Regular and systematic employment for casuals doesn’t require predictability

Regular and systematic employment for casuals doesn’t require predictability

A Full Bench of the Fair Work Commission has overturned an earlier decision that had ruled ineligible a period of casual service when determining whether a dismissed employee could pursue an unfair dismissal claim. The Full Bench stressed the assessment involves consideration of all relevant factors, particularly that the pattern of hours a casual employee works does not necessarily have to be predictable.

Under section 384(1) of the Fair Work Act 2009 (the Act), periods of service as a casual employee do not count towards an employee’s ‘period of employment’ unless two tests are satisfied – firstly, that the employment was on a ‘regular and systematic’ basis, and secondly, that the employee had a reasonable expectation of continuing employment. In the initial decision, Vice President Binet accepted the employer’s submissions, Floreat Hotel Pty Ltd (Floreat), that the employee’s circumstances did not satisfy either requirement.

The employee had commenced as a casual with Floreat on 24 February 2019, became a permanent full-time employee on 20 January 2020, and was subsequently terminated effective from 16 April 2020. Initially employed as a food and beverage attendant, after a few weeks, she was allocated duties of an assistant manager when she commenced working a regular roster.

The Full Bench regarded several elements significant in their decision. They noted that the employee worked both rostered hours and routinely, additional hours when other staff were unavailable or during peak times. Except for a period when she was on pre-arranged holidays and away from the hotel, she averaged 36 hours per week, each consecutive week, which they accepted was ‘regular’ employment.

Further, the employee worked a roster in which consultation with her manager occurred routinely, and her rostered hours (as opposed to additional hours) formed the majority of the hours she worked. As they commented,

“We consider that regular casual work undertaken in accordance with an established rostering system may reasonably be described as ‘systematic’ in nature”.

The employee was also involved in the development of the rosters, and as she described, “I was always given first choice of hours and days”.  As the Full Bench summarised,

“If Ms G was effectively able to select when and for how long she worked out of the available hours for each upcoming work, it is difficult to avoid the conclusion that she had a reasonable expectation of continuing employment on the same basis as her past employment”.

Consequently, the Full Bench regarded the employee’s casual employment from 4 March 2019, the point at which she commenced the duties of an assistant manager, was employment on a regular and systematic basis, and her unfair dismissal application was referred back to Vice President Binet for determination.

AG v Floreat Hotel (C2020/7223) (11 November 2020)

For queries about jurisdictional matters or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178,     1300 WAL LAW 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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