Dismissal of Casual Employees
A Fair Work decision previously highlighted that ceasing to offer a casual any work, can constitute dismissal.
A casual employee is a person employed on a series of separate contractual engagements and their employment begins and ends with each shift. However, in the recent case the Commissioner stated that the legal concept of dismissal concerns termination of the employment relationship and not necessarily the ending of a contract.
A casual working on a regular or systematic basis can have, in the absence of evidence to the contrary, a continuing employment relationship with their employer from which they can be dismissed.
In the case (Mr Stephen Gregory Harmer v The trustee for the Noonan Family Trust) a casual builder, Mr Harmer (the employee), was injured during his employment and was off work recovering. He made a Workcover claim which was successful. He was cleared for work on 31 March 2023, however he did not receive any work offers for a period of two weeks. He phoned Noonan Builders (the employer), who did not respond. He then sent a text stating:
“You obviously have ceased my employment, so I need access to my tools and an employment separation certificate, and any annual leave pay to be finalised asap. Also, my Workcover payments need to be paid.”
There was no response. The employer waited for the insurer’s calculation of weekly payment entitlements before making up the employees’ final pay. On 19 May 2023 they made a final payment to the employee. The amount paid was based on the insurer’s calculation of payments owing as of 30 March 2023. The employee was not paid for the period 31 March to the date of the final payment on 19 May 2023.The employee believed he was dismissed because he was not offered any further work. Noonan Builders stated the employee was not dismissed as he remained on the books as an employee until 14 April 2023 when the employee asked for an employment separation certificate. He was not given one because he was still employed and capable of being called upon.
In considering this case and whether the employee was dismissed the Commissioner considered if the dismissal was at the employers’ initiative or if the employee was forced to resign due to his employer's conduct. The Commissioner also considered if the employee was a casual or a permanent employee.
Having established the employee was a casual the Commissioner still found a dismissal had occurred. Noonan Builders left the employee on the books but only to be rostered when it suited.
The Commissioner did not accept the employers’ submission that the employee ended the relationship on 14 April 2023 when he messaged Mr Noonan because he had not been rostered, and he believed he had lost his job and income. For this reason, Mr Harmer wanted to obtain an employment separation certificate to claim unemployment benefits.
The Commissioner found whether intended or not, the failure to roster Mr Harmer at any stage after 31 March 2023 (when he was fit to return to work) had the effect of terminating the employment relationship. Thus, it was a dismissal.
The Commissioner highlighted that a dismissal does not take effect until it is communicated to the person being dismissed in plain and unambiguous terms or is accessible to the person being dismissed such as mail or email. In this case the Commissioner found that the employee was not clearly notified by the employer and therefore left to “second guess” the status of his employment.
To this end a termination discussion followed by a letter or email is recommended for all employees including casuals.
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