The Fair Work Commission has dismissed a casual employee’s Unfair Dismissal Claim, finding that the employee’s limited availability for shifts and extended period without working justified his dismissal.

Background

In Fear v Coles Supermarkets Australia Pty Ltd [2025] FWC 573, the applicant had advised Coles of his available hours, which were from 9am until 2pm, in order to be able to take his children to school and pick them up from school. When he first commenced working for Coles, the applicant generally worked from 6am in the dairy department until 9am on casual shifts. He occasionally worked outside this time. From March 2024, the applicant’s shift availability changed due to his Wife’s need to return to work.

The applicant also expressed that he wanted to only work in the dairy department, and when offered shifts in the meat department, he declined the shifts. The applicant was later trained in this department and provided with 2 shifts. After expressing he was not ‘happy’ to work in the department, he left the store and did not finish his assigned shift.

In July 2024, Coles sent a letter to the applicant advising that he had not worked for more than 60 days and asked him to confirm his availability. The letter also stated that if the availability did not meet the operational needs of Coles, then no further shifts would be offered. The applicant contended that this letter was delivered to his junk email and that he subsequently did not receive the letter at this time.

The applicant also did not meet the requirements to be converted to a permanent employee because he had not worked regular casual hours and his limited availability impacted this. A further letter was sent to the applicant in August 2024 advising the applicant that he had not worked a shift in 90 days and that due to no response or that his availability not meeting operational requirements, no further shifts would be offered.

Legal position

Casual employees are defined as employees who when they commence employment “the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work” and where the employee is entitled to a casual loading (which is a higher rate of pay due to being a casual employee). It should be noted that a regular work pattern does not necessarily result in a firm advance commitment. Casual employees are not entitled to notice upon termination of their employment, and they are not entitled to annual leave.

Casual employees must have been employed regularly and on a systematic basis in order to be able to make an unfair dismissal claim. Small business casual employees also need to have been employed for at least 12 months, whilst casual employees of all other businesses must have been employed for 6 months.

Outcome

The Fair Work Commission found that the applicants availability and request to work in a certain department did not suit the requirements of the store. The applicant’s desire only to work in the dairy department despite this not being appropriate for the store further limited the ability of the store to offer him work.

After not working for 90 days, the applicant’s employment was terminated and the Fair Work Commission found that there was a valid reason for the dismissal and that the dismissal was not harsh, unjust or unreasonable.

Lessons for employers:

• Best practice is to invite employees who have not worked for an extended period to a meeting with a Manager to discuss availability and the consequences of continued non-work.
• Casuals who have consistently not worked for an extended period and who have limited shift availability which does not meet the operational requirements of a business may be terminated and this will likely be deemed to be valid. Keep in mind that you do not need to provide notice of termination to casual employees.
• Provide employees with opportunities to correct availability to something which may better suit operational requirements and give employees notice of what may occur if this does not happen.
• Keep records of shifts offered to casual employees which have been rejected.
• Consider any Award or Enterprise Agreement the employees are covered by.

If you would like to discuss these or other workplace issues, please contact Andrew Bland or call 02 9412 3077.