FWC awards compensation after shifts suddenly stopped without explanation
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a casual worker who claimed she was effectively dismissed when her employer stopped offering her shifts. The worker alleged she was treated unfairly after making a workplace complaint, leaving her without income but still technically employed.
The worker argued that despite being a casual employee with no guaranteed hours, the sudden reduction of her shifts to zero without explanation constituted unfair dismissal. She maintained she was a dedicated employee who had received positive feedback throughout her employment.
Central to the worker's claim was that she was left in employment limbo - told she was still employed but given no work. She provided statements from ten colleagues supporting her work performance, directly contradicting the employer's unsubstantiated claims about performance issues.
The worker was employed as a casual crew member at a fast food restaurant in Perth, Western Australia. She worked regularly from February 2023 until July 2024, when her shifts suddenly decreased without explanation.
After unsuccessful attempts to secure more shifts, she filed a complaint alleging discrimination in work allocation.
The complaint was handled by a staff member from the company's head office under their Anti-Discrimination Harassment and Bullying Policy, while local managers continued to tell her no shifts were available.
The FWC noted this created a problematic situation: "The unfairness that arose from the procedures followed is that [the employer's] delay in dealing with the discrimination claim and its failure to provide [the worker] with shifts while that claim was being processed left [the worker] in limbo. She was told she was employed but she was not provided with work, and she did not receive wages."
The situation escalated when the worker lodged a general protections application with the FWC in September 2024, claiming her hours had been reduced to zero and alleging discrimination based on race.
The employer responded denying the discrimination claim and stating the worker "did not meet performance standards and there had been a breakdown in the working relationship."
However, during the proceedings, the employer chose not to provide any witness statements or evidence supporting their claims. In contrast, the worker submitted statements from ten colleagues who all testified to her strong work performance.
Commissioner Davis found: "On the evidence provided by [the worker] I find that [the worker] was a hard working employee. She was considered a good worker by her colleagues," concluding, "I find there was no valid reason for the dismissal."
The Commissioner noted that the employer's workforce consists predominantly of young people in their first jobs, with many under 18 years old. The treatment of these vulnerable workers was a significant factor in the decision.
In her statement to the FWC, the worker expressed: "This is lack of professionalism from management in dealing with employment disputes and completely failure of Duty of Care for an employee. I want to mention again that most of employees are under 18 years old. Many 14, 15 years old kids not experienced, first work experience. Everyone deserves good and safe work environment."
The Commissioner agreed with these concerns, finding that the employer "failed to act professionally in handling the dispute and didn't consider the vulnerability of their young workforce," stating, "I find that [the employer] has failed in these three areas and the consequences are that [the worker] has been treated harshly."
After finding the dismissal unfair, the Commissioner awarded compensation instead of reinstatement. The Commissioner calculated that if not dismissed, the worker would likely have worked for at least another 12 months, earning approximately $34,000.
However, the Fair Work Act limits compensation to the total amount earned in the 26 weeks before dismissal. Because the employer had already stopped giving shifts for several months before officially dismissing her, this significantly reduced her potential compensation.
The Commissioner observed: "I note that the manner in which the cap operates in this case is inequitable to [the worker]. [The employer] has effectively gained a benefit from its poor treatment of [the worker] by taking advantage of her casual status and refusing to provide her shifts for the last 10 weeks of her employment. I suspect it is a result that was not an intended consequence of the legislation."
The final compensation ordered was $10,252.35, with the Commissioner concluding: "Having regard to matters referred to above, I find that [the employer's] dismissal of [the worker] was harsh, unjust, and unreasonable and that the dismissal was unfair."
This case highlights important considerations for employers managing casual workforces, particularly regarding proper procedures when handling complaints and reducing shifts.
