QHA_March 2018_Electronic_s

Sarah Tilby
EMPLOYMENT RELATIONS
Ultimately, Commissioner Hampton preferred the
version of events given by Mr Callery as to what was
said in the phone call. However, whilst Mr Callery may
have told Mrs Shears that she had not been dismissed
–the phone call was still found to have resulted in
the termination of Mrs Shears’s employment for the
purposes of the Fair Work Act 2009. Mrs Shears
was considered a “regular and systematic” casual
employee who was eligible to make an unfair dismissal
application.
In relation to the phone call, Commissioner Hampton
noted that it constituted a dismissal given that:
[i]n all of the circumstances, [the phone call]
objectively meant that there were no scheduled
future hours on the roster and there was no
reliable indication that there would be such work
made available to Mrs Shears; only the promise
of a discussion and a possibility of future work...
… the provision of the medical clearance,
which was itself reasonable, was not the only
precondition to a return to rostered work. Rather,
there was also going to be a decision made by
management about whether there was to be any
future employment having regard to reliability,
availability and performance concerns.
As the phone call constituted a dismissal,
Commissioner Hampton in his decision then went
on to find that Mrs Shears was unfairly dismissed,
awarding compensation.
WHAT DOES THIS DECISION
MEAN FOR EMPLOYERS?
This case provides an answer to the question of
whether a casual can be taken off the roster at any
time without any risk of a claim – the answer is no!
Here, the tavern got into hot water because they
AS THE PHONE CALL CONSTITUTED A DISMISSAL,
COMMISSIONER HAMPTON IN HIS DECISION
THEN WENT ON TO FIND THAT MRS SHEARS
WAS UNFAIRLY DISMISSED, AWARDING
COMPENSATION.
went beyond telling Mrs Shears that she needed a
medical clearance prior to being able to return to work.
They told her they could meet with her when she
was better to discuss a range of other performance
issues, “with a view” to putting her back on the roster.
These performance issues could have been dealt with
via performance management, after the employee
returned to work with a medical clearance. When in
doubt, employers should seek advice prior to ceasing
a casual employee’s shifts (or dramatically reducing
their shifts), particularly if the employee has been
receiving shifts on a regular basis.
FURTHER INFORMATION
Financial QHA members seeking more information or
wishing to discuss a specific matter related to how
the team can assist are encouraged to contact the
Employment Relations Department for a confidential
discussion.
Non QHA members can also obtain advice and
assistance from the team for a nominal consultancy
fee. Contact the QHA Employment Relations
Department on 3221 6999 or via email
ater@qha.org.au.
QHA REVIEW | 47