When can employers remove workers from roster over compliance issues?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim where a worker argued she was summarily dismissed after being told she couldn't start her shift.
The worker claimed she wasn't given proper notice, wasn't allowed a support person, and had no opportunity to respond to performance concerns.
The dispute centred on workplace compliance requirements and communication breakdowns between the worker and management.
At its core, the case examined whether being removed from a roster constituted a dismissal under the Fair Work Act 2009.
The case involved a nurse at a private hospital who hadn't completed mandatory training modules. On 29 May 2024, the hospital's human resources manager emailed the worker about overdue training, warning that non-completion would result in temporary roster removal. After receiving no response, a second email was sent on 4 July 2024, setting an 18 July deadline.
The worker took pre-approved annual leave from 21 July to 13 August 2024. Upon her return, she met with the nurse unit manager who informed her she couldn't commence work without completing the training. When presented with correspondence about these requirements, she refused to accept it, claiming it wasn't "an authorised form."
The hospital's Enterprise Agreement required all employees to complete employer-provided statutory training annually. Their Education and Training Policy specified that incomplete mandatory training could lead to temporary roster removal.
The worker later told the Commission she didn't understand what was being asked of her during the 14 August meeting. When asked to attend a private meeting with management, she felt concerned about being fired and interpreted the nurse unit manager's direction to "leave now" as a dismissal.
While the worker produced certificates for three training modules, hospital records showed twelve online modules from 2023 remained outstanding. The hospital maintained they hadn't ended her employment but had placed her on leave without pay until training completion.
As noted in the decision: "[The worker] was unable to explain why, if she believed that she had completed all of the necessary training, she did not say this to [the nurse unit manager] or [the HR manager] on 14 August 2024."
The Commission found significant issues with the worker's evidence about communication. The decision stated: "It is not credible for her to suggest that she saw none of the many emails sent to her by [the hospital] or the posted documents," especially after evidence showed posted documents had been opened, resealed, and returned.
The hospital's director of clinical services had sent a letter on 15 August 2024 placing the worker on leave without pay until training completion, with a new 23 August deadline. The letter offered support for completing the training and warned that continued non-compliance could result in disciplinary action.
The Commission noted: "[The hospital] sent her numerous reminders. It was patient. Its decision not to roster her for work was entirely reasonable in the circumstances." Importantly, it found that "[the worker's] employment was not terminated on the employer's initiative, nor was she forced to resign by the conduct of [the hospital]."
Additionally, the Commission stated that even if a dismissal had occurred, it would have been justified because "[the worker] persistently refused to comply with [the hospital's] many lawful and reasonable directions that she complete the mandatory training, and because she refused to engage with it about their concerns."
