16 August 2011

Casuals and Unfair Dismissal

In a recent case before Fair Work Australia (FWA) two cleaners employed at a Nowra hotel were unfairly dismissed.

The cleaners were originally engaged as casuals for an average of 20 hours a week. However, their hours were reduced by the new management of the company. Soon afterwards, many of the cleaners’ shifts were cancelled via text message. The final text message was sent on 12 December 2010 where upon neither woman was engaged again. They claimed that there was no valid reason for their dismissal and they had not been provided with any reasons for their dismissal. Both women subsequently brought claims under s 394 of the Fair Work Act 2009 (the FW Act) alleging they were unfairly dismissed.

The hotel managers submitted that no dismissal had taken place and that the women had been offered another shift on 21 December 2010 which had been declined.

FWA ruled that the two cleaners had initially been engaged on a regular and systematic basis even if the new hotel managers had chosen not to treat them in this manner. It also noted that the cleaners had never been told they were dismissed.

FWA ruled that the manner in which they were treated as irregular casuals by the new managers amounted to a unilateral variation in their employment conditions such that their employment conditions were fundamentally changed. This constituted dismissal and in addition the dismissal was harsh, unjust and unreasonable insofar as no explanation was given and no opportunity to respond was provided.

Kalinda Ferguson and Belinda Betts v Pleasant Way Motel Pty Ltd [2011] FWA 3815