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Casual educator brings dismissal dispute to FWC
Freya Lucas
Aug 29, 2023
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A casual early childhood educator recently brought a case to the Fair Work Commission (FWC) in relation to an allegation that she was improperly advised that her employment had ended.
During the case, the educator made a claim that her alleged dismissal went against the provisions outlined in the General Protections of the FairWork Act.The educator (HC) began her employment at the long day care service in late March 2023, and she typically worked from Monday – Thursday, during the operational hours of 8:30am – 4:30pm.
On 25 May, the educator contacted her employer (who was at the time in hospital undergoing open heart surgery) by email and advised that she needed to change her availability to Tuesday – Friday, from 8:30am – 2pm to attend to the care of her own child, effective 5 June 2023.
The employer responded with “I got your email. Just got out of theatre...should be fine to leave at 2pm if I can sort with other staff. Will you be able to stay back if we have staff sick or on annual leave?“
HC replied with “Thank you. If you desperately need a staff to stay I will, but I do prefer to try and get <child>, the earlier the better.”
Shifts adjusted
The employer adjusted the shifts for the educator accordingly, setting up shifts which allowed the educator to finish at 2pm. This arrangement continued for two weeks.
On the morning of 9 June, the educator's son was unwell, and his school called to inform her of his condition. This led to a conversation with the employer where they assigned another staff to step in for the worker, enabling her to attend to her son's needs.
On Monday 12 June, HC called in sick, advising the employer. The employer replied with “What’s wrong? It seems to be a weekly occurrence which is a little disappointing.”
HC did not respond directly but provided the employer with a medical certificate saying she was not fit for work for the remainder of the week.
Roster query
On Wednesday 14 June, the employer contacted HC with a message which read:
Hi, could you please confirm if you can work the following shifts next week?
Tues 8.30 – 2pm
Wed 9 am - 3pm
Thursday 9 am – 2pm
Friday 8.30 – ratio (probably 4pm)
HC responded with “Not sure if you recall, back on 26 May we agreed that I’d decrease my hours and work 8.30 – 2 which was in the best interests of my children. Since then I have removed <child> from after school care leaving me no other option for pick up. Therefore, like previously mentioned, I can only work until 2pm.
Request to talk
The employer then requested HC to contact her via phone. HC refused, stating she was unable to talk, and requesting the employer to instead contact her via text message, which the employer refused to do.
On Thursday 15 June, the employer reached out to HC via email, saying In light of our texting conversation yesterday and my unreturned phone calls and requests to have a telephone discussion regarding your hours going ahead, please give me a call today by 3pm on...... to discuss.
You mentioned your request on 26 May 2023. As you are aware I underwent a complicated and risky open heart surgery on that date.
Thank you.
HC responded saying: I am unable to talk over the phone due to being extremely unwell. Could you please put in writing whatever you need to discuss with me via email or text so that I can get back to you as soon as possible.
The employer replied saying: I need to get next week’s roster out today. If you are extremely unwell, I won’t roster you on next week until you are well enough to talk. Please call me when you are feeling better and can chat.
HC responded by saying she was unsure “what is so important that you need to call me when I am on sick leave,” and adding that she will communicate only via email if urgent, or on her return to work, also asking why the employer deactivated her educator log-ins.
Unsuited to operational needs
The employer responded by notifying HC that the 8:30 – 2pm shift schedule did not work with the needs of the business, and again requesting a telephone conversation to discuss options moving forward.
HC responded by saying (in part) I did mention that I could help out on the off occasion but since then unfortunately my circumstances have changed in which <child> no longer attends after school care.
Like I mentioned previously, I do not have any other alternatives for school pick up. You are now saying this doesn’t work with staff…unfortunately this is not my problem as I do not handle hiring of staff.
I am more than happy to take these matters further, if you continue to deny me of my rights to have flexible work arrangements considering I have 2 kids under the age of 12.
Once again, I will not be contacting you via telephone. I will be returning to work on Tuesday 20 June at 8:30am unless you advise me otherwise.
The employer responded (in part) by communicating that accommodating HC’s requests on an ongoing basis was unfeasible given the size of the business and declining enrolments, noting that the request was “unsustainable, impractical and unfeasible going forward”.
All the best for the future
After further exchanges, the employer again requested that HC work a shift finishing at 4pm, to which HC replied (in part) “No I cannot work til 4pm as I do not have anyone to pick up my child. The latest I can work till is 2pm!”
The employer then replied with: “No problem at all. Please send your shirts and key in the mail. All the best for the future.”
The worker said this act brought the end of her employment, but the employer argued that she was not dismissed. The employer argued that because of the discrepancy in available hours, they couldn't assign the worker shifts beyond the said date.
FWC decision
In its decision, the Commission noted the exchange, saying that the worker’s employment was terminated by the employer’s text message.
“Any reasonable assessment of the content of that message would conclude that it was intended to bring the employment of the [worker] to an end. The words ‘all the best for the future’ suggest nothing if not a parting of the ways.”
It also said the company’s request for the worker to bring back the keys and shirt proved termination.
“Such a request, made at the same time as someone is being wished ‘all the best for the future’ is consistent with the idea that the employment relationship is being brought to an end,” it added. Thus, the Commission concluded that the worker was dismissed and directed the parties to proceed to a conference at a later date.
Full details of the case are available here.
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