by Angela Szczepanski, Senior Associate, and Ben Desir, Workplace Advisor
Casual employment and dismissal
It is common practice for a retailer to employ casual employees due to the relative simplicity of the arrangement (e.g. paid a loading in lieu of leave entitlements).
However, did you know that casual employees could have the same rights as permanent employees with respect to unfair dismissal laws if terminated from their employment?
The Fair Work Act 2009 (Cth) (the Act) protects an employee from unfair dismissal where they have completed a minimum period of employment. Section 384(2) of the Act states that a casual employee’s period of service will not count towards the minimum period of employment for the purposes of applying for unfair dismissal unless:
- They were employed on a regular and systematic basis; and,
- During that period of service, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
In certain circumstances, it is possible that:
- a casual employee’s period of service could meet the ‘minimum period of employment’ requirements
- deemed to be a permanent employee under the Act, and
- have access to unfair dismissal laws and other protections.
The Fair Work Commission (FWC) considered this in Findley v Diamond Protection Pty Ltd.
In Findley, an employee had taken on a casual position as a night manager to back up full-time employees. After the employment relationship had ended, the employee filed an application for an unfair dismissal. The employer objected to this application because (they believed that) as a casual, the employee did not meet the minimum employment period.
At the hearing, the Fair Work Commission heard that the employee had worked a period of training shifts, which immediately followed, by two periods where the employee consistently worked shifts with the same hours of work. In considering the jurisdictional objection, Commissioner Ryan found that this indicated that the employee had worked regular and systematic hours.
Commissioner Ryan then established that the employee had a reasonable expectation of continuing employment on a regular and systematic basis. This was despite the fact the employer made it clear that there was no guarantee of shifts and the permanent employees would have first preference to work weekend shifts.
In making his finding, the Commissioner considered (amongst other things):
- evidence of an arrangement between the employer and employee had an arrangement where the employee was offered the same Saturday and Sunday shifts
- that this arrangement would have continued but for the termination of employment
- the employer had not offered the employee’s weekend shifts to any other employees, and
- employee had been redeployed to another department after a serious incident.
Consequently, Commissioner Ryan concluded that the employee’s period of service as a casual employee would count toward his period of employment.
Commissioner Ryan then went on to consider if the employee was a permanent employee rather than a casual.
“It would appear that the Respondent and the Applicant have created something which has every feature of a rooster, but call it a duck and insists that everybody else recognise it as a duck,” said Ryan.
It essential that employers consider if employees hired as casuals have been working regular and systematic hours. If you suspect that they have, this may change the employment relationship and the way you approach dismissal.
Call the NRA Legal team on 1800 RETAIL (1800 738 245) to discuss the correct approach to deal with an employee working regular and systematic hours.