Fair Work reminds employers to delve into workers' 'intentions'
Recently, the Fair Work Commission (FWC) delved into a case involving a worker who claimed she was terminated by her employer, allegedly due to a lack of additional shifts despite her eagerness to work more often.
The worker initiated the legal proceedings before the FWC, asserting that she was unfairly dismissed from her role with Gathering Events.
The worker, who joined the mobile events company around February 2022 in a casual capacity, had maintained an amicable relationship with her employer until the events leading up to her alleged dismissal.
Worker became unavailable
The dispute stemmed from a text exchange on May 7, 2023, between the worker and the employer's events director regarding her unexpected absence due to mild symptoms suggestive of a cold:
The worker: "Hi, sorry to text so late. I’m worried I might be coming down with a cold; I’m having some mild symptoms which I’m hoping will clear after a night’s rest but I wanted to alert you ASAP in case they get worse. :( I’ll also do a RAT test in the morning."
Events Director: "Ok, I’m disappointed to kind of find out now and try to replace you somehow. I guess I’ll try to do that now."
The worker: "Hmm to clarify I’ve only just started getting a sniffle etc, I’m sure I’d be fine to work at this point. I just thought it would be better to let you know now rather than wait for more obvious symptoms. I’m ok to come in, wearing a mask, but if I wake up coughing or sneezing, that might not be so good."
Events Director: "It’s ok. I just got a message from you and am now up trying to find a solution. I can’t wait to hear from you in a few hours once you have done a text."
Following this exchange, the worker received an email from her employer later that evening, notifying her of the cancellation of a scheduled shift on May 31, 2023.
Cancelled shifts
Additionally, on the morning of May 8, 2023, the worker received a text from her employer informing her that all her shifts had been cancelled, with the employer mentioning, "Your shifts have now been cancelled and I have been up all night trying to replace you as you can imagine."
The cancelled shifts were originally scheduled for May 8, 9, and 31, 2023. In response, the worker expressed her understanding of the situation, stating, "Sorry to hear that you had a bad night. I have just gotten up and am not feeling well so yes I think it’s best that I don’t work sick. Especially considering the customer demographic which is older."
Consequently, the worker was unable to work from May 8 to 11, 2023. On May 12, 2023, her manager contacted her regarding a shift in the afternoon, but the worker, already engaged in seasonal work, declined the offer.
Subsequently, on May 18, 2023, the worker emailed her employer, inquiring about the possibility of receiving more shifts. In response, the employer assumed the worker's inquiry as a resignation, stating, "So I take it you're quitting? I have offered you events, but you have declined all of them?"
Despite further exchanges between the parties, the worker did not seek additional shifts after the issuance of the separation certificate.
The parties’ arguments
The worker argued that on the evening of 18 May, 2023, she reached out to the employer via email, inquiring about the possibility of obtaining a separation certificate if Gathering Events “didn't have any intention to provide her with additional shifts.”
In turn, the employer responded by issuing a separation certificate. The worker said that this action “directly and consequentially” resulted in the termination of her employment, coupled with the fact that all communication has ended between them.
Meanwhile, the employer said submitted that it filled out the separation certificate at the worker’s “request so she could claim Centrelink payments.”
It also said she was “offered work on a shift-by-shift basis,” and that she “was never dismissed, as she is a casual staff member.”
After she requested the separation certificate, the employer said it “continued to extend invitations for shifts,” and added that it “understands that a separation certificate is generally requested by an employee who is intending to end their employment relationship and seek financial support from government programs like Centrelink.”
“Compliance with a casual worker’s request for a separation certificate should not be misconstrued as a dismissal. It was issued in good faith, with the intention to assist [the worker] in receiving her welfare payments from Centrelink,” the employer argued.
“This act of assistance should not be interpreted as initiating termination of availability for shifts. Finally, the combination of [the worker’s] sickness, her declining a shift after recovery, and her request for a separation certificate suggest a decision on her part to end her engagement with Gathering Events, not a dismissal initiated by Gathering Events,” it added.
HRD previously reported about a dismissal claim from a worker who said she was fired after her employer texted her “all the best for the future,” coupled with a request to return the company’s keys and shirt.
In another case, another worker was left clueless after being uncertain of his date of dismissal as he only received a text message from his father, who also worked with him in the company.
Does issuing a ‘separation certificate’ mean termination?
In its decision, the FWC discussed the consequences of issuing the separation certificate, saying that “Gathering Events is correct in asserting that the worker requested the issuing of a separation certificate.”
“However, the email from [the worker] on 18 May 2023 makes it clear that she was requesting the separation certificate if Gathering Events was not planning to offer [her] more shifts.”
“Put another way, [she] did not require the separation certificate if Gathering Events was planning to offer her more shifts,” it said.
The FWC also noted that the worker and the employer “may have both been confused by the other’s communication on 18 May 2023, as neither of them correctly represented what had occurred with respect to offering shifts since 7 May 2023.”
“[The worker] claimed that no shifts had been offered while [the employer’s] email suggested that [it] had offered [her] multiple events all of which were declined,” it said.
However, the Commission focused the responsibility of clarifying the worker’s intention on the employer.
“If [the employer] was uncertain about whether [she] wished to remain employed with Gathering Events, [it] could have taken steps to verify [the worker’s] intentions by contacting [her] after their conversation,” it said.
“[The employer] did not do so but instead nominated the date on which [the worker’s] employment terminated as 24 May 2023 on the separation certificate without further discussion with [the worker], then issued the certificate.”
“The issuing of the certificate resulted in the termination of [her] employment,” the FWC found. Thus, it concluded that the worker was dismissed and directed the parties for conference at a later time.
