Casual unintentionally dismissed when removed from pool after six-week absence

A casual Direct Care Worker (DCW) has won the right to pursue her general protections dismissal claim, with the Fair Work Commission confirming her employment was terminated at the initiative of the employer when she was “dropped off the pool” after being absent for six weeks for a non-work-related back injury.

The aged care DCW had just over one year of service when she injured her back in January 2023 and was unable to report for work for a period of approximately six weeks. On instruction from her Manager, the DCW supplied a medical certificate to cover her unpaid absence for the period 11 January – 24 February 2023 and, when her doctor had returned from leave, obtained a further medical certificate confirming her fitness to resume duty from 13 March. The Manager subsequently advised the DCW that, “for health and safety reasons, [the employer] required more specific information on the medical certificate”. The casual was quickly able to obtain an amended medical certificate from her doctor, confirming she was “fit to resume her duties as a DCW from 13 March 2023”.

The DCW, being “keen to get back to work”, was left to follow up her employer on 15, 24 and 30 March, having only received one email from ‘HR’ on 16 March, saying they were still awaiting instructions on her return to work. The DCW was finally able to speak to a Human Resources Advisor after she had made attempts to obtain some of her pay slips and found she couldn’t access her “self-service portal”, with the staff member informing her he “had no record of her medical certificates from 2023 on her file” adding that the reason she could not access her pay slips was because “casuals are ‘dropped off the pool’ after being absent for 6 weeks”. The DCW expressed her disappointment “a number of times” to the HR Advisor and told him she was “concerned at the lack of assistance she was receiving”, felt she was being “ignored”, and noted that “no-one from [the employer] had contacted her to check-in”. The DCW inferred from the conversation that her employer “did not want her to return to work” and concluded she had been dismissed when, later the same day, she was emailed the pay slips she had been seeking, attached to an email trail from the HR Advisor which stated, in part, “this casual DCW has been absent from work for a prolonged period and was subsequently terminated”.

Although the employer confirmed it was their standard practice to remove casuals from the pool of available workers if they have been, or it is known they would be, absent for six weeks or more – as occurred in the DCW’s case – the organisation objected to the DCW’s dismissal claim, arguing she was never issued a termination letter and had, in contrast, resigned her employment when she allegedly told the HR Advisor (during the discussion on 30 March) that she would not return to work. The employer also attempted to challenge the validity of the medical certificate the DCW submitted clearing her return to work, despite acknowledging they had not communicated their expectations regarding such evidence and conceding that, “the failings in the communication between [the employer] and [the DCW] were caused by deficiencies in [the employer’s] processes and not by any errors on [the DCW’s] part”.

In confirming the DCW’s employment had been terminated at the initiative of the employer, Commissioner Bisset concluded that “while it may not have been intended, it was inevitable that the conduct (or lack thereof) of [the employer] had the probable result of bringing the employment to an end”. The Commissioner condemned the employer’s actions, which “devastated” the employee, and noted, “after giving her best (and there is no complaint at all about her work) she was ignored and made to feel of little value”. Ultimately, the employer conceded their conduct was “not satisfactory” and agreed it had “serious issues” to consider “with respect to its systems and communication with its casual employees”. Whilst acknowledging the employer’s legitimate need to “keep its list of available casual employees in order”, Commissioner Bisset lamented that “by not being proactive in its contact” with the DCW, the organisation had “lost a committed employee”.

The jurisdictional objection of the employer was dismissed, with the DCW’s application allocated for conciliation.

Udovicic v MECWA [2023] FWC 1799 (24 July 2023)