This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…

Introduction

A casual labour-hire worker has been found to have ongoing employment despite being a casual and having more than 3 months off work.

Background

The applicant in this application for unfair dismissal remedy was engaged by the respondent, a labour hire business, as a casual employee on 23 January 2018. The respondent opposed the application on a number of jurisdictional grounds. There was, however, no dispute applicant was engaged as an employee.

Upon commencement in the role, the applicant worked six days a week and was sent text messages each week with his roster for the following week. The applicant’s last day of work was 28 July 2019 and he did not return after this date due to medical issues. The applicant was declared unfit for work until the end of November 2019 and on 4 December 2019 obtained medical clearance to return to work on light duties. When applicant contacted the respondent, he was advised that he was made “inactive” the respondent’s records as he had not worked for more than three months. The respondent further advised the applicant would need to reapply for work or be re-inducted.

The respondent contended that the applicant resigned his employment during a telephone conversation on 2 January 2020 and there had been no dismissal at the initiative of the employer.

Outcome

The Decisions of Wayne Shortland, Bronze Hospitality and Ponce were considered in this matter. The Commission acknowledged the nature of the labour hire industry was that where a resignation was given verbally it was not essential that it be confirmed in writing or that in the absence of a request an employment separation need be issued. It was also contended that in labour hire, there may be a lengthy period where no work is provided, however an employer of a casual employee does not repudiate the employment contract when it fails to offer another shift. Further, a casual employee remains employed until a decision is made by the employer that there is no further work and no further work will be offered.

The Commission was not satisfied the applicant actually resigned his employment on 2 January 2020 during a telephone conversation as the applicant continued to engage with the respondent in respect of seeking employment after 2 January 2020 without it being confirmed by respondent that it was their understanding that he had resigned, including their last correspondence of 4 March 2020 which failed to mentioned resignation but provided other reasons for the employment termination.

The Commission found the applicant’s dismissal effective as of 4 March 2020 was made within the prescribed period. The respondent’s jurisdictional objections were dismissed. Commission held that the matter will be subject to further directions and if necessary, arbitration on the merits of the unfair dismissal application. [Where, presumably, the casual “regular and systematic” argument will be explored – in the unlikely event that the matter is arbitrated]