Many casual workers end up being offered full-time permanent positions with an employer. If a casual employee has already worked for an employer for six months, this can affect probationary periods, length of service and the right to make an unfair dismissal application. 
 

Understanding Probation and Minimum Employment Periods

The Fair Work Act 2009 does not refer to a ‘probationary period’, but an employee must have completed the relevant ‘period of employment’ before an unfair dismissal claim can be heard before the Fair Work Commission (FWC). 

If a business has 15 employees or more, employees must have completed six months of continuous service to claim unfair dismissal. If there are fewer than 15 employees, the minimum employment period is 12 months of continuous service. 


Does casual service count toward the minimum employment period?

The Fair Work Act (s384) states that a period of service as a casual employee does NOT count towards an employee’s period of employment unless: 

  • the employment as a casual employee was on a regular and systematic basis; and
  • during the period of service as a casual employee, the employee had an expectation of continuing employment by the employer on a regular and systematic basis. 

Unless casual employment involves the employee being called in as required, with no forward roster of specified hours or shifts, it can be argued someone was employed as a casual employee on a regular and systematic basis. 

This means the period of service as a casual employee would count as part of the minimum period of employment for the purposes of unfair dismissal law.

Consequently, a subsequent ‘probationary period’ would not affect an employee’s right to make an unfair dismissal application to the FWC because the employee has already completed six months of continuous service with the company. 
 

Implications for Probation and Unfair Dismissal

If a casual employee has already completed six months of regular and systematic service with a larger employer (or 12 months with a small business), they may already meet the threshold to lodge an unfair dismissal claim—even if they’ve only recently converted to full-time or part-time employment.

In such cases:

  • A new probationary period may be included in the employment contract, but it does not reset the minimum employment period under the Fair Work Act
  • Employers must still follow procedural fairness if terminating employment, regardless of probation status
  • Employees who meet the minimum employment period may be eligible to lodge an unfair dismissal application with the FWC
 

Best Practice for Employers

Review casual service history before assuming a new probationary period applies
Clarify expectations in the employment contract when transitioning from casual to permanent
Ensure fair and lawful termination processes, especially if the employee may be eligible for unfair dismissal protections. Seek legal advice if unsure about eligibility
 

Key Takeaway

A casual employee who transitions to permanent employment may already have met the minimum employment period required to access unfair dismissal protections. While a probationary period can be used for performance assessment, it does not override statutory entitlements under the Fair Work Act.