This extract from a recent unfair dismissal decision of the Fair Work Commission contains an excellent summary of various legal principles which operate when a casual employee is dismissed, such as the nature of the notice required, the formality of the process and issues which touch upon unfair dismissal law as it relates to casual employees.
“Consideration
[26] Whether a person has been “dismissed” for the purposes of Part 3-2 of the Act depends on whether their circumstances come within one or other of the two limbs of s.386. That section relevantly provides:
(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.
[27] In Khayam v. Navitas English Pty Ltd t/a Navitas English3 a Full Bench of the Commission summarised the approach to be taken to the interpretation and application of s.386(1)(a) as follows:
(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.
(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.4
[28] In that matter, the majority also made a number of observations about the application of Part 3-2 of the Act to casual employees:
It is reasonably apparent that, notwithstanding that it is expressed as an exclusionary provision, the purpose of s 384(2)(a) is to confirm that casual employees of the type referred to are included in the operation of Pt 3-2 and are able to make an application for an unfair dismissal remedy. However there is a difficulty in that, conventionally, casual employment is taken to be constructed of daily or shorter contracts of employment (although this is not a universal indicium of casual employment and in some cases the existence of a longer-term contract of employment may be inferred). Where a casual employee is taken to be engaged under a sequence of daily contracts, then if a casual completes their engagement on a particular day and is never thereafter engaged by the employer, contractually the employment has come to an end by agreement due to the effluxion of the contractual term rather than by any act by the employer to terminate the contract. If that situation was incapable of being characterised as a dismissal under s.386(1)(a) it would substantially or entirely defeat the operation of s.386(2)(a).5
[29] The evidence as to the applicant’s status as a casual employee and terms of engagement was limited. The applicant accepted that he was a casual employee in these proceedings and in the first application. He accepted that the position was offered to him as a casual position and that he accepted it on that basis6. Nothing was put to the contrary. I proceed on the basis that the applicant was a casual employee at all relevant times.
[30] The balance of the terms of the applicant’s engagement are difficult to ascertain. There was no written contract in evidence that expressly provided that the applicant was engaged on a series of short-term contracts that concluded at the end of each shift. There was no evidence about any conversation at the point of engagement from which it might be possible to discern clear oral terms of the contractual arrangement. However, there was some evidence as to the applicant’s previous engagement and the fact that the applicant was employed by the respondent to perform the same work at the same times and at the same venues as he had performed under his previous part-time contract for his previous employer for over three years. The evidence was that this was the work that he ultimately performed. He did not perform other work, aside from an occasional additional shift. Having regard to the history of the applicant’s previous engagement and the circumstances in which he was employed by the respondent, it may be argued that this arrangement was well-understood by the parties at the point of engagement and the applicant had a reasonable expectation that this work would continue. However, I do not think that the evidence is sufficient to permit a conclusion that there was a departure from the conventional form of casual engagement or that a contractual term existed that the applicant would, subject to any variation or termination of the contract, be guaranteed the three regular shifts on Friday, Sunday and Monday at the two venues, on an ongoing basis.
[31] However, the correspondence from the respondent dated 29 November 2023 has a bearing on the ongoing existence of the applicant’s employment. This was the last communication the applicant received from the respondent. It reaffirmed that he had not been dismissed and indicated that there would be an investigation process conducted by the respondent of indefinite duration. It invited the applicant to advise of availability for alternative work. Once he became aware of the existence of the correspondence, this is precisely what the applicant did throughout January 2024 and beyond. This correspondence clearly represented to the applicant that his employment was ongoing and that an investigation process was underway. The applicant was entitled to rely on that representation and did so, to his detriment, when he instructed his lawyers to discontinue the first application because of it. The applicant’s employment remained on foot as a result of this correspondence.
Was the applicant dismissed and if so, when?
[32] I have concluded that the applicant was not dismissed in December 2023 by the emails dated 8 December. There was no other contact from the Respondent after that time and so there was no express termination of the applicant’s employment by the respondent. The applicant maintained that a dismissal was brought about because the respondent simply ignored the applicant’s communications which ultimately meant he had no work offered to him and was left with no real choice but to resign.
