Cancelled shifts, blocked app access amounted to dismissal of Casual Educator

The Fair Work Commission has awarded compensation to a casual Early Childhood Educator who had less than a year of service, after finding she was unfairly dismissed when her employer cancelled her pre-agreed shifts for a week and subsequently deactivated her access to the centre’s rostering app without notifying her.

The Educator worked her last shift for the Victorian centre on Monday, 23 May 2022, when she was called into the office by the centre’s Director, who chastised the Educator for a group email she had sent the weekend prior; the email having been a response to correspondence the Director circulated to all staff on Friday, 20 May 2022, expressing her displeasure at the high rate of absenteeism that day. The Educator had taken offence at the Director’s email, and responded publicly, pointing out that “certain staff had a valid reason for their absence” on that day adding that “staff should be commended for their efforts rather than criticised”. The Educator made no attempt to conceal her response and forwarded a copy to the Director.

During the meeting the Director advised the Educator she should have raised her concerns with her privately, rather than opting for the public response, but the Educator was unrepentant and was sent home when the discussion concluded. Later that same day, the Director “balanced the roster” for the week and cancelled the Educator’s remaining rostered shifts which had been arranged the week prior. Two days later, the Educator discovered her access to the rostering app had been made “inactive”, though this had to be confirmed by the app provider (Tanda), as the employer had failed to notify the Educator that this action had been taken.   

Despite the employer’s objections, Deputy President Masson found that the Director’s actions of cancelling the Educator’s shifts and withdrawing access to the rostering app “had the probable result of bringing the employment relationship to an end, even if it was not the intention of the [Director] to do so”. The Deputy President rejected the employer’s claims that the Educator’s shifts had been cancelled due to a lack of children in the service that week or that the access to Tanda had been withdrawn because of the Educator’s “misuse” of the platform, describing the Director’s evidence in this regard “wholly unconvincing”. Deputy President Masson labelled the process the Educator was subjected to, “at the very least…extremely poor management” and necessarily found the termination amounted to unfair dismissal.

Having determined the Educator was unfairly dismissed, the Deputy President assessed the employee would have remained in employment for a further period of 6 months, during which time she would have earned more than $8,400. This amount was discounted by 70%, owing to the Educator’s failure to mitigate her loss, with Deputy President Masson awarding $2,521.75 (gross) compensation.

Royall v Aussie Kids Pty Ltd [2022] FWC 2301 (31 August 2022)