Can a casual employee make an unfair dismissal claim and how does your rostering system affect a claim’s success or failure?
As a business owner you cannot be unaware of the risks of employing staff on a casual basis. In previous articles we have discussed the dangers of misidentifying permanent part-time workers as casual workers and the real cost of casuals. Now you need to know what you can do to protect yourself from an unfair dismissal claim.
Can a casual employee bring an unfair dismissal claim?
Not all casual employees are entitled to bring an unfair dismissal claim. The Fair Work Act 2020 (FWA) dictates when an employee is ‘a person protected from unfair dismissal’ and therefore eligible to make a claim.
To be eligible under the FWA, you must be a casual employee who is employed on a ‘regular’ and ‘systematic’ basis for a period of at least 6 months. Recent cases have shown how important rostering is when determining whether employment is ‘regular and systemic’.
What is regular?
‘Regular’ employment will occur where there is a repetitive pattern of employment. ‘Regular’ does not necessarily mean employment which is ‘frequent, often uniform or constant’. Employment will be regular if the casual employee has a general expectation to receive the opportunity to work at similar times in the future, though such engagements may be unpredictable.
What is systematic?
‘Systematic’ requires that the employee be engaged through a framework, plan or method. One example of systematic employment is the presence of a weekly roster.
What is an example of regular and systematic employment?
An example of a casual employee being employed on a regular and systematic basis can be found in Amy Greene v Floreat Hotel Pty Ltd  FWCFB 6019 (11 November 2020).
In this case, Amy Greene, a casual employee was employed in excess of 6 months and worked hours pursuant to a weekly roster plus additional hours when asked. The roster was prepared on a weekly basis, however, the employer worked around employee’s requirements and Ms Greene was allowed to select the hours she preferred to work. Her labour was embedded into the fabric of the business and her employer relied on Ms Greene to attend the set shifts by mutual agreement.
Despite the irregularity of the hours worked by Ms Greene, the Fair Work Commission decided that she was a casual employee employed on a regular and systematic basis based for the following reasons:
- That the employment was regular was demonstrated by Ms Greene’s timesheets showing she was offered and consistently worked substantial hours every week;
- The employment was systemic since she worked in accordance with an established rostering system that was set by her employer after discussion with Ms Greene; and
- Ms Greene had a reasonable expectation of continuing her casual employment with her employer on a regular and systemic basis since she was always ‘given first choice of hours and days,’ making it difficult to avoid the conclusion that she had a reasonable expectation of continuing employment on the same basis as her past employment.
We can therefore conclude that work performed pursuant to a rostering system by a casual employee who has reason to expect that they will be given the opportunity to work at similar times in the future (especially if they are given ‘first right of refusal’ when it comes to work hours) will likely result in the casual employee working on a regular and systematic basis thus entitling the casual employee to protection from unfair dismissal.
What should an employer do to protect themselves from a causal employee’s unfair dismissal claim?
There are several strategies an employer can undertake to protect themselves from an unfair dismissal claim from their casual employees:
- First, the employer must set the roster, and must not allow their casual employees to select their own availability;
- Second, operate your business with a larger pool of casual staff so no employee works the same shift each week; and
- Finally, if a casual employee does work the same shifts over a 6 months period, the employer should consider converting the employee to a permanent part–time position.
What the employer cannot do
If an employer is concerned about an employee working regular shifts, the employer should not terminate that employee. The employer must have a legitimate reason for the dismissal. One example of a legitimate reason is a downturn in the profitability of the business.
Furthermore, all employers should have a rostering policy. If you have a significant number of casual employees, consider obtaining an electronic rostering policy to automate this process. These systems are designed to ensure employees do not set their own hours and can alert the employer to the presence of any potential issues.
If you wish to use our pro forma rostering policy or have any further questions about how you can protect your business from unfair dismissal claims, please do not hesitate to contact JFM Law on (02) 9199 8597.
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