Employer under fire for failing to give consistent work
In a recent Fair Work Commission decision, a worker took legal action against his employer alleging unjust termination. The claim revolved around his employer's decision to stop offering him shifts, which he argued led to his dismissal.
The worker said that he was informed of his dismissal on either April 27 or 28, 2023. The employer, a prominent trucking and logistics company based in Geelong, Victoria, operates with a workforce of around 70 employees and maintains a fleet of 30 trucks operating on a 24/7 roster.
As a casual employee engaged as a heavy vehicle driver, the worker's employment status was a focal point of contention.
The employer contended that, as a casual worker, he was not entitled to ongoing work and was only required to report for duty when offered a work shift. In March 2023, he notified the employer of his unavailability due to medical reasons.
Attempted return to work
Following a six-week break, the worker visited the employer's office on April 21, 2023, expressing his readiness to resume work the following week. Discussions ensued between the worker and his supervisors regarding his return to duty.
However, tensions escalated due to a workplace incident involving him and a co-worker, leading to a formal complaint by the worker, who claimed to feel threatened.
Despite attempts to resolve the issue through discussions, he ultimately announced his decision to return to Cambodia due to a family emergency, leaving the dispute temporarily unresolved.
The worker did not communicate with the employer during his overseas trip until he texted his supervisors, implying that he was waiting for the right work assignment. No further jobs were given to the worker.
Later, he requested a separation certificate, initially stating his voluntary departure. Afterward, a revised certificate indicating 'other' as the reason for separation was issued. The certificates mentioned 10 March as the worker's termination date.
Casual employment means ‘indefinite’ work
According to records, the worker argued that "as the employer failed to provide him with any shifts once he was fit to return to work, he was dismissed. This is why he sought a separation certificate."
The Commission said that “as a casual employee, the [employer] was under no obligation to provide further work to the [worker] since the employment is on the basis that the [employer] makes no firm advance commitment to continuing and indefinite work.”
Additionally, it found that “this is not a case where it might be said that an employment relationship has ended where work is not offered to a casual employee over an extended period in circumstances where it is available, and the person could expect to be offered that work.”
“Here, the [worker] had not been in a position to accept any work for about 6 weeks. When he was available to accept work, the work that was offered was not accepted.”
“Having initially indicated that he would wait for his preferred work to become available, it appears that shortly thereafter, he had a change of mind. By seeking the separation certificate, [he] made clear he no longer wished to continue in an employment relationship,” it added.
Thus, the Commission said, “the employment relationship did not terminate on the [employer’s] initiative. It was the [worker] who brought the relationship to an end.”
Consequently, it dismissed the worker’s application.
