By Gaby Grammeno Contributor

The worker was a brow and lash artist engaged on a casual basis by a beauty parlour. She worked regular shifts six days a week. She and other staff were notified of shift allocations via an app.

In April 2024 she experienced a domestic violence incident and attended a local hospital for treatment, notifying the employer that she’d be absent for two days, after which she returned and continued with her usual shifts for a short period.

Towards the end of April, however, she became concerned that she was not being rostered on for any shifts. Though she raised her concerns with the employer on multiple occasions, she was not given any explanation.

She filed an application with the Fair Work Commission alleging that she’d been dismissed in contravention of the general protections in Part 3.1 of the Fair Work Act 2009. She believed she was not being given any shifts at least in part because of her absence due to the domestic violence incident.

The employer objected to the application, maintaining that she had not been dismissed and was still employed by them.

In the Commission

In order to deal with the dispute, the Commission had to determine whether the worker had been dismissed in terms of s 365 of the FW Act. This section states that a person has been dismissed if it was on the employer’s initiative or the person was forced to resign because of the employer’s conduct.

The employer’s position was that as a casual employee, the worker was not guaranteed any work. Any reduction in the shift allocations occurred only because of business needs, and that ‘April and May were usually less busy periods for the business’. 

The employer said shift allocations were determined and notified six weeks in advance, so at the time the worker’s shifts were set, the employer had no knowledge of the domestic violence incident therefore this could not have been a factor in the reduction of work.

The worker said that in the entire time she’d worked there, she’d never before been ‘left off the roster’.

There was insufficient evidence that any other employees had their shifts reduced due to April and May being ‘less busy’, and the worker said she hadn’t observed any reduction in customer numbers or bookings.

Deputy President Thomas Roberts accepted that the worker had received no explanation why her otherwise regular and predictable shifts suddenly stopped. 

The worker had also been removed from a social chat group of the business’s employees. It was clear that the group was not just a forum for social exchanges, as it also contained work-related messages from management.

Deputy President Roberts considered that removal from the group chat by her manager ‘was not a personal act of social exclusion but a step … consistent with the [worker’s] employment relationship being brought to an end by the [employer]’.

Deputy President Roberts concluded that the worker had been dismissed on the employer’s initiative, despite the absence of an express dismissal and the employer’s insistence that she had not been dismissed. 

The worker did not resign or leave voluntarily, and it was apparent that the employer did not intend to offer her any further work, as rostering arrangements had been allocated for all staff up to mid-September 2024, and the worker was not rostered for any work in that period.

The employer’s objection was therefore dismissed, and the matter will be relisted for conference later.

What it means for employers

Leaving a worker off the roster for a prolonged period without explanation – after years of regular, predictable shifts – may amount to dismissal. The Fair Work Act’s general protections mean that workers, including casuals, are protected from adverse action because of illness or injury-related temporary absence.

Employers should make sure they communicate clearly with casual workers regarding their employment status and their shifts.

Read the decision

Nadine George v The Face Specialist Pty Ltd - [2024] FWC 2239