Student’s Bid For Unfair Dismissal Remedy To Go Ahead

In February 2024 after a brief illness, he was not given any more work and found he was denied access to the rostering program and had been removed from the group chat. He said he had not been notified of his dismissal but simply stopped receiving shifts.

He believed he’d been unfairly dismissed, and applied to the Fair Work Commission for a remedy.

The employer contended that the worker had not been dismissed, and also that he hadn’t completed the minimum employment period required to be protected from unfair dismissal. They also maintained he did not have a reasonable expectation of ongoing work, as he was ‘not a regular casual employee’.

IN THE COMMISSION

At the hearing, the Commission needed to decide whether the worker had been dismissed, and whether he’d completed the minimum employment period required to be protected from unfair dismissal.

The employer’s representative – a manager who oversaw the operations of the business – gave evidence that on 10 February he received a message from the worker saying he’d woken up sick and would not be able to come in to work.

The manager said he’d texted the worker later that day and the following day to check how he was feeling, but noted that at the end of the message chain it stated ‘[t]his person is unavailable on Messenger’, which he understood to mean that the worker had blocked him. The manager subsequently removed the worker from the company’s rostering app and group chat.

On 14 February the manager had received an email from the worker’s mother attaching a medical certificate advising that the worker was unwell until 17 February, but the manager claimed that after that date the worker had not attempted to contact him directly to say he was available for work and would like some work, nor had his mother asked for the worker to be given more work.

He assumed the worker’s failure to turn up for three shifts on 12, 13 and 14 February, or let him know he was feeling better and available for work, meant he was no longer interested in working at the business.

The worker’s evidence was that he had not been informed that he was rostered on for shifts on 12, 13 and 14 February and that his failure to attend work that week was due to his illness at the time.

WAS THE STUDENT DISMISSED?

Under the Fair Work Act 2009, a person is dismissed if their employment is terminated on the employer’s initiative or the person is forced to resign because of the employer’s conduct.

Deputy President Abbeygail Beaumont found that the worker did not resign from his position, he’d been dismissed. The manager removed him from the roster program and the group chat before receiving the medical certificate, and after receiving the medical certificate the manager took no steps to reinstate him or enquire about his availability for work after 17 February.

Considering that the student had informed him that he was unwell, was absent for only three or four days, and in light of the student’s length of service with the employer (17 months), it was ‘premature’ of the manager to remove the worker from the rostering system and the group chat.

HAD THE STUDENT COMPLETED THE MINIMUM EMPLOYMENT PERIOD?

To be eligible for unfair dismissal protections the worker must have completed the minimum employment period – in this case six months, as the employer appeared not to be a small business.

If the worker was employed as a ‘regular’ casual employee, and if he had a ‘reasonable expectation of continuing employment on a regular and systematic basis’, then the worker’s period of service exceeded the minimum employment period.

The employer submitted that the worker’s employment was not ‘regular’. As per his contract, he should not have had a reasonable expectation of continuing employment, and the sporadic and varied nature of his shifts and duties meant his hours and days of work did not give rise to a regular, systematic pattern of work.

The evidence, however, indicated a fair degree of regularity in his employment. His timesheets showed he was employed on a regular and systematic basis – every week for the last six months apart from a two-week absence – given the rostering methodology, the business requirements, and the other circumstances such as limits on the worker’s availability due to school attendance.

Deputy President Beaumont concluded that he had a reasonable expectation of continuing employment on a regular and systematic basis during his period of employment as a casual employee.

The Deputy President found that the worker was dismissed, and had completed at least the minimum employment period with the employer. She therefore dismissed the employer’s objections and ordered that the matter would be subject to further programming.

WHAT IT MEANS FOR EMPLOYERS

Employers need to make sure they’re aware of casual workers’ entitlements when deciding to end their engagement. To avoid unfair dismissal claims, it’s important to recognise what counts as a regular, systematic pattern of work, and that casuals who’ve completed the minimum employment period may qualify for unfair dismissal protections.

READ THE DECISION

Mr Kai Mitchell Leeson v Belindara Pty Ltd T/A Flip Out Mandurah [2024] FWC 1766