Can a Casual Employee claim Unfair Dismissal?

Can a Casual Employee claim Unfair Dismissal?

Traditionally, one of the few categories of employees who could not access unfair dismissal was ‘casual employees’; however, there are certain caveats now considered by courts to determine whether a casual employee can challenge the ending of their employment relationship or not.

Under the Fair Work Act 2009 (the FW Act), any employee has to have worked the minimum employment period of six (6) months, extended to twelve (12) months if the employer is regarded as a ‘small business’. The FW Act defines a ‘small business’ as one in which less than 15 employees are engaged. The calculation includes all full-time, part-time, and regular casual employees, including the terminated employee and any other employees being dismissed.

With regard to casuals, they must have been engaged on a ‘regular and systematic basis’ prior to their dismissal, with a reasonable belief the employment relationship would continue.

The phrase ‘regular and systematic’ is not defined within the FW Act; however, the courts have provided guidelines as to what it may mean.

In MT v Willall Industries Pty Ltd, a casual employee was regarded as being employed on a ‘regular and systematic basis’. The employee had worked over a total period of 32 months, which included an 11-week period in which the casual did not make himself available for work. However, casual employment since that period, although there were some weeks in which no work was performed, was held to be regular and systematic and gave rise to a reasonable expectation of continuing employment.

In contrast, a casual employee with erratic arrangements, including lengthy periods between engagements, is unlikely to be granted access to unfair dismissal (PH v Imperial Management Queensland T/A Pacific Red Produce).

A similar conclusion was found in LH v UGL Resources Pty Ltd T/A UGL Resources, where a casual employee was engaged for discrete periods of differing duration, not forming any pattern, and there were extensive absences between each period of employment. The employer made it clear on each engagement that there should be no expectation of continuing employment.

When determining whether employment was on a regular and systematic basis, it is not the hours worked that are definitive. A clear and identifiable pattern or roster of hours is strong evidence of regular and systematic employment.

The term ‘regular’ implies a repetitive pattern and does not necessarily mean frequent, often, uniform or constant. The term ‘systematic’ requires that the engagement be ‘something that could fairly be called a system, method or plan’.

Where there is no clear pattern or roster, evidence of regular and systematic employment can be established where:

  • the employer offered suitable work when it was available at times that the employee had generally made themselves available, and

  • work was offered and accepted regularly enough that it could no longer be regarded as occasional or irregular.

For a casual employee, each occasion of employment is regarded as a separate contract of employment irrespective of whether the contracts are week to week, shift to shift, hour to hour or for any other agreed short period.

For the purpose of unfair dismissal, it is the period of service rather than the period of employment that is relevant. If the conditions of s.384(2)(a) of the FW Act are satisfied, then a period of service by a casual employee will count towards the period of continuous service.

Mr MT v Willall Industries Pty Ltd (U2011/8224)

[2011] FWA 6300

Mr PH v Imperial Management Queensland Pty Ltd T/A Pacific Red Produce (U2011/10362)

[2011] FWA 8099

LH v UGL Resources Pty Ltd T/A UGL Resources (U2011/11538)

[2012] FWA 3453

For queries about casuals, defining employees, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 925 529 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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