Employer claims she was removed 'so as to not distract her with the group messages while she studied'
The Fair Work Commission (FWC) recently dealt with a student worker’s dismissal claim after she was kicked out from a WhatsApp group after requesting a few weeks off to study.
The employer said there was no dismissal since it only wanted her to focus on her commitments at school.
The worker was employed casually, providing front-of-house duties at the employer’s kebab shop.
She was a high school student, completing her year 12 studies. The parties agreed that she would ask for time off work to allow her to attend to her schooling commitments.
She was a member of a WhatsApp group managed by the employer to allocate shifts. The employer notifies staff of a rostered shift in this chat group.
‘Unable to work’
In May 2022, the worker sent a message through WhatsApp advising her manager that “she would be unable to work for the next few weeks.”
She said this request was made because she “needed to focus upon her heavy schoolwork load.” However, despite only seeking a “few weeks” off work, she was not rostered anymore for other shifts. She was also removed from the WhatsApp group.
The worker then filed a dismissal claim and said she was also underpaid.
While discussing allegations of underpayments, the employer responded against the claim that removing the worker from the chat group meant dismissal. It said it “routinely adds and removes employees from WhatsApp group, including when employees make themselves unavailable to perform work for a short period.”
The worker rejected this explanation and said, “in her experience, employees were never removed from the WhatsApp group unless they were fired.” She said, “on no other occasion had she been removed” when she asked for time off for her study.
HRD previously reported on the case of a barista who was removed from a similar chat group after failing to show up for work.
In another case, the commission dealt with an unfair dismissal application of a worker who claimed their employer wrongly blocked her from accessing their work roster.
Was there dismissal?
The FWC found that the WhatsApp group was the primary means by which shifts are allocated. “It follows that being removed from the WhatsApp group meant that a worker would not be allocated shifts,” the FWC said.
“And removing her from the WhatsApp group was the principal contributing factor which brought the employment to an end,” the decision added.
The FWC also did not accept the employer’s argument that the worker was removed “so as to not distract her with the group messages while she studied.”
“If this was the employer’s view, it is not apparent why it did not take the step of removing her from the WhatsApp group [during other occasions] that she sought time off work to attend to her studies,” the commission said.
Thus, the FWC ruled that the worker was dismissed. Additionally, it found that the employer was still willing to accommodate the worker, so the matter was referred to conciliation.
