VIC Casual Workers - Written Warning for Attendance?

[Rebecca E]

Hi all
My husband had been working for manpower agency for nearly 4 years. As a casual employee on the Woolworths account. Towards the end of last year he received a written warning for attendance, even though each time he was not available for work he would notify them early in the morning or the day before. Working a 6pm start suited him however, even after he receives a roster each week to work 6 days, there were some days his shift was cancelled at 5pm.

Until one week where no roster was received, so after close to 4 years, this was strange. His workmates received their roster so first thing Monday morning. He called and was informed he will be receiving a warning and he'll need to attend a meeting before a roster will be sent. (The meeting happen - which was a joke as so evidence was presented to understand manpower concerns).

I was there and witnessed the most poorly run conduct investigation I have ever seen. What followed this meeting was ongoing phone calls back and forth for his roster and my husband was off work for close to 3 months leading up to Christmas. We nearly lost our home and have since moved back to his parents.

After the ordeal, my husband wasn't himself and his head is now been diagnosed with anxiety and severe depression. I feel the actions of manpower caused this. No roster has been received and upon several attempts for a separation certificate to apply for Centrelink benefits and requests for a copy of his worker's contract (which was never received). My husband is in medication and is working on getting his life back on track. My husband has not resigned from manpower nor received anything that explains his employment status with manpower.

With what I have shared, I feel that the actions by manpower have caused an adverse effect on my husband's health, well-being and safety, do you feel it is worth pursuing? I wrote a statement to the manpower and no one has responded and my phone calls have not been returned.

 

[Ivy]

Hi Rebecca,

I am sorry to hear about the situation you and your husband are facing.
It is very difficult to get compensation from employers for psychological injury. The current law is that an employee must show that the injury was reasonably foreseeable and so far courts haven't accepted that a psychological injury is reasonably foreseeable unless the employee has submitted medical evidence that their work is causing psychological injury (though they suggest that if an employee has taken extensive periods of leave, this might be evidence that meets the reasonable foreseeability test). Either way, I think you'll have a hard time getting anything from the employer on these grounds.

However, I think there are a few other avenues you and your husband could pursue. The first one is trying to get the Fair Work Commission to make a ruling that your husband was not actually a casual employee but a permanent employee. There are situations where long-term employees who have ongoing expectation of work are found to be permanent employees even though they have been engaged as casuals.

This means that these employees get all the entitlements of permanent employees including paid leave and stringent requirements regarding dismissal. Courts look at a series of factors to determine whether an employee is casual or permanent. However if there is a specific definition of casual employee in the employee's enterprise agreement or modern award, the Fair Work Commission will follow that definition rather than the court's list of factors. Keep an eye out on the Law Answers blog over the next week because a blog post on this topic should be up there very soon.

Secondly, your husband may be able to take action against the employer for either discrimination or breach of the rights of casual employees under the Fair Work Act. This is because firstly, employees cannot be discriminated against on the basis of physical or mental disability or alternatively, because casuals are entitled to take unpaid sick leave. So if the adverse action taken against your husband (taking him off the roster) was due to him taking sick leave, the employer will run into employment law issues.

Additionally, and this goes back to the first point, it is generally the prerogative of casual employees to accept or reject shifts as they see fit. If your husband is being adversely affected for rejecting shifts, this potentially supports a claim that he was in fact a permanent employee, not a casual one.

I suggest that you or your husband give the Fair Work Ombudsman a call straight away. If your husband simply wants to return to work, then you may be able to sort this out through mediation. If however your husband is now unfit for work and/or wants compensation, you will probably need to make an application to the Fair Work Commission. If you go down the compensation route, I suggest that you seek the advice of an employment lawyer (also known as labour law and industrial relations law for the purposes of google searches).

Here is the contact page for Fair Work: Contact us - Fair Work Ombudsman

 

[Rebecca E]

Thank you so much Ivy, really appreciate your help. I'll give fairwork a calm straight away.