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Introduction

This matter (which has been successfully appealed), relates to an unfair dismissal application involving a casual employee who the company argues did not work on a “regular and systematic” basis.

In this application for an unfair dismissal remedy, the respondent lodged a jurisdictional objection that the applicant was a casual employee and was not regularly and systematically employed, had no reasonable expectation of continuing employment and therefore was not a person protected from unfair dismissal. The jurisdictional objection upheld in the 20 September 2019 decision [[2019] FWC 6448]. The September decision was appealed and a Full Bench of the Commission quashed the September decision and remitted to a Commission Member for final determination [[2020] FWCFB 306].

Background

The applicant was employed as a casual sales assistant. The respondent argued that applicant failed to properly notify of her absences, sent intimidatory and disrespectful emails and created a threat to the health and safety in the workplace. The applicant had also covertly recorded conversations between herself and the respondent.

FWC consideration

Commission considered that the recordings were not consistent with the respondent’s version that the applicant had behaved aggressively although the covert recordings would constitute a valid reason for dismissal. The Commission however noted the recordings were not the reason relied on for the dismissal and could not have been as the employer was unaware of the recording until the filing of materials in this matter. The Commission noted that the applicant did not intend to harm the employer by making the recordings and could have achieved the same objective if she had of advised the respondent that she was making the recordings.

Finding

The Commission was satisfied that the dismissal of the applicant was unreasonable because she was not notified of the reasons for her dismissal and did not have an opportunity to respond. The applicant was also effectively denied the opportunity for a support person. The Commission found that the applicant was unfairly dismissed.

Outcome

The applicant wanted to be reinstated. The Commission noted that given the conduct of the applicant having recorded conversations, there was a likelihood that on return to work there would be disciplinary action which would likely result in the applicant’s termination. The Commission further noted that trust and confidence was lost as a result of the recordings and reinstatement would be inappropriate in the circumstances. The Commission held that Directions were to be issued to elicit necessary information to consider and finalise the matter of compensation.