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Unfair dismissal and casual employees

The actions of an employer in facilitating the removal of a regularly and systematically rostered casual employee from the casual roster of work can constitute a dismissal for the purposes of the Fair Work Act, and if relevantly unfair, may be an unfair dismissal leading to an order for reinstatement and/or compensation. Here is an example.

“In all of the circumstances, that discussion objectively meant that there were no scheduled future hours on the roster and there was no reliable indication that there would be such work made available to Mrs Shears; only the promise of a discussion and a possibility of future work. That is, the provision of the medical clearance, which was itself reasonable, was not the only precondition to a return to rostered work. Rather, there was also going to be a decision made by management about whether there was to be any future employment having regard to reliability, availability and performance concerns. In the context of the very regular and systematic casual engagements to that point – including where Mrs Shears had to apply for “leave”, provide medical certificates and advise of changes in availability, this communication was a direct indication of the cessation of that employment and I find that it had that result. 13 This is so, despite the contrary statement made at the time and Mr Callery’s apparent subjective intention.

Given that finding I have considered the second issue identified above.

Mr Callery and Ms Bianco indicated in evidence that all “hiring and firing” decisions had to be approved by Mr Cochrane. Mrs Shears testified that she understood that Mr Callery had that authority but accepted that she was not aware whether previous decisions concerning such matters had been discussed with Mr Cochrane before being implemented by the relevant management staff. Mr Cochrane was not available to give evidence and accordingly this could not be put to him.

The Tavern accepted that there was no formal advice provided to staff about this issue but contended that everyone at the venue would know about Mr Cochrane’s role.

I am satisfied that Mr Callery had actual or at least ostensible authority to remove Mrs Shears from the previously rostered shifts and to make the decision not to provide future shifts in the manner that I have found. 14 Further, given the conduct of the relevant discussion and the absence of any formal policy or statement conditioning Mr Callery’s capacity to make such decisions, the actions of the Venue Manager would reasonably be taken by Mrs Shears to represent the actions of the Tavern.

Accordingly, given the particular nature and practice of the employment evident here and the objective impact of the discussion on 9 September 2017, I am on balance satisfied that Mrs Shears was dismissed within the meaning of the FW Act as a result of that discussion.”

Shears v Playford City Soccer and Community Club Inc T/A Angle Vale Tavern (2017) FWC 6267 delivered 29 December 2017 per Hampton C

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