Employers often supplement their workforce by utilising casual employees to perform work in addition to that performed by permanent employees. While such engagements might start out as irregular (or, truly casual), it is not uncommon for casual employment to become regular and systematic, and for a casual employee to develop an expectation of continued employment.

Risks then arise when those regular casual employees are dismissed from their employment, as the law can provide them with some protection from unfair dismissal.

To access the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth) (FW Act) and be eligible to make a claim for unfair dismissal, employees must have been employed for a minimum period of 6 months (or 12 months for small business employers with less than 15 employees). In order for casual employees to satisfy this minimum employment period, they must be able to establish that they were employed on a regular and systematic basis and had a reasonable expectation of continuing employment.

The Full Bench of the Fair Work Commission, in Chandler v Bed Bath N’ Table Pty Ltd [2020] FWCFB 306, recently considered an appeal by a casual employee against a decision dismissing her unfair dismissal application because she had not completed the minimum employment period.

The employee was a Casual Sales Assistant and was employed for a total period of 8 months and 3 days. In response to her claim that she was unfairly dismissed, the employer raised a jurisdictional objection and argued that her period of employment did not count toward the employee’s “minimum employment period” as she was not employed on a regular and systematic basis and did not have an expectation of ongoing employment on a regular and systematic basis.

In support of its objection, the employer submitted evidence of the days and hours that the employee worked. At first instance, the Deputy President considered this evidence and agreed with the employer that the employee was not regularly employed as there was no pattern in the days of the week and shift lengths worked by the employee. The Deputy President also found on the evidence that the employee did not have a reasonable expectation of ongoing employment.

Accordingly, the employee’s unfair dismissal application was dismissed on the basis that she was not employed for the minimum employment period and was therefore not entitled to make a claim for unfair dismissal.

The employee appealed the decision of the Deputy President, arguing that she erred in her conclusion about the regular and systematic nature of her employment. The employee’s arguments included that:

  • she was rostered on shifts on a monthly roster which was prepared in advance;
  • she had an ongoing employment contract;
  • she worked three to four shifts on a weekly basis for 32 weeks; and,
  • while the days and hours of work varied, her employment was regular and systematic.

The employee also argued that she had an expectation of ongoing employment as the employer had other long-standing regular and systematic casual employees and the rostering system (where shifts where planned monthly in advance) created the expectation of ongoing employment.

On appeal, the Full Bench held that the Deputy President’s conclusion was a significant error of principle. It held that the Deputy President only considered whether there was a regular pattern of engagement in the number of days worked, the days worked and the shift length to determine whether the employment was regular and systematic. The Full Bench held rather, having regard to case law, that it was the employment that needed to be “regular and systematic” and not just the hours of work performed. 

Using the correct test, the Full Bench concluded that the employee’s employment was on a regular and systematic basis. For the Full Bench, the evidence demonstrated that the employee’s employment was regular as she was employed every week during the period, working 3 or 4 shifts weekly. Further, the employment was systematic as it was arranged under a monthly roster system in advance and under an ongoing employment contract.

The Full Bench also determined that the employee had a reasonable expectation of ongoing employment on a regular and systematic basis having regard to the ongoing employment contract, the monthly roster system and the overall frequency and amount of work performed by the employee with the employer. 

The Full Bench’s conclusion meant that the employee’s period of service counted for the purposes of the minimum employment period, and as such, the employee was protected from unfair dismissal and eligible to make an unfair dismissal claim.

The employee’s unfair dismissal application has been referred back to the Fair Work Commission for determination. 

Lessons for employers

Employers should regularly review and assess casual employment engagements, particularly where long-term or “regular” casuals are utilised to ensure that they are properly characterised. This case demonstrates that the courts and tribunals will look at the entire engagement to determine whether the employment was regular and systematic and not just whether there was a regular pattern of the hours of work performed each week.

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