Worker said she wanted meeting to go ahead ‘so that they can sack me’
A casual community support worker who claimed she was dismissed when told no shifts were available has lost her unfair dismissal case after the Fair Work Commission found her employment never ended.
The worker had been employed since 2018 but worked her last shift in February 2024. She was subsequently unavailable for work due to car troubles, a tennis elbow injury until October 2024, and later because she filed a dispute claim with the commission.
In May 2025, when she inquired about returning to work, she told the HR manager she wanted a meeting to go ahead "so that they can sack me" and said "it would be fun at my age to get fired. I have never been fired before."
The commission found the employer never dismissed her but simply had no casual shifts available in her preferred area and times.
Background of the case
The worker was employed by the not-for-profit care organisation as a casual community support worker from 2018.
During the first five years, she worked regular hours, averaging 25 to 30 hours per week, servicing regular clients near her coastal New South Wales town.
The commission was satisfied she was a regular casual employee with a reasonable expectation of continuing employment.
The worker preferred to work locally and was not prepared to travel significant distances for short shifts, such as a 60-kilometer round trip for a 1.5-hour shift.
From casual workers to permanent part-time
Prior to December 2023, most community support workers were engaged on a casual basis. In December 2023, the organisation encouraged casual workers to transfer to permanent part-time employment. The majority converted, which impacted work allocation to the remaining casual employees.
The organisation needed to assign work to part-time employees first to meet contractual obligations, meaning casual employees were primarily offered work to fill gaps, replace absent staff, or handle last-minute requests.
In late 2023, the organisation offered the worker conversion to permanent part-time employment. She declined, wanting to maintain the flexibility of casual employment. This decision meant her work allocation became increasingly irregular and sporadic from early 2024.
Worker unavailable for an extended period
The worker has not undertaken a client service shift since February 22, 2024. In March and April 2024, she advised the organisation that she was having car problems and was unavailable to work. At the end of May 2024, she notified the organisation that she could accept casual shifts again.
On June 27, 2024, the organisation offered her two casual engagements for July 1 and July 8, but she did not respond in time. Those offers were sent to her work phone and email, which she was not monitoring because she had not been working for months.
On July 2, 2024, she notified the organisation by text that she had sustained a non-work-related elbow injury and would be unavailable until October 2024. The organisation reminded her she would need medical clearance before returning.
On October 8, 2024, she informed her manager that the injury was resolving slowly, and her doctor had provided a medical certificate for another three months.
On December 19, 2024, the worker filed an application for the commission to deal with a dispute regarding entitlements under the organisation's enterprise agreement.
The arbitration was heard on April 29, 2025. She took the view it would not be ethical to make herself available for casual shifts while her dispute was being dealt with by the commission.
No casual work available in worker's area
On November 28, 2024, a general manager sent an email stating that following a review, the organisation had determined she met the definition of a "true casual" employee under the Fair Work Act, meaning her work was based on an as-needed, day-to-day basis with no firm commitment to ongoing hours or guarantee of ongoing employment.
The email noted her availability over the last 24 months had been irregular, with her last client service completed on February 24, 2024.
It stated the organisation regretted to inform her that it did not currently require casual employees in her area to fill roster gaps. The email invited her to a meeting, but after some back-and-forth, the meeting never happened.
Orchestrated dismissal?
On May 1, 2025, the worker spoke to the people services manager by telephone. According to the manager, the worker told her about her dispute and warned her to "watch out." Based on the conversation, the manager concluded the worker had a very low opinion of the organisation.
The worker then asked if the manager could arrange the meeting originally scheduled for November 2024, saying "I want that meeting to go ahead so that they can sack me." The manager responded that the meeting was a point in time six months prior and she was unsure what it was about.
The worker said, "I know what it was. They were going to sack me," to which the manager responded, "Are you sure?" The worker replied, "Yes. I knew that they were going to sack me, so I didn't go to the meeting."
When the manager asked why she wanted the meeting to now go ahead, the worker said "because the organisation was going to terminate me at that meeting and I want to be terminated."
The manager asked why she wanted to be terminated rather than resign given her frustrations. The worker responded, "It would be fun at my age to get fired. I have never been fired before."
She then asked about her entitlement to pro rata long service leave if she resigned and asked the manager not to tell anyone about their conversation.
