On 23 January 2020, the Fair Work Commission passed down a re-determination in the matter of Angele Chandler v Bed Bath N’ Table Pty Ltd, allowing for casual employees meeting certain criteria to have access to unfair dismissal remedies.
Ms Chandler was employed as a casual at Bed Bath N’ Table for a period of approximately 8 months before she was terminated. Subsequently, she lodged an application for unfair dismissal, seeking reinstatement and the payment of compensation.
The issue in this case was whether Ms Chandler was afforded protection from unfair dismissal, despite her status as a casual employee.
What unfair dismissal rights do casual workers have?
Most employers will be aware that permanent full-time or part-time employees are entitled to lodge an unfair dismissal claim if they feel their termination was harsh, unjust or unreasonable, provided that they have completed a minimum period of continuous employment with the employer of at least 6 months (or 1 year for small business employers).
What employers may not know, is that casual employees have almost the exact same rights in relation to unfair dismissal. The only difference arises in regard to the minimum period of continuous employment. Because of the nature of casual work, which can often be irregular and sporadic, a period of service as a casual employee will not count towards the requisite minimum period of employment, unless two conditions are met:
- The employment was on a regular and systematic basis; and,
- During the period of service, the employee had a reasonable expectation that employment would continue on a regular and systematic basis.
The key findings in this case were in relation to what exactly constitutes ‘regular and systematic’ employment.
Were these conditions satisfied?
In terms of the first condition, the Full Bench found that it was not necessary that hours worked should be uniform, constant or predictable in order for employment to be considered ‘regular and systematic’. Rather, it was sufficient that the ‘pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged’.
What this means is that even where a casual employee works varying hours each week and has no set starting or ending time, this may still constitute regular and systematic employment where the amount and frequency of work suggests that there is reliance upon the casual worker’s services. Conversely, if the number of hours worked was small and the gap between shifts was long and irregular, this suggests that employment was not on a regular and systematic basis.
The Commission held that Ms Chandler’s employment was regular and systematic based on the frequency of shifts, the system established by the monthly employment roster and her contract of employment.
Ms Chandler also had a reasonable expectation of continuing employment on a regular and systematic basis, considering: (1) the contract of employment effectively required Ms Chandler to be available during certain periods, (2) the roster allocations were posted in advance of each month based on Ms Chandler’s indicated availability, and (3) the frequency and amount of work.
What does this mean for casual employees?
Most casuals may now have the benefit of unfair dismissal protections if they have been employed for more than 6 months (or 1 year if the employer is a small business).
What should employers do?
Employers that are looking to terminate a casual employee should first consider whether they have been employed on a regular and systematic basis. We suggest the following steps:
- Review any contracts made with your casual employees – look out for any terms that may engender an expectation of continuing and regular employment.
- Review your casual rostering policy – consider the frequency and amount of work allocated to your casuals as well as whether allocations are posted in advance.
- Regularly review the period of engagement of casual employees – check whether any casuals have been employed for more than 6 months continuously.
For further information regarding how to manage casual workers, do not hesitate to contact JFMLAW on 02 9331 0266.