Although many businesses assume that hiring employees as “casual” workers will limit their risks in facing unfair dismissal claims, casual employees are entitled to make an unfair dismissal claim. The threshold for a successful claim, however, is higher for casual employees. If an employee reaches the minimum employment period (6 or 12 months for small businesses), he or she can typically lodge an application for unfair dismissal – a casual employee must satisfy additional criteria.

This article will set out what a casual employee must establish to succeed in an unfair dismissal claim and the factors a court will consider.

What Does the Legislation Say?

Section 382 of the Fair Work Act 2009 (Cth) (the Act) sets out what criteria an employee must fulfil for a successful unfair dismissal application:

  1. Complete the minimum period of employment (6 or 12 months);
  2. Reasonable expectation of similar on-going employment; and
  3. For casual employees, employed during the minimum period of employment on a “regular systematic basis”.

The definition of “regular systematic basis” is contingent on the court’s interpretation.

Example 1 – Contract Work

Some businesses employ casual workers as their organisation is dependent on landing contract work. The contract work may require casuals to work many hours for some periods and very little during periods where there are no running contracts. This is common for many businesses in the construction or creative services industry.

In the matter Ryan v Murray [2016] FWC 2098, the Fair Work Commission (the Commission) considered an unfair dismissal application from a casual employee. Here, the following points were highlighted – that the applicant:

  • Worked each day;
  • Worked an average of 28-40 hours per week;
  • Was required to report to the respondent in case he was unable to attend work.

The Commission found that the applicant’s employment was “regular and systematic”. The Commission highlighted in particular the obligation of the applicant to maintain contact with the employer and the fact that the engagements were an established sequence.

Example 2 – Seasonal Work

Seasonal work is required by many organisations when their need for labour is dependent on certain peak periods. This is very common in the agricultural industry where more labour is required during picking/packing season or the retail industry, during sales and holiday periods.

In the matter Scott Greene v Hobart Historic Cruise T/A Hobart Historic Cruise [2014] FWC 5071, the Commission also needed to determine whether a casual employee’s unfair dismissal application would be successful. In considering the nature of employment, the applicant:

  • Had a similar pattern of work each year;
  • Had varied work depending on customer demands/season;
  • The employer would offer work to the applicant and the applicant would accept the work; and
  • Did not do any other work.

The Commission also found the applicant’s employment to be “regular and systematic”. This is because regular and systematic work can also be seasonal or irregular. The Commission stated that a continuing relationship was established between the employer and employee where the other had come to rely on the offer of the seasonal work each year.

What Does This Mean for Employers?

Although the Commission will always decide on a case by case basis to determine whether employment is regular and systematic, the above two cases indicate that the Commission has generally applied a lower threshold casual employees must meet. Employers should be aware of the possibility that unfair dismissal claims may be made against them and the criteria for determining an employee’s success is whether the employment was “regular and systematic”.

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If you have any questions about your rights as an employee or your obligations as an employer, get in touch with our employement lawyer on 1300 544 755.

Kristine Biason

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