Casual worker says he was unfairly dismissed after not being rostered
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim filed by a casual worker who argued that his employment was unfairly ended after he was no longer rostered for shifts.
The worker claimed that he had been available for work and had actively sought shifts, but the employer had stopped offering him work without clear justification.
The worker said that despite repeatedly calling the store and updating his availability online, he was not scheduled for any shifts. He also alleged that other casual employees were receiving shifts while he was not. He claimed that the employer failed to properly communicate with him about why he was not being rostered.
After not working for several months, the worker received an email stating that he would not be offered any more shifts. He argued that this amounted to an unfair dismissal and that he was not given a fair opportunity to discuss his employment status with the employer.
The worker had been employed as a casual in the dairy/freezer department since 2021. He typically worked morning shifts starting at 6:00 AM for three to five hours. However, in early 2024, he changed his availability to start no earlier than 9:00 AM due to family responsibilities, as his wife had started working and he was responsible for taking his children to school.
The employer said that dairy department shifts had to start at 6:00 AM to meet operational requirements. The worker was offered shifts in another department, but he declined. On 21 July 2024, the employer sent an email stating that the worker had not worked a shift for over 60 days and asked him to update his availability.
The email also warned that if his availability did not meet operational needs, the employer would not be able to offer him any further shifts.
After receiving no response, the employer sent another email on 18 August 2024, stating, “Our records indicate you have not worked a single shift with us for over 90 days. As you have either not returned your availability information, or your availability does not meet the needs of the business, [the employer] will not offer you any further casual shifts.” The worker said he had not seen these emails because they went to his junk folder.
The worker argued that he made efforts to secure shifts by calling the store and updating his availability on the company’s online platform. He said he had called multiple times between May and July 2024, but his messages were not passed on to management. The worker also said he had seen other casual staff receiving shifts while he was not.
In an email to the employer, he expressed frustration over the lack of shifts, writing, “Why am I not receiving any roster shifts or any hours at Riverlink??? I have seen other casual staff members getting shifts! I just need something—this treatment is very stressful, depressive, upsetting, and unfair.”
He also suggested that he was being discriminated against but did not provide details on the basis of the alleged discrimination.
The store manager, who had been with the company since 1982, said that casual employees were instructed to submit and update their availability through the employer’s online system.
Shifts were allocated based on both availability and operational requirements. If a shift became available at short notice, employees might be contacted by text message.
The manager confirmed that the dairy department required shifts to start at 6:00 AM and said that allowing a worker to start later was not practical. “The dairy department cannot accommodate a casual employee commencing at 9:00 AM,” he said.
The manager also said that the worker had been given opportunities to take shifts in another department but had declined them. In May 2024, the worker was trained in the meat department and was scheduled for two shifts. However, after working one shift, he walked out of the second shift and did not return.
The manager said, “[The worker] expressed that he did not like working in the meat department and did not know how to do mark-downs. [The manager] reminded him that he had been trained and offered to walk him through the process after his lunch break. [The worker] left the store and did not return to complete his shift.”
The FWC assessed whether the dismissal was harsh, unjust, or unreasonable, focusing on the worker’s availability and the employer’s operational needs. The Commission determined that the employer had a valid reason for ending the employment, as the worker’s availability did not match business requirements.
The Commission stated, “[The worker] did not have capacity to work at the times [the employer] was prepared to offer casual employees to work in the dairy department. There was nothing unreasonable about [the employer’s] operational requirements.”
The Commission also found that the worker had been informed of the risk of termination and given an opportunity to update his availability before his employment ended. It noted, “[The employer] wrote to [the worker] to inform him of the risk to his employment and gave him until 4 August 2024 to update his availability before taking further action.”
However, the Commission stated that it would have been preferable for the employer to invite the worker to a face-to-face meeting before making the final decision. It noted that a discussion with the store manager about availability would have been best practice.
Despite this, the Commission found that such a meeting would not have changed the outcome, given the worker’s strict availability and refusal to work in other departments.
The decision highlights that casual employment does not guarantee ongoing work and that employers may allocate shifts based on business needs.
The Commission found that the employer’s decision not to offer further shifts was consistent with its operational requirements.
The Commission stated, “The dismissal was not harsh, unjust, or unreasonable.” The worker’s application for an unfair dismissal remedy was dismissed.
