work at the Central Kitchen that she had rostered to work at the Mowbray store that evening.
She then called Westmoreland at around 2:00 pm, about an hour before she was to commence her shift, in order to query why the driver was being reassigned by Westmoreland and discuss how she could manage the operation of the store without a delivery driver.
She said that Westmoreland “then verbally abused her over the phone,” saying “he didn’t effing care” and that “it was her problem to fix.”
Feeling upset and unable to work, she informed the employer via SMS of her inability to work that evening due to illness, which she associated with the verbal abuse. The employer responded, stating that failure to work would result in termination.
Following her dismissal, the worker applied for and secured employment in disability services and youth support roles. She provided evidence of her earnings from these positions and stated that she would have continued working for the Employer had she not been dismissed.
The FWC said that the employer was not able to substantiate its claims for poor performance or misconduct and said that she was “possibly” dismissed because she failed to attend her shift.
“However, this failure was entirely understandable. Her employer had directed that the pizza delivery driver she had rostered on for the Sunday night was to work elsewhere. The [worker] only found this out by chance from the delivery driver,” the FWC said.
“When [she] called her employer to query this, she was verbally abused by him. [She] was understandably upset and unable to work and communicated this to her employer, offering to find someone to cover her shift. In all of the circumstances, this cannot be said to be a sound and defensible reason to dismiss an employee,” it added.
Thus, the FWC said that the worker was not dismissed for a valid reason and ordered the employer to pay her compensation.
