Q. We have an employee who commenced work as a casual who, after 3 months, accepted an offer of full-time employment with the organisation. The employee has been in the new role for approximately 4 months. The employee's performance in this position has been unsatisfactory and has deteriorated substantially in the last few weeks. The employee has been counselled, but her behaviour has not changed. Her immediate manager recommends that the employee be dismissed. While the employee has 7 months' service with the company (and would usually qualify to claim unfair dismissal), three months of this service were as a casual employee. If the employee claimed unfair dismissal, does the casual employment count as service to calculate the minimum period of employment? The company employs approximately 100 employees.  

A. Whether service as a casual employee counts for the minimum period of employment under unfair dismissal law will depend on the nature of the casual employment. This is complicated because some periods of casual employment may count as service while others may not. The Fair Work Act (s384(2)(a)) provides that periods of service as a casual employee do not count towards the minimum employment period unless both of the following conditions are satisfied:  

  • The casual employee was employed on a regular and systematic basis, and  
  • The casual employee had a reasonable expectation of continued employment.  

  

Regular and systematic basis  

Generally, a clear pattern or roster of hours is likely to be considered regular and systematic employment. The nature of the 3 months casual employment is unknown in this case, however, if the employee (say) worked full-time hours for the 3 months before accepting an offer of full-time employment, such a circumstance would appear to be continuous service for the total period of employment because the work was on a 'regular and systematic basis' and the employee would also have 'an expectation of continued employment'. Consequently, the employee may be successful in making an application for unfair dismissal to the Fair Work Commission.   

  Where there is no clear pattern or roster, the casual employment may still be regular and systematic where:  

  • The employer offered suitable work when it was available at the time the employee had generally made themselves available, and  
  • Work was offered and accepted regularly enough that it could no longer be regarded as occasional or irregular.  

See Ponce v DJT Staff Management Services Pty Ltd t/as Daly's Traffic [2010] FWA 2078 (15 March 2010).

 

Reasonable expectation of continued employment  

While this term is not defined in the Fair Work Act, generally, the Fair Work Commission will assess whether or not during a period of at least six months prior to dismissal (or 12 months as the case may be for a small business employer) the employee had an expectation of continuing employment on a regular and systematic basis.  

In a matter before (then) Fair Work Australia, a casual was employed over a total period of 32 months, which included an 11-week period in which the casual did not make himself available for work. It was held that the 11-week period interrupted or concluded continuous service. However, the casual employment since that period, although there were some weeks in which no work was performed, was held to be regular and systematic and gave rise to a reasonable expectation of continuing employment. See Tilbrook v Willall Industries Pty Ltd [2011] FWA 6300 (5 October 2011).

Conversely, in another matter, the tribunal determined that because the frequency of engagement of the applicant employee was erratic, with the ultimate engagement being seven months after the penultimate engagement, the employee could not have had a reasonable expectation of continuing employment. See Harrison v Imperial Management Queensland Pty Ltd t/a Pacific Red Produce [2011] FWA 8099. 

 

Meaning of a casual employee 

An employee is a casual employee of an employer only if:  

(a) The employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and  

(b) The employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee, or the employee is entitled to such a loading or rate of pay under the contract of employment. 

 

Bottom line  

While casual employment does not count as service for the purpose of the minimum employment period under unfair dismissal law, a casual employee employed on a regular and systematic basis, with an expectation of continued employment, whose service meets the relevant minimum employment period, may have jurisdiction to claim unfair dismissal.