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March 2020

Fair Work Commission clarifies ‘regular and systematic’ casual employment

Fair Work Commission clarifies ‘regular and systematic’ casual employment

The Case

Chandler v Bed Bath N’ Table Pty Ltd (2020)

Ms Chandler was employed as a casual sales assistant for Bed Bath N’ Table Pty Ltd (BBNT) for 8 months and 3 days. When Ms Chandler’s employment was terminated, she commenced unfair dismissal proceedings in the Fair Work Commission (FWC) against BBNT.

BBNT objected to the claim, arguing that Ms Chandler’s period of employment did not count towards the employee’s “minimum employment period”.

For a casual employee’s period of service to count towards the minimum employment period:

  • the employment of the casual employee must have been on a “regular and systematic” basis; and
  • the employee must have had a reasonable expectation of continuing employment on a regular and systematic basis.

The Verdict

At first, the FWC found Ms Chandler was not a regular and systematic casual employee.

The FWC found:

  • there was no pattern in the days and shift lengths Ms Chandler worked; and
  • Ms Chandler did not have a reasonable expectation of ongoing employment.

The FWC therefore dismissed Ms Chandler’s unfair dismissal application.

Ms Chandler appealed the decision to the Full Bench of the FWC. She argued that she was employed on a regular and systematic basis because:

  • she was rostered on a monthly roster, prepared in advance;
  • her employment contract indicated ongoing employment;
  • she worked three to four shifts on a weekly basis for 32 weeks; and
  • while the days and hours of work varied, her employment was regular and systematic.

Ms Chandler argued she had an expectation of ongoing employment based on:

  • her employment contract;
  • the fact that BBNT employed other long-standing regular and systematic casual employees; and
  • the rostering system (where shifts were planned and advised monthly in advance).

The Full Bench of the FWC agreed with Ms Chandler and overturned the first instance decision. It found that the focus needed to be on the employment being “regular and systematic”, not on the hours of work being regular and systematic in nature. It also agreed that Ms Chandler had a reasonable expectation of ongoing employment on a regular and systematic basis. Given this, the Full Bench agreed that Ms Chandler had satisfied the minimum employment period and was eligible to make an unfair dismissal claim. As such, it referred Ms Chandler’s unfair dismissal application back to the FWC for determination.

The Lessons

This case demonstrates:

  • the FWC will examine the casual employee’s entire period of casual engagement(s) in determining whether the casual employee is a regular and systematic employee;
  • the focus should not be on whether the hours of work fit a regular pattern; and
  • you should take care when drafting casual employment contracts to ensure there is no unintentional expectation of ongoing employment.

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