FWC confirms Casual employee was dismissed when hours “reduced to zero”

A casual hostel worker has won the right to pursue his general protections dismissal claim, after the Fair Work Commission dismissed the employer’s jurisdictional objection that there was “no dismissal”, finding that the act of having his hours “reduced to zero” made it clear the casual “would no longer work for the business”.

The Brisbane-based worker claims his employment was terminated in November 2022, on his first day of approved personal leave, after he suffered a “mental breakdown due to the stress of his increased workload”. Despite his employer purportedly agreeing to the worker taking a fortnight of unpaid leave, he allegedly received a call from the General Manager the next day, “outlining that he was dismissed” because of his “up and down” moods and because he was constantly “butting heads with the regional manager”.

In contrast, the employer argued the casual was not dismissed, rather his hours were “reduced to zero” (with the hours assigned to other workers) because, after granting him leave, “more revelations” came to light about the employee allegedly “plotting and rumour spreading”. The employer suggested that further work might be made available if the casual would “improve his attitude and focus only on his assigned duties”.

Commissioner Nick Wilson dismissed the employer’s jurisdictional objection, finding its argument that there was no dismissal, “plainly misconceived and allied to the proposition that a casual employee may simply be dispensed with by reducing their hours to zero without the employee having recourse either to the Fair Work Act’s unfair dismissal or general protections provision”. Regardless of what the employee was told when the General Manager called him, Commissioner Wilson observed, “the plain fact is that the employment relationship was intended to be ended” at that time.

The claim was subsequently referred for conciliation.

Jackson v The Trustee for L & L Chua Family Trust No 17 T/A Brisbane Quarters [2023] FWC 268 (1 February 2023)