Employer argues worker said he was 'not returning'
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed he was unfairly dismissed from his job on a remote island project. The worker argued that his employment was terminated due to performance issues related to a foot injury he sustained on the job.
He said that he was let go during a conversation with his supervisor, despite his willingness to continue working.
The dispute centred on whether the worker's employment truly ended due to dismissal or resignation, highlighting the importance of clear communication between employers and workers, especially in project-based industries.
Background of the case
The worker started employment with a personnel company as a truck driver on the Barrow Island Project on 15 April 2024. The day after starting, he developed a foot injury due to ill-fitting boots provided by the employer. This injury led to ongoing issues and discussions about the worker's ability to perform his duties.
The employment was based on a casual contract, which stated that each assignment was separate and distinct, with no guarantee of ongoing work. The contract included clauses such as:
"I understand that [the employer] is under no obligation to provide me with any regular or systematic work and makes no firm advance commitment regarding the ongoing nature or duration of any work."
On 22 May 2024, the worker told his supervisor that he had found another job and would not be returning after his current swing (work rotation). However, his circumstances changed, and he asked for an additional swing, which was granted.
Parties’ dispute
During the third swing, which began on 10 June 2024, the worker's foot injury continued to be a problem. On 22 June 2024, a conversation took place between the worker and his supervisor. The content of this conversation became a key point of disagreement in the case.
The worker said that during this conversation, he was told that his employment was ending due to performance issues related to his foot injury. The supervisor, however, said that he merely informed the worker that the position was ending as the swing was coming to an end.
The supervisor reportedly said: "We are wrapping up your position as the swing is coming to an end. There have been some performance issues noticed. We've had multiple discussions about your foot, and it's been noticed by [the client]. I've defended you on that, but it's impacting the team."
Legal considerations and FWC's decision
The case depended on whether the worker was dismissed within the meaning of section 386 of the Fair Work Act 2009. This section defines dismissal as either termination at the employer's initiative or forced resignation due to the employer's conduct.
The FWC examined the evidence, including email correspondence and statements from both parties. They focused on the sequence of events leading up to the end of the worker's employment.
In its decision, the FWC noted the importance of the worker's initial statement on 22 May 2024 that he would not be returning to the project. The Commission viewed this as a resignation, despite the subsequent granting of an additional swing.
The FWC stated:
"It is not the case that the action of [the employer] was the principal contributing factor which led to the termination of [the worker's] employment. [The worker] had unequivocally informed [the employer] on 22 May 2024 that he was not returning to the Project and as such had resigned."
The Commission further said:
"Whilst [the worker] secured another swing, namely the third swing, the evidence does not lead to a finding that past that third swing there was a commitment from [the employer] for a further assignment. Hence, when the assignment came to an end on 24 June 2024, it did so in accordance with [the worker's] employment contract."
The FWC concluded:
"It therefore follows that [the worker] was not dismissed."
The case shows the importance of having detailed employment terms, as seen in the worker's contract which said: "I understand that on completion of an assignment, [the employer] is under no obligation to offer further assignments to me."
The FWC said that casual employment contracts should clearly outline the nature of assignments and the lack of guarantee for ongoing work.
