By

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

An employee booked herself to attend a non-work-related training course only to discover later that her manager planned to be absent from work at the same time. When the employee refused to change her plans, the manager refused to offer her any more work shifts and hired a replacement employee. The Fair Work Commission ruled this was an unfair dismissal.

The employee was a shop assistant employed on a regular casual basis. She booked the training course, intending to be absent from work for five days. She blocked herself from the roster for those days but later discovered that her manager also intended to be absent that week. This would have meant only one person available to work in the shop.

The manager said that if the employee did not change her plans, the shop would have to find and train another casual employee, but the employee refused to change them. A week later she told the employee there had been a “company restructure” due to a downturn in business, and therefore that day would be her last shift and she had to return her keys. However, soon afterward the employee noticed another employee working in the shop.

The employee claimed that there were previous occasions when only one person worked in the shop. The manager denied saying that it would be her last shift, claiming that she said she might be offered shifts again if business improved.

The employee claimed she had been unfairly dismissed, but the employer claimed that she was a casual employee and therefore ineligible to claim. The new employee was engaged on a permanent part-time basis.

Decision

The FWC found that the manager had hired the new employee first, then told the [dismissed] employee “no further shifts” after that arrangement was confirmed. This was inconsistent with her “downturn in business” claim. The employee was a “regular casual” employee, and therefore eligible to claim unfair dismissal.

Therefore the employee was dismissed because she refused to change her travel plans, which had been booked and paid for before she became aware the manager intended to be absent at the same time. This was not a valid reason for dismissal. Compensation of $6,216 was awarded.

What this means for employers

If you tell an employee “no further shifts due to business downturn”, and then hire a replacement employee, this is not a “genuine redundancy” and may be an unfair dismissal.

Note also that casual employees who have a regular and systematic pattern of working for at least six months (12 months if a business has less than 15 employees) are eligible to lodge a claim of unfair dismissal.

Read the judgment

Rebecca Roberts v 3D DECORATORS PTY LTD - [2024] FWC 36 | Fair Work Commission