Was the termination at the initiative of the employer?

[1] This decision follows and earlier decision [1] in relation to whether or not Adesse Pty Ltd (Adesse) employed fewer that 100 employees. In that decision it was found that it did employ fewer than 100 employees and therefore there was no jurisdiction for the Commission to consider an application pursuant to s.643 of the Workplace Relations Act 1996 (the Act) made by Ms Diana Sherwin.

[2] However Ms Sherwin also made applications pursuant to ss.659 and 661 of the Act. In relation to these aspects of the application Adesse argued that there had been no termination at the initiative of the employer.

[3] There is an underlying dispute as to whether or not Ms Sherwin was a casual employee or a part-time employee. For the purpose of this decision a ruling on this aspect is not necessary.

[4] Therefore, this matter is of relatively short compass.

[5] It is submitted by Adesse that Ms Sherwin was properly employed on a casual basis and then due to operational requirements in January and February 2008 the roster was varied which resulted in a reduction of the number of hours available for Ms Sherwin to work. In April 2008 there were no hours available for Ms Sherwin.

[6] It is important to recall that Adesse is a Labour Hire company and in the present matter provided staff to St Vincent's and Mercy Private Hospital.

[7] On 29 September a letter [2] was forwarded to Ms Sherwin's representative advising that following a review of the roster Adesse would like to offer work to Ms Sherwin.

[8] In support of the view that Ms Sherwin was terminated two propositions were put.

(i) Firstly, the number of people on the roster remained the same with another person appearing to take the place of Ms Sherwin.

(ii) Secondly, there was no communication with Ms Sherwin by Adesse and it is unreasonable to say that a letter six months later offering further work constitutes evidence that her employment had not been terminated.

[9] The key issue is whether or not the act of the employer resulted directly or consequently in the termination of the employment. [3]

[10] Termination can apply where work is not offered [4] to a casual employee in circumstances where it is available and all things being equal the person could expect to be offered that work. In the case of a casual employee who has worked regularly for the same employer for a long period of time this might be considered to be a variation on the concept of "they also serve who only stand and wait"[5].

[11] There does come a time when, if a person is not offered work, there can be a presumption that the employer no longer wishes that person to do the work. Some uncertainty might arise over a short period as to available work but the longer the period the more an employee is entitled to believe that they are not going to be offered work. An employer can not be heard to say that the casual should be available for work but yet offer no explanation as to when (in broad terms) they might be required.

[12] A corollary might be an abandonment of employment. If the employer has not heard from an employee within a specific time frame [6] then often the employer will write to the employee advising that she/he has terminated their employment by abandoning it. Such a situation may not be a termination at the initiative of the employer. In each case, abandonment and a failure to offer work, requires a test and consideration as to whether or not one of the parties wished to maintain the employment relationship.

[13] It is not necessary to decide with any precision the length of time which might constitute a termination in circumstances where there has be a failure to offer work, but in my view a period of six months is too long to expect an employee to wait. This is particularly so in circumstances where the employee has had such service with an employer so as to qualify, under the Act, to seek a remedy for harsh, unjust or unreasonable termination of employment. The concept of a person "still being on the books" lacks all the necessary prerequisites for an employment relationship to exist. It can not be that the jurisdiction of the Commission is defeated by the commercial arrangements between a labour hire company and a host employer.

[14] It is trite to also state that there can be a termination of employment at the initiative of the employer when operational reasons dictate that a reduction in staffing levels is warranted. In this case that is said to be the reason. That in itself constitutes a termination at the intiative of the employer.

[15] In this case also there is a strong presumption that work was available because the roster did not seem to reflect any lack of demand for employees by the host business. A situation where a host employer simply instructs the labour hire business not to provide the services of a certain person for a particular reason does not absolve one or both of the participating parties from scrutiny as to that reason.

[16] In the present matter Adesse has also not persuaded me that the business circumstances of the host employer where such that Ms Sherwin's skills could not be used on the roster.

[17] I find that Ms Sherwin's employment was terminated at the initiative of the employer and a certificate will issue.

M Diserio with C Pollard on behalf of Adesse Pty Ltd.

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