A casual employee was engaged by two aged care facilities. On 25 July 2020, the employee became aware of the Victorian Government’s ‘single-site directive’ which required the employee to choose between her two employers. The employee opted for the site where she was regularly rostered to work more hours.

As the directive from the government was due to end in early October, on 22 August, the employee sent a text message saying she was looking forward to coming back to work.

On 27 October, the employee sent another text message saying she was looking forward to returning after the directive was extended to 30 November.

On 4 November, the Facility Manager sent an email to the employee stating they are still implementing the COVID-19 instructions and only rostering staff who are able to work at one worksite. The Facility Manager wished the employee the best and thanked the employee for her understanding.

On 18 November, the employee received a further email stating that her position was no longer available. The employee tried calling but was unable to get through. Four days later she filed an unfair dismissal application.

The aged care facility disputed the claim raising a jurisdictional objection - arguing the employee had not been dismissed and/or the application was made outside the statutory 21-day time limit.

The decision

The Fair Work Commission (“the Commission”) found there was no evidence to support a finding that the employee resigned or said she was “leaving”. The Commissioner considered much of the conversation around the single site directive was imprecise, as both parties grappled with what the changes meant for themselves.

However, the Commission was satisfied the employee was dismissed by email on 18 November being the first time she was told her position was no longer available.

Learnings for business

This case highlights the importance of understanding the changing conditions.

Employers need to be aware of their workplace obligations and work with employees to ensure suitable outcomes for both parties. This case also highlights the need to communicate clearly and effectively with employees particularly when considering termination, whether by way of resignation or dismissal.

How we can assist

The Workplace Relations Advice Line can provide advice and support when a business is contemplating dismissing an employee.

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including:

• Award interpretation, classification and minimum entitlements
• Disciplinary processes, performance management and termination
• Personal illness and injury
• Parental leave and flexible working arrangements
• Redundancy
• Occupational Health and Safety and WorkCover

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

[2021] FWC 847