The Fair Work Commission has recently handed down a decision which provides increased access to unfair dismissal claims by casual workers. Particularly those employees engaged in the labour hire industry.

In the case of Robert Smith v Goldfields People Hire Pty Ltd [2017] FWC 6730 (“Goldfields”) a casual worker made an unfair dismissal application for a remedy in relation to alleged unfair dismissal. Mr Smith was engaged by Goldfields, a labour hire company in the position of a truck driver. Mr Smith was required to work 4 days on, 4 days off, 3 nights on, 3 days off on roster for approximately 10 months. Due to the change in staffing arrangements Goldfields no longer required the Mr Smith’s services and terminated his employment.

Mr Smith applied to the Commission for an alleged unfair dismissal. Goldfields argued that as a casual employee Mr Smith had no reasonable expectation of continuing employment on a regular and systematic basis.

The Commission found that Mr Smith’s employment contract was clear and there was no evidence to suggest that the terms of employment were limited to a specified task.

The Commission’s approach to this case suggests that each case will be dealt with on a one on one basis and that the Commission will not only look at the contract of employment but rather the legislative framework also.

The legislative framework that the Commission relays upon is section 384 of the Fair Work Act 2009 (Cth) which states that the employee will need to have accrued 6 months of continuous service before they can make an unfair dismissal claim. With this in mind the period of service will only count if:

  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 term regular was interpreted to mean ‘frequent’ or ‘often’ and the term systematic was interpreted to mean ‘not require the worker to be able to foresee or predict when his or her services may be required’ but merely that there be a sufficient pattern of engagement that occurs as a consequence of an ongoing reliance upon the worker’s service as an incident of the business by which he or she is engaged.

The term regular was defined as ‘frequent’ or ‘often’ and the term systematic was defined to mean ‘not require the worker to be able to foresee or predict when his or her services may be required’.

This case highlights the importance of drafting employment contracts in a way that the employee will have no expectation of permanent employment. With this in mind, the employment contracts should be sufficiently clear and predictable as to when the task will be completed in order to prevent an employee from holding a reasonable expectation of continuing employment.

If you would like to find out more about casual workers and unfair dismissal, give JFMLAW a call on 02 9331 0266.