As a business owner, it is not uncommon to operate with a number of full-time, part-time and casual employees. We have discussed the dangers of misclassifying permanent part-time workers as casual workers, and the real cost of casual employees in the past. However, it is important for you to understand the entitlement of a long serving casual employee to protection from an unfair dismissal claim.

When is a casual employee entitled to protection from an unfair dismissal?

One of the criteria to establish a casual employee’s protection from an unfair dismissal is their completion of a ‘period of employment’ for the ‘minimum employment period’.[1]

Generally speaking, a casual employee’s time with their employer will not count towards their ‘period of employment’ unless that casual employee is employed on a ‘regular and systematic’ basis.[2] If you wish to know what ‘regular and systematic’ means, read our article on a recent decision of the Fair Work Commission.

If your casual employee has been employed regularly and through a structured system (such as a roster) they may be entitled to protection from an unfair dismissal if they have worked for a period greater than the ‘minimum employment period’.[3]

What is the ‘minimum employment period’?

If you are a ‘small business employer’ (i.e. you employ less than 15 employees) the ‘minimum employment period’ is 12 months.[4] If you are not a ‘small business employer’ (i.e. you employ more than 15 employees), the ‘minimum employment period’ is reduced to 6 months.[5]

When determining if you are a ‘small business employer’ casual employees will count toward this total if their employment is ‘regular and systematic’.[6] Similarly, employees from related entities (such as an overseas parent company or subsidiary) will count toward this total.[7]

What are the risks?

As an employer, it is critical to understand the potential risks your business is exposed to if it operates with a large pool of casual employees. This is especially true if your casual employees have have worked for your business for a signficant period of time. If you were to dismiss one of these casual employees, your business could easily be exposed to an unfair dismissal claim, and all of its associated costs and stress. Let us help you to avoid this outcome and manage the risk of employing casual employees.

We understand that you do not have the time to get your head around all the rules regulating casual employees. If you need help understanding and managing the risks associated with your long term casual employees, please do not hesitate to contact JFM Law on (02) 9199 8597.

[1] S 382 FWA

[2] S 384 FWA

[3] S 383 FWA

[4] Ss 383, 384 and 23 FWA

[5] S 383 FWA

[6] S 23(2)(b) FWA

[7] S 23(3) FWA