Employer argues it had no intention to fire the worker
The Fair Work Commission (FWC) recently dealt with a worker who claimed he was dismissed after a phone conversation with the employer’s managing director. He alleged that the latter told him: “The sooner you go and work somewhere else, the better.”
He also claimed the employer confirmed his termination when it removed itself as his “primary employer” in their workplace system. However, the company denied his allegations.
On 2 August 2023, Jon Sarellis, the worker, filed a general protections application related to dismissal against his employer, First Nations Employment Group Pty Ltd. The latter disputed the application, arguing that the worker was not dismissed.
‘Without guaranteed work’
The worker started as a casual traffic controller on 10 January 2022, and said he was dismissed after a telephone conversation with the managing director on 12 July 2023.
According to him, the dismissal decision was further confirmed through the removal of the employer as the primary entity on the Rail Industry Worker (RIW) System and by revoking the worker’s access to Assignar.
To work on rail sites, employees must hold a RIW card, where the system designates a primary employer. Sarellis said the removal of the employer from this system was part of the dismissal process. Assignar is used for work allocation, with Sarellis having a written casual employment contract without a guaranteed amount of work.
Prior to the dismissal, he worked one-to-two shifts per week, with fluctuations between 15-25 hours, and had been assigned to various sites as part of the Gippsland Line Upgrade Project (GLUP).
Following a period of unavailability between 16 February and 28 April 2023, Sarellis said his shifts were reduced from four-to-six per week to two per week in June 2023, with no shifts offered from 5 July 5.
Termination via phone call?
On 12 July 2023, during a telephone call between the managing director and Sarellis, warnings were issued regarding the worker's behaviour towards female employees.
The managing director said the call was to address additional complaints about the worker's conduct, while Sarellis said that he was shocked and under the impression of being dismissed at the end of the call.
The managing director denied explicit dismissal during the call but acknowledged expressing uncertainty about future work allocation due to the multiple complaints and the worker's revelation of obtaining another job.
The call concluded with the managing director saying, “The sooner you go and work somewhere else, the better.” The worker said that after the call, he “kept checking Assignar for shift assignments every day and was able to log in up until he could no longer do so.”
“Instead, he received a message that his credentials were invalid,” the worker said. He added that he never received a formal letter of termination or any documentation indicating the termination of his employment.
‘Limited opportunities for work’
On the other hand, the employer disputed dismissal, citing the challenging work environment and a reduction in shifts for the worker. The employer said their industry does not have a consistent workload.
The managing director said that “July and August were particularly quiet months which added to the problem of finding a place the applicant could work where there were no female staff and not on the GLUP (which was their main project at the time), meant that there were limited opportunities for work.”
HRD previously reported about a worker who said she was dismissed after being removed from the payroll system. In another case, a worker said she was constructively dismissed when her employer removed her access from its systems, including access to the company’s VPN and office programs like Oracle, Payforce, and Kronos.
Was the worker dismissed?
In its decision, the FWC said that “a reasonable person, in light of the telephone call with [the managing director], would not understand that they had been dismissed although they would likely consider that they may not have a long-term and happy future with the employer.”
However, it said that “the direction to not allocate the [worker] any work on the GLUP following multiple complaints [from] female staff about his conduct towards them did not constitute a dismissal of his employment.”
As to the company’s removal on the RWI system as his “primary employer,” the FWC said it’s “not evidence of the [worker] being dismissed.”
“This was a standard administrative process to save costs. Sarellis was never told he was dismissed and was issued no documentation associated with termination, such as a separation certificate.”
The FWC said that the removal was because “the [employer’s project administrator] ‘cleans up’ the system on an ad hoc basis when she has time. It is not [the] action of the [employer] that ‘implements’ a decision to terminate his employment.”
Thus, the FWC said the worker was not dismissed and, consequently, rejected his application against the employer.