By Mike Toten Freelance Writer
A casual employee has been allowed to lodge a general protections claim after the Fair Work Commission (FWC) found that being excluded from a rostering app and failing to respond to communicate with him amounted to dismissal.
FACTS OF CASE
The employee was a casual support worker for a disability services provider. After about three months’ of employment, he stopped receiving work shifts and was no longer able to access the work shift rostering app. The employee had raised concerns about his pay after working a 19-hour shift due to problems with a client and had reported a co-worker for misconduct. The employer did not respond to his attempts to make contact by phone after he was locked out of the rostering app.
The employer claimed that he had not entered his availability for shifts into the app and that some customers had asked that he not be assigned to them. It claimed that he was still an employee, as the percentage of clients that complained was only about 20%. The employee claimed that he had not used the rostering app previously, but had still been offered regular shifts, usually three per week.
The FWC said that it was relevant that the employer terminated the employment of his wife on the same day it locked him out of the rostering system. His wife then lodged a claim of unfair dismissal.
The FWC found the employee’s evidence more credible than the employer’s.
DECISION
The FWC found that the employee was dismissed. He had remained available for work shifts but wasn’t offered any, and wasn’t allowed to apply via the app for any. Nor did the employer respond to his attempts at contact.
Therefore, termination of employment at the employer’s initiative had occurred, and the FWC allowed the employee’s general protections claim to proceed.
WHAT THIS MEANS FOR EMPLOYERS
This case is not yet resolved. But the FWC made the point that, where the two parties’ evidence is in conflict, a decision about whether dismissal occurred depends on what a reasonable person in the position of the parties would have understood the objective situation to be – not what were the parties’ subjective views and intentions.
READ THE JUDGMENT
Wade Felsch v The Trustee For Rose Family TrustT/A Indigo Rose Disability Support Services
Mike Toten Freelance Writer
Mike Toten is a freelance writer, editor and media commentator who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. Mike has over 30 years' writing experience, including writing and editing Human Resources Management
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