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‘Elimination’ of casual employee found to be harsh, unjust and unreasonable

16 November 2020

#Workplace Relations & Safety

Published by:

Allanah Mills, Joseph Sherman

‘Elimination’ of casual employee found to be harsh, unjust and unreasonable

Pamela Green v The Trustee for Vamos International Discretionary T/A Vamos Pty Ltd [2020] FWC 5909

A recent decision of the Fair Work Commission (FWC) has awarded a highly skilled and longstanding employee more than $14,000 in compensation after she was dismissed from her job without a valid reason.

The facts

On 8 July 2020, Pamela Green (Ms Green) made an application to the FWC under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against her former employer, Vamos Pty Ltd (Vamos).

For approximately 23 years, Ms Green worked in the same role as a machinist with her employment status classified as ‘permanent casual’.  Ms Green’s employment was reclassified in August 2018 as a casual employee when Vamos took over the business.

Prior to the termination of Ms Green’s employment on 6 July 2020, she consistently worked a 38-hour week.  This subsequently changed to a 29-hour week following the implemention of the JobKeeper initiative in light of the COVID-19 pandemic.

Between the 25th and 28th of May 2020, Ms Green did not attend work on the advice of her doctor.  On her return to work, Ms Green was told by Vamos she had to repay the 29 hours covered by her JobKeeper payment when off sick, in the form of unpaid work.

Ms Green made inquiries with the Australian Tax Office (ATO) and Fair Work Ombudsman (FWO) to clarify the JobKeeper rules.  She was advised by both organisations that her hours did not have to be repaid.

Shortly after arranging two weeks’ unpaid leave which was approved by Vamos, Ms Green relayed the advice of the ATO and FWO to her supervisor, who told her if she did not repay the hours she could be ‘eliminated’. 

On her return from leave, Ms Green was again asked to repay the 29 hours by working an extra 30 minutes unpaid per day.  Ms Green disputed the request, again relying on the advice of the ATO and FWO.  A meeting was called shortly after where Vamos advised Ms Green her leave period meant she was no longer eligible for JobKeeper and her employment was terminated effective immediately.

Consideration of evidence at hearing

On 27 October 2020 at hearing, Vamos submitted the dismissal was consistent with the Small Business Fair Dismissal Code (the Code).  Commissioner Simpson disagreed, and found no evidence to suggest Ms Green was terminated for serious misconuct.  This meant the Code did not apply and could not be relied on for dismissal.

Rather, Commissioner Simpson found “Ms Green was terminated because the Respondent formed the view that Ms Green should be terminated in response to her refusal to make up the 29 hours sick leave for which she received pay”.

Valid reason

Despite Vamos listing shortage of work as the reason for separation, Commissioner Simpson accepted Ms Green’s evidence that a shortage of work was unlikely given they asked her to work an additional unpaid 30 minutes each day to make up the hours.  As such, Commissioner Simpson determined there was not a valid reason for dismissal, and the dismissal was harsh, unjust and unreasonable.

Remedy

Adopting the approach in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, Commissioner Simpson determined that given Ms Green’s length of service and exemplary performance history, it was likely she would not have been dismissed and remained in employment with Vamos for at least 6 months.

Commissioner Simpson also considered a number of mitigating factors, including:

  • that Ms Green took steps to sign up to job agencies after her dismissal;
  • a compensation order was unlikely to impact the business; and
  • the relationship had broken down rendering return to work impracticable;

In light of the above, Ms Green was awarded compensation in the amount of $14,550.

Takeaways

  • failing to understand the JobKeeper rules is not an excuse to dismiss employees unfairly
  • eligible employees, irrespective of classification, are entitled to JobKeeper payments while away sick
  • employers should seek professional advice in order to mitigate risk of potential legal action arising from unfair dismissal.

Holding Redlich are experts in the area of Workplace Relations & Safety. Should you have any workplace issues or concerns, contact a member of our experienced team. 

Authors: Rachel Drew, Allanah Mills and Joseph Sherman 

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Allanah Mills, Joseph Sherman

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