Dismissal of Casual Employee for not working on Mother’s Day deemed unfair

28 September 2022

The dismissal of a casual ice cream shop employee for failing to work an agreed additional shift was deemed harsh and unreasonable in a decision handed down by the Fair Work Commission on 20 September 2022.

The Applicant had initially agreed to work an afternoon shift on Mother’s Day (8 May 2022), offered and accepted by her on the afternoon the day before (7 May 2022). She did not know at the time of accepting that shift, that her adult children had organised a Mother’s Day surprise lunch for her. The Applicant’s daughter contacted the manager that evening of 7 May 2022 to request a shift swap or cancellation. The manager said the Applicant would need to request the shift off herself.

The Applicant contacted the Employer the next morning to explain that she could no longer cover the afternoon shift. The Employer responded that there would be ‘some ramifications’ and that they would need to re-do the month’s roster to ‘suit the needs of the business’. The Employer found another employee to cover the afternoon shift. When the month’s roster was re-issued the following week, the Applicant, who had been rostered for around 3 shifts per week, had all of her shifts for the month removed and reallocated to other staff. Her access to the rostering app was blocked and she was not rostered any shifts for the following month of June. The Applicant lodged an unfair dismissal application.

The Employer argued that the Applicant had not been dismissed as she had ‘not asked the Applicant to return her work keys or uniform’. They argued further that as a casual employee, there is no guarantee of ongoing work. In the alternative, they argued that the Applicant had a ‘systematic habit’ of withdrawing from shifts, ‘last minute’.

The Commission rejected the Employer’s arguments and held that removing the Applicant from the roster was an act of dismissal. It did not matter what the Employer had intended by its actions in deciding whether or not there had been a termination of employment by the Employer. Rather, it mattered what ‘each party by words and conduct would have led a reasonable person in the position of the other party to believe’.

The Commission found that although the late withdrawal from a shift was inconvenient for the Employer, it did not establish a ‘systemic habit’ on the part of the Applicant, and she was not an inherently unreliable employee. Accordingly, there was no valid reason for dismissal and the Applicant was unfairly dismissed. The Applicant was also not afforded procedural fairness in the dismissal. Compensation was ordered for the period up until she gained new employment. Fortunately for the Employer this was soon after the dismissal, and resulted in compensation of around one month.

EMA Legal can assist employers with all queries relating to unfair dismissal claims.

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