'I am writing to advise that unfortunately we do not have any upcoming shifts'
The Fair Work Commission recently dealt with a case where a casual worker challenged the fairness of their dismissal, which was communicated through a text message stating there were no more available shifts.
The matter centred on whether the Commission would accept an unfair dismissal application filed outside the standard 21-day timeframe.
On November 29, 2024, the worker received a text message advising no further shifts were available. The worker, who had started employment with a family trust in December 2023, questioned whether this constituted a dismissal. The worker’s ability to file a timely application was affected by a serious injury that required surgery.
The case raised questions about dismissal notifications via text message and what constitutes exceptional circumstances for extending application deadlines under section 394 of the Fair Work Act 2009.
The worker and his wife both worked for a family trust that operated a farm. Their employment continued without incident until November 29, 2024, when a safety advisor sent them both a text message about their work status.
The exact wording of the message, as documented in the decision, stated: "I am writing you to advise that unfortunately we do not have any upcoming shifts. We would like to thank you both for your hard work on the farm. If any shifts become available in the near future, we will be sure to reach out to you both. Thank you again! If you require any further information, please don't hesitate to reach out. Wishing you all the best."
After receiving this message, the worker immediately responded with "Sacked by text message?" and provided reasons for their recent absence. According to the decision, the director made a deliberate choice not to respond to avoid potential conflict.
On November 28, 2024, one day before receiving the termination message, the worker suffered a severe fall. Medical evidence presented to the Commission showed they underwent surgery to re-attach a ruptured tricep tendon on December 5, 2024.
The Commission received medical documentation confirming the worker was prescribed opioid-based pain medication and was sleeping 15 hours daily during recovery. A medical certificate verified his inability to work or study from November 28, 2024, to January 15, 2025.
The worker's unfair dismissal application was filed on December 28, 2024, eight days after the standard deadline. The Commission had to consider whether these medical circumstances constituted exceptional circumstances warranting an extension.
The Commission explained the importance of statutory timeframes, as recorded in the decision: "Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty."
In examining the dismissal communication, the Commission observed: "The SMS sent on 29 November 2024 would likely be understood by [a reasonable person] to indicate that there was no longer any work for [the worker] and that [their] employment had come to an end."
The Commission ultimately extended the application deadline to December 28, 2024, stating:
"When I consider each of the matters set out in s.394(3), in the context of the evidence in this case and when I look at those circumstances collectively, I am satisfied that they establish there are exceptional circumstances in this case which warrant the consideration of the exercise of my discretion to extend the period within which the application has been made."
The decision noted that the parties would receive further correspondence regarding the programming of the unfair dismissal matter.
