Employer argues it was in the middle of a business transition
The Fair Work Commission (FWC) recently dealt with the unfair dismissal claim of a casual worker who said he was forced to resign because his employer failed to put him in the roster.
The worker, Laurent Friederich, sought an unfair dismissal remedy against his employer, LCDF Trading Pty Ltd, trading as La Casa del Formaggio.
La Casa argued against his application, saying that the worker was not dismissed as claimed, and even if dismissed, it was justified.
The employer is a food manufacturing business specialising in specialty cheeses and employed approximately 150 individuals at its Glynde factory. On 31 July 2023, production relocated to a new factory at Edinburgh.
Friederich, a resident of Adelaide, had worked with La Casa in a casual capacity from 2009 to 2012 and returned in February 2015. Despite being classified as a casual employee, his work was regular and ongoing. In September 2021, La Casa offered casuals, including Friederich, permanency through casual conversion provisions, which he declined.
Decision to remain casual
According to records, despite La Casa's shift towards more permanent employment from around 2020, Friederich declined the conversion offer in October 2021 due to financial considerations, the desire to retain weekend flexibility, and control over leave timing.
In 2022, La Casa decided to move to a larger factory. Plans initially involved retaining three shifts, but by May 2023, it was clear that only two shifts would operate. In June 2023, employees, including Friederich, were informed about expressing preferences for day or afternoon shifts at the new site.
Notification and redundancy
On 17 July 2023, La Casa implemented the next phase of the transition. Friederich, despite concerns, did not express a preference and awaited communication from the employer. On 17 July, he received a message stating that casuals were not required until further notice.
At this point, the worker remained unrostered, and Friederich sought information on future shifts. He said he received a vague response on 26 July indicating uncertainty until the end of August.
Concerned about income loss, Friederich discussed the situation with his wife, a decision accelerated by the employer's announcement that news on future shifts might not be known until the end of August. On 27 July, Friederich communicated his intention to resign and formally resigned on 28 July.
The worker said that he was dismissed on 17 July 2023, effective that day. Alternatively, he claims that he was dismissed unfairly on 28 July 2023 by forced resignation.
Friederich argued “that the complete removal of his rostered hours, in circumstances where he had been regularly employed for eight years and had a reasonable expectation of continuing employment on that basis, was conduct by the employer ending his employment particularly given that it was for at least a six-week period and particularly given that the employer did not discuss or communicate alternatives with him.”
La Casa argued that as a casual, Friederich had no right to be rostered even though he was regularly employed. "Not rostering a casual was permitted by the Award and by Friederich’s contract. Being the exercise of a lawful right, it was not repudiatory conduct by the employer," it said.
"A consequence of Friederich declining conversion rights to permanent employment was that he chose to retain the casual loading and thus a higher income, knowing that casual employment was less secure in the sense that he had no right to rostered hours and would not receive redundancy pay if made redundant," the employer added.
Was there forced resignation?
The Commission found that the “business was in a state of flux. It was at the height of a transition to a new manufacturing site when this uncertainty about future labour requirements became a reality.”
“The removal from the roster was triggered by a mismatch at least in the short term between labour supply and demand at the old and new factory sites whilst transitioning to the new site.”
The FWC said “he could have waited until the transition to the new site had occurred or had settled before assessing whether he was likely to be rostered either in his former production work, for his former hours or otherwise.”
“He could have waited until the end of August, as [the management] had advised, to see if there was any greater clarity over rostered hours,” it added. Thus, the FWC said that there was no forced resignation.
