Company claims operational review and work shortage justify ending the employment relationship
The Fair Work Commission (FWC) recently examined whether a casual support worker was dismissed when her employer ceased offering shifts and formally ended her engagement.
The case involved a disability support worker who was told her employment had concluded after a review of staffing arrangements and operational needs.
The worker argued she had been dismissed when the employer sent a formal notification stating her engagement had concluded and no further shifts would be allocated.
She maintained that despite her casual status, the employer's definitive communication constituted a dismissal that terminated her employment relationship on the employer's initiative.
The employer contested the worker's claim, arguing that no dismissal had occurred because she was employed on a casual basis with no guarantee of ongoing work.
Disability support role ends amid operational review
The employment relationship began in December 2024 when the worker started as a casual support worker with a company providing National Disability Insurance Scheme services in the Townsville region.
She was engaged under a written contract that specified her employment would be on a casual basis as required, with each work occasion constituting a separate contract of employment.
The contract explicitly stated that as a casual employee, there was no guarantee of ongoing or regular work.
On 16 April 2025, a director sent the worker a formal email with the subject line "Final Notification," stating that following a review of current staffing arrangements and operational needs, there were no shifts available to offer.
The email concluded that her engagement with the organisation had ended and no further shifts would be allocated.
The employer later provided a separation certificate dated 22 April 2025, confirming that the worker's employment ceased on 16 April 2025 for reasons of "shortage of work."
Employer cites operational factors for ending engagement
The employer raised several reasons for no longer offering work to the worker, citing "operational necessity," "participant-directed feedback," and complaints from those the worker was allocated to assist.
Additional factors included various performance issues, the worker's limited availability, and her refusal to use her own vehicle for work purposes.
The employer argued that the cessation of shifts was "operational in nature and consistent with the employer's rights under a casual engagement."
They emphasised that no written or verbal notice of dismissal was issued, distinguishing between ending casual arrangements due to operational needs and formally dismissing an employee.
The company contended that their casual employment structure meant individual shifts constituted separate contracts that naturally concluded at the end of each work period.
They argued this arrangement gave them the right to cease offering work without it constituting a dismissal under employment law definitions.
Worker pursues general protections dismissal claim
On 6 May 2025, the worker applied under section 365 of the Fair Work Act 2009 alleging that the employer had dismissed her in contravention of general protections provisions.
The employer objected to the application on the basis that the worker had not been dismissed, requiring the FWC to determine this preliminary question.
Section 386 of the Fair Work Act defines dismissal as occurring when "the person's employment with his or her employer has been terminated on the employer's initiative" or when someone resigns but was forced to do so because of the employer's conduct.
However, the section also provides exceptions for employees under contracts for specified periods.
The FWC examined whether the worker's employment had been terminated on the employer's initiative under the Fair Work Act.
This type of jurisdictional objection must be resolved before the Commission can proceed to deal with the substantive dispute.
FWC applies dismissal definition test
The FWC found that the email of 16 April 2025 "is in clear terms" and "leaves no room for doubt that [the worker's] employment is being brought to an end by [the employer] with immediate effect."
The Commission noted that the termination was further confirmed by the separation certificate documenting that employment ceased for reasons of "shortage of work."
The Commission rejected the argument that casual status prevented a finding of dismissal, stating: "Nor does [the worker's] status as a casual employee change the fact that her employment was brought to an end on [the employer's] initiative."
The FWC recognised that while casual employees may be engaged over separate contracts, employers can choose to continue or discontinue the arrangement entirely.
The Commission found that despite various reasons given for no longer offering work, "none of these matters change the fact that [the worker's] employment was ultimately brought to an end on the initiative of the employer."
The FWC determined that the employer's actions constituted a unilateral decision to end the employment relationship.
Dismissed on the employer's initiative?
The FWC concluded that the employer's actions constituted a dismissal within the meaning of the Fair Work Act.
The Commission found that the worker's employment was brought about by "a unilateral act of [the employer] who had come to a view that there would be no further work provided to [the worker] and determined that the employment would be brought to an end on a date of the employer's choosing."
The Commission determined that the employer's action "resulted directly and consequentially in the termination of [the worker's] employment" and that the action "was intended to bring the employment to an end and had that probable result."
This finding established that the termination occurred on the employer's initiative rather than through the natural conclusion of casual arrangements.
The FWC concluded: "I conclude that [the worker] was terminated on [the employer's] initiative within the meaning of s.386(1)(a) and was therefore dismissed for the purpose of s.365 of the Act. [The employer's] jurisdictional objection to the application is dismissed."
This decision allows the worker to proceed with her general protections claim, having established that a dismissal occurred despite the casual employment arrangement.
