When a club became concerned about a casual employee’s capacity to perform her duties, it decided to reduce the number of shifts on offer to her and give her more training. However, when the employee was advised of the changes, she baulked at the huge reduction in shifts (around 75%) that she would be offered, and, according to the employer, verbally resigned. 

The employee claimed unfair dismissal on the basis she was left no choice by the employer’s actions but to “involuntarily resign”. The FWC, at first instance, accepted the change proposed by the employer was effectively a repudiation of the contract. In doing that, the FWC identified the existing spread of shifts and the typical weekly hours the employee typically worked, as the employee’s employment conditions.  

But the employee was a casual, and on appeal, the full bench made the point that as such, each shift the employee performed “was a separate contract of employment”. The evidence showed that while the employee usually worked many shifts per week and her employment pattern had some regular features, nevertheless there were variations in her work patterns over the course of her tenure.  

Importantly, there was no on-going contract stipulating how many shifts the casual would work, when they would be, how long they would be and what work she would do. Nor was there any evidence that such employment conditions were implied terms of the contract.  

Under those circumstances, the full bench found that the employee had no entitlement to a particular number of shifts, or hours per shift, or even the type of work she was to perform as a result of any contractual obligation.  

For there to be a repudiation of contract by the employer, there had to be explicit, or reasonably implied, terms of employment that the employer changed and the employee was not prepared to accept. Absent those basic preconditions, there was no constructive dismissal in this case.

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