Casual’s employment not “automatically terminated” by 7-week overseas holiday

A casual medical receptionist whose employment ended following her notified absence on seven weeks’ leave for an extended overseas holiday, has been awarded over $8,000 in compensation with the Fair Work Commission (FWC) finding she was summarily and unfairly dismissed, rather than her employment having “automatically terminated” after three weeks absence as the employer mistakenly believed.  

The receptionist, who worked for the western-Sydney medical practice for over two years, performing regular and systematic hours of approx. 17 per week, notified her employer in November 2018 of her intention to take an extended absence from March to May 2019. Prior to commencement of the leave in March, there were further communications regarding the receptionist’s planned absence, which included the practice’s Operations Manager recommending the receptionist find a replacement for herself for the period. The receptionist had a friend who was happy to cover the shifts but the Operations Manager deemed the person to be an unsuitable candidate and the receptionist was not able to source another replacement employee for herself. In February 2019, the receptionist made further notes in the employer’s communication book of her intended leave period and followed up with a leave application form confirming her leave dates as 15 March to 5 May; with a return date for work of 6 May 2019.

The receptionist was not provided with any formal approval, or other advice, from the employer about her notified period of leave but the receptionist maintained that it was commonplace in the practice for leave forms to be left unsigned and not formally actioned. This evidence was uncontested by the employer. On the last shift worked by the receptionist before her leave in March, the Operations Manager asked for the receptionist’s door keys to the practice, which she relinquished, not recognizing the request to be of any significance. There was no other discussion regarding her planned absence and the receptionist continued on leave as foreshadowed.

On return from her travels, the receptionist contacted the practice around midday on 6 May to advise she would be ready to commence her usual evening shift from 5pm that day only to be told by the Operations Manager that she was no longer required as her position had been “replaced” during her absence.

The FWC permitted the receptionist’s unfair dismissal application to be heard, even though it was filed one day past the 21-day time limit, because the delay was occasioned by the receptionist requiring legal assistance with English as her second language, and Legal Aid had been unable to provide her an appointment earlier than the twenty-first day after her dismissal. To their credit, the employer did not oppose the extension of time.

It was not in dispute that the employee was an employee who was protected from unfair dismissal, being a casual employee whose employment was on a regular and systematic basis, she had a reasonable expectation of continuing employment on that regular and systematic basis and had served more than one year of service (the employer was a small employer) at the time her employment concluded.

During the Hearing, the employer primarily sought to argue, quite mistakenly, that, as the receptionist was a casual employee, she had not been dismissed at the employer’s initiative, instead, her employment had “automatically terminated” after she was absent for more than 3 weeks.

Commissioner Cambridge of the FWC quickly dismissed this argument, commenting that such a stance “fundamentally misconstrues the basis upon which the employment relationship might come to an end as a result of the extended absence of an employee from actual engagement and performance of work”. The Commissioner went on to explain:

“If an employee is absent from work for an extended period without explanation or in direct contravention of the expressed direction of the employer, then the absence of the employee may be treated by the employer to have represented the abandonment of the employment. A casual employee working on a regular and systematic basis, with a reasonable expectation of ongoing employment, cannot somehow be deemed to have had their employment “automatically terminated” when absent for an extended period when they have provided notice to the employer of that absence, and the employer has not issued any direction that the absence is not approved, and as such, would cause the employment to come to an end.”

Commissioner Cambridge noted that the receptionist provided her employer with advance notice of her intention to be absent from the workplace for an extended period involving international travel and although the employer provided no express approval for the leave, they also failed to indicate that the absence was not approved, and that if the absence was observed it would cause the employment to come to an end. The Commissioner subsequently found the receptionist was indeed dismissed by the employer – and summarily so (without notice or warning) – in the phone call of 6 May when she indicated her intention to return to work that evening.

Commissioner Cambridge determined that the foundation for the employer’s decision-making, being the mistaken belief that the employee’s casual service automatically terminated after a three-week absence, did not provide a valid reason for the dismissal. Whilst recognising the extended absence would have “inconvenienced” the employer, Commissioner Cambridge concluded the leave period did not provide a sound basis for dismissal because the employer, after having been given advanced notice of the absence, “raised no concern or complaint such that it would treat the [receptionist’s] absence as unauthorised, and potentially a basis for dismissal”. The process adopted by the employer in advising the employee her employment had ceased was also generally condemned by the Commissioner.

Notwithstanding the employer is a small business to which a “significant level of informality” is extended in relation to employment matters, the Commissioner added that “such accommodation could not extend to any condonation of the repugnant process that was adopted by the employer whereby the [receptionist] was advised of her dismissal over the telephone, and without any prior discussion or indication that her employment was in any jeopardy”. Consequently, Commissioner Cambridge found “the dismissal involved a manifestly unjust and unreasonable process including the complete absence of any opportunity for the applicant to be heard before the decision to dismiss was communicated”. The dismissal was subsequently found to be unfair.

In determining the applicable amount of compensation, the Commissioner regarded the receptionist – whose performance had been without prior warning or complaint – would have likely continued in employment for a further two years. The Commissioner was therefore inclined to award an amount equivalent to the maximum of 26 weeks’ wages, however, the employee had only sought 16 weeks’ compensation which was the amount ultimately settled on, totaling $8,368.00 (gross).

Das v Prestigious Services (Aust) Pty Ltd t/a Mac-Field Medical Practice [2019] FWC 7628 (21 November 2019)