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Can a casual employee claim unfair dismissal?

Can a casual employee claim unfair dismissal?

Most employers are aware that an unfair dismissal claim is open to all employees under permanent type arrangements. This typically and most commonly includes employees in a permanent full-time or part-time employment arrangement where there is a belief that their dismissal was harsh, unjust and/or unreasonable. Furthermore, it is a claim only available to employees who have served at least the minimum employment period being either 6 or 12 months depending on the number of employees employed by the employer.

The question then, is whether a casual employee is entitled to make a claim for unfair dismissal?

The answer is yes.

The difference, however, is that a casual employee must satisfy a separate set of requirements under the section 384 of the Fair Work Act 2009 (Cth) (FW Act) to illustrate that they meet the requisite period of service and, as such, meet a continuous period of employment. Section 384(2) of the FW Act states:

A period of service as a casual employee does not count towards the employee’s period of employment unless:

  1. The employment as a casual employee was on a regular and systematic basis; and
  2. During the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

The definition of ‘regular and systematic basis’ is not provided in the FW Act, however case law provides us with some guidance in this respect.

The following principles were established in Ponce v DJT Staff Management Services Pt Ltd [2010] FWA 2078 to illustrate that ‘regular and systematic basis’ can be present even where there is no clear pattern or roster of employment:

  • A casual employee that works varying hours from week-to-week or month-to-month, and/or has different starting and finishing times, is not conclusive evidence of irregular non-systematic employment.
  • Unpredictable but frequent casual work may constitute regular and systematic employment.
  • If the number of hours works are small, and the gap between days and times worked is long and irregular, this is evidence of an irregular and non-systematic casual employment.

Further to the above, the test often applied as to whether an employee had a ‘reasonable expectation of continuing employment’ is ‘whether or not during a period of at least six months prior to the dismissal… the employee had… a reasonable expectation of continuing employment on a regular and systematic basis.’[1]

In any event, the Fair Wok Commission will analyse each case on its own merits.

For advice regarding casual employees and unfair dismissal, contact Limestone Law Pty Ltd today.  

[1] Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic [2010] FWA 2078, [76].

Can a casual employee claim unfair dismissal?2019-04-30T11:30:05+00:00

The risks associated with self-representation at the Fair Work Commission

The risks associated with self-representation at the Fair Work Commission

Have you recently been dismissed from your workplace and are considering representing yourself at the Fair Work Commission (FWC)? Stop right there.

Many individuals believe that appearing for themselves before the FWC is their only or best option. Both of these perceptions are often influenced by the belief that their matter is straight forward. However, the Law Council of Australia has demonstrated that there are significant risks associated with self-representation. Namely, self-represented litigants tend to appear before the Commission ‘under-prepared, overwhelmed and without any clear sense of the issues to be determined, and the manner in which those issues will be determined’. This lack of experience and understanding of the conciliation process is likely to result in a less targeted approach during conciliation, which creates a kind of back-pedalling when it comes to resolving the dispute.

This is where the advantage of representation lies. At Limestone Law Pty Ltd, we have a team of experienced employment lawyers who are aware that the stress of being dismissed is one thing and commencing legal proceedings as a result is another. It is no secret that the legal justice system can be a battlefield, and for those involved in pursuing a claim for compensation as a result of being dismissed, it can be daunting, stressful and confusing. The purpose of representation is to alleviate the pressure, answer the questions and resolve the dispute at the earliest stage.

If you are considering lodging an unfair dismissal application, and find yourself asking questions such as ‘what if I lodge the wrong claim’, ‘what if my claim is outside the limitation period’, and ‘what do I write in my claim’, contact our office to speak with an experienced lawyer now.

The risks associated with self-representation at the Fair Work Commission2019-04-30T11:35:29+00:00

Limestone Law Pty Ltd opens offices in Sydney and Brisbane

Limestone Law Pty Ltd opens offices in Sydney and Brisbane

Limestone Law Pty Ltd is pleased to announce the opening of offices in Sydney and Brisbane with a view to servicing the employment law needs of employees and small businesses located across New South Wales and Queensland.

The firm will trade as Law At Work in New South Wales and Queensland, and will exclusively provide specialist employment law services to residents of these states.

The population of Queensland is almost identical to that of Victoria. However, Queensland is almost eight times the size of Victoria. This presents some challenges for Queensland residents located in regional and remote areas. Furthermore, many residents are employed in the mining sector, some on a ‘fly in-fly out’ basis. This can make it difficult for them to obtain specialist employment law advice and legal representation.

Limestone Law is committed to establishing further offices in Queensland and New South Wales which will, in time, have the effect of increasing access to specialist employment law services.

Our offices in Sydney and Brisbane will open on 7 January 2014, subject to any necessary regulatory approvals.

Limestone Law Pty Ltd opens offices in Sydney and Brisbane2019-04-30T11:37:16+00:00