An employee was dismissed over ‘lack of availability’
In a recent case, the applicant was employed at a fitness centre. In late March 2020, the QLD government announced the closure of fitness centres due to COVID-19 and, by mid-April, the applicant was enrolled in the JobKeeper scheme. On 18 May, in preparation for the reopening of outdoor fitness centres, the respondent wrote to the applicant, offering for her to run group classes.
The applicant replied indicating she was interested in returning to work and asked a few questions regarding the future of her employment. She provided the respondent with two dates in late May and early June, on which she could meet to discuss these matters with the respondent. As she had committed to volunteering in a charity fitness event, the applicant further advised the respondent that she was not available to work until 12 June. She received no response to these emails.
On 22 May, the applicant missed two calls from the respondent. She replied promptly with another email requesting to meet to discuss her return which, again, was met with no response. A committee meeting was held on 25 May during which, in light of her “lack of availability to work”, the applicant’s employment was terminated.
The respondent stated that it was “very frustrating” that the multiple requests for the applicant’s availability was met with only availability “for a chat”. Further, the respondent submitted that the applicant had declared she was unavailable to work until 12 June but had instead made herself available to another organisation (the charity event). The applicant asserted that she had never dismissed or declined to return to work and was never warned that her availability was unacceptable, nor that her employment was ending. She also submitted that given she was on JobKeeper, retaining her employment was at no financial cost to the respondent.
The Commission accepted the applicant’s email responses to the respondent and found that the respondent had “jumped the gun” in dismissing the applicant for her apparent lack of availability. With this, the Commission determined there was no valid reason for the dismissal, leading to a finding that the termination was unfair. Compensation of $9,470 less taxation was ordered to the applicant.
Key Takeaways:
- Employers must ensure they have a valid reason when dismissing employees and must comply with procedural obligations under the Fair Work Act 2009
