Worker claims unfair dismissal after workload declines

Does termination of assignment add up to termination of employment?

Worker claims unfair dismissal after workload declines

Under Australian labour laws, employees are not automatically terminated when management gives them less work than usual.

However, disputes will arise if the lesser work results from a breach of contract or a substantial change to the employee’s terms of employment.

In a recent case, a worker argued that he was dismissed from employment because the company gave him a lesser workload, causing him “financial difficulty.”

Meanwhile, the employer asserted that he was still an employee, and it was their client who decided to remove him from his assignment.

Was the employer liable for unfair dismissal?

Background of the case

The worker has been a casual employee for 15 years, doing translation work for a language services business.

He said he was accredited for translation services in Kirundi and Kinyarwanda and is proficient in Kiswahili and French. He would accept work through the company portal. Through this online system, he could accept or reject any interpreting work.

The work was not “systematic or regular” and came depending on the demand for his particular language set and his availability.

The employer provides interpreting and translating services to companies and government organisations. It has approximately 4,000 interpreters across Australia who perform ad-hoc interpreting services in government, legal, and healthcare.

According to records, the availability of the work was solely dependent on client needs and is inconsistent, so all their interpreters were employed as casual employees.

In July 2022, the employer assigned him to a client at their Grasstree Inala services centre. The work was done as per a contract for services. He worked there until November 2022, interpreting work for the client every Monday to Friday between 8:30 a.m. to 4:30 p.m.

The worker said he provided services in a third language, Kiswahili, for which “he is not accredited,” but “the client knew of his level of proficiency.”

After a while, the client asked for the worker to discontinue his assignment at their centre, and the reason was his “lack of proficiency in Kiswahili.”

The worker said, “there were no warnings regarding his performance,” and his work assignments with the client were “removed from his device.” He said he thought that “this was a technical issue as no one had said anything to him.”

The employer then called him via phone to say he would no longer perform translation services for the client but “that he was still employed as a casual employee and could obtain work through the usual channel.”

An email confirming his removal from the Inala services centre was sent in December 2022 when he asked to clarify the situation because he was “still confused about if he was dismissed or not.”

The employer repeated that “he would not be returning to work for the client.”

Since then, he had accepted interpreting work in Kirundi and Kinyarwanda, the other languages he was proficient in and accredited in.

However, there has not been the same volume of work as the worker experienced when he accepted the work from the client.

Is there dismissal if you give ‘less work’?

The worker believes he was unfairly dismissed, arguing “he was not aware that there were issues regarding his performance  with  the  client, and  he  was  not  able  to  respond.”

He said he “suffered financially” because “there has not been the same volume of work” from the employer since his alleged dismissal.

Meanwhile, the employer acknowledged that the worker’s “current volume of work has decreased since the latter part of 2022.” But it said that “this is the result of the ebb and flow of casual employment, rather than a dismissal.”

The employer also argued it had “no obligation to continue to offer him work for a temporary assignment when the client did not require his services.”

HRD previously reported a case involving an employer who said a worker was not entitled to unfair dismissal protection since he was a casual employee and was not employed for the minimum employment period of six months.

In another dismissal story, the FWC settled the issue of whether kicking an employee out of the company’s WhatsApp group was considered employment termination.

‘Assignment’ versus ‘employment’

The employer pointed out the difference between “termination of assignment” and “termination of employment.”

The Fair Work Commission (FWC) found that “a mere termination of assignment would not fall under [the scope of dismissal].”

“Given their correspondence, there is an ongoing relationship between the parties,” it said.

“There are ongoing offerings of work from the employer consistent with his employment prior to the assignment with the client.”

“The employer provides assignments based upon work that the [business] secures. Its clients have the discretion to utilise the services they request in the manner that they require,” it added.

In this case, the FWC clarified that the interpreting services of a specific language were required, and the worker “was not at the level the client needed.”

“In the end, the client determined they required an interpreter with the appropriate level of language skill and the employer was contractually bound to provide that service through an appropriately skilled interpreter,” it said.

And yet, the FWC still sympathised with the worker’s case, saying that it understood that he “had hoped the assignment with the client would be an ongoing one, as it was on a different rate of pay and required him to work around 38 hours a week.”

However, it also highlighted that “a casual employee relies upon the demand for the services.”

Thus, the FWC ruled that the employer did not dismiss the worker, and he was merely “removed from an assignment due to a lack of a particular language skill.”

It added the worker “continues to be an employee” of the company.

Recent articles & video

Nearly 4 in 10 Australians using generative AI at work: survey

FWC: Employees entitled to double pay for insufficient breaks between shifts

Cafe operator, director penalised for underpaying staff

Should employers reveal questions ahead of interviews?

Most Read Articles

Queensland resolves dispute on long service leave entitlements

From full-time to casual: 'Struggling' employer converts worker's role without consent

Fired for 'verbally abusing' manager? Worker cries unfair dismissal amid health issues