As of 27 March 2021, it is now enshrined in the Fair Work Act 2009 that casual employees will generally be able to accept or refuse work when it is offered.
While this has always been the case under common law and is technically not anything new, the fact that it is now provided for in black and white could see a shift in the rate at which shifts are accepted or rejected by casual employees. Many businesses became familiar with this feature of casual employment when, during the height of the COVID-19 pandemic, they struggled to find adequate numbers of casual employees willing to work while receiving JobKeeper Payments.
Once it has been accepted that a casual employee has no obligation to accept a shift they have been offered, the question becomes: what happens if they refuse?
No requirement for businesses to provide casual employees with work
In addition to reaffirming the right for casual employees to refuse to work, the recent changes also confirm that there is no obligation on businesses to offer work to casual employees. For this reason, a casual employee should never be promised that they will receive a minimum or set number of hours each week.
During the JobKeeper Payment Scheme, when businesses were forced to engage new staff to replace their existing staff who made themselves unavailable, it was entirely lawful for those same businesses to later state that there was no work available due to the fact that their workforce had expanded and other employees had more availability and more up-to-date product knowledge.
That being said, there is a limit on the scope of this power and it should not be used as a form of retribution or as a way to circumvent having to terminate a casual’s employment.
Unavailability as a disciplinary issue
Instead, the preferred approach to managing a casual employee who has made themselves unavailable is to deal with it as a disciplinary issue.
This is because simply taking the employee off the roster can enliven what is referred to as a ‘constructive dismissal’. If this occurs, and the employee has obtained the requisite period of service to be protected from unfair dismissal, this can immediately become problematic if a proper process has not been followed to bring the employment relationship to an end.
A novel issue has also emerged in that now the ability to refuse shifts is recognised within the Fair Work Act 2009, it would possibly result in a contravention of the general protections provisions if a casual employee is disciplined because they exercised a right to refuse shifts – although it is arguable that this does not create a separate right at all but merely recognises the existing common law right.
In any event, the process for dealing with a casual employee who makes themselves unavailable is relatively well defined. In Howard v Pinnacle People [2020] FWC 6975, the Fair Work Commission considered a casual employee in receipt of the JobKeeper Payment who refused to accept shifts that he had been offered over a period of 6 months and provided no reasonable basis for his refusal, other than that he used to perform work in sporting and entertainment venues that had since been required to close.
The shifts offered were within the employee’s competence and skill level, and did not include sporting and entertainment venues. The employer offered the employee 58 engagements over the period (some consisting of multiple shifts), of which the employee ignored more than half and refused the remainder. At no time did the employee indicate to the employer that he had concerns for his safety or had a medical condition that prevented him from performing work during this period.
The Commission held that “…by his conduct of declining or ignoring all offers of work by the Respondent in the period 7 March 2020 to 11 September 2020, had demonstrated an unwillingness to be bound by his contract of employment as a casual employee with the Respondent. I consequently find that there was a valid reason for the dismissal related to the Applicant’s conduct…”
An unwillingness to be bound by an employment contract (whether written or otherwise) is known as a ‘repudiation’ of contract. This repudiation is accepted by an employer when it terminates the employment contract because of the employee’s breach. It is not the same as a resignation, and if an employee has passed the minimum employment period, a proper process will still need to be followed.
Repudiation can be a complex area of law, and it often turns on the facts of each matter whether a party (in this case, the employee) has demonstrated an unwillingness to be bound. That being said, if a casual employee makes themselves permanently unavailable, including by not accepting any of the shifts they are offered (like in Howard), and they have been notified that the employer is considering terminating the contract as a result, this will generally provide grounds to explore some form of disciplinary action.
What steps should be followed to deal with unavailability?
Having regard to the above, the general approach to counselling a casual employee about their unavailability might look something like this:
- Explain to the employee (either verbally or in writing) that as a casual employee they are entitled to refuse rostered shifts, but they are rostered in accordance with the needs of the business and if they cannot commit to accepting at least some of the shifts they have been offered, you may need to consider your options moving forward.
- Consider anything the employee may have to say in response, including any reasons that they may be unable to work, such as the fact that they are unwell.
- Determine whether the employee has passed the minimum employment period and whether you will need to follow a proper process (such as a ‘show cause’ process). Decide whether it is appropriate to take disciplinary action, and if so, which type.
The type of disciplinary action will always depend on what is proportionate in the circumstances, but Howard provides clear authority that in some cases termination of employment will be appropriate in circumstances involving casuals making themselves unavailable.
Whether a repudiation occurs turns on the circumstances of each case, and you should always seek independent legal advice before deciding to terminate outside of the minimum employment period for this reason. For a confidential discussion on your options, contact the National Retail Association on 1800 RETAIL.
