Employer’s message said the worker would be listed as an ‘inactive’ member and would be temporarily removed from communication groups
A casual employee challenged his dismissal from a customer service officer role, arguing it was a separate and distinct engagement from other roles he performed for the employer.
The employer maintained that the worker remained an active casual employee, continuing to be engaged in various roles, and no dismissal had occurred.
The worker began working for the employer as a swim teacher in late 2022. During his employment, the worker worked in a number of roles, including swim teacher, lifeguard, duty manager, attendant support officer and customer service officer. In all roles he performed, the worker was engaged on a casual basis.
Contract and customer service officer role
In early 2023, the worker was provided with a letter which the employer referred to as his contract of employment. The letter's subject line stated "position of swim teacher" and offered employment as a swim teacher.
The letter also stated that when requested, the worker may work in any position within the leisure centre as long as he was appropriately qualified, trained and available.
A few months later, the worker applied for a role as a customer service officer. In order to apply, the worker was required to complete a written expression of interest and participate in a group interview. The worker was successful in obtaining the role and began working in it several months later.
Customer service officer role details
In the customer service officer role, the worker worked on the front desk of leisure centres operated by the employer, attending to patrons' access and assisting with café outlet operation. The worker considered his engagement in the customer service officer role to be a separate engagement from other roles.
When he commenced in the customer service officer role, the worker was not provided with a letter confirming his offer of the position. This contrasted with when the worker began working as a swim teacher.
The customer service officer role reported to a manager who was responsible for managing customer service officers and to whom the worker would go for assistance regarding the role or rostering. The rostering system for the customer service officer role was discrete from other roles and managed by the manager.
The worker was remunerated in relation to the customer service officer role pursuant to a rate of pay specific to that role. The pay rates attached to the various roles the worker performed were all different.
There was a separate communication system used by people engaged as customer service officers, not used in relation to other roles. There were induction and training arrangements specific to the customer service officer role, which only persons engaged in that role were required to complete. The role had the discrete requirement that a food handling safety certificate be obtained.
Message about inactive status
The worker claimed his dismissal took effect in early July 2025 when he stopped working in the customer service officer role. However, he continued to work for the employer in other roles after the purported dismissal and after he filed his application.
The employer said in its response that the worker had worked shifts recently and had worked six shifts during the prior four weeks. The worker acknowledged he performed a small number of hours in other casual roles, such as lifeguard and attendant support officer.
The worker placed reliance on a message he received in early July from his supervisor. The message stated the employer had undertaken an extensive review of customer service officer rosters, availability and current demands during the quieter winter period.
Based on these factors and current service provision levels, the customer service unit did not have the volume of shifts available to engage the worker consistently.
Therefore, the worker would be listed as an "inactive customer service officer staff member". As a result, the worker would be temporarily removed from communication groups; however, he would be contacted again should there be an increase in service provision, where he may be engaged and reinstated.
Employer's position on dismissal
The employer said the worker was not dismissed because he had continued to work for it after his purported termination and had continued access to its systems, such as its rostering tool and communication channels.
It said the customer service officer role was not a separate role, and each of the roles the worker was engaged in was part of a single employment contract. It also submitted that even if the worker was engaged through a dual employment arrangement and the customer service officer engagement was separate, he was not dismissed because "inactive status does not equal dismissal" and he may be re-engaged at any time.
The worker said the customer service officer role was a "distinct and concurrent employment relationship" and the unilateral decision to remove him from rostering systems and communications effectively terminated that employment.
He submitted that the customer service officer role was "separate" because it had a separate management and reporting line, distinct systems and communication channels, different pay rate and classification, and distinct duties and qualification requirements.
No separate employment relationship found
The Commissioner agreed that a concept such as "dual employment" has application in Australian law. The concept is concerned with the operation of two separate employment arrangements between an employee and the same employer, which may be regulated differently.
For an applicant to establish unfair dismissal in a dual employment situation, it may be necessary to establish the existence of not just two separate and distinct employment contracts with the same employer, but separate employment relationships, one of which they are dismissed from.
According to the decision, this was not the case. The worker was engaged by the employer as a casual employee in a variety of casual roles. He had an employment relationship with the employer that encompassed those roles.
The Commissioner accepted the employer's submission that the engagement was pursuant to one contract of employment, not more than one.
The letter the worker received describing the terms of his contract of employment referred to a multiplicity of roles. There was no evidence that the worker was issued with a different document, which may have constituted a separate contract in respect to the customer service officer role.
The relationship underpinned by his contractual arrangement had a fluidity not unusual in many casual relationships. Sometimes the worker was rostered to work in different aspects of the employer's operation, according to its needs and his capabilities.
Some of those roles attracted different rates of pay or were the subject of different management structures. There was not a great deal of difference in the underlying qualifications required for the various roles, or to some extent, skill set.
Message described fluidity of casual engagement
The circumstances of the alleged dismissal provided context. The employer said to the worker that his removal from communication groups was "temporary", and because its level of service provision was not at a volume sufficient to continue to engage him consistently. It also said that when service levels increased, he might be "engaged and reinstated".
It also specifically provided that this change did not affect his employment in other teams, in other roles. In the Commissioner's view, the message described a not uncommon circumstance involving the fluidity associated with many casual engagements.
This casual engagement of the worker by the employer continued after the date he claimed dismissal occurred and even after he filed his unfair dismissal claim. The worker contended dismissal occurred when he was told he would be marked as "inactive" in respect to the customer service officer role.
However, since then, he had worked for the employer in other roles he had previously performed during his employment. This suggested the continuation of the employment relationship beyond the date of the alleged dismissal.
No dismissal found
The Commissioner considered whether the conduct of the employer in making the worker an "inactive staff member" was of a nature that could be said it forced him to resign.
The worker did not argue his case this way, which was proper in the Commissioner's view, because there was no evidence he did resign either from the customer service officer role distinctly, or from being employed in other roles with the employer.
For the reasons outlined, the Commissioner did not consider that the worker's dismissal occurred when he contended, nor did the Commissioner consider that he was "dismissed" when he filed his unfair dismissal application.
When he filed his application, the worker had not been dismissed by the employer. The application was dismissed.
