Removal from list of casuals not a dismissal

In a decision handed down on 28 July 2016 the IRC Full Bench needed to decide if the removal of a casual from a list maintained by an employer constituted dismissal. The casual health worker had his name removed from a list of eligible employees after being unable to work for a period of time due to a workplace injury, for which workers’ compensation liability had been eventually accepted.

Facts

Mr Alex Charles worked as a casual at Lismore Base Hospital from March 2010, and in 2011 made a protected disclosure to the ICAC. After it was dismissed, Mr Charles complained of being subjected to a campaign of bullying and harassment over 2012-2013. He went off on workers’ compensation from August 2013 claiming a psychological injury, and was awarded weekly payments. In June 2014, Mr Charles was deleted from a list of persons approved for casual engagements, consistent with an administrative practice to remove the names of casuals who had not worked a shift over the previous 6 months.

Upon being subsequently advised his name had been removed from the list and that he was “no longer an employee”, Mr Charles commenced section 84 proceedings, claiming he had been wrongly dismissed, as well as claiming he had been dismissed contrary to section 248 of the Workers’ Compensation Act 1987 as an injured worker.

Consideration and finding

Hearing an appeal from a decision of Commissioner Murphy to dismiss the application, the Full Bench of President Walton and Commissioner Stanton and Newall considered the appearance of a name on the list of casuals eligible to be offered work did not create or guarantee any offer of work by the employer, nor impose any obligation on those listed to accept offers of work. By being on workers’ compensation, Mr Charles made himself unavailable for work and after 6 months, was taken off the list.

However, the employer was wrong to advise Mr Charles this situation meant he “was no longer an employee” as the administrative action in removing his name from the list had no effect on the employment relationship, with Mr Charles remaining a person who had formerly undertaken casual employment and who may be offered further employment if he is fit and wished to accept an offer to work.

As such, the Full Bench determined Mr Charles had not been dismissed and upheld the decision of Murphy to dismiss the application for relief.

Tips for Local Government and Public Sector employers

Taking active action to deal with casuals no longer able or willing to provide services to their employers will ensure employers can focus on those casuals with an ability to provide value and efficiency.

 

Charles v Northern New South Wales Local Health District [2016] NSWIRComm 8

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