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:

• has served the minimum employment period, being 6 months (or 12 months for employers that meet the definition of a ‘small business employer’);
• their remuneration is below the high-income threshold (currently $142,000) or the position is covered by a modern award;
• they were “dismissed” within the meaning of the Fair Work Act;
• the dismissal was a case of “genuine redundancy”;
• casual employees are only entitled to unfair dismissal remedy if the employment is regular and systematic and there is a reasonable expectation of ongoing employment.

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:

• whether regular offers of suitable work were made to the employee during times where they had indicated their general availability;
• offers of work have been regularly accepted by the employee so that the work was not occasional;
• whether the offers of work were contingent on another factor (i.e. another employee being sick or otherwise unavailable).

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:

• ensuring there is a valid reason for dismissal and communicating these reasons to the employee;
• giving the employee an opportunity to respond to the reasons for dismissal prior to effecting the dismissal;
• where the reasons are performance-related, providing sufficient warnings to the employee that the employment is at risk of termination unless improvement is made; and
• allowing the employee to bring a support person to meeting/discussions (if requested and appropriate).