By Mike Toten Freelance Writer

A young casual employee was not offered any further work shifts for about 10 weeks, without explanation by the employer. The employer told her she was still employed during that time. The employee successfully claimed she was unfairly dismissed and was awarded compensation of more than $10,000.  

 

Facts of case 

The employee had worked for a store of a fast food chain for 17 months. Without warning, the employer decreased and then stopped offering her any shifts and allegedly did not tell her why. This left her in limbo – no work or income, but still “employed”. 

She lodged a complaint of discrimination in work allocation, claiming that other casual employees were still offered work shifts. While waiting for an outcome, she was told she was still employed, but not offered any shifts. 

She then lodged a general protections claim with the Fair Work Commission (FWC), alleging racial discrimination. The employer claimed that there were “performance issues” and the work relationship had broken down, but did not provide any supporting evidence.  

 

Decision 

The FWC preferred the employee’s evidence, finding that she was unfairly dismissed. It commented that the employer had an extra duty of care in the way it should treat young and inexperienced employees, given that as a fast food chain it employed many of them.  The FWC used the term “unprofessional” to describe the treatment of the employee. 

The FWC awarded compensation of $10,252, but noted it was constrained by the provisions of the Fair Work Act 2009. It would have awarded more, but that was the maximum amount permitted. The Act sets a limit based on the employee’s work income over the last 26 weeks before the dismissal. The employee received no income for the last 10 weeks of her “employment”, so the employer benefited from that provision. 

 

What this means for employers 

Employees who become “regular casuals” (those who establish a regular and systematic pattern of casual employment over a qualifying period, and who have a reasonable expectation that this pattern will continue) are covered by the protections against unfair dismissal contained in the Fair Work Act 2009 – as happened in this case. Because the employer kept telling the employee she was still employed, that “reasonable expectation” existed. 

Therefore, it is important to handle complaints made by casual employees, as well as dismissal processes and refusals to offer further work shifts to them, in a procedurally fair manner – in the same way as it is for permanent employees. 

 

Read the judgment 

Ms Adrianna Permus v Guzman Y Gomez Franchising Pty Ltd - [2025] FWC 1144 | Fair Work Commission