Dismissed or just not rostered? Employer argues future reemployment possible
The Fair Work Commission (FWC) recently dealt with a general protections application involving dismissal from a casual gym receptionist who alleged his employment ended after a phone call from his manager.
The worker said his employment ended when he received a telephone call from his manager, who said: "I'm sorry to inform you that I have to let you go effective immediately. You're no longer working here anymore because you've been talking shit about the business."
The employer said they did not dismiss the worker. In their response, they said they had to discontinue the worker's employment solely because of his limited availability and the redundancy of staff.
The case required the FWC to examine whether the worker had been dismissed, whether the employer terminated the employment on the employer's initiative, and whether the Commission had jurisdiction to deal with the application.
Employer's explanation for ending employment
At the determinative conference conducted on 8 October 2025, the employer said they had reduced hours at the worker's workplace, and they had to reduce staff numbers.
They chose the worker because he had less availability than other staff members and was also a more recent hire than the other staff.
They said they had no work at that time but would hire him in the future if work became available. They agreed that they had asked the worker's manager to call him.
Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute if they have been dismissed and they allege that they were dismissed in breach of the general protections provisions.
When a person applies to the Commission under section 365, the Commission's role is to try to resolve the matter, usually by holding a conference.
However, if a respondent denies that they dismissed the applicant, then the Commission must first determine whether the applicant has been terminated before exercising jurisdiction to deal with the dispute.
According to the FWC, Section 386 defines dismissal to mean a person has been dismissed if the person's employment with his or her employer has been terminated on the employer's initiative, or the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
There was no question in this matter about whether or not the worker resigned. The only issue was whether or not the worker's employment was terminated on the employer's initiative.
Objective assessment of intentions examined
The FWC referred to a Full Bench decision which stated: "The question of whether a party to a contract of employment has given notice of termination does not depend on the subjective intention or understanding of the employer or employee, but on an objective assessment of the intentions of the parties. The question is whether a reasonable person in the position of the parties would have understood [the employer] to have terminated [the worker's] employment."
Recent decisions of the Commission have found that a casual employee who was no longer offered shifts, including because there was a reduction in work, was a dismissal.
The Commissioner referred to a decision in which a Deputy President found that when an employer sent a message to an employee to say that there were no available shifts, this was a dismissal.
The definition of "dismissed" is the same in general protections dismissal and unfair dismissal matters. Similarly, in another decision, a Deputy President found that not rostering a casual employee for work was a dismissal. These cases established that ceasing to offer shifts to a casual employee could constitute termination on the employer's initiative.
The Commissioner stated: "Based on what I have heard from 2 directors of the respondent and the applicant, the ending of [the worker's] employment was clearly a termination at the employer's initiative. The directors confirm that they reduced work for all staff and had to let some staff members go. One of those staff members was [the worker]."
The directors said they had no work for him at the time his employment ended, but as a casual employee, they could hire him in the future. However, they had no idea when future work would be available.
Phone call constituted dismissal
The Commissioner stated: "On any objective assessment of what occurred, a reasonable person would have understood the words of [the worker's] manager in the phone call on 5 July to [the worker] to be a dismissal. Further the directors confirmed that they asked [the worker's] manager to make the call."
The fact that they might employ the worker in the future, but where there was no clear future reemployment date, was similar to the "pause" in a matter where the Full Bench held that such an email saying that there would be a pause in the employment relationship was a dismissal within the meaning of section 386 of the Act.
The Commissioner concluded: "I am satisfied that the respondent...dismissed [the worker]. So, the respondent's jurisdictional objection to the application is dismissed."
The Commissioner stated they would now refer the matter for conference, as required under section 368 of the Act.
The decision confirmed that where an employer reduces staff numbers and chooses to cease offering shifts to a casual employee, this constitutes termination on the employer's initiative, even if the employer expresses a possibility of future reemployment without a clear date.
