Unfair dismissal; reduction in hours or pay for casuals

A decision by an employer to reduce the hours of a casual employee or remuneration can constitute a termination of employment at the initiative of the employer, and thus a dismissal.

“The expression “termination at the initiative of the employer” has a well-established meaning and in my view the expression “terminated on the employer’s initiative” in s. 386(1)(a) of the Act should be given the same or substantially the same meaning. The reference to forced resignation in s. 386(1)(b) also reinforces that s. 386(1)(a) is not confined to circumstances where an employee ostensibly resigns employment. I also note that this distinction was made by a Full Bench of the Commission in City of Sydney RSL & Community Club Limited v Balgowan. 13 Further, I note that consistent with the view of the Court in Mohazeb v Dick Smith Electronics (No. 2) a Full Bench of the Commission in Saeid Khayam v Navitas English Pty Ltd t/a Navitas English14 held that 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.15

Applying these principles in the present case, I am of the view that the Applicant was dismissed within the meaning in s. 386(1)(a). It is well established that a reduction in hours or pay for a casual employee can constitute termination of employment at the initiative of the employer. In the present case, Mr Shrestha had responsibility for rostering casual employees in the Respondent’s kitchen and authority to determine whether to offer shifts to casual employees. Mr Shrestha also had authority to decide to hire or at least give shifts to new employees instead of offering shifts to existing employees, as is apparent from his discussion with the Applicant on 12 May 2019 during which Mr Shrestha said that he was looking for other staff. The evidence establishes that the Applicant had worked hours in accordance with a roster each week from the commencement to the cessation of his employment, other than when he was absent between November 2018 and January 2019, due to a workplace injury.

The Applicant left the workplace approximately 1.5 hours into his rostered shift on 26 April 2019 after informing Mr Shrestha that he was unwell. Mr Shrestha states – and I accept – that he told the Applicant that he should go home if he was unwell. I am satisfied that the Applicant was suffering from a medical condition when he left the workplace that manifested in pain in his testicles and that it was reasonable for him to leave. Further, I am satisfied that the Applicant was incapacitated for the period 26 to 30 April 2019.

I accept the Applicant’s evidence that upon finding that he had not been provided with any rostered hours, he made a number of attempts between 2 and 5 April 2019 to contact Mr Shrestha by telephoning him and sending text messages and that Mr Shrestha did not respond. In this regard, I note that the Applicant provided telephone records to confirm contact with Mr Shrestha and despite asserting that he telephoned the Applicant, Mr Shrestha did not provide his telephone records. Mr Shrestha’s explanation for his lack of records was not convincing.

The evidence establishes that the Applicant also sought medical treatment for his condition and provided Mr Shrestha with a medical certificate covering an absence from 26 to 30 April 2019. When he was not provided with rostered hours and did not receive a response to his telephone calls and text messages, the Applicant attended at the workplace to attempt to have a discussion with Mr Shrestha.

During that discussion, Mr Shrestha said that he did not think that he was going to put the Applicant on the roster and that he could not guarantee him any hours in the future. Even making allowances for the fact that the Applicant was secretly recording the conversation and had an opportunity to plan what he would say to Mr Shrestha while the latter did not, it is clear from the discussion that when the Applicant put to Mr Shrestha that his actions in not giving him hours were forcing the Applicant out of his job, Mr Shrestha told the Applicant that he would think about it and let the Applicant know that evening – ie. 12 May 2019.

I accept the Applicant’s evidence that Mr Shrestha did not contact him on 12 May 2019 or at any point thereafter. This is notwithstanding the fact that the Applicant had provided a medical certificate to Mr Shrestha on or around 6 May 2019, that at least provided some explanation as to why he left the workplace on 26 April and that he was able to work after 30 April 2019. While it is true that Mr Shrestha stated during the discussion on 12 May that the Applicant should give him times to put him on the roster, it is equally the case that the Applicant was clearly stating to Mr Shrestha that he wanted to work that week and that if Mr Shrestha did not offer him hours he would be forcing him out of his job. The Applicant also made clear to Mr Shrestha that he needed to work that week in order to pay rent and to feed himself. Mr Shrestha’s response was that he would think about putting the Applicant back on the roster and get back to the Applicant that evening.

When the discussion on 12 May 2019 ended, the ball was in Mr Shrestha’s court and I do not accept that the Applicant ended his own employment by failing to advise of days or times when he would be available to work. It was the actions of Mr Shrestha in not rostering the Applicant to work any hours after 26 April 2019 and failing to contact the Applicant after 12 May 2019 as he had undertaken to do, that that were the principle contributing factor and resulted directly in the termination of the Applicant’s employment. It is also clear that the Applicant did not leave his employment voluntarily. I am also of the view that if the conduct of the Applicant was in effect a resignation of his employment, then the Applicant was forced to resign by the conduct of Mr Shrestha.

It is relevant but not determinative that Mr Shrestha did not have actual authority to terminate the Applicant’s employment. Mr Shrestha was the Applicant’s supervisor. He had the capacity to determine whether the Applicant would be offered any shifts and to remove hours allocated to the Applicant completely. Mr Shrestha also had – at least – the authority to decide to allocate hours to new employees. In short Mr Shrestha has authority to engage in conduct that can bring the employment of casual employees to an end and in the case of the Applicant’s employment, that is what Mr Shrestha did.

It is also not determinative that none of the Respondent’s processes for dismissing an employee were followed in the Applicant’s case or that the Applicant remained active on the Respondent’s system. Casual employees who meet the criteria in s. 384(2)(a) may make an application for an unfair dismissal remedy. Where an employer gives authority to a manager to reduce or remove hours of work from a casual employee who is eligible to make an unfair dismissal application, it cannot be a defence to an unfair dismissal application that the manager who engaged in the relevant conduct did not have authority to terminate the employee’s employment. Further, I do not accept that the Respondent is entitled to rely on the fact that the Applicant did not contact its Human Resource Management staff to make a complaint about the fact that he had not been allocated any shifts. The Applicant took reasonable steps to raise his concerns with his supervisor Mr Shrestha to no avail. The Applicant also states that he contacted the then store manager in relation to the matter but his call was not returned and that manager ceased to be employed by the Respondent. The Respondent cannot excuse its treatment of the Applicant on the basis of this matter.

Section 386(1)(b) is directed to circumstances where the employee resigns but is forced to do so due to conduct or a course of conduct engaged in by the employer. The Applicant in the present case did not tender a resignation either orally or in writing. If his conduct in making an unfair dismissal application constitutes resignation (and I do not necessarily accept that it does) then the resignation was forced due to the conduct of Mr Shrestha in failing to provide the Applicant with shifts and/or to contact the Applicant as he undertook to do, to inform him as to whether he would be offered shifts in the future. In short the conduct of Mr Shrestha was the principal contributing factor to, and resulted directly in, the termination of the employment relationship between the Applicant and the Respondent. For these reasons I find that the Applicant was dismissed and I turn now to consider whether the dismissal was unfair, applying the criteria in s. 387 of the Act.”

Re Park v LOTW Indro Pty Ltd t/a Lord of the Wings Indooroopilly (2020) FWC 858 delivered 18 February 2020 per Asbury DP