While hiring casual employees provides employers with a degree of flexibility around rostering, there are still important processes to be followed, particularly given certain categories of casual employees can claim unfair dismissal.

A recent case before the Fair Work Commission (the “FWC”) is an example of where an employer putting a casual employee’s shifts “on hold” amounted to unfair dismissal.

Background

The casual employee was a “pick packing associate” who had worked full-time hours over a seven-month assignment at a distribution centre. She advised her employer that she was pregnant and presented medical evidence that she was unable to perform her usual duties which required using a step ladder and lifting heavy weights. The employee worked two subsequent shifts on “light duties”. However, a few days later she received an SMS communicating that such light duties were no longer available. Noting priorities about her safety, the employer communicated that her shifts were to be put “on hold” including scheduled training shifts to become a packer, which would have allowed the employee to perform different duties.

The employee claimed that she had been unfairly dismissed but the employer insisted that the employee’s employment had not ended, noting that there had been no mention of termination of employment, and that her profile remained active to date. Nonetheless, the FWC was satisfied that the employee’s shifts being put “on hold” amounted to unfair dismissal.

Why was this dismissal?

Whether a dismissal has occurred can be more difficult to identify for casual employees since it is common for their engagements to be uncertain or intermittent.

However, in this case the FWC found that working full-time hours over seven months amounted to “one unbroken period of employment”. The FWC characterised this employment period as regular, systematic and giving rise to an expectation of specific future work. For these reasons the employee could access the unfair dismissal protections (which is not ordinarily available to casual employees).

The FWC found that the employee’s ongoing employment ended on the employer’s initiative when they advised that her shifts were “on hold” and took no further action to continue the employment relationship. The decision to not continue the employment relationship was specifically evident by ignoring the employee’s communications and failing to offer further shifts or alternative training. The FWC found that the employer’s actions were consistent with dismissal even though termination of employment had not specifically been discussed.

Why was it unfair dismissal?

The FWC found that the dismissal was unfair since there was no valid reason for the dismissal. While the employer argued that the casual employee was medically incapable of working, the FWC noted that she had worked light duty shifts (and there was no evidence suggesting she could not continue in this capacity). Further, by cancelling training shifts that would have allowed her to perform other duties the employer ended the employment relationship.

The FWC reinstated the employee and ordered the employer to pay the employee for lost remuneration, interest and payment of lost superannuation.

Takeaways for employers

The case highlights the importance of clear communication with all employees, including casual employees. While the employer had not intended to terminate the employee’s employment the FWC found that its actions amounted to this. The FWC was specifically persuaded by the fact that there was no subsequent communication to clarify to the employee whether she was still employed.