FWC finds casual work can be ‘regular and systematic’ for determining length of service

casual worker

Fair Work Australia Excerpt on Casual Employment

A recent case before the Fair Work Commission (Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019)  discussed how an employee can still be a ‘regular casual’ with ‘irregular hours’. This case considered a period of casual employment and whether it counted towards an employee’s length of service for the purposes of being eligible to make an unfair dismissal application.

In the case that was determined late last year, Ms Amy Greene, a food and beverage attendant, was employed as a casual from 24 February 2019 until 20 January 2020 (approximately 11 months). Between 20 January 2020 and her dismissal date on 16 April 2020 (approximately 3 months), she was employed on a permanent full time basis.

Ms Greene brought an unfair dismissal application alleging that she was unfairly dismissed by her employer. The employer made a jurisdictional objection (an objection wherein the employer claims that the Fair Work Commission does not have the power to deal with the claim) claiming that Ms Green had not met the minimum employment period.

In order to be eligible to make an unfair dismissal application, an employee must meet the minimum employment period. For employees of a small business (less than 15 employees), they must have been employed for a minimum of twelve (12) months. For employees of a business that is not a small business (15 or more employees), they must have been employed for a minimum of six (6) months.

FIRST INSTANCE

At first, the Fair Work Commission considered whether Ms Greene had met the minimum employment period to be eligible to be protected from unfair dismissal.

The Commission noted that the employer was not a small business, and therefore, the minimum employment period required to be met by Ms Greene was six (6) months. The Commission rejected Ms Greene’s claim for unfair dismissal, noting:

  • On review of her timesheets, her actual hours of work varied widely from week to week and she did not work consistent hours each week;
  • The irregularity in her hours of work did not support a reasonable expectation of regular and systematic work;
  • Her employer made it clear that Ms Greene should not, and could not, expect ongoing employment on a regular and systematic basis while employed on a casual basis, and Ms Green would seem to have accepted this to be true by signing the contract for permanent employment; and
  • Ms Green did not have a reasonable expectation of continuing employment on a regular and systematic basis.

SECOND INSTANCE – APPEAL

Ms Greene appealed the Commission’s decision. On appeal, the Commission allowed Ms Greene’s claim of unfair dismissal to proceed finding that she had met the minimum employment period, noting:

  • Ms Greene’s period of casual employment was on a regular and systematic basis. It was regular as her timesheets show that, apart from periods in which she took holidays, Ms Greene was consistently engaged to work substantial numbers of hours in every week;
  • It was on a systematic basis because she worked in accordance with a roster that was established by the employer in consultation with her. Regular casual work undertaken in accordance with an established rostering system may reasonably be described as systematic in nature;
  • Ms Greene had a reasonable expectation of continuing casual employment on a regular and systematic basis. This expectation arose from the fact that, pursuant to a roster system, she was employed every week to work substantial numbers of hours except when taking pre-arranged leave, and that she was involved in the preparation of the rosters;
  • Ms Greene felt sufficiently secure in her casual employment that she was able to reject the employer’s initial offer of permanent full-time employment after returning from holiday between September and October 2019 and she continued to be employed regularly and systematically afterwards notwithstanding this;
  • Whatever the employer may have said to Ms Greene in relation to not expecting regular and systematic hours, this is not what the employer actually did. The timesheets show that Ms Greene continued to be employed regularly and systematically after these statements and up until the time she accepted permanent employment. This necessarily led to the expectation of continuing employment which Ms Greene held during her period of casual employment.

Take Aways

Casual work can be ‘regular and systematic’ for the purposes of counting towards length of service. It does not have to follow a particular pattern of similar shifts or similar hours. This applies regardless of what the employer may have communicated to the employee about what their expectations should be, it is the actual nature of the engagement that is most telling.

If you are a casual employee and are unsure if you would be considered a ‘regular and systematic’ casual or believe you have an unfair dismissal claim but are not sure if you have met the minimum employment period, contact us at Anderson Gray Lawyers to assist you with your enquiry.

The case referred to can be found here: https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6019.htm