Robert Goodwin handed in his resignation in April 2016, and on the face of it that should have ended the matter: he quit, so his employer had not dismissed him. The Fair Work Commission saw it differently. It ruled that Mr Goodwin, a casual delivery driver at a Domino's Pizza franchise in Swan Hill, Victoria, had been forced to resign by the way his employer treated him after he complained, and that the resignation was therefore an unfair dismissal. The franchisee, Shanaya Pty Ltd, was ordered to pay him $3,000 in compensation. The case is a reminder to any business that employs casual staff that a resignation letter is not the clean exit it appears to be, and that "casual" is not the protection many employers assume it is.
The Friday night request that ended a job
Mr Goodwin started working as a casual delivery driver for Shanaya Pty Ltd, which operated the Domino's Pizza franchise in Swan Hill, on 5 October 2015. He worked on a roster that most weeks ran across the same set of days, with hours that settled into a regular pattern. His employment lasted just over six months, and the events that ended it began with a simple request.
In early March 2016, Mr Goodwin asked to finish a Friday night shift at 7pm instead of the rostered end time, because of a personal matter. What happened next is set out in the emails he sent to Domino's Pizza Enterprises, the franchisor's head office, and those emails are quoted at length in the Commission's decision in Goodwin v Shanaya Pty Ltd [2016] FWC 4161. Mr Goodwin reported that the franchisee threatened to fire him for not giving enough notice of the change. The Friday shift was withdrawn, and he was then left off the roster entirely for the following days and the next week.
When Mr Goodwin was rostered again, his hours steadily shrank. His own records, set out in the decision, show the slide: around 35 hours in the week of 15 February 2016, 24 hours the following week, 13.5 hours the week after that, and then under 10 hours a week. In the meantime he had written to head office about what he saw as workplace safety and pay issues, and about being singled out, telling the franchisor's employee relations manager that he believed the store was "pressuring me to quit". He resigned on 12 April 2016, just over six months after he started, and lodged an unfair dismissal application on 18 April, within the 21-day time limit in s 394 of the Fair Work Act 2009 (Cth).
Why a resignation counted as a dismissal
The franchisee raised three jurisdictional objections to the application: Mr Goodwin had not been dismissed, he had not served the minimum employment period, and in any case the business was a small business whose dismissal complied with the Small Business Fair Dismissal Code. The Commission dealt with the last two objections first, in an earlier decision reported as Goodwin v Shanaya Pty Ltd [2016] FWC 3539.
The small business objection failed on the numbers. Under s 23 of the Fair Work Act 2009 (Cth), an employer is a small business employer only if it employs fewer than 15 employees, and for that count associated entities are taken to be one entity. The Swan Hill store employed 14 people, which would have made Shanaya a small business on its own. But the director of Shanaya conceded that the company and its associated entities employed more than 15 people in total. The employer was not a small business, so the 12-month minimum period that applies to small business employers under s 383 did not apply, and the Small Business Fair Dismissal Code could not shield the dismissal.
The minimum employment period objection raised the point that matters most for casual staff. Under s 384(2)(a) of the Act, a period of service as a casual employee only counts towards the minimum employment period if the employment was on a regular and systematic basis and the employee had a reasonable expectation of continuing employment on that basis. The franchisee argued that Mr Goodwin worked irregular hours. The Commission looked at his pay records week by week and found otherwise: he had worked in almost every week across the roughly 27 weeks of his employment, mostly on the same days, so his casual service counted. With just over six months' service and a six-month minimum period, he was protected from unfair dismissal under s 382, and the Commission was satisfied he was covered by the Fast Food Industry Award or the enterprise agreement applying to Domino's franchisees.
That left the central question: was Mr Goodwin dismissed at all? Section 386(1) of the Act defines dismissal to include a resignation that was forced: a person is dismissed if they resigned but were forced to do so because of conduct, or a course of conduct, engaged in by the employer. The Commission found that this was exactly what had happened. The contemporaneous emails Mr Goodwin sent to head office, and the pattern of his hours, supported his account. He had tried to resolve the problems through the franchisor's head office before resigning. By the time he left, he had been dropped from the roster and then given hours well below what he had worked before the dispute, and the Commission concluded that the employer's conduct left him no real choice but to resign. The dismissal was then found to be harsh, unjust and unreasonable.
