Employees may have a right to make a claim for unfair dismissal if they believe that the dismissal was harsh, unjust or unreasonable. This right may only arise, however, after a period of time and once the employee satisfies other criteria. Employees who are employed on a casual basis, for example, can only apply for unfair dismissal in certain circumstances. This article will discuss the threshold that casual employees need to meet to apply for unfair dismissal – namely the three elements set out in the Fair Work Act 2009 (Cth). 

Minimum Period of Employment

Employees will need to have worked for the minimum employment period. For employees in a small business, the minimum employment period is twelve months and six months for employees in a non-small business. A small business is defined as a business with less than 15 employees. The employer needs to regularly and systematically employ all 15 employees.

Reasonable Expectation of Ongoing Employment

An employee must have a reasonable expectation of ongoing employment to be eligible for unfair dismissal. For permanent (either part-time or full-time) employees, this is less an issue as either the National Employment Standards or their employment agreement should guarantee ongoing employment. Casual employees, however, by their nature have ad-hoc and irregular hours of work and so may not fulfil the requirement of “ongoing employment”. As some employers may engage a worker on a casual basis, but the employee’s nature is ongoing and regular, a casual employee may have a right to apply for unfair dismissal. This is often a contentious issue for courts which review this on a case-by-case basis.

Regular Systematic Basis

Closely related is the expectation that the employment is “regular” and “systematic”. As each employee/employer relationship is different, the court will need to analyse the facts of a matter to determine whether a casual employee is, in fact, eligible for unfair dismissal.

The Fair Work Commission Decisions

A review of the Fair Work Commission’s (“Commission”) decisions provides insight into the interpretation of the Fair Work Act. The Commission requires an applicant satisfy all elements before determining a casual employee has recourse to apply for unfair dismissal. Some points to keep in mind, particularly in regards to the interpretation of “regular and systematic”, include:

  1. A wide range of hours will not necessarily indicate that the work was irregular. For example, where an applicant worked between 28 and 40 hours per week and had an obligation to inform their employer of their inability to work, the Commission found that employment was on a consistent and regular basis.
  2. A casual employee who works according to seasons or depends on contract work may still be considered employed on a “regular and systematic” basis. For example, where an applicant worked according to a roster on a seasonal basis, the Commission decided that this was “regular and systematic”. The Commission also considered the communication between the employer and employee to offer and accept jobs, as well as the fact that the applicant’s only job was with the employer.

From the above examples, the Commission typically uses a lower threshold to determine the issue of “regular and systematic”. Further, the Commission tends to make considerations not only of the nature of the employment but also the relationship of the employee with the employer.

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As with most legal matters, the facts of your situation may vary. If you are a casual employee or an employer with casual employees, get in touch with our employment lawyers on 1300 544 755.

Kristine Biason

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