In the recent case of Arbon v Bunnings (2023), the Fair Work Commission (FWC) had to determine whether a casual retail worker had served the requisite 6-month qualifying period to make an unfair dismissal claim.

The worker, James Arbon, had lodged an unfair dismissal application after being dismissed by his employer. The employer raised a jurisdictional objection, claiming that Mr Arbon did not work the requisite qualifying period to make an unfair dismissal application given he was a casual employee who:

• was not employed by the employer on a regular and systematic basis; and
• did not have a reasonable expectation of continuing employment on a regular and systematic basis.

The employee’s work arrangement

Employees at the store where Mr Arbon worked received their rosters online. If employees were not able to work a shift as rostered, they would advise their team leader in advance or arrange a swap with another employee. If employees were planning to be absent for a period, they generally advised the store in advance of the roster being prepared and, in that instance, would not be rostered for that period.

Mr Arbon would sometimes work more or less than rostered hours. Sometimes shifts were withdrawn and reallocated to others.

In the 6 months before his dismissal, Mr Arbon made it known to his team leader that as a full-time university student he was able to regularly work on Saturdays and Sundays. He also advised that he could work additional shifts on some weekdays when he did not have course commitments and during tertiary semester breaks.

The store generally rostered him to work shifts on alternate weekends (alternating between him and another employee).

Of the 26 weeks in the 6 months before dismissal, Mr Arbon worked at least 1 day in 21 of these weeks.

Was Mr Arbon regularly and systematically employed?

For a casual employee to have worked on a regular and systematic basis, it is sufficient for their employment to have been:

• ‘regular’, in the sense of being frequent, notwithstanding it being unpredictable; and
• ‘systematic’ in the sense of it being part of a pattern of engagement occurring as a consequence of the business relying on the employee’s services, even if the precise pattern of working may not be foreseeable.

In this case, the number of hours worked in a given week varied and was not predictable given Mr Arbon was rostered according to the store’s needs and his availability around tertiary studies (resulting in some roster changes at short notice). This meant he did not work regularly.

Aside from frequency, there is evidence of a pattern of work whereby Mr Arbon made himself available to work on weekends and was rostered on alternate weekends and, when his studies permitted, supplemented that by making himself available to work on weekdays and was rostered on weekdays according to his availability and store needs. While there were exceptions to this pattern, it was frequent enough for it to be somewhat of a default arrangement.

The employer commonly rostered Mr Arbon on alternate weekends. Of the 26 weekends in the 6-month period, the employee worked at least 1 day on 15 of them. Of those 15, the employee worked both the Saturday and the Sunday on 11 of them.

For these reasons, the FWC ruled the employee was regularly and systematically employed.

The FWC found that:

• the employee’s employment was part of a pattern of engagement occurring as a consequence of the business’ reliance on his services;
• there was an established and identifiable system by which Mr Arbon was offered casual work;
• Mr Arbon was continuously on the books as a casual employee;
• Mr Arbon made his availability known in advance;
• Mr Arbon was provided a roster at least a fortnight in advance of a shift; and
• Mr Arbon was not a casual employee who worked simply when contacted by the employer shortly prior to a shift to ascertain if he was available to work that shift. While that occasionally occurred, it was the exception and not the general position.

Did the employee have a reasonable expectation of continuing employment?

Reasonable expectation requires first determining subjectively whether the employee had an expectation of continuing employment with the employer on a regular and systematic basis, and then an assessment of whether that expectation was objectively reasonable.

In determining whether the expectation was reasonable, regard is had to the employment contract as established at the time employment commenced. However, consideration extends to all circumstances throughout employment, as they prove relevant.

In this case, the FWC ruled that Mr Arbon had an expectation of continuing employment on a regular and systematic basis. He organised his work around his tertiary studies and made this known to his employer. He made himself available on a consistent basis to work on weekends, and to supplement that with weekday work when he was available. Mr Arbon continued to make himself available to again be rostered after having previously been rostered.

The fact he worked a relatively low number of days per week or that his work was secondary to his tertiary studies was irrelevant to his expectation.

Mr Arbon’s contract provided that as a casual you “may” (not shall) be offered shifts and “that you have no ongoing expectation of ongoing employment or guaranteed hours of work”. The FWC considered this was a relevant consideration, which weighs against a finding that a reasonable expectation existed. However, the practical manner in which the contract operated was that for nearly 2 years, the employer offered and the employee accepted casual shifts on a regular and systematic basis. Mr Arbon was rostered to work on days after his dismissal and, but for his dismissal, would have worked those days.

Lessons

Be cautious when determining that an employee is a casual who is not covered by the unfair dismissal jurisdiction. Casuals may still be able to make a claim if they meet the criteria laid out above. You can find out more in the Employment Law Practical Handbook chapter, Unfair Dismissal.