Christmas time dismissal proves costly for text message employer

A recent case decided in Fair Work Australia (FWA) has highlighted the pitfalls and formalities with transferring employees when a business is sold.

The case concerned an employee who had worked in a Sydney retail shop as a casual from 2008.  In November 2010, the business was sold with the purchaser and new employer then continuing the employee’s casual employment on the same terms and conditions as previously.

On the day before Christmas, the employee was rostered to work an early morning shift.  She however unilaterally swapped the shift with another employee to allow her to start later in the day.  Upon arriving at the store at the later time, the employee discovered that during the early shift, in excess of $5,000 worth of items had been stolen from the shop. The employee immediately reported the theft to her employer.

On Christmas day, the employee sent a text message to the employer wishing her a ‘Merry Christmas’ and requested an opportunity to discuss the theft and what had occurred whilst the substitute employee was on duty. The employer responded by saying that the discussion would have to take place the following Monday as the employer needed to take a rest in the meantime.

However, on the day after Christmas, the employee received another text message from the employer in which the employer terminated her employment for reasons that:

  • the employee had swapped a shift without informing the employer; and

  • the swap was an example of the employee not taking her work seriously.

The employer argued before FWA that because the business was a ‘small business’ the unfair dismissal provisions did not apply because the employee had only been employed for a period of nine weeks, which was less than the minimum qualifying period.  The employer also argued that there had not been a transfer of business, as the employer had no intention to continue the employee’s services after the purchase of the shop.

FWA however found that:

  • There had been a transfer of business as the employer had not notified the employee in writing prior to the commencement of the new employment that the employment with the old employer would not be recognised.

  • The casual employee had been employed on a ‘systematic basis’ with a ‘reasonable expectation of continuing employment’.

  • The primary reason given for the dismissal was not valid as shift swapping in the retail business was a common occurrence.

  • The termination was consequently harsh, unjust or unreasonable and awarded the employee 8 weeks compensation, being an amount of $9,992.00. 

FWA found that the termination by text message was both inappropriate and ‘pretty appalling’.

Should you wish to know more about the Fair Work Act transfer of business provisions or casual employees, please contact:

Ian Curlewis                                          Michael Jensen
Partner                                                 Senior Associate
(08) 9288 6756                                      (08) 9288 6944    


Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.