The employee lived at a hostel in a caretaker capacity, commencing his role in April 2022. He claimed to have undertaken extra duties beyond the scope of his employment contract because of his regional manager’s constant absence.  

The employee made a complaint to his manager that his workload was too much, and that he needed help managing it. In November 2022 the employee had a “mental breakdown due to stress of his increased workload”, was unfit for work and requested two weeks off, which was approved by the general manager.  

The employee was contacted the following day by the general manager who outlined to him that he was dismissed due to his moods being “up and down”, and for butting heads with the regional manager. 

Subsequently, the employee submitted an adverse action claim, alleging he was dismissed because of his temporary absence due to mental health.  

The employer disputed the allegations and raised a jurisdictional objection to the FWC on the basis that the employee was not dismissed.  

They argued that the attendant put himself under undue stress by taking on responsibilities they did not require him to perform. Being a casual employee and living onsite, the employer claims that the employee often confused what hours were and weren’t working hours.  

The general manager denied the applicant’s claims, alleging instead that they were instructed by the regional manager to call the employee and advise that they “no longer had hours for him”. His hours were reduced to zero and filled by two hired replacements.  

The employer further argued that they may make further work available if the employee “improves his attitude and focuses on his assigned duties”. 

Decision  

Ultimately the FWC held that the jurisdictional objection made by the employer was invalid. 

It found the argument that there was no dismissal was misconceived, and the proposition that a casual employee may simply be dispensed with by reducing their hours to zero without having access to any general protections provisions is unacceptable.   

The statutory provisions afforded to a regular and systematic casual must include procedural fairness where the employer decides not to offer the employee further casual shifts. 

It is acknowledged that an employer has a right not to offer shifts to a casual employee for factors such as poor performance, misconduct or other valid reasons where procedural fairness would be afforded to that employee.  

The FWC also observed that a person has been dismissed if their employment has been terminated on the employer’s initiative. Therefore, irrespective of the employer’s wording, the intent conveyed that the employee would no longer work for the business. As such, the jurisdictional objection was dismissed and the case is set to return to the general protections team and referred to conciliation.  

Learnings for business  

This decision demonstrates that casual employees are still afforded the right to make general protection or unfair dismissal claim under certain circumstances. It is important to consider procedural fairness when a business chooses to cease offering casual shifts as, reducing casual hours to zero may imply dismissal or intent to terminate the employment relationship.  

How the Victorian Chamber can assist  

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

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