FWC finds dismissal unfair but worker would have received no future shifts
A casual retail sales assistant won his unfair dismissal case against a menswear retailer but received zero compensation after the Fair Work Commission (FWC) found he would not have worked any future shifts regardless of the termination.
The case arose when the fashion retailer dismissed the worker in March 2025 after he had not been rostered for shifts for three months, citing a company policy of removing inactive casual employees from their books after four weeks of non-engagement.
The worker argued his dismissal was unfair, maintaining that the company's conduct allegations were unsubstantiated and that his termination was based on unproven claims rather than legitimate performance issues.
The retailer defended the dismissal by citing behavioural problems across multiple store locations, including aggressive conduct, inappropriate remarks, and customer complaints, arguing these issues led to his exclusion from regular rostering.
Employment pattern establishes casual protection rights
The retail worker commenced employment as a casual sales assistant in May 2023, initially working regular shifts on Thursday and Friday evenings and weekends while maintaining full-time employment elsewhere.
Company records showed varying shift patterns with the worker sometimes working four shifts per week, sometimes two, one, or none, depending on business needs and roster requirements across different periods.
The worker contended he was recorded in the company system as a "permanent casual" and regularly worked under a roster system where he indicated availability in advance and received scheduled shifts accordingly.
Payroll records from June 2024 to December 2024 showed 28 casual shifts worked across various months, with periods of regular engagement followed by complete absence from January 2025 onward.
The Commission found this employment pattern met the legal requirements for "regular casual employee" status, with sufficiently repetitive engagement arranged through an identifiable roster system.
This classification meant his service periods counted toward minimum employment thresholds, establishing protection from unfair dismissal despite his casual employment status and irregular work patterns.
Conduct allegations span multiple store locations
The retailer cited behavioral concerns across five different store locations as justification for excluding the worker from regular rostering and eventual termination.
At the primary location, allegations included displaying rude and aggressive attitudes, engaging in intimidatory conduct with colleagues, and making inappropriate sexual remarks to team members that created uncomfortable working environments.
Additional locations reported incidents, including near-physical altercations with colleagues, use of foul language, aggressive demeanor toward staff, demeaning communication styles, and inappropriate personal topic discussions.
Customer complaint allegations at one location cited pushy behavior that made customers feel uncomfortable during sales interactions, though specific details were not provided.
The company's state manager also referenced complaints from two team members regarding the worker's conduct at the 2024 Christmas party.
These accumulated concerns allegedly led management to limit the worker to "emergency shifts" only in late 2024 before ceasing all rostering in early 2025, creating the three-month inactivity period that triggered the dismissal policy.
Evidence fails to meet the required legal standards
The Commission found the retailer's conduct allegations insufficient to establish valid dismissal grounds, noting the critical absence of direct witness testimony and over-reliance on untested documentary evidence.
Email and text message extracts cited by the company were largely undated, and their authors did not attend Commission hearings to provide direct evidence or face cross-examination about the alleged incidents.
The worker's position contradicted the behavioral allegations, claiming he raised legitimate concerns about disrespectful treatment by management and problematic approval procedures for family member purchases that were not properly addressed or escalated through appropriate channels.
He maintained that these workplace relationship issues began in February 2024 and contributed to the deteriorating situation.
The Commission emphasized that conduct-based dismissals require proof that alleged behavior actually occurred and justified termination, with determination based on evidence presented to the tribunal rather than employer belief in reasonable grounds.
The failure to provide direct witness testimony or detailed incident documentation resulted in the complete rejection of the conduct allegations as grounds for dismissal.
Company policy creates circular dismissal logic
The retailer operated under a standard policy of removing casual employees from their books after four weeks of inactivity, with the state manager citing this established practice as primary grounds for the worker's termination after three months without shifts.
However, the Commission identified fundamental problems with this policy application when the inactivity directly resulted from the company's own unproven conduct concerns.
The circular reasoning became apparent when the company excluded the worker from rostering due to behavioral allegations they could not substantiate, then dismissed him for inactivity caused by their own exclusion decisions.
This created an inherently unfair situation where unproven conduct concerns led to roster exclusion, which then provided seemingly legitimate policy-based dismissal justification.
The Commission noted that while offboarding inactive casual employees represents legitimate workforce management practice, the underlying reasons for inactivity must be properly established and justified.
When dismissal ultimately stems from conduct concerns that cannot be proven to the required legal standards, the policy application becomes procedurally unfair regardless of its general appropriateness in normal circumstances.
Zero compensation despite unfair dismissal victory
Although finding the dismissal unfair and procedurally flawed, the Commission awarded zero financial compensation after careful analysis, determining the worker would not have received any future shifts regardless of whether formal termination occurred.
The assessment considered the actual circumstances showing three months of complete roster inactivity and prior limitation to emergency shifts only due to management's stated conduct concerns.
The Commission applied established compensation methodology requiring realistic estimation of likely future remuneration if dismissal had not occurred when it did.
Given the worker's inactive status on company books and management's clearly expressed intention to avoid rostering him due to behavioral concerns, the assessment concluded he would have remained an inactive casual employee with no guaranteed hours and no realistic likelihood of future shift assignments.
This outcome demonstrates how casual employment's inherent uncertainty and lack of guaranteed hours can severely limit financial remedies even in successful unfair dismissal cases.
