Unexplained shift changes may constitute dismissal, warns FWC
The Fair Work Commission (FWC) recently dealt with a case involving a casual worker who claimed she was dismissed by her employer, a beauty services company. The employer argued that no dismissal had occurred and that the worker remained employed as a casual employee.
This case highlights the issues surrounding casual employment and the challenges in determining when a dismissal has taken place, especially in situations where there's no clear communication of termination.
It serves as a reminder for employers to carefully manage their casual workforce and maintain clear communication regarding shift allocations and employment status.
Casual worker claims unfair dismissal
The worker, a brow and lash artist, had been employed on a casual basis since October 2022, having previously worked for the company from July 2020.
She worked regular shifts for the employer, typically Monday to Friday with occasional weekend work. The dispute arose when the worker noticed she was no longer being rostered for shifts towards the end of April 2024.
On 7 April 2024, the worker experienced a domestic violence incident and attended a local hospital for treatment. She notified the employer on 8 April that she would be unable to attend work and did not attend work on 8 or 9 April 2024.
She returned to work on 10 April and worked several days after that, including in the week commencing 22 April 2024.
The worker claimed she had raised concerns about the lack of shifts multiple times but received no explanation from her employer.
Her last paid shift was on 12 May 2024, after which she alleged she had been permanently removed from the roster, partly due to her absence following the domestic violence incident.
Employer's arguments and worker's evidence
The employer denied dismissing the worker, arguing that as a casual employee, she was not guaranteed any work. They claimed any reduction in shift allocation was solely due to business needs and that shift allocations were determined six weeks in advance.
The employer maintained that at the time the worker's shifts were determined, they had no knowledge of the domestic violence incident, so this could not have been a factor in the reduction of work.
The employer's operations manager gave evidence that April and May were usually less busy periods for the business. She claimed to have started reducing shifts gradually to suit business needs.
However, the FWC found insufficient evidence to support this claim or show that other employees experienced similar reductions in work hours.
The worker provided evidence that she had approached multiple representatives of the employer for information about her lack of shifts but received no explanation.
She also stated that her colleagues had received their usual shift allocations without any reduction in work. The FWC noted:
"There was no evidence that the [worker] had fallen out with her work colleagues. Despite the evidence of [the manager], I consider that it is more likely that the removal of the [worker] from the group by her manager was not a personal act of social exclusion but a step that was consistent with the [worker's] employment relationship being brought to an end by the [employer]."
Business needs or dismissal?
The FWC emphasised that determining whether a dismissal has occurred is a question of fact, requiring consideration of all circumstances:
"The question of whether an employment relationship continues to exist is a question of fact and it is necessary to consider all of the circumstances to determine whether the employment is at an end. It is also necessary to consider the circumstances to determine if there has been a communication of dismissal by words or conduct."
In analysing the situation, the FWC noted that by 19 May 2024, it was reasonably apparent that the employer did not intend to offer any further work to the worker. The Commission concluded that the worker's employment had ended on the employer's initiative.
The FWC ultimately determined that the worker had been dismissed within the meaning of the Fair Work Act:
"I conclude that the [worker] was dismissed by the [employer] within the meaning of s386(1)(a) and that the dismissal took effect on 19 May 2024."
This decision highlights the importance of clear communication in casual employment relationships. The FWC emphasised:
"A situation where a casual employee is told in unequivocal terms that the relationship is at an end and no further work will be offered can constitute a termination of employment on the initiative of the employer, as could a reduction in hours or pay for a casual employee."
The case serves as a reminder that even in casual employment relationships, sudden changes in shift patterns without explanation can potentially be viewed as dismissal. The FWC noted:
"The employment relationship was not left voluntarily by the [worker]. The [worker's] employment was brought to an end by the conduct of the [employer] which resulted directly or consequentially in the termination of employment."
This decision underscores the need for employers to manage their casual workforce carefully and maintain clear communication regarding shift allocations and employment status. It also highlights the issues in determining when a dismissal has taken place, especially in situations where there's no clear communication of termination.
