Dea Chang Kim v The Marlow Family Trust No3
Citation: [2026] FWCFB 132
What happened
Mr Dea Chang Kim worked as a casual chef at several Sydney hotels operated by the Marlow Family Trust No 3. He applied to the Fair Work Commission for an unfair dismissal remedy after being removed from the staff roster. Deputy President Cross dismissed his application on 27 March 2026, finding that Mr Kim had not been dismissed. The Deputy President accepted that Mr Kim was engaged on a regular and systematic basis, with rosters provided three weeks in advance, but found no contractual obligation on the employer to provide ongoing shifts. The removal from the roster was therefore not treated as dismissal, and later offers of occasional casual shifts meant Mr Kim remained employed. Without a dismissal, the Commission had no jurisdiction to hear the unfair dismissal claim. Mr Kim appealed to the Full Bench under section 604 of the Fair Work Act 2009.
What was decided
The Full Bench granted permission to appeal. It found that Mr Kim raised an arguable case of appealable error, specifically that the original decision may have failed to recognise that removing a regular casual employee from a roster, which had consistently provided regular shifts, could amount to dismissal at the employer's initiative. The Full Bench identified a tension in the original decision between finding that Mr Kim's engagement was regular and systematic, while also finding no contractual basis for continued regular shifts. The matter was considered to be in the public interest because it raises a question of broad importance: whether a regular casual worker is dismissed when they are removed from a roster that had reliably provided them with work. Permission to appeal was granted; the substantive appeal has not yet been decided.
What it means for employers
Employers who use casual rosters to allocate shifts to long-standing casual employees should be aware that removing a casual worker from a roster may, in some circumstances, be treated as a dismissal under the Fair Work Act. This is particularly relevant where the casual has worked on a regular and systematic basis over an extended period. Simply offering occasional shifts afterwards may not be enough to avoid a finding of dismissal. Employers should seek advice before removing regular casuals from rosters.
What it means for employees
Casual employees who work regular and systematic hours and are then removed from a roster may have grounds to argue they were dismissed, even if they are not formally told their employment has ended. This decision confirms that the Full Bench considers this an important and unresolved question. Casual workers in this situation should consider whether they may be eligible to lodge an unfair dismissal application, and act promptly given the 21-day time limit from the date of dismissal.
Every statement above is drawn from the published decision. Read the original here:
https://www.fwc.gov.au/document-view/decisions/dea-chang-kim-v-the-marlow-family-trust-no3-2026-fwcfb-132Want more cases like this?
FairWork Mate tracks Fair Work Ombudsman, Fair Work Commission and Federal Court decisions across Australia. The full dataset, with structured fields for awards cited, industry, penalty amounts and affected employee counts, is available through the Business API. FairWork Mate AI answers plain-English questions grounded on the full corpus.
Individual case summaries on this site are free. API + AI access is a paid product. Contact us for pricing or a 50% off first month.
Get notified on new Fair Work cases
Free email alerts when we publish new underpayment decisions, penalty orders, and workplace law updates.
Free forever. No spam. Unsubscribe anytime.
This summary was drafted by AI from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →