Reading time: 4 minutes

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”.


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.


Construction Contract Essentials

Thursday 12 August | 11:00 - 11:45am

Understand how construction contracts are drafted and how to protect your construction business.
Register Now

Startup 101: Understanding Cap Tables and ESOPs

Thursday 19 August | 11:00 - 11:45am

Cap tables and employee share option plans are essential for fast-growing startups. Learn more with this free webinar.
Register Now

Expanding to NZ: Structuring Your Business For Success

Thursday 26 August | 2:00 - 2:45pm

Launching a business in New Zealand? Understand how to structure your business for success with this free webinar.
Register Now

Preventing Modern Slavery: Your Business’ Legal Obligations

Thursday 9 September | 11:00 - 11:45am

Are you an Australian business with $100m+ annual consolidated revenue? Learn how to determine if you are a modern slavery reporting entity and your obligations under the legislation with this free webinar.
Register Now

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. From just $119 per week, get all your contracts sorted, trade marks registered and questions answered by experienced business lawyers.

Learn more about LVConnect

Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • 2020 Excellence in Technology & Innovation – Finalist – Australasian Law Awards 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice – Winner – Australasian Lawyer 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards 2021 Law Firm of the Year - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer