What is a dismissal of a casual employee?

This is an interesting extract from an unfair dismissal case decision dealing with the concept of dismissal.

“Consideration

 

[6]          Section 386 of the Act provides that a person has been ‘dismissed’ if the person’s employment with his or her employer has been ‘terminated on the employer’s initiative’ (s 386(1)(a)), or the person has resigned but was forced to do so because of the conduct of the employer (s 386(1)(b)). A person is terminated on the employer’s initiative if the conduct of the employer is the principal contributing factor which results in the termination of the employment (see Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75]).

 

[7]          In this case, it is very clear that Ms Olefir’s employment was terminated on the company’s initiative. I accept Mr Totos’s evidence about what he said to Ms Olefir on 25 February 2024. He did not dismiss her on that day. However, on 1 March 2024, Mr Totos sent Ms Olefir a message stating that there were no available shifts for her. Ms Olefir was a casual who usually worked on Saturdays and Sundays. From her evidence and summary of time worked, I find that for over a year Ms Olefir had been employed as a casual on a regular and systematic basis (albeit with variable hours, as is common for casuals) and I draw the obvious inference that she had an expectation of continuing employment on this basis, which was a reasonable expectation. As a casual employee, each engagement stood alone. In the absence of being allocated a shift, she had no work. Given that she had regularly been working weekend shifts, Mr Totos’s advice that she had no shifts for the coming weekend gave her grounds to fear the worst. She asked Mr Totos whether she was still employed, but received no response.

The only available inference from Mr Totos’s failure to reply to this message was that her employment had been terminated. And indeed Ahbi never contacted her about any further work.

 

[8]          It is completely untenable for the company to suggest that Ms Olefir resigned or abandoned her employment in these circumstances. Contrary to the company’s submission, the fact that Ms Olefir had accused Mr Totos of bullying her and had threatened legal action against him did not mean that she was resigning or abandoning her employment. There is simply no logical basis for this contention. The company asserted that Ms Olefir had repudiated her contract. This is wrong. There was no conduct on her part that came anywhere near repudiating her contract of employment. Further, there was no onus on Ms Olefir to take any further steps to clarify her employment status. She had been told that she had no shifts and her query as to whether she was still employed was ignored. There was no reason for her to call Mr Totos. The fact that she had applied for other jobs around this time does not suggest that she had resigned. It was consistent with Ms Olefir drawing the obvious conclusion that she had been dismissed.  It is abundantly clear that Ms Olefir was dismissed on the company’s initiative. It decided not to give her any more shifts. This was what brought the employment relationship to an end.

 

[9]          The company did not submit that the Small Business Fair Dismissal Code applied however I note that it had only five employees at the time of the dismissal and, assuming that it had no associated entities, it was a small business. But it is clear that the Code was not complied with. There was no misconduct as contemplated by the first limb, nor were any of the requirements of the second limb met. The Commission must therefore decide whether the dismissal was harsh, unjust or unreasonable, having regard to the considerations in s 387.

 

[10]       First, there was no valid reason for dismissal (s 387(a)). It has not been established that Ms Olefir did anything wrong. I find that Ms Olefir did speak on the phone during working hours but that this was not inappropriate. She was never warned or counselled about this by the company, which suggests that it had no concerns about her conduct. I accept that Ms Hanzekovic believed that Ms Olefir was rude to customers but that does not mean that this was in fact the case. The details of these incidents are not before the Commission. Ms Olefir strongly denied that she was rude. In my view, the differences in these witnesses’ evidence reflects a difference of perspective; I am unable to conclude that Ms Olefir was rude without specific details of what allegedly occurred. I accept Ms Hanzekovic’s evidence that a customer complained to her about Ms Olefir, but it is not known specifically what Ms Olefir is said to have done, and in any event the content of the customer’s statement would be hearsay.

 

[11]       But even if the company were right to say that Ms Olefir spoke on the phone too often and was discourteous to customers, and that these were valid reasons for dismissal, this would be outweighed by the lack of any fairness in the process of effecting the dismissal. Ms Olefir was never told by management that she was doing anything wrong. Ms Hanzekovic said that she spoke to Ms Olefir about her interactions with customers, but she was just another employee, with no authority to speak for the employer.

 

[12]       Ms Olefir was not notified of any valid reason or given an opportunity to respond to any reasons for dismissal (ss 387(b) and (c)). There was no unreasonable refusal to allow a support person to participate in discussions (s 387(d)). Ms Olefir was not warned about poor

 

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[2024] FWC 1584

performance related to the dismissal (s 387(e)). The small size of the employer’s enterprise and the absence of human resources management specialists likely contributed to the procedures followed in effecting the dismissal, which were basically non-existent (ss 387(f) and (g)). This carries some weight. There are no other circumstances that I consider relevant. Taking these matters into account, I conclude that the dismissal was harsh, and unjust, and unreasonable. It was patently unfair.  “

Olefir v Brazil Catering Pty Ltd  [2024] FWC 1584 delivered 18 June 2024 per Colman DP