Thinking | 11 September 2020
Casual waitress on JobKeeper granted access to unfair dismissal claim 50 days after termination
By Melinda Bell and Rhea Karunakar
The Fair Work Commission, in Emily Murphy v Dawert Group Pty Ltd  FWC 4357, has allowed a casual waitress receiving JobKeeper payments to file an unfair dismissal application 50 days after her termination.
Although employers may need to reduce the size of their workforces in response to the challenges of COVID-19, this decision highlights the need for employers to ensure they are following due process when seeking to terminate regular and systemic casual employees – particularly where they are in receipt of JobKeeper payments.
Ms Murphy began working at a Dawert Group Pty Ltd restaurant as a casual waitress in 2017.
From around 23 March 2020 the restaurant was temporarily closed because of COVID-19 restrictions. Prior to it reopening in June, Ms Murphy was contacted regarding her availability to recommence work.
Ms Murphy advised Dawert that her availability was limited as she had begun employment as a meatworker and casual nurse. She was subsequently left off the roster for the first week the business reopened.
Ms Murphy then spoke to Dawert’s director and agreed to work four shifts per week to maintain her JobKeeper payments. However, she was again left off the roster for the week commencing 15 June 2020.
On 17 June 2020 Dawert sent Ms Murphy a termination letter; however, it was sent to the incorrect email address. The termination letter stated that Dawert would be unable to provide any rostered shifts to Ms Murphy in the near future due to reduced venue patronage because of COVID-19 restrictions and because Ms Murphy’s limited availability did not align with the restaurant’s available shifts.
Ms Murphy, unaware of the termination letter, contacted Dawert’s business manager to restate her availability for shifts but was not informed that her employment had ended on 17 June 2020.
Ms Murphy was only made aware of her dismissal on 15 July 2020 after contacting a director of Dawert about not receiving her JobKeeper payments. Ms Murphy told the Commission she was sent a ‘blurred photo’ of the termination letter via text message and advised by the director to look into receiving JobSeeker benefits.
On 16 July 2020 Ms Murphy sent a letter to Dawert seeking clarification of her employment status and disputing her termination. She received a letter a week later on 22 July 2020 stating that she had been removed from the roster due to her inability to accommodate casual shifts.
Ms Murphy told the Commission that in the period following 15 July 2020, she refrained from making enquiries about her JobKeeper payments out of concern for her ongoing employment.
Ms Murphy lodged an unfair dismissal application on 3 August 2020, 26 days late given her dismissal letter was dated 17 June 2020.
The Commission accepted Ms Murphy’s unfair dismissal application. The Commission found that Ms Murphy only became aware of her dismissal on 15 July 2020 and the letter received from Dawert on 22 July 2020 clarified the reason she was terminated.
As such, in lodging her application on 3 August 2020, Ms Murphy’s claim was actually within the 21 day timeframe set out by the Fair Work Act 2009 (Cth) and the matter could proceed to conference.
Lessons for employers
With the economic uncertainty as a result of the COVID-19 pandemic, employees, and particularly those receiving JobKeeper payments, are increasingly likely to challenge any perceived unfair dismissals.
Employers should be mindful that casual employees who have been employed on a regular and systematic basis and who have a reasonable expectation of ongoing employment do have access to the unfair dismissal jurisdiction.
This decision reiterates the importance of employers following due process in terminating the employment of employees and ensuring that they get the details right.
Hall & Wilcox can provide practical guidance for employers on how to comply with their obligations when it comes to managing the complexities of employee dismissals.
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