The remedy decision, Goodwin v Shanaya Pty Ltd [2016] FWC 4317, is useful for what it reveals about how compensation is calculated. The Commission declined to order reinstatement, because the trust and confidence in the employment relationship had been destroyed. It then assessed compensation under s 392 of the Act. Mr Goodwin had claimed $7,287.51, but the Commission assumed he would have worked for only about two more months, at 21 hours a week and $18 an hour, which produced $3,024 before adjustments. It made a deduction for the chance that he would be unavailable for some shifts, and an increase for bonus payments that appeared on his pay records. The fact that Mr Goodwin found another job within a week did not reduce his compensation, because he could have worked both jobs. The final award was $3,000 gross.
What this means for employers who rely on casuals
The facts of this case are particular, but the rules it applies are general, and they bite harder than many business owners expect:
- A resignation is not a clean exit: If your conduct, or a course of conduct, leaves an employee no real choice but to resign, the law treats the resignation as a dismissal by you.
- "Casual" is not a shield: A casual employee's service counts towards the minimum employment period when the work is regular and systematic, and the employee reasonably expects it to continue.
- The 15-employee count includes your related companies: A store that employs 14 people can still be outside the small business rules once associated entities are counted together.
- Franchisees are judged with head-office resources in mind: In deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider the size of the enterprise and the availability of dedicated HR expertise under s 387 of the Act. An employer inside a franchise network cannot easily argue it did not know how to handle the situation properly.
- The paper trail decides these cases: Mr Goodwin's contemporaneous emails to head office were central to the outcome. The records you keep, or fail to keep, may decide a claim against you.
The conduct that cost Shanaya $3,000 was not a dramatic sacking. It was a slow squeeze: a threat made in response to a reasonable request, a removal from the roster, and hours cut after an employee complained. None of that conduct gave Mr Goodwin a valid reason for dismissal, none of it was put to him with an opportunity to respond, and the Commission treated the pattern of conduct as a forced resignation. The case also shows how close an employer can come to a different result: Mr Goodwin had just over six months' service when the six-month minimum period was met, and the small business exemption depended on a headcount that the franchisee itself conceded exceeded 15 once related entities were included.
If you employ casuals, there are things you can change this week:
- Count your whole group: Work out how many employees you and your associated entities employ, including regular casuals, before assuming the small business rules apply to you.
- Review your casual rosters: An employee who has worked regular days and hours for six months or more may be able to claim unfair dismissal, whatever their contract says.
- Put complaints and your responses in writing: If an employee raises a concern, respond in writing and keep the record. Silence and informal threats were part of what sank the employer here.
- Never cut hours in response to a complaint: Reducing a roster after an employee complains is exactly the conduct that produces a forced resignation claim.
- Take advice before a "managed exit": If you want an employee to leave, shrinking their shifts in the hope they quit is more expensive than a properly documented process.
How a lawyer would have changed this outcome
An employment lawyer could have helped the franchisee in this case avoid the $3,000 award, and the cost of that advice would have been a fraction of the compensation and the time spent defending the claim. The first thing a lawyer would have done is audit the entity structure and the headcount, because the small business exemption was lost on the associated entities point that the director conceded. The second is assess which casual employees have regular and systematic service, because that is what converts casual work into service that counts toward the minimum employment period.
A lawyer would also have stepped in at the point the dispute began. When Mr Goodwin asked to change his Friday shift, the correct response was a written, reasonable accommodation of the request, not a threat to dismiss him. When he complained to head office, the franchisee should have investigated the complaint properly and documented the investigation, rather than reducing his hours. If the franchisee genuinely wanted Mr Goodwin to leave, the defensible path under s 387 of the Act is a valid reason, notice of that reason, and an opportunity for the employee to respond, supported by written records. And if the relationship had broken down irretrievably, a lawyer could have negotiated a settlement agreement early, before the application, the jurisdictional objections and the remedy hearing ran their course. Each of those steps is routine for an employment lawyer, and each of them was missing here.
The lesson in the resignation letter
The single most important thing about this case is that the Commission read Mr Goodwin's resignation through the conduct that preceded it. A resignation is not a firewall. When an employer's actions leave an employee with no real choice but to resign, the law treats the resignation as the employer's dismissal, and casual employment status does not prevent the claim once the employee's hours have been regular and systematic. The misstep that cost the franchisee was small: a refusal to accommodate one shortened shift, followed by a response to a complaint that looked like punishment.
For employers, the practical summary is straightforward. A forced resignation can be an unfair dismissal, casual service counts once it is regular and systematic, the small business exemption depends on counting employees across associated entities, and the records you keep will determine how a claim against you unfolds. If any of those questions arise in your business, get advice before you act, because the conduct that seems like managing a roster can look very different in the Fair Work Commission.