Casual employees and dismissals

 

These passages from an unfair dismissal case explain the legal mechanics at play in determing what is required to terminate the employment of a true casual emloyee.

“When did the dismissal take effect? 

 

  1. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under subsection (3).

 

  1. Section 394(3) states that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account:

 

  1. the reason for the delay; and

 

  1. whether the person first became aware of the dismissal after it had taken effect; and

 

  1. any action taken by the person to dispute the dismissal; and

 

  1. prejudice to the employer (including prejudice caused by the delay); and

 

  1. the merits of the application; and

 

  1. fairness as between the person and other persons in a similar

 

  1. In order to establish that the Applicant was dismissed, there must be action by the employer that either intends to bring the relationship to an end or has that probable There must be repudiation of the employer.

 

  1. The Full Bench decision of City of Sydney RSL v Mrs Roxana Balgowan [2018] FWCFB 5 states at 24:

 

“The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment.” 

 

It is difficult to see how this common law concept of repudiation has any work to do in relation to casual employees. At common law a casual employee’s contract of employment ceases at the end of each engagement. An employer of a causal employee does not repudiate that contract when it fails to offer another shift.” 

 

  1. It has been established that a dismissal does not take effect until it is communicated to the employee.1 In Ayub v NSW Trains, the Full Bench of the Commission stated:

 

“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of 

 

exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.”2 

 

  1. I am not satisfied that the removal of the Applicant’s shifts on 15 November 2023 amounted to a communication of her dismissal. The amended roster was initially sent to the Applicant without any accompanying explanation. Upon receiving the roster, the Applicant attempted to ascertain the reason for the removal of her shifts. Mr Wheeler informed the Applicant that the Respondent’s “wages bill” and the Applicant’s injury were the reasons for the removal of her shifts. He did not state that the Applicant had been terminated, nor that she would not receive another shift at any time in the Mr Wheeler finished the text message exchange on 15 November 2023 by stating that the Applicant would not be working “this weekend”. The Applicant was entitled to believe from this exchange that she would return to work at some point after the weekend. There was no reasonable opportunity for the Applicant to become aware of a dismissal at this time, as the Respondent had not taken any action that had the probable result of brining the employment relationship to an end.3

 

  1. Following the text message exchange on 15 November 2023, the Applicant did not receive any further communication from Mr Wheeler or the Respondent until she received the separation certificate from the Respondent. The dismissal was therefore not communicated to the Applicant until the separation certificate was issued on 20 December 2023, which confirmed that the employment relationship had ended.

 

  1. The Applicant sent a number of emails and messages to Mr Wheeler after 15 November 2023, requesting a separation However, these requests stated that she only wanted a separation certificate if she had been terminated by the Respondent. The Applicant’s preference was to be returned to her standard hours. I do not consider that the Applicant’s requests for a separation certificate amounted to her repudiating the employment relationship. By this point, the Applicant had started to entertain the possibility that her employment might have ended, but without any communication from the Respondent, she had no reasonable opportunity to be certain.

 

  1. Ms Howell’s email on 21 December 2023 suggested that Mr Wheeler believed that the Applicant had voluntarily ended the relationship by leaving the premises. However, the Respondent has not provided any material in support of this and did not attend the On the evidence before me, I am satisfied that the Applicant’s dismissal took effect on 20 December 2023, at which time the dismissal was communicated to her by way of a separation certificate.

 

Perfect v The Wheeler Family Trust (2024) FWC 254 delivered 31 January 2024 per Lake DP