Casual Employees and Protection from Unfair Dismissal

Did you know that casual employees now have greater protection from unfair dismissal?

Where previous legislation concentrated on determining whether or not an employee was a ‘true’ casual employee before deciding whether they were protected from being unfairly dismissed, the Fair Work Act 2009 has set different conditions.

Under the new legislation, a casual employee will be protected from unfair dismissal if they have served the relevant minimum period of employment and worked on a regular and systematic basis and had a reasonable expectation of continuing to work on that basis. The minimum periods of employment are:

  • 12 months, where the employer has less than 15 full-time equivalent employees; and
  • 6 months otherwise.

Determining regular and systematic employment is harder to pinpoint and in a recent decision Fair Work Australia has cautioned that the fact an employee works more hours in one week than another, or has variable start and finish times, is not conclusive evidence of irregular or non-systematic employment. Positive indicators of regular and systematic employment may include:

  • a clear pattern or roster for the hours and days worked; or
  • where there is no pattern or roster then the regular offer of work when available, at times when the employer knows that the employee has generally made themselves available to work; and 
  • instances where work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.

Given this, it will be very difficult to assert that a casual employee did not work on a ‘regular and systematic’ basis.

KEY POINTS: It’s no longer the case that casual employees can be dismissed without the risk of an unfair dismissal claim. If a casual employee is working regular and systematic hours and has an expectation of continuing to work on that basis, then once they serve the minimum period of employment they have the same rights to make a claim for unfair dismissal as a permanent employee.