A casual disability support worker who claimed he was dismissed in retaliation for complaining about cancelled shifts lost his case after the Court found genuine performance concerns were the real reason he stopped getting work.
The worker alleged his employer reduced his hours to zero and terminated him because he exercised workplace rights by complaining about shift cancellations.
However, the Court accepted evidence from three managers that the worker was not offered further shifts due to serious performance issues, including medication errors, sleeping on active overnight shifts, and failing to evacuate a house when he smelled gas or fire.
The worker had only worked 14 shifts over seven weeks before his employment ended.
Background of the case
The employer provides support services to people with disabilities. The worker was employed on a casual basis between late June and late August 2024.
He worked a total of 14 shifts, the first on 4 July 2024 and the last on 26 July 2024. On 28 August 2024, he was informed he would not be offered further shifts.
The employer had been retained to provide supported independent living to a severely disabled young woman at a house in Sydney.
The worker attended orientation training on 1 July 2024 and worked his first casual shift when the client moved in on 4 July 2024.
On 12 July 2024, a service manager arrived at the house around 8.30 am and noticed a smell of either gas or fire. The house was evacuated.
The worker, who had worked overnight, confirmed the smell had been present when he commenced at 11.00 pm, but he had not called anyone. The worker was due to work again that night, but his shift was cancelled.
On 23 July 2024, the roster was substantially amended following a request from the client’s mother for female staff whenever possible. This resulted in the worker being removed from a shift on 27 July 2024.
The worker messaged managers expressing concern and seeking to discuss it. The worker worked his last shift on 26 July 2024. On 27 and 29 July 2024 the worker sent further messages about the cancelled shift—these were referred to as “the complaints.”
No further shifts due to performance concerns
On 26 August 2024, the service manager told the HR manager the worker was unlikely to be given further shifts because of concerns about his performance. A few days later, the HR manager obtained advice from external HR support and prepared a termination letter.
On 28 August 2024, the service manager issued the termination letter stating the employer was not in a position to offer him further work on a casual basis due to his performance.
The employer does not deny that the worker exercised a “workplace right” when he made the complaints. The employer admits the worker received no shifts after 26 July 2024, and this constituted “refusing to re-employ”, which can be characterised as dismissal.
However, the employer denies that the refusal to offer work or termination occurred for prohibited reasons. The law places the onus on the employer to prove the decisions were not made for these reasons.
Multiple serious performance issues
The service manager was responsible for rostering the 12 to 15 staff who worked at the house. She decided not to offer more shifts to the worker after 26 July 2024.
She described her thought process: towards the end of July, the client’s needs increased, with many needs arising during nighttime.
Because of the performance issues with the worker, his limited availability to work night shifts only, and the skills of other staff, she did not roster the worker. Her view was that they could not trust the worker to look after the client appropriately.
The service manager gave evidence that the worker regularly “clocked in” but often neglected to “clock out”, making it difficult to process his pay. The worker made mistakes administering the client’s medication.
Sometimes he gave medication scheduled for a different time, and sometimes he did not give it at all. The worker was the only worker who failed to administer medication at all. This prompted an email to all staff and a text specifically to the worker.
When she spoke to him about this, he “did not give a direct response, he just shrugged his shoulders.” Errors continued.
A major issue was that the worker dressed the client in “pull-ups” at times when she was not menstruating. The client’s mother complained about this.
The service manager explained that pull-ups should not be used when not needed. The service manager frequently found it difficult to tell what work the worker had done. Often, there was no record of what happened during the shift.
Manager suspected worker sleeping through shifts
The shifts the worker worked were designated as “active” shifts, meaning he was supposed to be awake and ready to attend to the client throughout the night.
From around 15 July 2024, the service manager formed a suspicion that the worker was sleeping through at least part of his shift. She formed this suspicion partly because the office bed appeared to have been used during the worker’s shifts, and there was no record of any work done.
She also received a report from another support worker who had to go back to the house to retrieve car keys and found the worker, when he eventually opened the door, to be “dishevelled” and partly undressed.
Each of the three manager witnesses was cross-examined by the worker. Nothing in the cross-examination led the Court to doubt their truthfulness or the reliability of their recollections. The Court accepted their evidence.
Performance concerns genuine, not retaliation
The Court found the service manager stopped offering the worker work in late July 2024 because she understood his availability to be limited, and she had significant concerns about his performance.
The evidence for the basis of those understandings was sufficient to mean that strong evidence would be needed to support a conclusion that they were not genuine. The Court found the worker was not refused work for any of the prohibited reasons.
The HR manager gave evidence that the decision to terminate was based solely on the performance concerns the service manager raised with her, and there were no other reasons.
The Court was satisfied that the performance concerns the service manager expressed were genuine concerns, and she raised them solely because she thought they were significant. The Court found the worker’s employment was not terminated for any of the prohibited reasons.
At times, the worker appeared to suggest he was a full-time employee. However, when tested in cross-examination, this evaporated into assertions that he was working long hours or “available 24/7”.
Messages between the worker and managers clearly showed a shared understanding that he was a casual employee seeking but not being allocated more regular work.
The Court was satisfied that the reduction in working hours was not motivated to any extent by the complaints. The application was dismissed.