Home - When can casual employees seek an unfair dismissal remedy?

UpdatesMar 21, 2018

When can casual employees seek an unfair dismissal remedy?

Unfair dismissal occurs when an employee is dismissed harshly, unjustly or unreasonably.

By Lauren Drummond

Unfair dismissal occurs when an employee is dismissed harshly, unjustly or unreasonably. Under the Fair Work Act 2009 (Cth), employees are entitled to seek an order from the Fair Work Commission (FWC) to make the former employer reinstate or compensate them because they have been unfairly dismissed.

But does that only apply to full-time workers. Can casual workers make a claim, too?

In Gwatkin v Sai Group of Businesses t/as Premier Hotel Punjarra (2018), the employer objected to the unfair dismissal application on the basis that the applicant was a casual employee and/or had not served the minimum period of employment.

The facts…

In order to seek a remedy in the unfair dismissal jurisdiction, an applicant must meet the following criteria:

Turning to the facts in this case, the employee was engaged on a casual basis between 28 October 2016 and 10 December 2017. His hours of work varied but based on the payslips provided to the FWC, Commissioner Bisset observed that he would generally work between 40-50 hours per fortnight.

 What this means…

Casual employment will not count towards the period of service with the employer unless it is regular and systematic, and there is a reasonable expectation of ongoing employment.

‘Regular and systematic’ requires the FWC to review of the pattern of work and not what was intended by the employer, such as:

Having regard to the actual pattern of work undertaken by the employee, the FWC determined that the employment was ‘regular and systematic’, which was reflected in the number of hours worked and that these hours were worked fortnightly for the duration of the employment.

The circumstances of the employment also indicated that the employee had a reasonable expectation of ongoing employment. This was based continuing work being available being offered. Despite that the availability of the work was reducing, it did not affect the employee’s expectation of ongoing employment.

On this basis, it was determined that the employee had served the minimum employment period and was entitled to unfair dismissal remedy (however, the employee still had another jurisdictional hurdle to overcome in this matter, being that he was “not dismissed”, which the FWC is to determine at a later hearing).

Lessons for employers

Casual employees are utilised by employers for different reasons. However, employers may become exposed to unfair dismissal claims if the types of arrangements are similar to those mentioned in this case and the arrangement ends abruptly, and without a valid reason.

Casual employees are not entitled to notice of termination but this does not mean employers should ignore those steps that will protect them against an adverse finding in an unfair dismissal claim. This may include:

 

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