August 17, 2017

Reducing casual shifts results in unfair dismissal

In Roxanna Balgowan v City of Sydney RSL and Community Club Ltd [2017] FWC 3798, a recent decision of the Fair Work Commission, Commissioner Cambridge has found that an RSL and Community Club's reduction of a casual employee's regular shifts by 75% following a cash handling discrepancy was a repudiation of the employment resulting in the constructive dismissal of the employee.

The employee claimed she was dismissed after her shifts were unilaterally reduced following an investigation of a $100 cash discrepancy following completion of a "change box" shift.

The Club alleged the employee resigned verbally during a meeting to discuss the cash discrepancy after being informed she would be removed from her rostered "change box" shifts and required to undergo training before she would be provided with any further "change box" shifts.

By email the Club informed the employee that it accepted her resignation however, the employee responded stating that she did not resign and that the Club had effectively terminated her employment by not providing her with the usual regular shifts she had received since commencing employment.

Finding that it was the actions of the employer not the employee which brought the employment to an end, Commissioner Cambridge determined that the employee had been unfairly dismissed and awarded her compensation of 13 weeks' pay – the full amount sought by the employee as she was planning on leaving her casual job within 3 months due to pregnancy.

Key takeaways

This case is an important reminder for employers that unilaterally reducing the shifts of casual employees who are employed on a regular and systematic basis in circumstances where there is no relevant downturn in work or where there is no valid reason for dismissal, can result in liability for unfair dismissal.

Further, if an employer accepts an employee's resignation in circumstances where the employee feels the resignation was not voluntary, or if the employee later withdraws or disputes the resignation, employers need to be mindful that any decision to continue to characterise the termination as a resignation will not necessarily protect the employer from claims for unfair dismissal or unlawful termination.