[33] It is clear enough that an employer may dismiss a casual employee within the meaning of s.386(1)(a) by telling them that they will not be given any more work. In Balgowan v. City of Sydney RSL and Community Club Ltd7 Commissioner Saunders (as he then was) was asked to determine such a question8 on remittal from a Full Bench and found that the evidence in that case did not support that conclusion. A dismissal does not ordinarily take effect unless and until it is communicated to the employee by plain or unambiguous words or conduct.9 The effective date of a dismissal can be more difficult to determine where there is no express communication, including the case of casual employees, no communication in relation to future work. As Deputy President Colman observed in his dissent Khayam;
One of the jurisdictional facts which the Commission must decide before considering the merits of any unfair dismissal application is that the application was made within 21 days after the dismissal took effect, or such other period as the Commission allows. The FW Act requires that the date of dismissal must be identified with certainty. Casuals who are simply not re-engaged may have difficulty identifying such a date.10
[34] The Applicant contended that his employment ceased on 24 April 2024 when he tendered his resignation. I do not think the evidence supports a conclusion that the applicant’s employment endured at that point. The question of whether an employment relationship continues to exist is a question of fact and it is necessary to consider all of the circumstances to determine whether the has been a communication of dismissal by words or conduct.11 In deciding whether an employment relationship has ceased to exist, it is necessary to determine what a reasonable person in the position of the parties would have understood was the objective position.12 In my view, having regard to all of the circumstances including the work history, the history of the interactions and correspondence, it would have been reasonably apparent by one week after the applicant’s penultimate correspondence to the respondent on 5 March 2024, that the respondent did not intend to contact the applicant or provide him with any further work and in that case, that the applicant’s employment was at an end.
[35] I am also of the view that the dismissal of the applicant was on the initiative of the respondent. The applicant’s employment was brought to an end by the act of the employer which resulted directly or consequentially in the termination.13 That act was the deliberate decision not to respond to the applicant’s attempts to clarify his situation and return to work. The employment relationship was not left voluntarily by the applicant. Had the employer not taken the action, the employee would have remained in the employment relationship. It was the action of the respondent that either intended to bring the employment to an end or had that probable result.14 I conclude that the applicant was dismissed by the respondent within the meaning of s386(1)(a) and that the dismissal took effect on 12 March 2024.
Are there exceptional circumstances justifying an extension of time?
[36] As I have concluded that the dismissal took effect on 12 March 2024 and it was accepted that the application was not filed until 11 May 2024, the application is outside the 21-day statutory time period prescribed by s.394(2). I turn then to consider the matters in s.394(3) to determine whether a further period should be allowed for the making of the application.
Reason for the delay
[37] The delay in the filing of the application is the period from the last date on which the application could have been filed, in this case 2 April 2024 and the date the application was made. As the applicant maintained that the application had been made within the 21-day time period, he provided little by way of explanation as to why he waited until 11 May to file his application. He said that the respondent had not provided him with the courtesy of a reply and did not bother to formalise his termination. He said he believed he was ignored and “punished” for bringing the first application. He did not provide any evidence that there were any obstacles to the making of an application.
[38] The most that can be said for the applicant in relation to the reason for the delay is that the lack of response from the respondent created considerable uncertainty for him as to whether he had been dismissed and if so, when that dismissal took effect. It is also the case that the applicant took active steps at least up until 5 March 2024 to resolve the matter. This provides a partial explanation for the delay but does not account for the totality of it. It is not necessary to account for the entire period of the delay to establish that there are exceptional circumstances15. It was nonetheless possible for the applicant to take steps to bring the matter to a head well before 11 May 2024.
Whether the person first became aware of the dismissal after it had taken effect
[39] The applicant was not made aware of the dismissal by the respondent in clear and express terms. He was operating in an environment of uncertainty because of the respondent’s position. He did not have the benefit of a clear timeframe in which he needed to act. The applicant’s lack of awareness as to the date the dismissal took effect weighs in favour of a conclusion that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
[40] The applicant was actively seeking clarification from the respondent about his position until at least 5 March 2024. Whilst there were no steps taken thereafter until the filing of the application, I consider this to be in large measure due the uncertainty surrounding the applicant’s status because of the respondent’s decision not to engage with him. In those circumstances I do not think that the applicant’s failure to take steps after 5 March, and any subsequent lack of notice to the respondent that the dismissal was actively disputed, should count against the applicant in the overall assessment.
