Unfair Dismissal

Casual employees and the right to contest an unfair dismissal

Casual cook dismissed after the Victorian Government enforces a single site directive

Protection from unfair dismissal

Generally it is found that employees and particularly casual employees, are not aware of their workplace rights. A casual employee is unlike a full time or even a part time employee, who both have an agreement of ongoing employment. Full time and part time employees work consistent days/hours each week and are entitled to various forms of leave. Further, for an employer to dismiss a full time or part time employee they must provide notice of the intention to end employment. 

In contrast a casual employee:

  • Is not guaranteed a set amount of days/hour each week;
  • Is not entitled to paid leave; and
  • Can be dismissed from employment without notice unless otherwise specified in a registered agreement, award or employment contract.

Casual employees are often mistakenly thought to be unable to claim unfair dismissal.[1] However, the Fair Work Act acknowledges that a casual employee will be protected from unfair dismissal if:[2]

  • The employee has been employed for at least six months;
  • The employment was on a regular and systematic basis; and
  • The employee had a reasonable expectation that the employment would continue.

[1] Andrew Bland, ‘When can a Casual worker be protected from Unfair Dismissal’, Blands Law (Blog Post) <https://www.blandslaw.com.au/blog/235-when-can-a-casual-worker-be-protected-from-unfair-dismissal.html>.

[2] Fair Work Act 2009 (Cth) s 384.

Belinda Solde v The Trustee for Infinity Green Family Trust T/A Caulfield Manor Supported Residential Service [2021] FWC 847 (17 February 2021)

In the recent decision of Belinda Solde v The Trustee for Infinity Green Family Trust T/A Caulfield Manor Supported Residential Service, a casual employee of 7 years sought approval to contest her dismissal. The employee, Belinda Solde, was working at two age care facilities at the time when the Victorian Government enforced a single employer directive to compact the spread of COVID-19. This single site directive was enforced to ensure aged care workers only worked at one workplace in an attempt to limit an outbreak of COVID-19 in aged care facilities.

 

Ms Solde found herself in a predicament of deciding which employer, Caulfield Manor or Victoria by the Park, she would exclusively work for whilst the restrictions were enforced. Ms Solde informed Caulfield Manor that she would be exclusively working at Victoria by the Park until the restrictions lifted, and thus, would be unavailable to work her usual shifts. Additionally, Ms Solde requested Caulfield Manor provide a letter of employment that she could use to obtain additional working hours at Victoria by the Park, so she was not significantly impacted financially. Caulfield Manor interpretated both actions as evidence of Ms Solde’s resignation with the company. The subsequent question that arose was whether Ms Solde’s actions result in the employment relationship with Caulfield being severed.

Typically, casual employees are not held to an obligation to be available to work, as they are afforded the option to accept or reject work. However, if an employee were to take an extended period of absence from the workplace and did not provide a reason for that absence, an employer may interpret that behaviour as an abandonment of employment. In this case, the Commission established it was clear that Ms Solde only took an extended period of absence due to the single employer directive which did not allow her to work at both Caulfield Manor and Victoria by the Park. Further, Ms Slode provided Caulfield Manor notice of this decision and expressed her intention to resume work once the restrictions were lifted. The Commission held that these “imprecise” conversations between Ms Solde and Caulfield Manor were intended to suspend her employment for a period of time, and do not sever the employment relationship.  

Secondly, Ms Solde, on the request of Victoria by the Park, asked Caulfield Manor for a letter of employment to assist in obtaining additional hours of work at Victoria by the Park. Caulfield viewed this letter as further evidence of a resignation. The Commission disagreed, providing that the letter was for the purpose of assisting Ms Solde in attaining further working hours. The wording “due to COVID-19” and request for support “during this period” was enough to satisfy this conclusion.

In light of the above, the Commission was satisfied that Ms Solde did not resign, and that the employment relationship remained. The question then became whether Caulfield Manor’s actions warranted a dismissal and therefore granted Ms Solde the ability to make an unfair dismissal application. For a person to apply for unfair dismissal, it must be first established that the employee has been dismissed.  An employee will be deemed dismissed if it is apparent the dismissal was done so on the employer’s initiative.  For a dismissal to be at the employer’s initiative, it must be evident that the employer’s actions ‘directly and consequentially’ resulted in the termination, and that the employee would still be employed had such action not been taken by the employer.[1] 

The Commission determined that Caulfield Manor’s email to Ms Solde informing her that her previous position was no longer available constituted an action taken by the employer that directly and consequentially resulted in her dismissal, and that subsequently, Ms Solde was eligible to file an application for unfair dismissal.

[1] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.

What have we learnt?

This case highlights the issue that many workers, particularly casual employees, have had retaining employment during COVID-19. In regard to the Guiding Principles for aged care workers enforced by the Victorian Government during their outbreak of COVID-19, employees who are directed to work at one particular workplace, is considered as an act of exercising a workplace right. All employees are protected in exercising their workplace rights. If an employer were to dismiss an employee for exercising a workplace right that would be considered unlawful and grounds to file an application for unfair dismissal. 

Call Today

If you have experienced a dismissal from employment that you interpret as unfair, we recommend you contract a professional to ensure you do not lose any rights you may have.

The Fair Work Commission has strict guidelines that must be followed. A person has 21 days from the date of dismissal to file an unfair dismissal application.

Cooper Green Lawyers specialise in such claims, and should you wish to take steps to advance your matter, please do not hesitate to contact our office on 1800 314 416 or admin@coopergreenlawyers.com.au.

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