As an employer, you are probably aware that your permanent employees can make unfair dismissal claims. They may do this where you have terminated their employment and they believe it to be harsh, unjust or unreasonable. Permanent employees who you have employed for at least six or 12 months can make a claim. What is less clear is whether your casual employees can make a claim for unfair dismissal. This article outlines:

  • what an unfair dismissal claim is; and
  • the circumstances where your casual employees might be able to make a claim. 

What Is an Unfair Dismissal Claim?

An employee may make an application to the Fair Work Commission for reinstatement or compensation in circumstances where they believe they have been unfairly terminated. This is called an unfair dismissal claim. An employee’s termination may be unfair if the dismissal was:

  • harsh;
  • unjust; or
  • unreasonable.

The employee must also meet the eligibility criteria to make an unfair dismissal. They must:

  • lodge their application within 21 days of the dismissal;
  • be covered by the national workplace relations system; and
  • meet the eligibility criteria (including the minimum qualifying period).

Who Is Eligible to Make an Unfair Dismissal Claim?

One of the eligibility requirements is that your employee must have been employed for at least six months before they can apply for unfair dismissal. If you run a small business, employees have to be employed for at least 12 months before they can apply. A small business is a business with fewer than 15 employees at the time you dismissed the employee making a claim.

For small businesses, there are slightly different rules for dismissal. The Small Business Fair Dismissal Code sets out these rules. To figure out whether your business is a small business, you will need to count all the employees employed at the time of dismissal, including:

  • the employee and other employees you are dismissing at that time;
  • regular and systematic casual employees employed by the business at the time (not all casual employees); and
  • employees of associated entities (including those not based in Australia).

Other eligibility requirements include the employee’s remuneration. The employee’s remuneration must be below the high-income threshold of $153,600.

Are Casual Employees Eligible to Make an Unfair Dismissal Claim?

Casual employees are only entitled to an unfair dismissal remedy if their employment is: 

Regular and systematic requires an objective consideration of the nature and frequency of the work carried out by the employee, including whether regular offers of work were:

  • made to the employee during a time where they had indicated their general availability;
  • accepted by the employee so the work was not occasional;
  • contingent on another factor, like another employee being sick or otherwise unavailable.

If your casual employee makes an unfair dismissal claim, the Fair Work Commission will review the pattern of work. 

Having regard to the actual pattern of work the employee undertakes, the Fair Work Commission may determine that the casual employee can make a claim. The Fair Work Commission would also need to be satisfied with the other eligibility criteria, including that they:

  • were ‘dismissed’; and
  • had served the minimum qualifying period. 

Key Takeaways

If you are considering terminating a casual employee, you should first examine that employee’s pattern of work. This will allow you to determine whether your employee can make an unfair dismissal claim if you end their employment abruptly and without a valid reason. As a precaution, if you do need to terminate a casual employee, you should make sure you provide them with: 

  • notice; 
  • a valid reason;
  • time to respond; and 
  • permission to bring a support person to the discussions. 

This is not a legal requirement. However, it may protect you against an adverse finding in an adverse dismissal claim, if your casual employee is eligible to make a claim. If you have any questions regarding the termination of a casual employee or are considering making a claim for unfair dismissal as a casual employee, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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