Worker had clearance issues and client complaints but the employer said he stayed employed
The Fair Work Commission (FWC) recently dealt with a general protections application involving dismissal from a casual security guard who argued his employment was terminated after he was removed from client sites and asked to return his uniform.
The worker had been employed for approximately one year when issues arose regarding client complaints and a child safety prohibition notice.
The employer contended the worker remained employed on a casual basis but had no active work assignments that fit his circumstances.
The worker pointed to being asked to return his uniform in April 2025 as evidence of dismissal.
The employer argued it continued to offer shifts based on client demand and the worker's available qualifications.
The employer raised a jurisdictional objection on the grounds that the worker was not dismissed within the meaning of section 386 of the Fair Work Act 2009.
The case required the FWC to examine whether a casual employee who experiences a reduction or cessation of shifts has been dismissed, and whether requesting the return of a uniform constitutes termination of employment.
Casual employment with site-based work
The worker started working for a security services company on 14 May 2024 as a casual security guard.
The worker signed a casual employment agreement on 15 May 2024, which stated: "By accepting casual employment, you accept that we are offering you no firm advance commitment to ongoing work with an agreed pattern of work."
The agreement provided that work allocation was based on client demand and that deployment to sites may be subject to client requirements.
The contract specified that employees were required to hold current qualifications, including a driver's licence, security licence, working with children clearance, and first aid certificate, and that employment was conditional upon holding these qualifications.
On 15 November 2024, the employer received a client complaint regarding the worker's conduct at a site.
The worker was invited to a meeting and given the opportunity to respond in writing. Despite the complaint, the worker continued to receive work and was rostered for between 44 and 61 hours per week in November and December 2024.
In December 2024, another client raised complaints regarding inappropriate comments allegedly made by the worker to female staff members, including minors, and formally requested the worker's removal from their site on 20 December 2024.
After a disciplinary process, the employer issued a first written warning on 28 January 2025, confirming the worker remained employed.
The employer said the removal from the client's roster was client-driven and did not constitute termination. The worker disputed the complaints.
Extended leave and clearance prohibition
On 23 January 2025, the worker requested unavailability from 28 January to 18 May 2025, which was approved by the employer.
The worker disputed this, stating he "was overseas then" and did not apply for leave on that date. On 13 March 2025, the employer advised the worker that his rostering profile would be temporarily suspended due to his leave exceeding three months.
The employer said this was a standard administrative procedure.
On 24 March 2025, the employer received a child safety prohibition notice issued under South Australian legislation, prohibiting the worker from working with children.
The employer stated that this restriction significantly impacted the worker's ability to be deployed to sites requiring this clearance.
The worker submitted that his working with children application was still being processed in Queensland, and that he had received a negative notice in February 2017 due to a case involving his ex-wife, but had never been convicted of a crime involving children.
The worker informed the employer on 20 April 2025 that he had returned and was available for shifts.
On 25 April 2025, the employer reminded the worker that casual guards returning after an extended absence must reconfirm their qualifications and clearances, as many available shifts required valid clearances that they could not hold, and that no suitable shifts existed at that time.
The worker was also asked to return his uniform. The worker submitted that being asked to return his uniform meant he "had no job" and that the actions on 24 April 2025 amounted to dismissal, which took effect on 25 April 2025.
Conference led to resumed shifts
An initial telephone conference was conducted on 3 July 2025, at which the parties reached an in-principle agreement that the worker would return to work.
However, the worker advised the FWC that the employer had failed to comply with the agreement and had not offered him shifts.
A further telephone conference was conducted on 8 July 2025, at which point the worker advised he wished to proceed to a determination of the jurisdictional objection.
The employer submitted that on 3 July 2025, it reiterated to the worker that he had not been dismissed. Following the conference, the worker's rostering profile was reactivated, and he resumed working shifts starting 5 July 2025.
The worker submitted that he was only returned to work on 5 July 2025 in light of the matter being progressed before the Commission and that his hours were not sufficient.
The employer provided evidence that the worker had been offered and worked several shifts from July 2025 onwards, including multiple shifts throughout July and August 2025.
The employer noted the worker cancelled a scheduled change for 9 August 2025 after informing the control room he was "not available on the weekend", and that attempts to contact him for clarification went unanswered.
Casual employment principles examined
The FWC examined the nature of casual employment and whether the worker had been dismissed. The FWC referred to the Full Bench decision in City of Sydney RSL v Mrs Roxana Balgowan, which adopted observations that "at common law a casual employee's contract of employment ceases at the end of each engagement. An employer of a casual employee does not repudiate that contract when it fails to offer another shift."
The FWC also referred to Moutevelidis v ICC Sydney Pty Ltd, which observed: "The Applicant was a casual employee. The Agreement that governed her employment expressly provided that she was employed by the hour with no firm advance commitment to continuing and indefinite work according to an agreed pattern of work... Each engagement was separate and the employment would come to an end at the conclusion of each engagement."
The Commissioner noted the employer had continued to offer the worker shifts throughout July and August 2025. The Commissioner stated:
"The Applicant may argue that the number of hours/shifts per week being offered by the Respondent are less than what he previously worked, but that is simply the nature of casual employment. There are simply no guarantees of minimum hours for any casual employee in any industry in Australia."
Site restrictions examined
The FWC examined whether the employer's actions in limiting the worker's site assignments constituted dismissal.
The Commissioner stated: "Further, the ability of [the worker] to work across all sites for [the employer] has been limited by the behaviour of [the worker]. [The employer] cannot direct any client to accept [the worker] as a security guard if he has been removed from the site previously. Also, if [the worker] does not hold the necessary credentials to work at a site, such as a Working With Children Clearance, then [the employer] cannot roster [the worker] to work at that site."
The Commissioner found: "There is nothing discriminatory about [the employer's] actions in not rostering [the worker] to perform shifts for clients where he does not possess the necessary accreditation or for clients where he is not welcome to return. This is not adverse action on behalf of [the employer], but simply appropriate managerial practices."
The employer maintained that the uniform return request was not intended as a dismissal but reflected operational frustration as the worker continued to request shifts despite being advised that sites were already filled when he returned.
The employer said it had confirmed to the worker that he would be contacted if suitable shifts became available.
Jurisdictional objection upheld
The FWC concluded: "[The worker] signed a contract to say that he was a casual employee, and he continues to work as a casual employee. Based on the undisputed common law principle that a casual employee's employment ceases at the conclusion of each shift, and the provisions of [the worker's] contract of employment, I am satisfied and find that [the worker] was not dismissed by [the employer] and therefore has no capacity to bring his general protections application involving dismissal application."
The jurisdictional objection by the employer was upheld. The FWC ordered that the general protections application made by the worker be dismissed.
The decision confirmed that a reduction in shifts offered to a casual employee, even to the point where no shifts are provided for a period, does not constitute dismissal where the casual employment relationship continues and the employer remains willing to offer shifts when available.
The case reinforced that casual employees have no guaranteed minimum hours and that each engagement is separate, with employment ceasing at the conclusion of each shift.
The request to return a uniform, in circumstances where the employer continued to maintain the employment relationship and subsequently offered shifts, was found not to constitute termination of employment.
