Casual worker to receive financial remedy after employment ended by employer

Casual worker to receive financial remedy after employment ended by employer

In an unusual decision, the Fair Work Commission has determined to award compensation to a casual employee terminated after her employer claimed the business was entering a seasonal downturn and, consequently, her services were no longer required. The case highlights the importance for employers to clearly communicate to employees when employment relationships are being ended, irrespective of the employee’s employment classification.

The employee worked as a casual Production Worker with Tony’s Wholesale Flowers Pty Ltd (Tony’s Flowers) from 26 August 2020 until her termination on 4 May 2022.

Tony’s Flowers is a provider of fresh flowers, specialising in growing, sourcing, importing, bouquet arranging and distributing flowers to retailers across Australia. The business has significant seasonal peaks corresponding with holidays such as Christmas, Valentine’s Day, and Mother’s Day.

Prior to her termination, the Production Worker generally worked 3-4 days per week, as well as working additional or varied shifts when requested. Her employment contract referred to the relationship as casual and provided the arrangement could be concluded at any time by either party without notice or without a payment in lieu of notice.

On 4 May 2022, she was advised via email that her employment was terminated as the “event season is coming to an end” and that there was no work available for her. The email also communicated to her that two other casual employees were also being let go by the business.

Although the employee claimed in submissions before Commissioner Peter Hampton that her dismissal was linked to several days of absence due to illness in the week prior to her termination, his determination did not address this claim in any great detail.

Rather, the Commissioner accepted her argument that her employment was regular and systematic, and there were indications from her employer that work would be ongoing.

Moreover, in the Commissioner’s view, the way in which she was terminated was unreasonable, and therefore, she was entitled to an appropriate remedy. As he noted,

“… the manner of the dismissal was unreasonable. In the context of having been regularly and systematically employed for over 18 months and without any real understanding of the intended (by the Respondent) seasonal circumstances of her employment, dismissal by a common email without any prior discussion was not appropriate and also involved the Applicant’s (and the other two employees’) dismissal, improperly, being disclosed to others.

The lack of communication, consultation and documentation has impacted this decision.

In determining an appropriate penalty, Commissioner Hampton noted the difficulty in trying to forecast the potential earnings of a casual employee. He encouraged both parties to provide submissions to settle the matter.

KC v Tony’s Wholesale Flowers Pty Ltd (U2022/5576) 7 October 2022

For queries about casual employees, regular and systematic engagement, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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