This extract from an unfair dismissal decision deals with the legal issues involved when determining whether a diminution of hours of a casual employee can constitute a dismissal.
“4. Consideration
[55] ‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:
“Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[56] The definition of dismissal in s 386(1) of the Act has two parts. The first deals with
‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’.
[57] It is well-established that a reduction in hours or pay for a casual employee can constitute termination of employment at the employer’s initiative.25 In this case, Ms Telfer’s and Ms Marsh’s evidence is that JFT made a deliberate decision to cut down on Ms Graham’s shifts, despite Ms Telfer, Ms Marsh and Ms X questioning the decision.
[58] I do not accept Ms Bavcevic’s evidence that she only asked for Ms Graham’s keys back so that she could have a spare set. I find that this supports a finding that JFT ended Ms Graham’s employment.
[59] JFT submitted that Ms Graham was not dismissed and that the reduction in her shifts was not due to any performance-related issues; rather, it was due to a downturn in business which required JFT to temporarily reduce staffing levels.26 Though the reason for the reduction in shifts is more relevant for consideration of merits, I do not accept the submission that it was a temporary state of affairs. As per the evidence, there was a deliberate decision to suddenly decrease Ms Graham’s rostered hours in February 2024, which continued on until April 2024. This was not a temporary reduction of staffing levels.
[60] JFT also submitted that Ms Graham resigned her employment.27 As outlined above, I find that JFT terminated Ms Graham. But, even if I had found that Ms Graham had resigned, I would still be satisfied that it met the definition of ‘dismissal’ in s 386(1).
[61] The two limbs of s 386(1) and how they might apply to a resignation was examined by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli,28 which noted the following:29
- There may be a dismissal within the first limb of s 386(1) where a resignation was made in the “heat of the moment” or when the employee was in such a state of emotional stress or mental confusion that they could not reasonably be conveying a real intention to resign.
- The test for a ‘forced’ resignation under the second limb of s 386(1) is whether the employer engaged in the alleged conduct with the intention of ending the employment or whether termination of employment was the probable result of the employer’s conduct because the employee had no effective or real choice but to resign.
[62] If I had been satisfied that Ms Graham had resigned, I would have been further satisfied that her resignation was a forced one. I note that Ms Telfer gave evidence that during her phone calls with Mr Jerkovich, he was often use derogatory language towards Ms Graham, calling her
“vermin”, “a disease” and “an ugly problem”.30 I also note Ms Telfer’s uncontested evidence of Mr Jerkovich’s clear instructions to cut down Ms Graham’s hours, a direction that was confirmed by Ms Bavcevic. If I had found that Ms Graham had resigned, I would be satisfied that JFT cut her rostered hours with the intention of ending Ms Graham’s employment, and that given Ms Graham’s efforts to communicate that she wanted more shifts, she had no real choice but to resign.
[63] As I have found that Ms Graham was dismissed and that JFT was a small business at the time she was dismissed, I will now program the matter to hear the parties on whether JFT complied with the Small Business Fair Dismissal Code.”
Graham v The Trustee For Jerkovich Family Trust [2024] FWC 2576 delivered 20 September 2024 per Lim C