Worker argued he was given no valid reason for dismissal and not provided an opportunity for consultation or redeployment
The Fair Work Commission (FWC) examined whether a machine operator's dismissal was harsh, unjust or unreasonable after the employer raised jurisdictional objections, including that the applicant had not met the minimum employment period and was not dismissed as his termination was a case of genuine redundancy.
The applicant worked as a machine operator on the tie gang servicing rail lines, maintenance and construction needs across the state.
He was an experienced operator who had been working on the tie gang since around 2013 and was dismissed after being advised that his employment would end the following day.
Applicant worked seasonal basis with the company
The work involved travelling around the state replacing railway sleepers and associated track maintenance for six to eight months from around March each year.
The rail authority allocated work on a preferred tender basis, with work orders generally confirmed in early January or February.
The applicant had performed work as a casual employee for several preferred tenders, generally working on a seasonal basis, commencing employment when work commenced and ending employment when work ended for the season.
The applicant first undertook work for the employer in late two thousand and seventeen, working ten days as a casual.
He worked on the same basis for two weeks in two thousand and nineteen, approximately ten months in two thousand and twenty-three and a further nine months in two thousand and twenty-four.
At the end of two thousand and twenty-four, the applicant was provided with an employment separation certificate, but was also provided with a work vehicle, which he continued to have custody and use of until he ended his employment in April the following year.
Applicant advised to finish up the following day
The applicant recommenced performing work for the employer in March, operating a scarifier machine. He continued to perform this work until the day he was terminated. In late April, the applicant received a phone call from the director informing him that he was being dismissed and that he was to finish up the following day and leave his work vehicle on site.
He argued he was given no notice or valid reason for his dismissal, was not provided an opportunity for consultation or redeployment and that he had been unfairly dismissed.
The employer disputed that 544the applicant had been unfairly dismissed and further that he had not completed the minimum employment period. The employer's position was that the applicant's period of seasonal employment ended at the end of two thousand and twenty-four.
The applicant argued that at the end of two thousand and twenty-four, he understood he would be recommencing employment with the employer in early two thousand and twenty-five, stating this was communicated to him and he was provided continued access to the company motor vehicle on this basis.
Worker had a reasonable expectation of continuing employment
In proceedings, the applicant gave clear and convincing evidence that he understood and expected he continued to be in a casual employment relationship with the employer at the end of two thousand and twenty-four.
The FWC accepted his evidence, finding it more persuasive than that of the employer, noting the director's evidence that he provided the applicant ongoing access to his company motor vehicle for the period between seasons because it was convenient, which supported the applicant's version of events.
The FWC was satisfied that the applicant was a casual employee engaged on a regular and systematic basis who had a reasonable expectation of continuing this employment and had completed the minimum employment period of six months.
The applicant's evidence was that in the evening of late April, he received a phone call from the director advising him that he was to finish up the next day, stating he was shocked and was given no prior notice or warning that the work was ending or that there were any issues with his performance or conduct.
Director received notification that two machines no longer required
The director's evidence was that on a date in late April, he received an email and telephone call from rail authority representatives stating that, from several days later, they no longer required him to supply two of his machines at one location.
Because of this, he submitted that he had no choice but to decide to put off two employees because he could not pay them when there was no work for them to do.
Between receiving the notification and two days later, the director considered his position and options. Eventually, he determined to end the applicant's and another employee's engagement.
At around seven in the morning, two days after receiving notification, the director said he called the applicant and made him aware of this decision and the reasons for it, including that there was nowhere else in the business where he could be redeployed.
The director's evidence was that he told the applicant his casual employment would end at the end of work the following day, and made him aware that the company could have another job coming up at another location and that he would be offered employment there.
The director argued he did not consider the applicant was dismissed, but rather that he had just ended another casual engagement.
FWC determines that the applicant was dismissed
The employer suggested that, in the circumstances where the history of the relationship was intermittent and had previously stopped, restarted and remained on foot, the Commission should conclude this was what occurred.
The FWC stated it had considered these submissions and authorities referred to by the employer, but the evidence in this case did not support this conclusion.
The FWC noted the applicant was clear that he was told by the director he was ending his employment, and it accepted this evidence, preferring it to that of the director.
The FWC concluded that while more notice would have been ideal, and the applicant believed he was provided less than twenty-four hours' notice, the evidence clearly showed that the director notified him of the reason he was being dismissed. The FWC determined that this factor weighed in favor of the employer.
It was satisfied that the only reason the applicant was dismissed was because of the notification the director received from the rail authority and the consequential decision he had to make to reorganize his business.
The Commission accepted that this was nothing other than a sound, defensible and well-founded reason.
It determined this finding weighed against a finding that the dismissal was harsh, unjust or unreasonable.
The FWC concluded for the reasons set out, it was satisfied the applicant's dismissal was not harsh, unjust or unreasonable, dismissing the application.
