Upon the announcement of the government-mandated lockdown which commenced on 23 March 2020, a casual fitness instructor who had worked at a community club (the “Business”) since 2016, was informed on 26 March she was no longer employed due to the forced closure.

Despite no longer being of service, on 19 April 2020, the employee was enrolled in the JobKeeper program and was back paid the subsidy to 30 March.

On 18 May 2020, the Business sent a letter to the employee as it was planning to reopen and offer classes from 25 May. The employee was asked to provide details of her availability.

The employee responded, questioning whether her original contract would still stand, and querying if a pre-existing childminding service would continue to be available.

The Business responded advising that due to the employee not currently employed, they would be required to start a new contract. The employee indicated she was available on 29 May to discuss her availability, but noted due to her pregnancy, and childcare responsibilities, she had limited availability until 12 June.

On 22 May 2020, the Business attempted to call the employee. The employee sent a follow up email reiterating her limited availability and desire to meet to discuss her return on 29 May 2020.

On 26 May 2020, the employee received a letter via email stating that due to her lack of availability, her employment was terminated, and she would no longer be eligible for JobKeeper.

On 27 May 2020, the employee filed an unfair dismissal claim.

The decision

The Business cited several reasons for the dismissal, including:

• the employee was not available until 12 June 2020;
• advice allegedly received from the ATO including that if employees weren’t available to work, they could be dismissed;
• the Business considered the employee was ignoring its phone calls and text messages.

The Fair Work Commission (the “Commission”) was not satisfied any of these constituted a valid reason for dismissal.

The Commission concluded the employee was not given an opportunity to respond to any reason related to the employee’s capacity or conduct.

In considering other relevant matters, the Commission noted that keeping the employee employed whilst on JobKeeper was not costing the business any money. The Commission also noted the Business advertised roles on 3 June 2020 which included tasks the employee could have performed whilst having her wages covered by JobKeeper.

Finally, the Commission also concluded that by dismissing the employee three months before the expected birth of her child, the employee lost the entitlement to parental leave.

The Commission determined the dismissal was harsh, unjust, and unreasonable, and ordered compensation equal to 13 weeks be paid to the employee. When calculating the compensation payable, the Commission considered the employee would remain employed until one week prior to the birth of her child, and would be remunerated at the JobKeeper rate of $750 per fortnight.

Learnings for business

This case highlights the importance of following a proper dismissal process, even in the case of casual employees. Employers need to be aware of their obligations when it comes to dismissal, to ensure a valid reason exists and a fair process is conducted to mitigate the risk of an unfair dismissal claim.

This case also highlights the need to communicate clearly and effectively with employees particularly when considering termination, whether by way of resignation, redundancy or dismissal, or any other reason.

How we can help

The Victorian Chamber Workplace Relations Advice Line is on hand to provide support and to help businesses understand how to manage complaint, disciplinary and termination processes. In addition, our Workplace Relations Consultants have a wealth of experience conducting workplace investigations and providing advice and support to business considering disciplinary outcomes.

Received a general protections or unfair dismissal claim? Our Workplace Relations Consultants are on hand to help to explain the processes, draft responses and submissions, and represent you in the Fair Work Commission.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222.

[2021] FWC 1357