Prejudice to the employer, (including prejudice caused by the delay)
[41] The respondent contended that the application had not been brought in good faith, was vexatious and had unnecessarily consumed their time and resources. I do not accept that to be the case. In any event, a relevant prejudice is one that the respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. I am unable to identify any prejudice of that kind. I regard the issue of prejudice as a neutral consideration.
Merits of the application
[42] It is unnecessary and undesirable to undertake a detailed assessment of the merits here. Nonetheless, on the available material it seems to me that the applicant has an arguable case that the circumstances surrounding the termination of his employment may constitute an unfair dismissal. This is because of the undisputed fact that the respondent chose to ignore the applicant’s contact with them even after he had explained that he had not received their communication of 29 November 2023 until January 2024. He was never told whether the investigation into the November incidents had been concluded and if so, what the outcome was. He was never offered a reason for his dismissal and never told that he had been dismissed. I am of the view that the merits of the application weigh in favour of a conclusion that there are exceptional circumstances justifying an extension of time.
Fairness as between the person and other persons in a similar position
[43] The respondent accepted that there were no previous or current matters which attracted the relevant comparison under this heading. They said that allowing an extension of time would undermine the importance of established deadlines and set an unfavourable precedent for future cases. I do not consider that the question of fairness as between the applicant and others arises in this case. It is a neutral consideration.
Exceptional circumstances
[44] Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.16 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional. 17
[45] Having considered the various matters referred to in s394(3) and weighed them in the balance I am satisfied that there are exceptional circumstances in this case. I consider it is appropriate to exercise my discretion and extend time for the making of the application to 11 May 2024.
[46] The matter will be relisted for further programming on a date to be determined.
Callander v Banarang Aboriginal Corporation [2024] FWC 2080 delivered 6 August 2024 per Roberts DP
This extract from a recent unfair dismissal decision of the Fair Work Commission contains an excellent summary of various legal principles which operate when a casual employee is dismissed, such as the nature of the notice required, the formality of the process and issues which touch upon unfair dismissal law as it relates to casual employees.
“Consideration
[26] Whether a person has been “dismissed” for the purposes of Part 3-2 of the Act depends on whether their circumstances come within one or other of the two limbs of s.386. That section relevantly provides:
(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.
[27] In Khayam v. Navitas English Pty Ltd t/a Navitas English3 a Full Bench of the Commission summarised the approach to be taken to the interpretation and application of s.386(1)(a) as follows:
(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.
(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.4
[28] In that matter, the majority also made a number of observations about the application of Part 3-2 of the Act to casual employees:
It is reasonably apparent that, notwithstanding that it is expressed as an exclusionary provision, the purpose of s 384(2)(a) is to confirm that casual employees of the type referred to are included in the operation of Pt 3-2 and are able to make an application for an unfair dismissal remedy. However there is a difficulty in that, conventionally, casual employment is taken to be constructed of daily or shorter contracts of employment (although this is not a universal indicium of casual employment and in some cases the existence of a longer-term contract of employment may be inferred). Where a casual employee is taken to be engaged under a sequence of daily contracts, then if a casual completes their engagement on a particular day and is never thereafter engaged by the employer, contractually the employment has come to an end by agreement due to the effluxion of the contractual term rather than by any act by the employer to terminate the contract. If that situation was incapable of being characterised as a dismissal under s.386(1)(a) it would substantially or entirely defeat the operation of s.386(2)(a).5
[29] The evidence as to the applicant’s status as a casual employee and terms of engagement was limited. The applicant accepted that he was a casual employee in these proceedings and in the first application. He accepted that the position was offered to him as a casual position and that he accepted it on that basis6. Nothing was put to the contrary. I proceed on the basis that the applicant was a casual employee at all relevant times.
