Casual Employee's Entitlement To Unfair Dismissal Protection

Casual employees in New South Wales often face uncertainty regarding their protection from unfair dismissal. Two Fair Work Commission (FWC) decisions in 2022 have shed light on the circumstances under which casual employees can qualify for unfair dismissal protection. These decisions were influenced by recent rulings from the High Court, which emphasised the significance of written employment contracts in determining the nature of employment relationships.

At Bentham Sydney Employment Lawyers, we specialise in navigating these complex legal matters, ensuring that casual employees and employers understand their rights and obligations under the law. If you believe you have been unfairly dismissed as a casual employee, or if you are an employer dealing with a dismissal issue, contact us for a free initial consultation.

How Casual Employees Qualify for Unfair Dismissal Protection

To be eligible for unfair dismissal protection under the Fair Work Act 2009 (Cth), a casual employee must meet several criteria. These include serving the minimum employment period of six months (or 12 months for small business employers with fewer than 15 employees). However, casual service only counts if the employment was regular, and there was a reasonable expectation that the employment would continue on a regular and systematic basis.

This test, as outlined in section 384(2)(a) of the Fair Work Act 2009 (Cth), requires casual employees to demonstrate:

1. Regular casual employment, meaning there was consistent engagement over time, and

2. A reasonable expectation of continuing employment on a regular and systematic basis.

Recent Fair Work Commission decisions have further clarified what constitutes “regular and systematic” employment, and whether a casual employee's expectation of ongoing work is considered reasonable.

Determining Regular and Systematic Employment

In Angele Chandler v Bed Bath N' Table Pty Ltd [2020] FWCFB 306 and Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019, the Fair Work Commission examined the regularity and systematic nature of casual employment. In these cases, casual employees were found to have worked consistent shifts, often in accordance with pre-determined rosters, which supported their claim for unfair dismissal protection.

The key takeaway is that if casual work follows a rostered schedule, and shifts are assigned consistently over time, the employment may be regarded as regular and systematic. At Bentham Sydney Employment Lawyers, we can assess your work pattern to determine if you meet the criteria for unfair dismissal protection.

Is the Expectation of Continuing Employment Reasonable?

The second aspect of the test is whether a casual employee had a reasonable expectation of continuing work on the same regular and systematic basis. Recent Fair Work Commission decisions have turned to written employment contracts to resolve this issue, drawing from influential High Court rulings such as Workpac Pty Ltd v Rossato & Ors [2021] HCA 23 and CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1.

In these High Court cases, the contractual terms were paramount in determining the nature of the employment relationship, and the FWC has applied this approach to casual workers seeking unfair dismissal protection.

Gu v Geraldton Fishermen's Co-operative Pty Ltd [2022] FWC 1342

In this case, Deputy President Beaumont ruled that Mrs Gu, a casual employee, was not entitled to unfair dismissal protection. The written employment contract expressly stated that there was no expectation of ongoing engagements, and this wording was decisive. The FWC found that the contract negated any reasonable expectation of continuing employment, even though there was limited evidence of the hours worked by Mrs Gu.

Kumnick v FedEx Express Australia Pty Ltd [2022] FWC 2432 (Kumnick) 

Conversely, in the Kumnick case, Deputy President Anderson found that the casual employee, Mr Kumnick, had unfair dismissal protection. Despite the contract stating that no regular work was guaranteed, the FWC ruled that the rostered system of employment and the consistent work patterns gave rise to a reasonable expectation of ongoing work. This decision highlights the importance of reviewing both the contract and the actual working arrangements when assessing eligibility for unfair dismissal protection.

How These Decisions Impact Casual Employees

These recent Fair Work Commission decisions underscore the significance of written employment contracts and regular work patterns in determining a casual employee’s eligibility for unfair dismissal protection. The High Court’s focus on written agreements has had a considerable influence on how the FWC interprets casual employment relationships.

If you are a casual employee who has been dismissed and you believe the termination was unfair, Bentham Sydney Employment Lawyers can help. We will review your employment history and contract to determine whether you are eligible for unfair dismissal protection under the Fair Work Act 2009 (Cth).

 Why Contact Bentham Sydney Employment Lawyers?

Navigating unfair dismissal laws can be complex, especially when determining which legal system applies to your case. At Bentham Sydney Employment Lawyers, we specialise in employment law and have a wealth of experience helping both employees and employers resolve unfair dismissal disputes.

Whether you are an employee seeking to challenge an unfair dismissal or an employer needing advice on the proper procedures to follow, we are here to help. Our team will handle every aspect of your case, from initial consultations to representing you in conciliation or hearings.

For advice, please contact Bentham Sydney Employment Lawyers, expert employment law solicitors.