FWC looks at whether this was termination of employment
The Fair Work Commission (FWC) recently dealt with a worker’s dismissal claim that she was fired from work after her employer removed her from the roster and failed to clarify her employment status. The worker said she was discriminated against due to medical restrictions after suffering from pregnancy-related complications.
The worker, Alysha Marshall, was a casual fast food employee at Kingsley’s Chicken Pty Limited. She worked consistently until September 23, 2023, when she was allegedly removed from the roster due to complications related to her pregnancy.
She argued she suffered from adverse actions by Kingsley’s, including dismissal, for exercising her workplace rights.
Incident with customer’s order
On September 23, 2023, an incident occurred when Marshall, due to her medical restrictions, declined to lift a customer's chicken order, assuming it exceeded the prescribed weight limit.
Her supervisor, Benjamin Lauron, reprimanded her for not checking inside the bag and suggested she rest instead of working with accommodations for her condition.
When she explained that she was a bit sore because of her medical condition which she did not want to exacerbate, he replied that “they could not really do special treatment to anyone” and that “he was being fair to everyone.”
Marshall, feeling overwhelmed, briefly left the store but returned to inform Lauron of her decision to go home.
She told Lauron that she "had been writing things down for a lawyer," and Lauron responded, "that this was her right."
According to records, the conversation "made Marshall cry." She said “I can’t do this anymore." She said she "felt embarrassed about having felt the need to explain the detail of her pregnancy-related medical issues" to Lauron.
After about 20 minutes, Marshall returned and spoke to Lauron. She said: “I apologise if this is an inconvenience, but I’m not doing well, and I really need to go home and put myself first”.
Lauron allegedly replied: “No worries, I am trying to find someone to replace you.” After discussing the incident with higher management, Marshall was informed via email that all her shifts were removed, leading her to believe she was fired.
Despite reaching out to management for clarification, she received no response, prompting her to file an application on October 13, 2023. Marshall said she was dismissed based on the following actions from the employer:
- Her removal from the roster due to medical restrictions;
- Failure by Kingsley’s to clarify her employment status after her inquiry;
- Lack of clarity in Kingsley’s communication regarding her return to work;
Was the worker dismissed?
In order to determine whether the termination was done at the initiative of the employer, the FWC said that “an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.”
“That is, had the employer not taken the action it did, the employee would have remained in the employment relationship,” it added.
“In this case, the critical actions that constituted a termination of the employment at the initiative of Kingsley’s were the removal of Marshall from the, and Kingsley’s subsequent failure to respond to her message which sought clarification about the status of her employment.”
Thus, the FWC said that the worker was dismissed. It then referred the matter to a conference.
