Jenna Snow v Stancol Pty Ltd
[2023] FWC 1347
•9 JUNE 2023
| [2023] FWC 1347 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jenna Snow
v
Stancol Pty Ltd
(C2023/874)
| DEPUTY PRESIDENT LAKE | BRISBANE, 9 JUNE 2023 |
Application to deal with contraventions involving dismissal – casual employee locked out of roster system – jurisdictional objection – was the Applicant dismissed – Applicant dismissed – jurisdictional objection dismissed.
On 19 February 2023, Ms Jenna Snow (the Applicant) lodged a General Protections application with the Fair Work Commission (the Commission) stating that she was dismissed from her employment from Stancol Pty Ltd (the Respondent).
The Applicant raised a General Protections claim that she was dismissed by the Respondent upon finding out she was pregnant.
The Respondent raised a jurisdictional objection that the Applicant was not dismissed when she was not provided with any further shifts as she was employed on a casual basis.
Directions were issued for the filing of materials which were complied with by both parties, and I heard the matter through Microsoft Teams on 20 April 2023. I have considered all the materials filed by the parties.
Applicant’s Submissions
On 2 February 2023, the Applicant accessed the roster system and noticed that no shifts had been allocated to her in the next roster. This was the first roster released after the Applicant informed the Respondent of her pregnancy, and the first time the Applicant did not have any shifts during a roster period since she commenced employment with the Respondent.
On 2 February 2023, the Applicant queried whether there were any shifts available for her in the following roster period.
On 9 February 2023, the Respondent replied to the Applicant’s message on 2 February 2023 with the following message:
“Hey Jenna, I’m extremely sorry to say, but we don’t have the hours to continue employment for you. We are running low on participants at the given moment. If anything else pops up I will contact you and let you know. We have participants with permanent shifts with SW and I cannot change that. Weve lost more hours this week and im having to put on hold a few DWs.”
On 17 February 2023, the Applicant emailed the Respondent asking for clarification of the situation but did not receive a response and had not been allocated any shifts since 29 January 2023.
The Applicant has been unable to access the Respondent’s rostering system from at least 17 February 2023.
On 19 February 2023, the Applicant lodged a General Protections Application involving Dismissal on the basis that adverse action was taken against her as she was dismissed and/or has not been allocated shifts because of her pregnancy.
The Applicant states the Respondent has sought to rely on the nuances of casual employment to establish that there has not been a dismissal. It is understood that for casuals, there is often a separate contract of employment entered into between the parties for each shift. However, it is important to distinguish between the employment contract, which was no longer on foot following the completion of the Applicant’s last shift on 29 January 2023, and the employment relationship. A dismissal takes effect when the employment relationship has ended by citing Knott v Mr Godfrey Mantle T/A MGH Employment & Training Pty Ltd (Mantle Group Hospitality) [2021] FWC 2498.
It was clearly the intention of the Respondent that the employment relationship was terminated at its initiative with the communication that the Respondent had insufficient hours to “continue employment” for the Applicant, and by removing the Applicant from the Respondent’s roster system. It was not simply that the Applicant no longer had access, she was removed entirely from the system.
The Applicant was at all times ready, willing and able to work, but the Respondent failed to provide her with work. It was clear from the facts that the Applicant was no longer “on the books” or in the pool of casual employees to be called upon when required.
The Respondent clearly took adverse action to the Applicant by terminating the Applicant’s employment or took action adverse to the Applicant with the result of bringing the employment relationship to an end.
Respondent’s Submissions
The formal relationship between the Applicant and the Respondent commenced on or about December 2022. The Applicant understood she would be engaged as a casual employee including the manner in which work was allocated and refused. For instance, the Applicant would be booked into an electronic roster identifying the itinerary of participants which had been assigned to her which could vary from week to week.
Upon engagement, the Respondent says the Applicant was told she was engaged as a casual employee. She was also informed he would only ever be required to provide services periodically. The Applicant would only be required on those days when the Respondent was booked to provide services and she would not be required to provide services in periods where she was unavailable. There was no commitment to future or ongoing work.
On 27 January 2023, the Applicant confided in Ms Caitlin Pendlebury who was the Accounts Manager that she was pregnant and had been pregnant during the interview to secure employment with the Respondent. Despite the serious concerns the Respondent has with the fact that they were not aware an employee was potentially placing themselves and participants at risk by engaging in heavy lifting duties while pregnant, the employee, Ms Caitlin Pendlebury, claims that she did not divulge any of this information to her employer and provided oral evidence affirming this fact.
The Respondent states the information about the pregnancy was only revealed after the filing of the General Protections application and there was a subsequent questioning of employees, including Ms Pendlebury, to try and ascertain why Ms Snow had mentioned a very specific date as the day she had informed them she was pregnant.
Was the Applicant dismissed?
Section 365 of the Act require that the person to be dismissed in order to make a General Protections claim involving dismissal.
Section 386(1) of the Act relevantly provides that a person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s to be terminated at the initiative of the employer.[1] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[2]
While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[3] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[4]
All the circumstances – including the conduct of both the employer and employee – must be examined.[5] In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”[6]
There are some considerations that need to be taken into account when dealing with repudiation of casual employment. The Full Bench decision of City of Sydney RSL v Mrs Roxana Balgowan [2018] FWCFB 5 at 24 states:
“The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment.”
It is difficult to see how this common law concept of repudiation has any work to do in relation to casual employees. At common law a casual employee’s contract of employment ceases at the end of each engagement. An employer of a causal employee does not repudiate that contract when it fails to offer another shift.”
Repudiation of the employment relationship still occurs in casual employment if the Employer intends for the employment relationship to end. Deputy President Young’s decision in Knott v Mr Godfrey Mantle T/A MGH Employment & Training Pty Ltd (Mantle Group Hospitality) [2021] FWC 2498 notes at [33]:
“a dismissal takes effect when the employment relationship has ended.[7] The termination of the employment relationship is a different concept from the termination of an employment contract.[8]”
Casual employees are not dismissed when they do not receive a shift from the employer. There are valid reasons why a casual may not be offered a shift, and this mainly arises from operational requirements. Examples include availability of the casual employee, downturn of the business because of seasonal requirements or amount of work that is available to name a few. The casual employee is still kept on if they are required by the employer.
Although the Applicant was a casual employee with the Respondent and it was clear that the expectation in contract that did not guarantee providing her with a minimum and maximum amount of work, there were indications of dismissal when taking into account all the circumstances.
In the email dated 9 February 2023, the Respondent had stated that they did not have the hours to ‘continue employment for you’ but would contact the Applicant if anything pops up. This was the first indication that there may have been a dismissal. It became more apparent on 17 February 2023 when she was locked out of the system and had received no response from the Respondent. These were clear indications that the Respondent had no intention to remain in the employment relationship.
The Respondent had repudiated the employment arrangement with the Applicant and therefore the Applicant was dismissed within the definition of s.386(1).
The Jurisdictional Objection is dismissed. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
Ms A. Langtree from Langtree Legal representing the Applicant.
Mr S. Barr from Kahler Lawyers representing the Respondent.
Hearing details:
20 April 2023
Hearing via Microsoft Teams
[1] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
[2] Ibid.
[3] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[4] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].
[5] Whirisky v DivaT Home Care [2021] FWC 650 at [77].
[6] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [28].
[7] Siagian v Sanel Pty Ltd [1994] IRCA 2; Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [21].
[8] Visscher v Guidice and Others (2009) 258 ALR 651 at [53] to [5] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [21]-[22]; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [31]-[50]
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