[30] The balance of the terms of the applicant’s engagement are difficult to ascertain. There was no written contract in evidence that expressly provided that the applicant was engaged on a series of short-term contracts that concluded at the end of each shift. There was no evidence about any conversation at the point of engagement from which it might be possible to discern clear oral terms of the contractual arrangement. However, there was some evidence as to the applicant’s previous engagement and the fact that the applicant was employed by the respondent to perform the same work at the same times and at the same venues as he had performed under his previous part-time contract for his previous employer for over three years. The evidence was that this was the work that he ultimately performed. He did not perform other work, aside from an occasional additional shift. Having regard to the history of the applicant’s previous engagement and the circumstances in which he was employed by the respondent, it may be argued that this arrangement was well-understood by the parties at the point of engagement and the applicant had a reasonable expectation that this work would continue. However, I do not think that the evidence is sufficient to permit a conclusion that there was a departure from the conventional form of casual engagement or that a contractual term existed that the applicant would, subject to any variation or termination of the contract, be guaranteed the three regular shifts on Friday, Sunday and Monday at the two venues, on an ongoing basis.
[31] However, the correspondence from the respondent dated 29 November 2023 has a bearing on the ongoing existence of the applicant’s employment. This was the last communication the applicant received from the respondent. It reaffirmed that he had not been dismissed and indicated that there would be an investigation process conducted by the respondent of indefinite duration. It invited the applicant to advise of availability for alternative work. Once he became aware of the existence of the correspondence, this is precisely what the applicant did throughout January 2024 and beyond. This correspondence clearly represented to the applicant that his employment was ongoing and that an investigation process was underway. The applicant was entitled to rely on that representation and did so, to his detriment, when he instructed his lawyers to discontinue the first application because of it. The applicant’s employment remained on foot as a result of this correspondence.
Was the applicant dismissed and if so, when?
[32] I have concluded that the applicant was not dismissed in December 2023 by the emails dated 8 December. There was no other contact from the Respondent after that time and so there was no express termination of the applicant’s employment by the respondent. The applicant maintained that a dismissal was brought about because the respondent simply ignored the applicant’s communications which ultimately meant he had no work offered to him and was left with no real choice but to resign.
[33] It is clear enough that an employer may dismiss a casual employee within the meaning of s.386(1)(a) by telling them that they will not be given any more work. In Balgowan v. City of Sydney RSL and Community Club Ltd7 Commissioner Saunders (as he then was) was asked to determine such a question8 on remittal from a Full Bench and found that the evidence in that case did not support that conclusion. A dismissal does not ordinarily take effect unless and until it is communicated to the employee by plain or unambiguous words or conduct.9 The effective date of a dismissal can be more difficult to determine where there is no express communication, including the case of casual employees, no communication in relation to future work. As Deputy President Colman observed in his dissent Khayam;
One of the jurisdictional facts which the Commission must decide before considering the merits of any unfair dismissal application is that the application was made within 21 days after the dismissal took effect, or such other period as the Commission allows. The FW Act requires that the date of dismissal must be identified with certainty. Casuals who are simply not re-engaged may have difficulty identifying such a date.10
[34] The Applicant contended that his employment ceased on 24 April 2024 when he tendered his resignation. I do not think the evidence supports a conclusion that the applicant’s employment endured at that point. The question of whether an employment relationship continues to exist is a question of fact and it is necessary to consider all of the circumstances to determine whether the has been a communication of dismissal by words or conduct.11 In deciding whether an employment relationship has ceased to exist, it is necessary to determine what a reasonable person in the position of the parties would have understood was the objective position.12 In my view, having regard to all of the circumstances including the work history, the history of the interactions and correspondence, it would have been reasonably apparent by one week after the applicant’s penultimate correspondence to the respondent on 5 March 2024, that the respondent did not intend to contact the applicant or provide him with any further work and in that case, that the applicant’s employment was at an end.
[35] I am also of the view that the dismissal of the applicant was on the initiative of the respondent. The applicant’s employment was brought to an end by the act of the employer which resulted directly or consequentially in the termination.13 That act was the deliberate decision not to respond to the applicant’s attempts to clarify his situation and return to work. The employment relationship was not left voluntarily by the applicant. Had the employer not taken the action, the employee would have remained in the employment relationship. It was the action of the respondent that either intended to bring the employment to an end or had that probable result.14 I conclude that the applicant was dismissed by the respondent within the meaning of s386(1)(a) and that the dismissal took effect on 12 March 2024.
