Being told “no more work” = dismissal

By Mike Toten Freelance Writer

An employee has successfully claimed that he was dismissed, despite the employer arguing that he was still employed. The case is an example of what can go wrong for employers when they don’t communicate clearly with employees.

Facts of case

The employee was a Japanese motorcycle mechanic employed on a Temporary Skills Shortage (TSS) visa. After an incident at work, the employer issued him with a warning, and the employee left work and did not return. The employer then sent him several emails, which led to confusion about whether he was still employed. 

The first email said that a decline in business meant that there was no work available for the employee and the employer was enquiring about transferring him to another employer who employed staff on TSS visas. The employer referred to the latter as “possibly the best option”. The next email told him not to attend work, and a later one suggested that the employee resign, then the employer would assist him to find other work.  

Believing he had been dismissed, the employee then asked for confirmation of that, as his visa required it. However, the employer claimed he was still employed, despite telling him again not to return to work. It also stopped paying him two weeks later. The employee replied that he did not wish to resign, and sought clarification of his situation. The employer attempted to arrange meetings with him, but they did not occur.

The issue in this case was whether the employer’s actions amounted to termination of employment at its initiative, which would have been dismissal.

Decision

The Fair Work Commission (FWC) ruled that the employee was dismissed when the employer told him that there was no work for him, regardless of what later communications may have claimed.

The employee had lodged a general protections claim, which the FWC then allowed to proceed.

What this means for employers

The FWC will focus on the actual actions of the employer, more than the words used at the time, to decide whether an employee has been dismissed. In this case, dismissal occurred when the employer told the employee that there was no more work for him, and stopped paying him.

Read the judgment

Mr Hiroaki Mukai v The Wade Business Trust - [2024] FWC 2729 | Fair Work Commission