Unfair dismissal cases; the date of dismissal

The date of the termination of an employee’s employment is often a vexed legal issue, and sometimes will determine whether an employee can pursue a fair work case or not. This extract from a case decision shows the issue in practical operation.

“Consideration

[63] Section 15A of the Act defines a casual employee:

“15A  Meaning of casual employee

(1) A person is a casual employee of an employer if:

(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b) the person accepts the offer on that basis; and

(c) the person is an employee as a result of that acceptance.

(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;

(b) whether the person will work as required according to the needs of the employer;

(c) whether the employment is described as casual employment;

(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Note: Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.

(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

(5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

(a) the employee’s employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or

(b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.”

[64] I am satisfied that Mr O’Connor’s work with the Respondent was as a casual employee. The contract entered into between the parties stated the following:

“ILSC values our people and we will offer ongoing work where possible and where this meets the needs of the business. However casual employment is on an engagement by engagement basis and ongoing work cannot be guaranteed. ILSC-Australia may terminate your employment at any time without notice or payment in lieu of notice in the case of serious misconduct…”

[65] An employment schedule was issued to Mr O’Connor stating, “Casual Trainer”. There are further references to the employment being casual within the agreement between Mr O’Connor and the Respondent. I am satisfied that the Respondent did not make any firm advance commitment to continuing and indefinite work. The title of the role, signed by Mr O’Connor on 28 January 2020 is “casual trainer”.

[66] The terms entered into between the parties give the strongest clarity that the casual employment may end at the conclusion of an engagement. In the circumstances between these parties, an engagement is each block of work, or a term. Mr O’Connor’s last engagement was completed on 31 July 2021.

[67] Mr O’Connor was hopeful of securing his next engagement to commence 23 August 2021, noting he had last worked for the Respondent on 31 July 2021. He was informed on 18 August 2021 that he would not be offered any work in the new term commencing 23 August 2021. Despite his protestations, on 20 August 2021 this information was repeated to him.

[68] Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their “employment” has been “terminated on the employer’s initiative”. Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee. 1

[69] When analysing whether there has been a ‘termination at the initiative of the employer’ for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment. 2

[70] A ‘termination at the initiative of the employer’ is when two criteria are satisfied:

  • the employer’s action ‘directly and consequentially’ results in the termination of employment, and
  • had the employer not taken this action, the employee would have remained employed. 3

[71] For there to be a ‘termination at the initiative of the employer’ there must be action by the employer that either intends to bring the relationship to an end or has that probable result.

[72] I am satisfied that the termination of the contract between the parties took effect at the initiative of the Respondent on 18 August 2021 in the communication sent by Ms McIntyre. I cannot, however, be satisfied that the employment relationship was terminated at this time. This is so because of the communication by Ms McIntyre on 18 August 2021, hoping to offer to Mr O’Connor work in the future, if at all possible. Mr O’Connor was not informed that he would never be offered work by the Respondent again. The block terms were and are very short, so in my view, sitting out one term of only around three weeks, with the potential for future work did not end the employment relationship.

[73] I have also had regard to the communication sent by Mr Richards on 20 August 2021 where he stated that the Respondent hoped to offer to Mr O’Connor more work in the future, where there would be a clean slate.

[74] On 22 August 2021, Mr O’Connor responded, saying he knew he was not being offered work for the term, but he understood he was being stood down, which he concluded did not constitute termination of his employment. The Respondent took no action to correct him on this issue. Accordingly, this weighs in favour of Mr O’Connor reasonably concluding that the employment relationship was still alive at that time.

[75] I am in no doubt that Mr O’Connor’s email to Mr Richards of 28 August 2021 was condescending, disrespectful and insulting. While suggesting to Mr Richards that Mr Richards had mental health issues and encouraging him to utilise the Respondent’s employee assistance programme, Mr O’Connor stated that he did not wish to hear from Mr Richards at all. Mr Richards responded on 30 August 2021, offering other individuals within the Respondent’s business to whom Mr O’Connor may wish to speak to.

[76] Noting that the 23 August 2021 block term was to run for just a few weeks, it is not unreasonable for Mr O’Connor to have concluded that he might be offered casual work in the next block. He inquired about this and when this did not eventuate, and he was informed by Ms McIntyre on 24 September 2021 that the Respondent would keep him posted if any opportunities arose in future sessions. I accept that he still considered he was employed as a consequence of the language used by Ms McIntyre in her email to him.

[77] Mr O’Connor considered the employment relationship was at an end on 27 September 2021 when he became aware that he had not received a casual conversion letter sent by the Respondent to other casual employees. I accept that this action by the Respondent of not providing to Mr O’Connor a casual conversion letter constituted a termination of the employment relationship as it had no intention, by that act, of providing to Mr O’Connor future work.

[78] I find that the employment relationship came to an end on 27 September 2021 when Mr O’Connor reasonably satisfied himself that he would not be offered further casual teaching work by the Respondent. I am not satisfied that this occurred on 18 August 2021 or at any other time within August, due to the written communication to Mr O’Connor by Mr Richards and Ms McIntyre, suggesting that future casual work was a distinct possibility. I am not satisfied that the employment relationship was severed in their communication; simply, they said there was no casual work at that time, which was for a very short period of time.

[79] Accordingly, I am satisfied that the application has been made within time and there is no requirement to consider the granting of an extension of time.

Conclusion

[80] Having satisfied myself that the application has been made within time, the substantive matter, to determine the application on the merits will be programmed for hearing.”

O’Connor v ILSC (Brisbane) Pty Ltd  [2022] FWC 548 delivered 11 March 2022 per Hunt C