The Fair Work Commission (FWC) has recently ruled that a casual employee who was given just 90 minutes’ notice before his employer told him he was no longer required was unfairly dismissed.
The mechanic and auto electrician had been working with the company, GE Hughes Construction, on a regular part-time basis for more than 30 hours per week for almost 21 months.
He had no idea his employment would be abruptly ending until his manager told him six and a half hours into an eight-hour shift “due to your lack of working hours we will be letting you go and hiring someone else that can work full-time”.
The employee received no notice beyond the remaining ninety minutes of his shift which he worked, no written termination letter or explanation and no Statement of Service. He was only paid until the end of his rostered shift and no more.
GE Hughes Construction submitted that the employee was not dismissed, quoting a clause under the Building and Construction Workers and Transport Workers Enterprise Agreement 2017:“There is no obligation on the Company to provide the Employee work, regardless of the employee’s length of service or regularity of engagement.”
However, FWC Deputy President Peter Anderson said that this “does not disturb the conclusion that there was a reasonable expectation of ongoing employment on both sides” and that an Individual Flexibility Agreement (IFA) the employee entered into with the company required 4 weeks’ notice of termination by either party.
Deputy President Anderson found that the employee was dismissed and that the employer’s reasoning was invalid.
“Firstly, there is no evidence that [the employee] was responsible for a ‘lack of working hours’ or not working enough hours,” he said.
“Every roster [the employee] worked was set by the employer. Only on rare occasions did he render himself unable to work 3 days per week. When he did so, the employer agreed to his request, including his request that he not work Christmas/New Year week in 2018.
“Secondly, it is immaterial that other mechanics were five or six-day casuals. [The employee] was employed on a different basis, one expressly agreed with the owner that he be a three day per week casual. [The employee] honoured that part of the bargain.
“Thirdly, the employer entered into an IFA with [the employee] in which it agreed to permit [the employee] to ‘work additional ordinary hours’ (without penalty rates or overtime) and to have ‘flexibility in the arrangement of work hours to meet family commitments’. It was inconsistent for the employer to have agreed to provide [the employee] that flexibility but to then dismiss him for a lack of working hours or not working enough hours.
“Fourthly, the employer did not employ a full-time employee to replace [the employee], as suggested by [the manager] . . . The evidence is that no replacement mechanic or auto-electrician was employed. Rather, [another manager] was required to spend more time on the tools, and the employer employed a full-time Operations Manager for the workshop. This was an administrative task, not a task working on the tools. [The employee] was not notified of that position being created, nor offered a chance to bid for it.”
Before the hearing, the employer’s solicitor filed a formal response to the FWC stating:“[The employee] owns and operates his own private business, which business was becoming increasingly inflexible such that [the employee] would refuse shifts or not turn up for all confirmed shifts.”
“Both limbs of this proposition are entirely unjustified assertions completely unsupported by the evidence,” Deputy President Anderson said.
“The uncontroverted fact is that [the employee] had not operated his business for about a year prior to dismissal.
“Further, the evidence clearly establishes that there was no occasion in the course of his employment where [the employee] was rostered to work but failed to turn up for work or notify the employer of his unavailability.
“There was no occasion where [the employee] was advised by the employer that working three days per week (as distinct from the 5 or 6 days worked by others) presented a problem or concern for the employer.
“I do not speculate what the real reason for dismissal was, if there was one. None other was advanced by the employer at the hearing. There was no particular incident that precipitated the employer’s decision.
“The evidence simply leads me to conclude that [the employee] was dismissed because the employer decided that [the employee] was no longer useful to the business and that it would and, being casual, that it could.
Deputy President Anderson ordered that GE Hughes pay the employee $4,216, plus $400.52 superannuation.