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].