Fair Work clarifies employer's intention
The Fair Work Commission (FWC) recently dealt with a worker’s claim that he was dismissed even though he was “willing” and “able to work” after his employer issued a separation certificate.
The employer argued that there was no dismissal since the worker was hired on an “as-needed basis” and that his probationary period had naturally expired.
The worker, Phillip James Curry, filed a general protections application, alleging that his employer, Mackellar Excavations Pty Ltd, dismissed him in violation of his workplace rights. The employer rejected the application and said he was not dismissed.
Curry started working for the employer on 28 June 2023 as a casual employee receiving casual loading. On 4 August, the employer informed him that his services would no longer be required.
Individual Flexibility Agreement (IFA)
Curry had signed an Individual Flexibility Agreement (IFA) before starting, outlining his employment conditions, which the employer said was not an offer of full-time employment.
Curry said he believed the agreement constituted an offer of full-time employment, with entitlement to at least 13 weeks' notice of termination.
He said he was given the impression that full-time employment would be offered after two weeks, which did not happen. Shortly after inquiring about permanent status, he was informed that he had been let go.
'As needed basis'
Meanwhile, the employer argued that he was not dismissed because he was employed on a casual, "as needed" basis.
It said that he was never promised full-time employment after two weeks; instead, he would be considered for full-time employment after successfully completing a probationary period of three to four months.
It added that the IFA referred to a 13-week notice requirement, which involved the termination of the IFA, not employment.
Employer issued a separation certificate
The FWC noted the employer’s argument that “as a casual employee, Curry was no longer required, and to ensure that he understood he was no longer required, a separation certificate was provided.”
The FWC said that “the issuance of the separation certificate leads [to the conclusion] that Curry was terminated” since “such certificates, by their very nature, provide information for terminated employees.”
“[The employer] clearly intended to bring the employment relationship to an end, even though Curry was still willing and able to work. This was communicated to [him] at a meeting and confirmed by the issuing of a separation certificate,” the FWC said.
Thus, the FWC said that Curry’s employment relationship came to an end at the employer’s initiative.
