Confusion reigns over casual's dismissal date

Cases

Confusion reigns over casual's dismissal date

Telling a casual employee there was no more work available 'at that time' did not amount to a termination of employment, a tribunal has ruled.

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A casual employee is charging ahead with her unfair dismissal claim after a tribunal ruled her application was not lodged out of time.

The woman's employer argued she was dismissed in May after being told there was no more work at that time. But the Fair Work Commission found the conversation did not amount to a termination of employment, and said "a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed". 

Regular and systematic casual


Aloe Vera Industries employed Loren Hahn as a casual in February 2015.

The company said she was notified of her dismissal on 8 May 2018 and her employment was terminated on 11 May, meaning her application was lodged 109 days out of time.

Although no dismissal letter was provided at that time, Aloe Vera said Ms Hahn was provided with a letter confirming her dismissal on May 30. She had requested the letter so that she could claim legal aid for a separate matter.

That letter stated she had been a casual worker for an extended period and had worked semi regular employment hours, however, due to a downturn in sales, 'we are unable to offer work to Loren and have no clear indication of when this may change'.

Sexual harassment complaint


The commission heard Ms Hahn made a complaint in April 2018 that another employee had sexually harassed her. 

Two weeks after making the complaint, Ms Hahn said she was told there was no more work for her until the end of August. When that date rolled around, she emailed a manager, Kelli Thorley,  advising that if she did not hear back from her by 3 September she would take that as her date of dismissal. She received no response.

Ms Hahn told the commission she did not understand anything from the letter of 30 May to mean she had been dismissed.

Decision


Commissioner Simpson found Ms Hahn had been employed as a casual employee on a regular and systematic basis for about three years.

He found that Ms Hahn was advised in May that no work was available at that time. She was then told she would be contacted when work was available again which was anticipated to be in August or September.

"That does not amount to a termination of employment", he said.

He also noted that the letter of 30 May indicated work 'may pick up again' and did not state Ms Hahn was no longer an employee.

Further, the final payslip provided to Ms Hahn was a standard pay slip and did not give any indication her employment was terminated.

The commissioner was satisfied the application was not filed out of time "and on that basis it is unnecessary to extend time and the application is not outside jurisdiction for that reason".

He also pointed out that he would have been inclined to extend time even if he had found Ms Hahn was terminated in May 2018.

"I would have been satisfied the circumstances would have been exceptional including because the reason for the delay would have been that Ms Hahn did not understand she had been dismissed, and would have had good reason for holding that belief, and would have been unaware she was dismissed until the commission issued a decision to that effect."

The matter was listed for a further directions hearing on 18 February.

Read the judgment


Loren Hahn v Aloe Vera Industries (U2018/9635) [2019] FWC 724












 



 
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