Worker inquired about return to work
On May 5, 2025, the worker emailed the manager stating she had thought long and hard about returning to work, was still youngish with no plans to travel until September 2026, and asked to set up a meeting as she was planning to work for the next 18 months at least.
On May 8, 2025, she emailed stating she was aware of the return-to-work policy and would complete a functional assessment. However, before paying for this, she wanted a clear commitment the organisation would employ her on a permanent part-time basis as previously offered.
On May 14, 2025, she sent another email stating it had been over a week and she felt "left hanging," requesting an update. She stated that if the organisation was not going to give her work, they owed her the courtesy of advising her that her service was not required.
No permanent or casual work available
On May 14, 2025, the manager emailed stating the organisation could not offer her employment on a permanent part-time basis.
While such arrangements had been offered previously and declined, there were no part-time vacancies available. Additionally, she did not currently meet the eligibility criteria for casual-to-part-time conversion.
The email stated the organisation also did not have available casual shifts and was unable to re-engage scheduling at that time. If operational needs changed, the organisation would contact her about suitable opportunities.
The manager clarified she did not mean the organisation had no casual shifts anywhere in its business. Rather, there were no casual shifts available in the worker's designated area during her available days and times—7:30 a.m. to 4 p.m. on Mondays, Tuesdays, Thursdays, and Fridays.
Worker claims termination
Later on May 14, 2025, the worker responded stating she would take the email as confirmation the organisation no longer required her services and she had effectively been terminated. She requested advice on her pro rata long service leave and payment details.
On May 16, 2025, another manager emailed clarifying the organisation was not seeking to terminate her employment.
The communication was to advise there were currently no casual shifts available to re-engage her services. Should operational requirements change, the organisation would contact her.
On May 19, 2025, the worker emailed stating she had been advised there was no work for her in any capacity and it was suggested she could reapply if positions became available.
She stated her position was effectively terminated on May 14, 2025, and requested her entitlements be paid by May 23, 2025.
On May 27, 2025, a manager emailed clarifying her employment had not been terminated. There were currently no available casual shifts to offer, and she did not meet eligibility requirements for conversion. This did not equate to termination. The manager asked whether she was formally resigning.
Did the worker’s employment end?
On July 23, 2025, a manager emailed stating the need for casual shifts had not changed and none were available. However, the organisation was recruiting for several permanent part-time positions in nearby regions and invited her to apply.
The organisation's understanding changed by August 2025 following receipt of materials filed in the proceedings. In light of the negative way the worker spoke about the organisation in May 2025 and her assertions that employment had ended, the manager formed the view she no longer considered herself an employee or available for casual work.
The organisation concluded the employment relationship and relationship of trust and confidence was non-existent.
On August 18, 2025, a manager emailed stating that after reviewing the information submitted as part of her claim, it appeared she did not regard herself as an employee. Given that she stated the employment relationship ended on May 14, 2025, the organisation accepted her position that the employment relationship had ended.
The organisation would continue responding to the unfair dismissal application on the basis her employment was not ended by the organisation, and the decision came from the worker.
Commission finds no dismissal occurred
The commission found the worker's employment did not terminate on the organisation's initiative. Despite allegations of adverse action in the 18 months leading to December 2023, the worker was offered the same opportunity as other casual employees to convert to permanent part-time employment. It was her choice not to accept.
However, moving a cohort of casual employees to part-time employment meant the employer must first meet contractual obligations to part-time employees, leaving limited work for remaining casual employees. The commission was satisfied this is what happened from late 2023.
Car troubles meant the worker was unavailable from March to June 2024. She was not available for casual work from July 2, 2024, until the end of 2024 due to her tennis elbow injury. She then did not make herself available from December 19, 2024, when she lodged her dispute application, until April 29, 2025, when the arbitration was heard.
In May 2025, the worker made contact about returning to work. The commission accepted there was no permanent part-time employment or casual work available at that time to suit her preferences regarding work days, times, and locations. This did not preclude the possibility of such work becoming available in the future.
The commission considered that a reasonable person would have understood, based on communications in May 2025 and surrounding circumstances, that the worker's casual employment remained on foot, albeit she was not being offered casual work at that time.
Further, the commission was satisfied there was no action by the organisation that was the principal contributing factor resulting in the termination of the worker's employment.
For these reasons, the worker was not dismissed by the organisation. Therefore, she had not been unfairly dismissed, and the application for relief was dismissed.
