When a casual worker is no longer provided with shifts, have they been dismissed? This is the question the Fair Work Commission had to answer in a recent case involving a retail worker. And what was the reason that she had been denied shifts? Well, it was because she did not want to work on Mother’s Day, as her kids had planned a surprise lunch for her.

Many believe that casual shift workers do not have the ability to lodge an unfair dismissal claim with the Fair Work Commission. However, they do indeed have the power to do so. And luckily for this retail worker, she took her heartless employer to the Fair Work Commission and won her unfair dismissal case. Let’s take a look at the interesting events of this recent Fair Work Commission unfair dismissal case – Amanda Katherine Gimbert v TG Ice Cream Shack Pty Ltd [2022]. Toxic workplaces do exist, be careful who you work for

Casual ice-cream shop worker dismissed after not given shifts

In November 2021, Amanda Gimbert commenced her employment as a casual at Ice Cream Shack in the NSW North Coast town of Tea Gardens. As such, she had no guaranteed hours or shifts, and her dismissal notice period was just one hour. As per company practice, employees were required to provide their availability for shifts the upcoming month at the end of each month. And rosters for shifts were published in the first week of each month. In the months preceding her dismissal, Ms Gimbert typically worked two to three shifts per week.

Ms Gimbert was not initially rostered to work on Mother’s Day, 8 May 2022. However, the day before, a senior employee had suffered an injury. Ms Gimbert was approached by Ms Sarah Rinkin, a director of Ice Cream Shack, to cover the shift from 1pm until closing time at 5pm. Unbeknownst to Ms Gimbert, her children had planned a surprise lunch and massage for her on Mother’s Day. They had organised the lunch as it was the first time Ms Gimber’s son had had a decent job. And her kids wanted to treat her, particularly as Ms Gimbert had less than a year earlier experienced a house fire, which caused significant damage.

Daughter rings employer to cancel casual Mother’s Day shift

After discovering that their mum was rostered on a casual shift, one of Ms Gimbert’s daughters contacted Ms Rinkin to request a shift swap or cancellation. However, Ms Rinkin told the child that her mum would have to make the decision on whether she could or could not work the shift. The next morning, Ms Gimbert informed Ms Rinkin that she had a problem with the afternoon shift and could not work due to her children’s surprise lunch.

In response, Ms Rinkin expressed frustration and warned of potential ramifications for the business. The exact words exchanged between them are disputed, but Ms Gimbert claims to have said, “Ok, if that is what you need.” While Ms Rinkin alleged Ms Gimbert responded with, “That suits me because I have stuff coming up with my house.” After a closer examination of both accounts, the Fair Work Commission decided to favour Ms Gimbert’s account.

Ice Cream Shack denies casual shifts, dismisses the employee

Following the incident, Ice Cream Shack released a revised roster for May and the first week of June, removing Ms Gimbert’s shifts entirely. Despite this, Ms Gimbert expected to be contacted when additional shifts became available, as had been the usual practice. However, no such contact occurred, leading her to believe she had been dismissed. This belief was solidified when she discovered her name had been removed from the June roster and her access to the Box App scheduling application was removed.

To Ms Gimbert, it appeared that she would no longer be provided with shifts, and therefore had been dismissed from her casual employment. She subsequently made an unfair dismissal application with the Fair Work Commission.

Fair Work Commission hears the unfair dismissal case

At her unfair dismissal hearing, Ms Gimbert argued to the Fair Work Commission that her dismissal was not justified. She highlighted that she had informed Ms Rinkin in advance about her unavailability for the Mother’s Day casual shift due to her children’s surprise plans. Ms Gimbert presented text messages exchanged with her daughter as evidence of her attempt to resolve the scheduling conflict by requesting a shift swap or cancellation.

Furthermore, Ms Gimbert’s legal counsel introduced witness statements from her daughter and a colleague who supported her version of events. They testified that Ms Gimbert had expressed her unavailability for the casual shift due to a planned Mother’s Day surprise. And that there was no mention of any agreement to end her employment and dismiss her.

Employer makes its argument to Fair Work Commission

In response, Ice Cream Shack argued to the Fair Work Commission that Ms Gimbert had voluntarily resigned. The company came to this conclusion as Ms Gimbert had said, “Ok, if that is what you need,” in response to Ms Rinkin’s frustration about the casual shift cancellation. They contended that this statement indicated Ms Gimbert’s acceptance of the consequences and desire to end her employment.

Ice Creak Shack maintained that not providing Ms Gimbert with casual shifts and having her Box App access revoked did not amount to dismissing her. To support this claim, the company highlighted that Ms Rinkin had not requested Ms Gimbert to return her uniform and work keys. However, this argument was weakened by Ms Rinkin’s failure to request the return of these items at any point, even after concluding that Ms Gimbert’s employment had ended.

