FWC examines employer obligations when terminating staff based on external directives
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where an employer terminated a casual security officer through a phone call.
The worker challenged her dismissal, arguing she received no prior warnings and had no chance to respond to the concerns that led to her termination.
The case brought up questions about a client venue's "not to roster" (NTR) directive and why it resulted in termination three months after it was issued, especially when other workers with similar directives kept their jobs.
The worker also highlighted her employer's failure to provide promised termination documents despite her follow-up attempts.
The events began on 11 September 2023, when the worker started as a casual security officer at the security company. Despite her casual status, her payslips showed she worked regularly and systematically.
On 20 September 2024, she contacted the operations manager about her missing roster for the following week, which she typically receives on Thursdays.
After receiving no roster, she called again the next day. During this conversation, the operations manager informed her that higher management had directed him to terminate her employment.
He cited a "not to roster" directive from a client venue, Balaclava & Raintrees pubs, which had been issued on 28 June 2024.
The operations manager offered to provide a separation certificate when the worker requested one, promising to deliver it by Monday, 23 September 2024. Despite her follow-up attempts, she never received this document.
The FWC documented extensive attempts to involve the employer in the proceedings. After initially contacting the company's human resources department and receiving a contact person's details, the Commission sent formal notices and directions. However, the employer neither responded nor attended the scheduled mention.
The Commissioner wrote in the decision: "The Commission has made considerable efforts to ensure that these proceedings were brought to the attention of [the employer]. There has been a total failure by the company to engage with these proceedings. I am satisfied that it was afforded a fair and reasonable opportunity to present its case."
With no response from the employer to contest any facts presented, the Commission proceeded to determine the matter based on available evidence.
The Commission's analysis of the worker's employment status proved crucial. A review of her payslips revealed a regular work pattern that qualified her for unfair dismissal protections under the Fair Work Act 2009.
The FWC stated: "I am satisfied that she was a regular casual employee. I am also satisfied on all of the evidence that [the worker] had a reasonable expectation of continuing employment by [the employer] on the same basis."
The evidence confirmed her earnings fell below the high-income threshold, and she had completed the minimum employment period required by law.
The Commission found several issues with the termination process. Notably, the employer never explained the basis for the client venue's "not to roster" directive.
The worker stated she never had a chance to defend herself against any complaints and noted that at least three other security guards who received similar directives remained employed.
The Commissioner emphasized: "The fact that an employee receives an NTR cannot of itself be seen as warranting termination of employment. This is evidenced by the fact that [the employer] continues to employ other guards who have received NTRs, and continued to roster [the worker] for duty for three months after she received one."
The Commission found particularly significant that the employer continued rostering the worker for three months after receiving the directive, which "calls into question the objective seriousness of the basis for the NTR."
After determining reinstatement inappropriate, the Commission ordered six weeks' pay as compensation, totalling $9,333 plus superannuation. This amount considered multiple factors, including the worker's length of service and post-dismissal circumstances.
The Commissioner specifically noted: "That amount contains no component for any shock, distress, humiliation or other analogous hurt suffered by [the worker] as a result of the manner of her dismissal."
The final order required payment by 3 March 2025, with the Commissioner stating: "The quantum does not justify the compensation being paid in instalments."
