The Fair Work Commission (FWC) has ruled that a casual employee was unfairly dismissed after having been provided with only 90 minutes’ notice that he was no longer required.
The casual employee was engaged on a casual basis as a mechanic and auto electrician and had been working with the company on a regular systematic basis for approximately 21 months. During this period, the employee worked approximately 30 hours per week.
The employee was told six and a half hours into an eight-hour shift that due to his “lack of working hours” the employer would be letting him go and employing someone else who would be available to work on a full-time basis.
The employee’s manager provided no notice beyond the ninety minutes that was remaining of his shift which he worked, and no further explanation or Statement of Service was provided. The employee received payment for the remainder of his rostered shift.
When the termination was challenged, the employer argued that the employee had not been dismissed. They relied on a provision under the Building and Construction Workers and Transport Workers Enterprise Agreement 2017 to which they were covered which provided that “There is no obligation on the Company to provide the Employee work, regardless of the employee’s length of service or regularity of engagement.”
In hearing the case, the FWC Deputy President found that there “was a reasonable expectation of ongoing employment on both sides” and that the employee had entered into an Individual Flexibility Agreement with the company that required 4 weeks’ notice of termination by either party. In making his findings, the FWC Deputy President held that the employee was dismissed, and that the employer’s reasoning was not valid. This finding was based on a range of factors, including:
- There was no evidence that the employee was responsible for there being a ‘lack of working hours’ or for not working enough hours. Each roster worked was set by the employer, and the employer had consistently been available to work 3 days per week.
- Although other mechanics engaged by the employer worked across five or six days on a casual basis, the employee was deemed to have been employed on a different basis. It was held that it had been expressly agreed to by the business owner that he be engaged as a three day per week casual.
- The employer entered into an IFA with the employee in which it agreed to permit him to work additional ordinary hours and to have flexibility in the arrangement of work hours so that he could meet family commitments. The IFA created inconsistency in the employer’s argument in that they had agreed to provide flexibility, but then subsequently terminated his employment for a purported lack of working hours.
Prior to the hearing, the solicitor representing the employer filed a formal response to the FWC in which it was claimed that the employee owned and operated their own private business and that he would refuse shifts or not attend confirmed shifts. The Deputy President dismissed this claim in the basis that there was no evidence available to support the assertions made, and that:
- the employee had ceased operating his own business approximately 12 months prior to his dismissal.
- that there was no occasion during the course of his employment where the employee had failed to turn up for rostered work or failed to notify the employer of his unavailability.
- The employee had not been advised by the employer that working three days per week was an issue or concern.
The Deputy President found that the employee had been dismissed because the employer had decided that he was “no longer useful to the business”. The employer was ordered to pay the employee $4,616.52 in wages and superannuation.
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