Was part-time employee unfairly dismissed?
Recently, the Fair Work Commission (FWC) dealt with a case involving an employee who alleged she was unfairly dismissed from work after refusing to cover a colleague’s shift.
The employer maintained that the worker had not been dismissed as she voluntarily resigned from employment.
The employee worked as a call centre contact specialist at a business that provides concrete for construction sites.
In October 2020, she was advised by her employer that he intended to hire a new full-time employee to manage accounts. But since there were not enough accounts to occupy a full-time employee, the new person would also help out at the call centre two days a week.
That meant he would be taking two days a week off the contact specialist’s work schedule to “give” to the new employee, effectively making her a part-time employee.
The worker told him that this change would be difficult for her financially, as she was a sole parent with a school-aged child, but he said he was limited by his budget at the time. He said that when the business picked up, he would reinstate her to at least four days a week.
In the spring of 2022, the worker says that her employer asked if she could cover a colleague’s shift until the employer could find a replacement since the person was leaving that job. The worker said that she would help where she could, but she was actively looking for a second job to supplement her income whilst working three days a week.
While looking for a second job, the worker saw a job ad for a full-time call centre contact specialist at her company and believed this was her job being advertised.
Shortly after, a series of texts was exchanged in which the employer asked the worker to cover more shifts while he hired a new employee.
The worker said, “I need 4 days a week Monday – Thursday. If you can garrantee that and put it in writing and garantee me Monday – Thursday on a contract for 6 months then I’m happy. Otherwise I will take the other part time job and I cannot help you. I need a response tonight. Cheers.”
When the owner said he couldn’t respond right away, the worker said she would take the next day off, to which the employer texted: “If this is your resignation, you must give us a 4 week notice.”
The worker did not respond that night but later denied that she had resigned and reiterated that she was frustrated with being asked to cover “random and infrequent shifts.”
However, the employer said he considered her absence the next day, and her text, as a resignation. It also said the worker resigned because she had secured alternative employment. Hence, no dismissal occurred.
Over the following days, the worker was notified through voicemail and email that she had resigned and must return the IT equipment and office key as soon as possible.
Ultimately, the commission found that the worker was unfairly dismissed from employment. It also rejected the employer’s submission that a resignation occurred when the worker refused to cover a colleague’s shift.
The FWC further said that while the worker was aware that she would be employed at another job, “it was not her intention at the relevant time to resign,” it said.
“Having one day off because she was upset about the advertisement is not resigning.”
More importantly, based on the evidence presented, it was found that the worker intended that her new employment would only supplement her current job with the employer, given that she had been unable to secure additional, permanent, ongoing hours with the employer and needed to earn more income.
In looking at the Small Business Fair Dismissal Code, the FWC also said it found the dismissal was procedurally flawed along with being “harsh, unjust or unreasonable.”
The commission decided to award the worker compensation of $1,649 and a 10% superannuation contribution based on that amount to be paid into the worker’s nominated superannuation fund.
