Fair Work: Understanding the law around casual dismissals

Worker alleges dismissal was due to senior employee's 'personal dislike'

Fair Work: Understanding the law around casual dismissals

In a recent Fair Work decision, a Brisbane worker alleged he was unfairly dismissed from his employment at a bowling alley. The applicant commenced working as a casual technician at the bowling alley in August 2019. During the first month of his employment, one of the senior technicians made several snide comments to the applicant about his competency and technical skills.

In December 2020, the bowling alley’s head technician took medical leave and was temporarily replaced with the senior technician. The applicant expressed his concern that he would be dismissed due to the senior technician’s “personal dislike of him”, but the head technician assured the applicant this would not be the case.

In early December, the senior technician cancelled the applicant’s remaining shifts for the rest of the week. The senior technician gave conflicting reasons for this, advising that the applicant’s work was not to a “satisfactory standard” but later stating it was because business was slow.

Given no other employee’s shifts had been cancelled during December, the applicant believed this was due to the senior technician’s animosity towards him. The applicant sent a complaint to the respondent, detailing his concerns about the senior technician. The applicant submitted that, to date, the respondent had taken no action regarding this complaint.

After finishing his first shift of 2021, the applicant was advised that the respondent had cancelled all his forthcoming January shifts. The respondent stated this was because the applicant was the newest employee, although this was found to be untrue.

The applicant submitted he had no choice but to resign in January 2021 and subsequently submitted an unfair dismissal application. The respondent contended that, while the applicant’s work was unsatisfactory, he resigned and was not terminated. 

The Commission held that the respondent’s conduct, in cancelling the applicant’s rostered January shifts, effectively ended his “regular and systematic casual employment”. Further, the Commission was not satisfied of a valid reason for the applicant’s dismissal related to his capacity or conduct, leading to a finding that it was unfair under the Fair Work Act 2009 s 394.

Key Takeaways for HR:

  • Cancelling a casual employee’s shifts may signify an end to their “regular and systematic casual employment”
  • In the absence of a valid reason, this will likely give rise to an unfair dismissal

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