Can a casual employee be too “casual”?

In the recent decision of Ian Howard v Pinnacle People  [2020] FWC 6975, the Fair Work Commission has upheld the dismissal of a casual employee who did not accept any allocated shifts during the period when he received JobKeeper payments.  The JobKeeper payments were more than the payments the employee would have received as a casual.

Background

Mr Howard was employed on a regular casual basis from August 2018 to March 2020 by labour hire company Pinnacle People. 

From March 2020, that business suffered a 96% downturn as a result of the COVID-19 pandemic.  Pinnacle People consequently applied for and received JobKeeper benefits on behalf of its employees, including Mr Howard. 

In April 2020, Pinnacle People advised all casual employees that if they consecutively declined more than three shifts or were unwilling to work while on JobKeeper it would review their ongoing employment.  Pinnacle People reminded Mr Howard specifically in June 2020 that to maintain his employment, he must be ready and able to accept the offered shifts.

From March to September 2020, Pinnacle People offered Mr Howard 58 different shifts. 

Despite making himself unavailable for 28% of the shifts and ignoring the remainder, during the period March to September 2020, Mr Howard earnt $1,500 per fortnight under the JobKeeper scheme.  He had previously received approximately $550 per fortnight for shifts worked.

Pinnacle People then terminated Mr Howard’s employment on 11 September 2020, stating “your conduct demonstrates that you no longer wish to be bound by your employment contract”.  Mr Howard responded by making a claim in the Fair Work Commission for unfair dismissal.

Decision

The Fair Work Commission found that Mr Howard’s assertion that he wanted to work between March and September 2020, to be "disingenuous”.  The Commission said that Mr Howard had disclosed an "intention to decline to accept any shifts offered regardless of the nature of the role, location, or venue" and concluded that Mr Howard did not wish to work during the period for reasons he failed to properly communicate to his employer.

The Commission found that there was "little to no incentive for him to work any shifts given that he was in receipt of JobKeeper payments that were substantially in excess of his pre-Covid earnings”.

In the end, the Commission dismissed Mr Howard’s application, finding that he was not unfairly dismissed.

Lavan comment

Casual employment relationships are typically characterised by an ability for the employee to accept or reject shifts. 

If a casual employee regularly declines to work shifts which the employee has been offered (as Mr Howard did), an employer has basically two options.  One option is to follow the path that Pinnacle People took by advising the employee that the employment relationship had ended.  The approach taken by Pinnacle People acknowledged the continuity of the work over 20 months on a regular and systemic basis.  The Fair Work Commission accepted that approach. 

However, in other circumstances, another option is open to employers.  That is, to simply stop allocating further work to a casual employee and leave it to the employee to ask the employer about why the shifts had ended.  Whilst the latter approach may still end in the Fair Work Commission, such a claim in those circumstances could be challenged on the basis that the casual employee was not employed on a regular and systematic basis and therefore could not expect continuing employment.