Left off the roster without pay after one missed day: a dismissal

What happened

Mr Poulter was a full-time permanent employee of JA Concreting, a concreting business. He had started in January 2024. Rosters were drawn up on a spreadsheet and uploaded to an app where employees checked their shifts.

On Thursday 13 March 2025 Mr Poulter did not turn up and did not tell anyone why. His manager sent him two text messages that day asking where he was, and he did not answer. He later said he had been very sick, sleeping on and off all day, and in no shape to contact his employer.

The next few days were already booked off. On 10 March he had told the office he had a medical appointment on Friday 14 March and would be at a family reunion until Monday 17 March, back at work on Tuesday 18 March. Both appeared to the Commission to be authorised leave.

On the Saturday his manager emailed him: “At this stage we will plan for you not being around next week.” Mr Poulter replied on the Monday, apologised, said he had been “crook” and would be in the next day. When he checked the roster he was not on it. His manager replied that they had not planned for him that week, had approached subcontractors, and wanted him to call the next day to explain.

Frozen out without pay

It was not disputed that he was offered no work for the rest of that week, and was not paid after 17 March. On Friday 21 March he texted his manager that, as a full-time permanent employee, he could not be stood down without pay, and asked to be paid for the days he was available. He got no reply. On the Sunday night, he said, he was not rostered for the following week either.

On Monday 24 March the manager wrote that “as far as we knew you had abandoned your position”, then sent a more conciliatory message asking whether he intended to return. After a heated phone call, the manager said there were shifts available from the next day. Mr Poulter replied: “I won’t be in tomorrow.” He filed an unfair dismissal application on 26 March 2025.

The claim and the employer’s objection

A worker can only bring an unfair dismissal claim under s 394 of the Fair Work Act 2009 (Cth) if they were “dismissed”. JA Concreting objected that Mr Poulter had never been dismissed. Commissioner Redford held a hearing on that single question.

Section 386(1) says a person is dismissed if (a) their employment was terminated on the employer’s initiative, or (b) they resigned but were forced to because of the employer’s conduct. The employer argued mostly about forced resignation, which the Commissioner found beside the point: Mr Poulter never said he resigned, and argued that the employer’s own conduct had ended the employment.

Why: the legal test

The key idea is repudiation. A party repudiates a contract when its conduct would convey to a reasonable person in the other party’s position that it is abandoning the contract, or a fundamental obligation under it. The Commissioner noted it is well established that an employer’s failure to provide work, or to pay wages, where it is obliged to, can repudiate an employment contract. If the employee accepts that repudiation, the employment ends at the employer’s initiative under s 386(1)(a).

The Commissioner found the manager made a conscious decision to leave Mr Poulter off the roster, so he was offered no work and paid nothing. The manager said he had assumed Mr Poulter had abandoned his job. The Commissioner rejected that. Mr Poulter had given notice he would be back on the Tuesday, had explained the missed day, and had asked where he was working. The manager “was far too quick to assume” he had renounced his job, and it was “an unreasonable assumption”. The manager also claimed his 24 March message about shifts was an offer of work; the reasons do not address it, resting on the failure to roster or pay him from 18 March.

Nor was this a lawful stand down. Section 524 lets an employer stand down employees without pay only where they cannot usefully be employed because of industrial action, a breakdown of machinery or equipment, or a stoppage of work the employer cannot reasonably be held responsible for. There was no evidence of any of those, and nothing in his contract allowed it.

So the employer had breached the contract in a way that repudiated it. Following a Full Bench decision, the Commissioner held that Mr Poulter accepted the repudiation by filing his unfair dismissal application. He was dismissed within the meaning of s 386(1)(a), and the objection was dismissed.

What happened next

This decision answers only the threshold question. It does not decide whether the dismissal was unfair or what remedy, if any, he should get. The Commissioner said the matter would now be listed for further programming.

What this means for you

If you are a permanent employee and your employer stops rostering or paying you, that can amount to a dismissal even though nobody said “you’re fired”. Unpaid stand down is allowed only in narrow circumstances, and here one unexplained absence, once explained, was not abandonment.

Keep your messages, tell your employer in writing that you are ready and willing to work, and get advice early. If you treat the situation as a dismissal, the time limit for an unfair dismissal claim is short: 21 days from when the dismissal takes effect.