When is a casual employee dismissed?

Although a failure by an employer to offer a true casual employee shifts of work in economic stress may have difficult consequences for the employee, that in itself will not constitute a dismissal for the purposes of the Fair Work Act, as is evident in this example in an extract from a recent decision of the Fair Work Commission in an unfair dismissal case.

“Was Mr Shirreff Dismissed?

In order to be eligible to make an application for a remedy for unfair dismissal an applicant must have been dismissed for the purposes of section 386 of the FW Act.

Section 386(1) of the FW Act provides that a person has been dismissed if:

  1. the persons employment with their employer has been terminated at the employer’s initiative; or
  2. the person has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.

Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

A termination is at the employer’s initiative when 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. 23

In determining whether a termination is at the employer initiative it is necessary to examine all the circumstances including the conduct of the employer and the employee. 24

The parties agree that Mr Shirreff was employed on a casual basis. There is no evidence that he was paid leave entitlements. Mr Shirreff conceded that he was not guaranteed any particular hours of work per week and that his hours of work during his employment varied depending on client needs and his availability.

It is clear that the parties both believed that he was entitled to refuse offers of work. On AUSTM’s part they permitted him to be absent from work for more than two months without pay and did not immediately require him to work when that period expired. On Mr Shirreff’s part even once his agreed period of absence had expired he indicated that he did not intend to immediately return to work and did not seek the approval of AUSTM for his further absence from work.

When he inquired about his employment status, Mr Duca informed Mr Shirreff that there were no available shifts for casual employees at the present time but that he would be considered for future work.

AUSTM did not initiate any steps typically associated with termination such as providing notice of termination or issuing a separation certificate. A separation certificate was only issued at the insistence of Mr Shirreff and only after he had filed the Application.

It is unclear why Mr Shirreff was unable to access Traffio. AUSTM assert that they took no steps to restrict his access and report that he remains in the Traffio database. The evidence that he tendered to demonstrate he could not access Traffio includes an instruction to contact his employer for assistance in regaining access. There is no evidence that he did this.

There is no evidence that Mr Shirreff has indicated that he is ready, willing and able to return to work and that AUSTM have refused to provide him with work.

There is evidence that Mr Shirreff remains “on the books” and in AUSTMs pool of casual employees to be called upon when required.

I am not satisfied that AUSTM took actions with the intent to either terminate Mr Shirreff’s employment or with the probable result of bringing the employment relationship to an end. 25

In support of his submission that he was dismissed for the purposes of the FW Act Mr Shirreff’s cited the decision of Commissioner Cambridge in Arpita Das v Prestigious Services (Aust) Pty Ltd. 26 In that case the evidence of the employer was that they believed that the employee’s employment had come to an end as a matter of law when the employee took leave without approval. In Mr Shirreff’s case the employer indicated that they intended to consider Mr Shirreff for further casual shifts and the evidence is that Mr Shirreff remains ‘on their books’.

I am therefore not satisfied that Mr Shirreff has been dismissed within the meaning of section 385 of the FW Act.

The Application is therefore dismissed.

An order to this effect will be issued with this decision.”

 

 

Shirreff v AUS Traffic Management Pty Ltd – [2020] FWC 3168 – 3 July 2020 – Binet DP