Fair Work Commission rules on the unfair dismissal case

So, had Ms Gimbert been unfairly dismissed by being denied any further casual shifts? Or had she voluntarily resigned by not working the Mother’s Day shift? That is the question the Fair Work Commission had to answer with its final decision. After carefully considering the evidence presented by both parties, the Fair Work Commission found that Ms Gimbert did not resign voluntarily when she pulled out of the Mother’s Day shift. But rather, she had simply expressed her unavailability for that particular shift. Further any suggestion of resignation was not clear or unequivocal.

The Fair Work Commission accepted that Ms Gumbert’s late cancellation of her shift would have caused an issue for Ice Cream Shack. However, this did not amount to a “systematic habit” that would make her an unreliable casual employee.

Removed from the roster

Therefore, the Fair Work Commission ruled that Ice Cream Shack had dismissed Ms Gimbert. Namely, because the company had removed her from the roster and failed to provide any further casual shifts. The Fair Work Commission highlighted that Ice Cream Shack’s conduct led Ms Gimbert, or would lead any reasonable person, to believed that she had been dismissed from her casual employment. It was noted that the lack of communication from Ice Cream Shack regarding Ms Gimber’s ongoing employment further supported her belief that she had been dismissed.

The Fair Work Commission therefore ultimately ruled that Ms Gimbert’s dismissal from her casual employment had been harsh, unjust and unreasonable. As Ms Gimbert did not want to be reinstated to her job, Ice Cream Shack was ordered to pay her $969.31 in financial compensation.

Can casual employees refuse to work a shift?

One of the central factors of Ms Gimbert’s unfair dismissal case was that she had refused to work a shift on Mother’s Day. So you may be asking, in what situations are casual employees entitled to refuse a shift? As a casual employee, your employer is not obligated to provide you with a certain number of shifts or hours per week. They can therefore roster you on shifts when and if they need you to work. This flexibility is great for employers, who can ensure they are not paying an employee if they are not needed. However, it causes anxiety for many casuals, who do not always know when their next shift will be.

On the flipside of the coin, however, the flexibility of casual work also works in the favour of the employee. The Fair Work Act 2009 gives casual employees the right to refuse shifts (and without the risk of being dismissed). They can refuse a shift if they are feeling unwell. Or even if they simply do not feel like working at the specific time they have been rostered on.

Thinking of refusing a shift

If you are thinking of refusing a shift, it is always wise to let your manager know as soon as possible. And to offer them with a suitable explanation for your refusal. While the law does not obligate casual workers to notify their manager within a specific timeframe, it is wise to do so. You need to maintain the relationship with the employer.

It is also important to check your employment contract or any company policies, as these may affect your ability to refuse shifts. For example, your contract may outline that you have to work a minimum number of hours per week. Or it may stipulate a specific notice period for refusing shifts. When you are a casual, it is also critical to maintain a good relationship with your employer. If you refuse too many shifts, they may start to see you as not being reliable and available, and therefore roster you on less.

Casual employees and making an unfair dismissal claim

Many people believe that it is not possible for a casual employee to take action through the Fair Work Commission with an unfair dismissal claim. However, they absolutely can if they meet certain criteria. Firstly, their casual employment must have been of a regular and systematic nature. That is, they were regularly rostered on shifts, with the employee having a predictable work schedule. Additionally, the casual employee must have had a reasonable expectation that this regular and systematic pattern of work would continue.

The FWC will evaluate the nature and frequency of the casual employee’s work to determine if these criteria are fulfilled. If satisfied, the unfair dismissal claim will proceed, provided that all other eligibility requirements are met. These include that the casual employee:

• Filed their unfair dismissal claim with the Fair Work Commission within 21 days of the effective date of their dismissal. After this period, the case will be considered invalid.
• Is covered by the national workplace relations system.
• Has already been dismissed by their employer.
• Worked at their employer for a minimum of six months. However, if the employee was working for a small business, the minimum employment period is extended to 12 months. For the employer to be classified as a small business, it must have had fewer than 15 employees at the time of the employee’s dismissal.

Are you a casual that has been unfairly dismissed?

If you believe you have been unfairly dismissed from your casual job, get in touch with us now. We specialise in providing expert representation for unfair dismissal cases. With over three decades of experience and a dedicated team of professionals, we have successfully assisted more than 16,000 employees in every Australian state and territory.

When you reach out to us, you can expect an initial consultation completely free of charge. We are here to help casual workers stand up to bully employers and get the compensation they deserve. Our extensive experience and knowledge of Fair Work Commission unfair dismissal claims will help ensure you get the best outcome possible.

A Whole New Approach is here to offer you the information, advice and representation necessary to safeguard your workplace rights. Don’t let unfair treatment go unchallenged. But hurry – you must lodge your unfair dismissal claim within 21 days of your dismissal. Contact us today at 1800 333 666 for a confidential and complimentary conversation.

Any workplace investigation issues, casual employee rights questions, or concerns around abandonment of employment call is immediately.

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