Casual employment risks continue

WHO SHOULD READ THIS

• All employers, human resources managers, in-house lawyers and professionals with an industrial or employment focus.

THINGS YOU NEED TO KNOW

• Casual employment is often fluid and can change over time.  Casual employment arrangements remain subject to significant scrutiny by the FWC and Federal Courts.

WHAT YOU NEED TO DO

• Review your arrangements with casual employees and determine if they may have protection from unfair dismissal, or if any change in the status of the employment relationship could give rise to ongoing full-time or part-time employment. If so, steps will need to be taken to treat employees consistently with their correct designation.

If you thought engaging casuals protected your business from unfair dismissal claims, think again.

Background

Last week, a Full Bench of the Fair Work Commission determined that a casual employee dismissed by ‘Bed Bath N’ Table’ in February 2019 was entitled to make a claim for unfair dismissal.   

A casual employee is not automatically entitled to protection from unfair dismissal unless they satisfy a two-limb test (Test).  In order to satisfy this Test, and to have completed the minimum employment period (of either six or 12 months), a casual employee must:

• be employed on a regular and systematic basis; and
• have a reasonable expectation of continuing employment on a regular and systematic basis.

Decision

In this case, the employee lodged an appeal of an earlier decision that found her casual employment was not regular or systematic.  In upholding the appeal, the Full Bench considered in detail what constitutes “regular and systematic” employment. 

In finding that the employee satisfied both limbs of the Test, the Full Bench looked at the following factors:

• the employee worked at least three days each week between July 2018 and February 2019;
   
• the employee worked shifts allocated to her on a monthly roster published in advance;
   
• there were no guaranteed hours and the employee could refuse shifts; and
   
• the number of days she worked each week, the days of the week she worked, and the shift duration, varied.

The Full Bench accepted the reasoning of the ACT Court of Appeal in Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6: it is the ‘engagement that must be regular and systematic, not the hours worked pursuant to such engagement.’  Also, frequent, though unpredictable, employment should be considered “regular”.  

In determining that the employee’s employment was ‘systematic’, the Full Bench had regard to whether the employment was ‘arranged pursuant to an identifiable system’, being the employee’s contract of employment and the employer’s rostering system.  The Full Bench applied similar reasons in finding that the employee had a reasonable expectation of continuing her employment on a regular and systematic basis.

For now, the unfair dismissal claim has been referred back for allocation to another tribunal member.  It remains to be seen if the employer will lodge an appeal.  A link to the decision is available HERE.

Key lessons

• While an employee may not work set hours or set days, if they are regularly engaged (e.g. weekly) and there is a rostering system or contract governing these engagements, the employee could be working on a regular and systematic basis. 
   
• Employers should not assume that casual employees can be lawfully dismissed without a valid reason or procedural fairness.  Casuals who are employed on a regular and systematic basis for six months (or 12 months for small business employers), and who have an ongoing expectation of employment on a regular and systematic basis, are eligible for unfair dismissal protection. 
   
• Employers should actively review all casual employment arrangements they have in place, noting that original arrangements or intentions of the parties may have changed or been superseded in practice.
   
• The decision in Workpac v Skene [2018] FCAFC 131 remains judicially relevant in determining whether an employment relationship is casual.  Currently, the relevant indicia are:
  • no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work;
  • no reciprocal commitment from employee to the employer;
  • irregular work patterns;
  • uncertainty;
  • discontinuity;
  • intermittency of work; and
  • unpredictability.
• The Full Court of the Federal Court’s decision in Workpace Pty Ltd v Robert Rossato #QUD724/2018 is still pending.
   
• The nature of casual employment remains fluid and continues to be subject to significant scrutiny by courts and commissions.  Employers who have extensive casual workforces or concerns should contact our team for further advice.  

For further information, please contact our authors below. 

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.