Unfair dismissal when employer cannot offer work

“It is understandable that an employee who is not offered work by his or her employer might regard the situation as a dismissal. And in many circumstances, that might well count as a termination of employment; but not always. For example, in the following Fair Work Commission case, an extract of the decision of which I am publishing, the employer declined to provide an employee for work upon medical grounds. A claim for a remedy for unfair dismissal failed.

As a Deputy President decided

“The Applicant was not dismissed within the meaning of “dismissal” in section 386(1) of the Act. Rather, the Applicant was, and is still, employed by the Respondent. While the Applicant has not worked since the Meeting, for the reasons outlined in the letter of 13 September 2019 the Respondent has not terminated the Applicant’s employment. The Applicant’s current and ongoing employment with the Respondent is evidenced by:

(a) The fact that the Applicant remains on the Respondent’s payroll system;

(b) The continued accrual of personal leave by the Applicant, and that other forms of paid leave have been accessed by the Applicant since 13 September 2019; and

(c) That the Applicant has not been given notice of termination of his employment, and has not been given an employment separation certificate.

The Respondent’s withdrawal of the Applicant’s duties does not amount to a “dismissal” as defined in s.386 of the Act because the Applicant’s employment has not been terminated on the Respondent’s initiative (section 386(1)(a)). The employment has not been terminated at all, nor has the Applicant been forced to resign from his employment (section 386(1)(b)) 1.

The Applicant’s application is beyond jurisdiction. His application is dismissed.”

Rahman v Coles Supermarkets Australia Pty Ltd (2020) FWC 617 delivered 7 February 2020 per.- Cross DP