Understanding Casual Employee Rights to bring Unfair Dismissal Claims

Employment legislation has for a long time entitled casual employees to bring an unfair dismissal claim. However, the wording of the Fair Work Act (“Act”) has broadened this entitlement in more than one way.

The Act has reduced the minimum period of employment that casual employees must serve to be able to maintain a claim for unfair dismissal from twelve months continuous services to six months continuous services (twelve months in the case of a small business employer). The casual employee must have also had a reasonable expectation of continuing employment during the period of service.

In a recent decision, the Full Bench of Fair Work Australia provided some guidance on when a casual employee satisfies the minimum period of employment provisions in the Act.

The case involved a casual employee who had worked for an employer from 2006 until June 2009 on a regular and systematic basis. Following an injury in June 2009 his work became irregular, and non-existent in September 2009. Eventually his employment was formally terminated in January 2010.

Fair Work Australia found that as the employee’s pattern of work had been regular and systematic for more than six months prior to June 2009 and he had a reasonable expectation of continuing employment during that time he was able to bring the claim for unfair dismissal. Further, it held that the gaps between the engagements should not be seen as interrupting the employee’s period of continuous employment.

Key Points: Gaps in a casual employee’s period of employment, including for incapacity or other leave, will not break their continuity of service. These gaps can potentially be greater than three months. Further, once a regular and systematic pattern of work is established, then continuous service will potentially only be broken upon a clear and expressed termination of service by either party. We recommend employers seek legal advice before terminating the services of casual employee and not assume they can be terminated without risk.