The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a casual employee who claimed she was effectively dismissed when her employer stopped offering her shifts. The employee alleged she was treated unfairly after making a workplace complaint, leaving her without income but still technically employed.

The worker argued that despite being a casual employee with no guaranteed hours, the sudden reduction of her shifts to zero without explanation constituted unfair dismissal. She maintained she was a dedicated employee who had received positive feedback throughout her employment.

The crux of the employee’s claim was that she was left in employment limbo wherein she was told she was still employed but given no work. She provided statements from ten coworkers supporting her performance in the workplace, directly contradicting the employer’s unsubstantiated claims about performance issues.

Background

The employee was a casual crew member at a fast-food restaurant in Perth, WA. She worked regularly from February 2023 until July 2024, when her shifts suddenly decreased without explanation. After unsuccessful attempts to secure more shifts, she filed a complaint alleging discrimination in work allocation.

The complaint was handled by a staff member from the company’s head office under their Anti-Discrimination Harassment and Bullying Policy, while local managers continued to tell her no shifts were available.

This created a problematic situation. The FWC found that unfairness arose from the process followed including the employer’s delay in dealing with the discrimination claim, and its failure to provide the employee with shifts while that claim was being processed, leaving the employee in limbo. The employee was told she was employed but was not provided with work, and did not receive wages.

Casual dismissal requires valid reason

The situation escalated when the employee lodged a general protections application with the FWC in September 2024, claiming her hours had been reduced to zero and alleging discrimination based on race.

The employer responded denying the discrimination claim stating the employee failed to meet performance standards, and there had been a breakdown in the working relationship. However, during the proceedings, the employer chose not to provide any witness statements or evidence supporting these claims. In contrast, the employee submitted statements from ten coworkers who all testified to her strong work performance.

The FWC determined that on the evidence provided, the employee was a hard worker, and considered a good worker by her coworkers concluding that there was no valid reason for the dismissal.

Management lacked professionalism

The FWC found that the employer’s workforce consists predominantly of young people in their first jobs, with many under 18 years old. The treatment of these vulnerable employees was a significant factor in the decision.

The employee expressed they felt that management lacked professionalism in dealing with employment disputes and failed in their Duty of Care to employees; particularly because many of the workforce are young, inexperienced, and under 18 years old.

The FWC agreed with these concerns, finding that the employer failed to act professionally in handling the dispute and did not consider the vulnerability of the young workforce. Because the employer was found to have failed in these areas, the FWC determined that the employee had been treated harshly.

FWC awards compensation

After finding the dismissal unfair, the FWC awarded compensation instead of reinstatement, finding that if the employee had not been not dismissed, they would have likely worked for at least another 12 months, earning approximately $34,000.

However, the Fair Work Act limits compensation to the total amount earned in the 26 weeks before dismissal. Because the employer had already stopped giving shifts for several months before officially dismissing her, this significantly reduced her potential compensation.

The FWC noted the way the cap operates in this case is inequitable to the employee. The employer has effectively gained a benefit from its poor treatment of the employee by taking advantage of her casual status and refusing to provide her shifts for the last 10 weeks of her employment. I suspect it is a result that was not an intended consequence of the legislation.

The final compensation ordered was $10,252.35, with the FWC concluding that the employee’s dismissal was harsh, unjust, and unreasonable and that the dismissal was unfair.

Key takeaway for employers

Knowing how to effectively handle casual employee complaints is key. Employers should establish clear policies and procedures, ensure open communication channels, and prioritise active listening and a supportive environment. It is crucial to acknowledge the grievance, investigate the matter thoroughly, and take prompt and appropriate action to resolve the issue.

Furthermore, when managing casual employees, employers must carefully consider both their legal obligations and fairness to the employee when reducing scheduled shifts. While casual employees generally work on a variable basis, employers must ensure that reductions in hours are not used to avoid a shift to full-time or part-time employment or as a retaliatory measure.

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