Are there exceptional circumstances justifying an extension of time?
[36] As I have concluded that the dismissal took effect on 12 March 2024 and it was accepted that the application was not filed until 11 May 2024, the application is outside the 21-day statutory time period prescribed by s.394(2). I turn then to consider the matters in s.394(3) to determine whether a further period should be allowed for the making of the application.
Reason for the delay
[37] The delay in the filing of the application is the period from the last date on which the application could have been filed, in this case 2 April 2024 and the date the application was made. As the applicant maintained that the application had been made within the 21-day time period, he provided little by way of explanation as to why he waited until 11 May to file his application. He said that the respondent had not provided him with the courtesy of a reply and did not bother to formalise his termination. He said he believed he was ignored and “punished” for bringing the first application. He did not provide any evidence that there were any obstacles to the making of an application.
[38] The most that can be said for the applicant in relation to the reason for the delay is that the lack of response from the respondent created considerable uncertainty for him as to whether he had been dismissed and if so, when that dismissal took effect. It is also the case that the applicant took active steps at least up until 5 March 2024 to resolve the matter. This provides a partial explanation for the delay but does not account for the totality of it. It is not necessary to account for the entire period of the delay to establish that there are exceptional circumstances15. It was nonetheless possible for the applicant to take steps to bring the matter to a head well before 11 May 2024.
Whether the person first became aware of the dismissal after it had taken effect
[39] The applicant was not made aware of the dismissal by the respondent in clear and express terms. He was operating in an environment of uncertainty because of the respondent’s position. He did not have the benefit of a clear timeframe in which he needed to act. The applicant’s lack of awareness as to the date the dismissal took effect weighs in favour of a conclusion that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
[40] The applicant was actively seeking clarification from the respondent about his position until at least 5 March 2024. Whilst there were no steps taken thereafter until the filing of the application, I consider this to be in large measure due the uncertainty surrounding the applicant’s status because of the respondent’s decision not to engage with him. In those circumstances I do not think that the applicant’s failure to take steps after 5 March, and any subsequent lack of notice to the respondent that the dismissal was actively disputed, should count against the applicant in the overall assessment.
Prejudice to the employer, (including prejudice caused by the delay)
[41] The respondent contended that the application had not been brought in good faith, was vexatious and had unnecessarily consumed their time and resources. I do not accept that to be the case. In any event, a relevant prejudice is one that the respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. I am unable to identify any prejudice of that kind. I regard the issue of prejudice as a neutral consideration.
Merits of the application
[42] It is unnecessary and undesirable to undertake a detailed assessment of the merits here. Nonetheless, on the available material it seems to me that the applicant has an arguable case that the circumstances surrounding the termination of his employment may constitute an unfair dismissal. This is because of the undisputed fact that the respondent chose to ignore the applicant’s contact with them even after he had explained that he had not received their communication of 29 November 2023 until January 2024. He was never told whether the investigation into the November incidents had been concluded and if so, what the outcome was. He was never offered a reason for his dismissal and never told that he had been dismissed. I am of the view that the merits of the application weigh in favour of a conclusion that there are exceptional circumstances justifying an extension of time.
Fairness as between the person and other persons in a similar position
[43] The respondent accepted that there were no previous or current matters which attracted the relevant comparison under this heading. They said that allowing an extension of time would undermine the importance of established deadlines and set an unfavourable precedent for future cases. I do not consider that the question of fairness as between the applicant and others arises in this case. It is a neutral consideration.
Exceptional circumstances
[44] Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.16 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional. 17
[45] Having considered the various matters referred to in s394(3) and weighed them in the balance I am satisfied that there are exceptional circumstances in this case. I consider it is appropriate to exercise my discretion and extend time for the making of the application to 11 May 2024.
[46] The matter will be relisted for further programming on a date to be determined.
Callander v Banarang Aboriginal Corporation [2024] FWC 2080 delivered 6 August 2024 per Roberts DP