Employer terminated a casual employee by removing the employee from a WhatsApp group used to allocate shifts

Introduction

In this case, the Fair Work Commission considered whether removing a casual employee from a work WhatsApp group on which rosters were distributed constituted a dismissal at the employer’s initiative for the purposes of the employee accessing unfair dismissal laws.

Reasoning

Deputy President Millhouse explained there may be a dismissal pursuant to s.386(1)(a) of the Fair Work Act 2009 (FW Act) at “the employer’s initiative” if the circumstances show that the employer’s action is the principal contributing factor leading to the employment termination.

It was held the Company’s action in removing the employee from the WhatsApp group was the principal contributing factor which brought the employee’s employment to an end on 10 August 2022.

The Deputy President’s reasoning included:

• The WhatsApp group is the primary means by which shifts are allocated to the Company’s employees. It follows that the removal of the employee from the WhatsApp group meant the employee, in the ordinary course, would not be allocated shifts by the Company.
• In the circumstances, the Company’s contention it did not advise the employee she was dismissed does not change the effect of the Company’s conduct in removing the employee from the WhatsApp group.
• It was not accepted that the employee was removed from the WhatsApp group so as to not distract the employee, who was also a high school student with the group messages while she studied.
• It was also not accepted that it was the Company’s practice to routinely add and remove employees from the WhatsApp group during short periods of absence. 
• The Company contended it attempted to contact the employee to ascertain her availability to work and offer the employee shifts, but it was found in the circumstances the Company’s communications with the employee prior to 10 August 2022 were directed towards the resolution of a complaint by the employee that the employee was underpaid rather than her availability to work.
• The Company’s attempt to call the employee with the stated intention of offering her further shifts after 10 August 2022 did not change the conclusion the Company’s conduct on 10 August 2022 constituted a dismissal at the Company’s initiative.

Accordingly, the Company was unsuccessful in its jurisdictional objection to the matter and it was found the employee was dismissed by the Company in accordance with s.386(1)(a) of the FW Act.

Key take-aways

As this case demonstrates, an employer does not necessarily need to issue a formal termination letter or verbally communicate the employee has been terminated to dismiss an employee from their employment.

Employers who do not issue a termination letter to a casual employee but instead simply cease to roster the employee for any further shifts, particularly for an extended period, will be exposed to the employee claiming they have been dismissed and succeeding in an unfair dismissal claim.

Fareshta Karimi v Aker Group Pty Ltd [2023] FWC 717 (24 March 2023)

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National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.