Employer says worker's application 'premature'
The Fair Work Commission (FWC) recently dealt with a dismissal claim from a worker who said he was terminated before the end of his shift. The employer argued against his application, saying he was not dismissed.
Around June 2023, the worker, Bajram Zyka, filed a general protections application alleging that his employer, The Security Hub Pty Ltd, committed a violation of the FW Act when he was terminated.
The company's business provides security services to clients in Melbourne, Victoria, encompassing a wide range of clients, from direct to those for which the employer acts as a subcontractor.
The worker was employed on a casual basis as a security officer, but no formal written employment contract or appointment letter exists between the parties.
He found out about his shifts based on a roster published by the employer through an online rostering application called "Guardhouse." His duties included working at various sites, including the Department of Family Services in Richmond, where MSS Security Pty Ltd (MSS) acted as the head contractor.
On 13 June 2023, an incident occurred between the worker and a control room operator for MSS, during which the latter requested the worker's physical security license.
The worker refused to do so because he said the operator's "demeanour" was "terrible," was "without respect," was "not professional," and that he was "not authorised to request his security license."
Following this incident, MSS informed the employer and requested the worker's replacement with another security guard.
On 13 June 2023, the worker received a notification on Guardhouse that his shift had been cut short.
Later that day, the worker reached out to the employer's rostering coordinator of the employer, inquiring about his employment status, why his shift was cut short, and if he was still an employee. He also expressed concerns about other guards not being requested to produce their licenses.
After a few days, he requested an investigation report regarding the incident, along with further clarification about employment.
The employer replied and said he was still employed but could not be restored due to his failure to produce his security license when requested.
According to records, the worker said he was dismissed when the employer removed him from the work site "prior to the expiration of his shift."
On the other hand, the employer argued that it was still "in the process of reviewing the incident" and that the worker "assumed that he had been dismissed from the workplace, resisted, and [ceased] contact with the business without providing an opportunity to discuss options."
The Commission noted that the worker "was aggrieved and frustrated by the incident" but pointed out that the employer's request that he leave the [work site] before the end of his shift was misunderstood.
"Bringing [an] end to the worker's placement at the MSS site does not demonstrate that the [employer] brought the employment relationship to an end," it said.
"[The employer] acted efficiently in dealing with the incident and that it needed to consult MSS and conduct an investigation into the incident."
Thus, the Commission agreed with the employer and said the worker "filed his application prematurely," consequently ruling that he was not dismissed. It then rejected his application.
