QHA_March 2018_Electronic_s

EMPLOYMENT RELATIONS with Sarah Tilby
THE PERILS OF TAKING A CASUAL
EMPLOYEE OFF THE ROSTER
QHA REVIEW | 46
A COMMON QUESTION RECEIVED BY THE QHA
EMPLOYMENT RELATIONS DEPARTMENT IS
WHETHER AN EMPLOYER CAN SIMPLY STOP
OFFERING A CASUAL ANY SHIFTS WITHOUT ANY
RISK OF A CLAIM SUCH AS UNFAIR DISMISSAL.
The answer is – whilst a casual employee does not
have an entitlement to a set number of hours, it isnt as
easy or risk-free as you might think!
A recent Fair Work Commission (FWC) decision,
Corina Shears v Playford City Soccer and Community
Club Inc T/A Angle Vale Tavern [2017] FWC 6267
illustrates this risk.
Mrs Corina Shears, the applicant in this decision,
worked as a casual employee in the gaming lounge
and bistro at the Angle Vale Tavern from February
2017. From the time she commenced employment up
until early September 2017, she was absent from work
for around 17 days – the bulk of these absences being
unpaid personal leave for which Mrs Shears provided a
medical certificate.
Between 7 and 10 September, Mrs Shears was absent
on unpaid personal leave and had provided a medical
certificate for these dates. Her employer was aware
that she was suffering “significant physical symptoms”,
which the employer was concerned about given her role
included food handling. Management made a decision
to ask Mrs Shears to provide a medical clearance prior
to her returning to work, rather than asking for just a
standard medical certificate listing the days for which
she was unfit for work. Commissioner Hampton, the
FWC member who heard Mrs Shears’ unfair dismissal
application, agreed that the decision to seek a medical
clearance was an appropriate course of action.
Where Commissioner Hampton started to find issues
with the employer’s process was during a phone call
made by the employer’s venue manager, Mr Josh
Callery, to Mrs Shears on 9 September 2017.
Mrs Shears claimed that the discussion during this
phone call involved Mr Callery telling her she was being
let go “due to always being sick and or my child being
sick” and that she “now will have more time to be a
mum”.
Mr Callery disputed this version of events given by Mrs
Shears. He provided a written document to the FWC
explaining the context of why he called Mrs Shears on
this day, as well as his version of what was said during
the phone call.
Mr Callery had noted in this document that the amount
of time Mrs Shears was having off from work due to
illness was having an impact on other employees. As
venue manager he felt he had to make the decision to
take Mrs Shears off the roster, in the best interests of
Mrs Shears’ health, other staff and customers.
Mr Callery explained in the document he told Mrs
Shears several things during the phone call, including:
• she was not dismissed, but that “there won’t be
any hours at the moment” for her, because she
needed to take care of her health, and because
the tavern could not also give her any hours
around her restricted availability, which was due
to her running her own business. (She ran a
hairdressing business during the day, but had
regularly been receiving evening shifts);
• the tavern had been receiving complaints from
customers about her attitude and manner, “so
it was best for all involved that she resolve her
personal issues”;
• once she was feeling better, he could meet
with her to “go over these issues of reliability
and availability and performance with a view
[emphasis added] to putting her back in [sic] the
roster”.
A few days after the 9 September phone call, Mrs
Shears lodged an unfair dismissal application.