A full-time employee who is taking parental leave has asked to return to work 3 days per fortnight. He has been employed for more than 15 years and has used most of his long service and annual leave. We are willing to employ him on a casual basis for these days. We do not have any part-time employees but we have casual employees who work regular days. He said that for us to employ him as a casual we would have to fire him or he would have to resign.
Can we notify him of our offer to employ him on a casual basis only? Do we pay out his remaining entitlements, or do we hold them until he decides to leave or return to his full-time position in the future?
The employee has a right to request flexible working arrangements on his return from parental leave. The business has an obligation to consider the request and respond in writing within 21 days. The business can only refuse the request if it has reasonable business grounds to do so.
If you want to agree to the request and engage the employee as a casual, you will need to consider whether the arrangement meets the definition of a casual employee. The Fair Work Ombudsman defines a casual employee as someone who:
- has no guaranteed hours of work;
- usually works irregular hours;
- does not get paid sick or annual leave; and
- can end employment without notice.
If the employee doesn’t fit within this definition, you will need to consider engaging him as a part-time employee.
Alternatively, if the employee agreed to resign and could be reemployed as a casual, you would have to pay out his entitlements. If he changed back to full-time, his entitlements would start from zero (unless he is re-engaged within 3 months and then his continuity of employment would not be broken).