Four crucial lessons for small businesses after casual florist worker wins unfair dismissal case

A casual at an Adelaide florist who claimed she was wrongfully dismissed for taking three sick days has won her case at the Fair Work Commission, despite her boss claiming she’d been sacked because the busy period was over.

Kate Clift had been employed in production at Tony’s Wholesale Flowers for 19 months when she and two colleagues received an email from boss Tristan Smith informing the trio they’d lost their jobs.

“Good morning. As the event season is now coming to an end, please be advised your position with Tony’s Flowers has now ended,” Smith wrote in the email.

“We would like to thank you for all of your hard work during this period. Your details will be kept on file for future events.”

A “shocked” Clift lodged a dispute with the workplace tribunal, asserting that she was not a seasonal worker but rather worked “consistent and systematic” shifts during her employment, which began in August 2020.

Jewell Hancock principal employment lawyer Trent Hancock says this is the first of a few fundamental errors Smith made when terminating staff in this instance.

“It is important for employers to appreciate that regular and systematic casual employees can be protected from unfair dismissal, particularly when they have worked the same, or even similar shifts, over more than 12 months,” Hancock told SmartCompany.

Clift also informed the tribunal that she had taken three sick days in the two weeks prior, with one of those days the result of a break-in at home leaving her with “trauma and emotional distress”.

However, Clift did not disclose this to Smith. She reported feeling “sick”, “chesty” and not “comfortable coming in this way”, though was willing to make up the shifts later in the week.

“I was too emotional to discuss it at the time, so I just took unplanned sick leave to reject the shifts I had,” Clift told Fair Work.

“I do have a police report for this instance.”

Hancock says Clift, as an employee, was under no legal obligation to tell Smith about the home invasion.

“While no employee should be dishonest about the reason for any absence from work, they are not necessarily compelled to disclose to their employer the cause or details of any illness or injury that has necessitated the absence,” he said.

Initially, Smith responded to Clift that he’d taken her off the roster so she could “focus on [her] recovery” — but the next day, Smith emailed her with her termination.

Hancock says this is where the second error lies for Smith in the termination, as it had no apparent consultation with Clift.

“[Management] did not properly notify her of the reasons for dismissal, it did not provide her with a reasonable opportunity to respond and it did not cite any reason for the dismissal related to her capacity or conduct,” he said.

“In essence, it failed to provide her with even a basic level of procedural fairness.”

Clift, who described herself as a “dedicated employee”, says Smith’s story of work drying up didn’t ring true to her, pointing out to the tribunal that the dismissal had come before Mother’s Day — one of the flower industry’s busiest days of the year.

“[I] do not believe that my employer terminated me for the lack of work, but rather because of taking this unplanned leave and not being happy about it.”

But Smith’s side argued her contract stated “either party may terminate your employment without notice or without a payment in lieu of notice” and that a casual employee is not entitled to notice of dismissal.

Hancock says it is not as simple as this.

“Employers should be mindful that regardless of the terms of the contract, employees such as Ms Clift have protections under the Fair Work Act 2009 (Cth), including against unfair dismissal, that can either complement or even override provisions within an employment contract,” he warned.

Fair Work ultimately found Clift’s dismissal was “unreasonable” and noted that she had missed out on $2890 plus super during that time, though a compensation order has not yet been made.

Interestingly, Hancock concludes, Smith did not raise an objection on the basis of redundancy which the workplace lawyer describes as “peculiar” if Smith really had no more work going for the three staff as he claimed.

The fourth and final lesson? Get legal advice before responding to Fair Work, Hancock says, to make sure all defences are explored.