A bowling alley technician was regularly rostered to work three shifts a week over an 18-month period. 

After being advised he would not be rostered, the employee asked for a separation certificate and later made an application alleging he had been unfairly dismissed. The business disputed the claim arguing the employee resigned and was therefore unable to access the unfair dismissal jurisdiction.    

Overview of the case 

In early December 2020, a colleague of the bowling alley technician was appointed Acting Head Technician and was responsible for rostering. After his superior formed the view that the employee was underperforming, on 5 December, the employee was sent a number of text messages and emails advising him to ignore the roster. When the employee asked why, he was told he was underperforming and therefore not required to work. 

The following Monday, after receiving only two shifts for the entire month, the employee again followed up about the roster and questioned why there was such a significant decline in work. The employee was told it was a consequence of business being slow.  

Two days later, the employee wrote to the business owner expressing his concerns and requested an opportunity to discuss them. He also requested a mediation take place so he could address the issues directly with the Acting Head Technician.  

The business owner didn’t respond to the employee’s letter. 

On 6 January 2021, the employee received a call from the Acting Head Technician who advised all his shifts had been cancelled.  

The employee attended the workplace and asked for a Separation Certificate confirming his employment ended “due to [a] shortage of work.” 

The decision 

The Fair Work Commission (the “Commission”), was satisfied the employment was terminated at the employer’s initiative when the  staff member was informed there would be no work available for the month of January. The Commission deemed the employee’s request for a Separation Certificate did not constitute a resignation as the employment relationship had already been ended.  

The Commission considered whether there could have been a genuine redundancy due to the downturn in business during the COVID-19 pandemic. However, it was evident the employee’s role was still required as his shifts had been given to other employees and a government-imposed lockdown did not take effect until after 6 January 2021.  

The Commission was not satisfied a valid reason for dismissal existed and therefore concluded the dismissal was unfair.  

The employer was ordered to pay compensation equal to 10 weeks’ pay. 

Learnings for business 

Casual employees engaged on a regular and systematic basis are protected from unfair dismissal provided they have completed the required minimum period of engagement. The Commission was satisfied the employee had regularly worked three shifts a week for 18 months, and for the purposes of the Fair Work Act 2009 (Cth) he was a regular and systematic employee.   

Removing an employee from the roster can amount to a dismissal. This case highlights the importance of procedural fairness when dismissing employees even if they are employed on a casual basis.  

This case also highlights the importance of ensuring those in leadership positions are sufficiently skilled and able to manage performance and complaints, as well as understand the consequences of their actions or inaction.  

How the Victorian Chamber can assist 

Before considering making changes to an employee’s conditions of employment, call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222 to discuss and confirm your obligations as an employer. 

The Victorian Chamber can assist members with handling workplace matters and offer 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 andWorkCover.

 [2021] FWC 2227