Commission decides whether worker was dismissed through company's initiative
The Fair Work Commission (FWC) recently dealt with a case involving a worker who alleged that his employer contravened several general protections provisions in dismissing him from his employment.
In its defence, the employer argued that it did not dismiss the worker. Moreover, if a dismissal indeed took effect, the worker's application was beyond the 21-day statutory period.
Exclusion from the roster
Around March 2022, the worker commenced employment with the company as a casual employee and worked primarily in the company's retail shop in Cameron Park Shopping Centre.
The roster system in the workplace was communicated to the staff through electronic communication sent by Facebook Messenger.
Hence, employees needed to be a member of the Messenger group to receive the rosters and only the employer had control over who was a member of the said Messenger group.
On 11 February 2023, the worker attended his last shift for the company. Later that evening, the worker asked the employer if there were any reasons why he was not rostered to which the employer replied, “I don’t need you next week.”
Days later, the worker and his mother, who also previously worked for the company, were removed from the Facebook Messenger group. Thus, he did not have any access to the weekly work rosters for the company stores.
Several message exchanges took place following the worker’s removal from the Facebook group. However, on 28 February 2023, the employer sent the following text message to the worker, “No one is stopping you finding another job. I don’t have any work for you…”
That same day, the employer’s daughter emailed a separation certificate to the worker wherein the reason for separation stated was “shortage of work” and not “employee ceasing work voluntarily.”
The employer contended that because the worker, through his mother, requested a separation certificate, he believed that the worker resigned on his own initiative.
Commission’s decision
After examining the case, the Commission was satisfied that the worker did not voluntarily leave his employment with the company.
It further noted that the worker did not say that he resigned or that he wanted to leave. Instead, the worker’s communications and actions demonstrate his eagerness to continue working for the company.
While it is true that the worker requested a separation certificate from his employer, the Commission noted that this was because he wanted to be able to access unemployment benefits as he needed to pay bills and other living expenses.
It was also clear in the employer’s text messages that the employment relationship was at an end, particularly the employer’s response “no one is stopping you finding another job. I don’t have any work for you... All the best for the future,” the FWC said.
Ultimately, the Commission noted that the worker’s employment was terminated on the company’s initiative and such a dismissal took effect on 28 February 2023.
It further stated that the worker’s application was filed within the 21-day time limit provided in the Act.
