An employee will have access to the unfair dismissal jurisdiction if they have completed a minimum employment period of six months (or 12 months for small business employers). Generally, service as a casual employee will not count towards the period of service needed to satisfy the minimum employment period unless they were a regular casual, and they had a reasonable expectation of continuing employment on a regular and systematic basis.
In Gu v Geraldton Fishermen’s Co-operative Pty Ltd  FWC 1342, a casual employee had their unfair dismissal application dismissed after the Fair Work Commission (FWC) found that she did not satisfy the minimum employment period, despite working on a weekly basis for over a year.
The employee was employed as a process attendant for Geraldton Fishermen’s Co-operative’s (Employer) on 1 December 2020. Following her dismissal, the employee lodged an application for an unfair dismissal remedy with the FWC.
The Employer lodged a jurisdictional objection to the unfair dismissal application on the basis that the employee was not protected from unfair dismissal as she had not satisfied the minimum employment period.
Before the FWC, the employee maintained that her work was regular and systematic as she had worked every week for over a year.
The Employer argued that the employee had not completed six months of continuous service as her employment was not on a regular and systematic basis due to the fluctuation of her work hours each shift.
It was also argued that the employee could not have reasonably expected to have ongoing employment because the employee’s role as a casual was dependent on the requirements of production each day.
The Employer submitted that its operations were dependent on what was caught each day which made it impossible to forward plan production. Due to this, it maintained a pool of casual staff, who were offered shifts daily, usually a day in advance. Factors such as the size and quantity of the catch each day were considerations in offering shifts to the pool of casual staff.
The Employer submitted that the employee had no fixed hours or days of work and while she worked every week whilst employed, her work hours fluctuated between three and seventy-four per week.
The Employer pointed to the ‘clear words’ contained in her employment contract which stated that her job was not ‘intended to give rise to a permanent employment relationship, or an expectation of regular, ongoing engagements.’ Further, there were no changes to the employment relationship that altered this expectation of ongoing employment.
The FWC was not convinced that the employee’s casual employment was on a regular and systematic basis. Further, the FWC stated that even if it was wrong on this conclusion, it was also not satisfied that the employee had a reasonable expectation of ongoing employment on a regular and systematic basis.
The consideration of what was a “reasonable expectation”, required, per the decision in Bronze Hospitality v Hanson (2019) 290 IR 344, an examination of whether:
The FWC held that the employment contract was an important consideration in determining whether the expectation of ongoing employment was reasonable but in addition, all the circumstances throughout the duration of an employee’s employment must be considered.
The FWC concluded that the Employer’s industry, the context of the employment relationship, the Employer’s organisational structure, and the employee’s services as an unplanned casual, all pointed to the fact that any expectation of continuing employment on a regular and systematic basis, would not have been reasonable.
The FWC stated that even if the employee may have held the expectation of continuing employment, this expectation was not reasonable.
Accordingly, the FWC found that the employee had not met the minimum employment period and dismissed the employee’s application.
Lessons for employers
Employers should ensure that casual employment contracts clearly stipulate that casual employees should not expect to be employed on a continuous basis or have any expectation of ongoing work. It is also important that in practice, casual employees are not used on a regular basis or are rostered on for regular or routine shifts as this may give rise to an expectation of continuing employment on a regular and systematic basis.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.
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