Casual employees cannot be “dispensed with”

Casual employees cannot be “dispensed with”

young bakery worker handing paper bag to the camera (casual employee)

Members will be aware that, over many years, there have been fluctuations of casual workers’ rights within the workplace. This has led to some confusion as to the legal status and entitlements of casual workers and their employees, especially in regard to termination of employment.

In unfair dismissals, it has been the case for many years that reducing a casual’s hours can be seen as a termination at the initiative of the employer. If an employee has no hours, that is as good as saying that they are no longer required. This case looked at the issue from a general protections perspective, that is, a case where an employee had a workplace right and the employer terminated them for having that workplace right.

Casuals cannot be “dispensed with” simply by reducing their hours to zero. This ruling has been made by the Fair Work Commission (FWC) as of this year and has paved the way for a worker to pursue his adverse action claim. On the face, it seems obvious that it cannot be common sense to reduce hours to zero to force the employee out of the business.

A casual guest services attendant, who lived at a hostel “in a caretaker capacity”, claims it dismissed him on his first day of approved personal leave after he suffered a “mental breakdown due to the stress of his increased workload” the day before.

Maintaining that he had been “forced” to assume additional responsibilities because the regional manager was “constantly absent from the work site”, the attendant accuses the employer of ignoring his complaints that the workload was too intense and that he needed help.

In November last year, after seven months of employment, the attendant says the employer agreed to him taking a fortnight of personal leave immediately after suffering a mental breakdown.

He then claims the general manager called him the next day, on his first day of leave, “outlining that he was dismissed” because of his “up and down” moods and because he was constantly “butting heads with the regional manager”.

Alleging that the hostel in fact dismissed him because of his temporary absence due to his mental health, the attendant argues it breached his general protections at s340 and s352 of the Fair Work Act.

Employer was “confused” about responsibilities
The hostel disputed the attendant’s allegations, raising a jurisdictional objection in the FWC on the basis that it did not dismiss him. It maintained the attendant put “undue stress on himself” by assuming responsibilities it did not require him to perform.

Because he worked as a casual and lived on-site, the employer claims the attendant was “often confused what hours were working hours and what hours were not working hours”.

Denying it dismissed him, the hostel meanwhile says that, after granting him leave, “more revelations” came to light about the attendant allegedly “plotting and rumour spreading”.

When the general manager approached the regional manager about it, the employer says the “regional manager instructed the general manager to call [the attendant] and tell him we no longer had hours for him”.

His hours were “reduced to zero and the hours were filled by the two already hired replacements”, the employer says.

The employer also argued that it might make further work available to the attendant if he “will improve his attitude and focus only on his assigned duties”.

Zero hours notion “plainly misconceived”

The Commission dismissed the employer’s jurisdictional objection, finding its argument that there was no dismissal “plainly misconceived and allied to the proposition that a casual employee may simply be dispensed with by reducing their hours to zero without the employee having recourse either to the Fair Work Act‘s unfair dismissal or general protections provision”.

Commissioner Wilson further observed that the Fair Work Act “provides that a person has been dismissed if their employment ‘has been terminated on the employer’s initiative”. The Commission is required to take into account under s387 of the Act, including affording the employee procedural fairness when the employer decides to no longer offer the employee further casual shifts.

Referring to the conflicting accounts of what the hostel said, the Commission found that “irrespective of which version of words are considered the intention conveyed by [the employer] was that [the attendant] would no longer work for the business”.

“Whether he was told he was dismissed due to his ‘moods being up and down’ and because he was ‘constantly butting heads’ with the regional manager (as alleged by [the attendant]) or that ‘we no longer had hours for him’ (as alleged by the employer), the plain fact is that the employment relationship was intended to be ended,” he said.

Lessons for employers
This case has implications for employers, as they cannot simply reduce a casual employee’s hours to zero in order to dismiss them without running the risk of an adverse action claim.

Overall, the FWC’s ruling underscores the importance of understanding the legal status of casual workers in the workplace. It serves as a reminder to both employers and employees that casuals are entitled to certain protections and rights under the law and that these must be respected and upheld.

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