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Unfair dismissal (outcome updated)
Have you been through it?


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#1 Feral-Lausii

Posted 14 January 2013 - 07:35 AM

On Friday my casual employment, which was 3 set days a work and set hours (21) was terminated and she asked me to leave immediately. (the hours never changed or the days) The shift wasn't ever over. I said no, I would stay until the end of the shift. The reasons she gave were pathetic to say the least, that my performance for the past 2 weeks was 1% under what was expected.

We only went back to work on the 3rd of January after two weeks off. (so haven't even been back two weeks!)  Its a quiet time of the year in that industry. There was no warnings, no performance management, nothing! Just told to go.

I have since found out she advertised for someone else last week and the new person is starting today.


Has anyone been through this? I am ringing Fair work when they open. I think I may have a case for unfair dismissal?

Edited by Lausii, 14 February 2013 - 08:04 AM.


#2 lozoodle

Posted 14 January 2013 - 07:38 AM

I'm pretty sure with casual employment they can let you go like that, as there is no real contract agreement in place, its just a shift to shift thing.

#3 snuffles

Posted 14 January 2013 - 07:43 AM

Casual employment can be terminated by either party at any time AFAIK (at least, when I was employed casually ten years ago this was the case).

I gave my employer about 4 weeks notice that I would be leaving, because I had a lot of respect for them and I wanted to give them a chance to find a replacement, but it wasn't required.



#4 KylieferalMin0gue

Posted 14 January 2013 - 07:45 AM

Yep I am casual, and they only have to give me 1 hour notice of dismissal (even with no reason).  So basically I could be half way through a shift, and they could say that we want you to finish up in an hour, and they could get a replacement for me straight away with no explanation given.

#5 Feral-Lausii

Posted 14 January 2013 - 07:45 AM

QUOTE
I'm pretty sure with casual employment they can let you go like that, as there is no real contract agreement in place, its just a shift to shift thing.


From what I have read even though casual I had the expectation of continuing hours. I have been there for almost a year too. Guess I'll just wait and ring FW, information overload when you google.

#6 MissingInAction

Posted 14 January 2013 - 07:46 AM

You were casual.  


#7 Nepheline

Posted 14 January 2013 - 07:47 AM

It's not totally true that you can't claim unfair dismissal as a casual worker - there are some exceptions to the rule.

From the little bit I know ( a friend successfully claimed unfair dismissal, and she was causal), if you work regular, set hours, and have worked somewhere for over 18 months (I think?), you might have a case. I think she had to prove something about an expectation of continuing employment also. This was all just for the right to have her case heard!

Good luck OP, speak to fair work and see what they say.

#8 ~ky~

Posted 14 January 2013 - 07:48 AM

Yep ... no such thing as not enough notice when you are categorised as casual, sadly. The whole definition of casual is them using you for as long as they need YOU in that role. Doesn't matter if the role is sitll there when you are let go, they no longer need YOU to fill it so technically they have not done a single thing wrong.

#9 Guest_Dinah_Harris_*

Posted 14 January 2013 - 07:49 AM

It can't hurt to ring FW to find out exactly what the case is, but as far as I know casual employees can be let go with no notice.  Sorry, hope you find something else quickly.

#10 katiebear26

Posted 14 January 2013 - 07:50 AM

if your casual employment was regular, so same hours and days, for a long period e.g. over a year you may have some recourse at least as far as notice period is concerned. the idea is if you had a reasonable expectation of ongoing employment because of the regularity of you hours, then ceasing your employment like this may (and i stress MAY) be considered unfair.

talk to fair work ombudsman and visit http://www.fwc.gov.au/index.cfm?pagename=dismissalswhatis to see if your case qualifies based on your circumstances.

good luck!

#11 lozoodle

Posted 14 January 2013 - 07:58 AM

Expectation of continuing hours isn't the same as a written employment agreement unfortunately.

#12 elmo_mum

Posted 14 January 2013 - 08:06 AM

im sorry - but being a casual, means that you can leave when ever you want

your boss can also fire you

if you believe that she fired you because of the fact you went to the gm , and YOU HAVE PROOF  you may have grounds for fair work

good luck

#13 Nepheline

Posted 14 January 2013 - 08:08 AM

QUOTE (lozoodle @ 14/01/2013, 08:58 AM) <{POST_SNAPBACK}>
Expectation of continuing hours isn't the same as a written employment agreement unfortunately.


This is true, however in some cases Fair work can rule that the casual employee was in fact 'systemically' employed, and therefore does have access to unfair dismissal protection.

#14 Feral-Lausii

Posted 14 January 2013 - 08:09 AM

I just spoke to FWA. I can claim, as I had regular and systematic employment.

#15 lozoodle

Posted 14 January 2013 - 08:15 AM

QUOTE (Lausii @ 14/01/2013, 09:09 AM) <{POST_SNAPBACK}>
I just spoke to FWA. I can claim, as I had regular and systematic employment.

Worth a try original.gif

#16 protart roflcoptor

Posted 14 January 2013 - 08:21 AM

No you are not at fault at all here OP?



#17 Feral-Lausii

Posted 14 January 2013 - 08:28 AM

No I'm not at fault. My work was above the minimum for the past 9 months. Never late. No misconduct. Nothing. Sacking me for being 1% below since we started back on the 3rd is fair ground for dismissal? She just wanted me gone and used the fact that the GM is away and quiet time of the year to get rid of me.

#18 Phascogale

Posted 14 January 2013 - 08:40 AM

I know at some places, if you have regular expected employment for a certain period of time ie 6 months, 12 months, that your contract needs to be turned into a permanent one.

But what can happen is that you are unceremoninously told that you're no longer required (or there's no work for the next few weeks) so they don't have to make you permanent and you're often brought back later down the track - to continue your regular hours (often full time).  

This may be specific to employment agency type work and it may be so that companies avoid paying the agency a 'finders' fee that the employee is not required for a certain number of days/weeks before coming back (because they work well and know the work).  And it may very well due to specific contracts between an agency and an employer so probably doesn't apply to most situations.

I only mention it because it happened to my husband.

But to the OP - you're casual so it may be difficult to get anything.  But by all means try.

#19 Tilly007

Posted 14 January 2013 - 08:49 AM

Sounds to me like you're not actually a casual but are a permanent part-time if you are working the same days and hours each week.  Part-timers have access to the unfair dismissal jurisdiction.

Your other option is to make a claim for adverse action (all employees can do this, including casuals) on the basis that you made a complaint or inquiry in relation to your employment (ie the complaint to the GM) and then you were fired.

You have options.

ETA:  it is irrelevant whether you have a written employment contract.  Every single employee has an employment contract, it's just that some are not in writing.

Edited by Tilly007, 14 January 2013 - 08:51 AM.


#20 Feral-Lausii

Posted 30 January 2013 - 02:57 PM

Conciliation is set down for Wednesday the 9th.  original.gif

#21 Feral*Spikey*

Posted 30 January 2013 - 03:03 PM

Good luck!

#22 CallMeFeral

Posted 30 January 2013 - 03:08 PM

Good luck!

#23 erindiv

Posted 30 January 2013 - 03:08 PM

Good luck OP original.gif

#24 KT1978

Posted 30 January 2013 - 03:26 PM

I would be writing to the GM expressing that you are disappointed in the manner you were replaced, citing good work performance, and you feel it is because you spoke to the GM about breaches of ohs.

I wouldn't be surprised if your TL was going to tell the GM you left.....

#25 Feral-Lausii

Posted 30 January 2013 - 03:26 PM

QUOTE
Wednesday the 9th of what?


February.




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