Promoted for 3 months, then back to a member role: Is it dismissal?
The Fair Work Commission (FWC) recently dealt with a case involving a worker's claim of unfair dismissal against his employer.
The case centered around the nature of the worker's employment and whether the employer's decision to cease offering the worker shifts in a higher-graded position constituted a dismissal.
The worker commenced casual employment with the employer on 15 March 2023 as a "Team Member" at the employer's Taco Bell store in Bathurst.
In July 2023, the worker began working as a shift supervisor, which was a higher-graded position under their applicable Enterprise Agreement.
The alleged dismissal
According to records, on or around 13 November 2023, the employer decided not to offer the worker any further work as a shift supervisor, partly due to concerns about the worker's conduct and because the employer had hired a new manager and assistant manager.
The worker continued to work as a Team Member but claimed that he had been unfairly dismissed from his employment.
The employer argued that the worker was not dismissed, as he was employed on a casual basis with no firm advance commitment to offer particular hours or work at a specific level.
The employer maintained that the change in work offered conformed with the terms of the contract and the higher duties provisions of the Enterprise Agreement.
The worker, on the other hand, argued that he was dismissed when the employer stopped offering him work as a shift supervisor.
He claimed that his engagement as a shift supervisor for three months indicated a level of competency inconsistent with the term "temporary" and that he had been appointed to the distinct position of shift supervisor in July 2023.
Appointment to ‘temporary’ shift supervisor
The FWC examined three significant events: the commencement of the worker's employment, the commencement of his work as a shift supervisor, and the employer's decision to no longer offer him work as a shift supervisor.
The FWC found that the initial terms of the worker's contract allowed the employer to require the worker to undertake shift supervisor duties without appointing him to the position.
The FWC also found that there was insufficient evidence to support the worker's claim that his contract had been impliedly varied in July 2023 to appoint him permanently to the position.
Consequently, the FWC determined that the employer's decision in November 2023 to only offer work to the worker as a team member did not constitute a demotion or a termination of the employment relationship or contract.
