The Fair Work Commission has been uncharacteristically scornful about an employer’s conduct when terminating a regular and systematic casual employee. As a result of the employee not having been dismissed for a valid reason, not being given prior warning of any performance issues and not being given any opportunity to respond to any concerns that the employer may have had, it was found that he had been unfairly dismissed.
The employee, Mr. Palpal-Latoc had been employed on a casual basis with a dog breeder for a period of 2.5 years. Although there was evidence to support that his work hours did at time vary, he had worked at least one day per week and there a pattern of regular and systematic employment could be determined and that there was an expectation of continuing employment.
No issues were raised regarding the employee’s performance during the first two years during which time he worked for one manager. However, during the final three months of his employment, he reported to a new manager.
The new manager would communication primarily via email, including:
- one in which she asked him what his “plans” were and indicated that he would be able to choose his preferred work shifts.
- emails which followed that indirectly implied criticism of some aspects of his work performance and questions about his ability to do certain tasks.
- an email which explained that as new casual staff were about to commence work, the employee had to return his locker key as there were not enough keys to go around, and that she would be evaluating the performance of all employees, including him, to decide which ones to keep.
The employee was offered some additional duties, but he was unable to undertake them because he was not old enough to drive his employer’s work car. The next day, the employee received an email terminating his employment on the basis of there being difficulty in organising work shifts and a lack of personal contact with his manager.
The employee challenged the termination on the grounds that he was a regular casual employee and therefore eligible to make a claim of unfair dismissal. The employee held that his dismissal was unfair because:
- he had received no prior warning of it,
- the employer had not raised any performance-related issues with him
- the employer did not give him an opportunity to respond to its concerns.
In contrast, the employer argued that the employee was not a regular casual employee, and that:
- the change of manager had revealed job performance shortcomings
- the employee had been warned about performance concerns and told that termination could result if he did not improve.
- that he was unable to perform some job tasks which were essential,
- that the employee had claimed that both his university commitments and inability to drive the work car prevented him from training to learn those tasks.
And that all of these reasons justified termination of his employment.
The Fair Work Commission found that:
- The casual employee had been engaged on a regular and systematic basis
- The employee was not dismissed in compliance with the Small Business Fair Dismissal Code.
- The employer provided no evidence to support that there was a valid reason for dismissal. The Commission described the employer’s stated reasons as being “fanciful, spiteful or prejudiced”.
- The employee was not notified of the reason(s) for dismissal and was not provided with an opportunity to respond.
- No communications with the employee had included any warnings.
On this basis, the Fair Work Commission found that the dismissal was unfair.
It was determined that reinstatement was impracticable as the employee had since obtained other work and it would not have been reasonable to make him return to work under the same manager.
Compensation of $1730.20 was awarded after taking into account the employee’s earnings in his new position.
In addition, the Fair Work Commission strongly scolded the employer stating that “one can only hope” that they “take better care of the puppies at their farm than they do of the humans in their employ”.
A ‘long-term casual employee’ is defined as being a casual employee who has been engaged by an employer on a regular and systematic basis for a sequence of periods of employment, and who would have a reasonable expectation of continued employment.
Under the Fair Work Act 2009, a casual employee who has been employed on a long term basis would be entitled to make an application for unfair dismissal if they have completed the relevant minimum period of employment.
The minimum employment period is:
- 6 months if the employee is employed in a business of 15 employees or more, or
- 12 months if employed in a business of fewer than 15 employees.
As such, there is a requirement to ensure that due process is followed prior to terminating the services of a long term casual.