‘It will often be determined by the nature of the engagement and what was communicated between the parties’
In Australia, there is no standard definition of casual employees other than they are usually people that are temporary, have irregular hours and are not guaranteed to be ongoing.
A casual employee also does not commit to all work an employer might offer. Indeed, Fair Work states that an employee who works to a roster that could change each week and can refuse or swap shifts is casual.
However, casual employees who are engaged on a regular and systematic basis may be eligible to make an unfair dismissal claim. That’s according to Sam Cahill, Senior Associate, Australian Business Lawyers & Advisors (ABLA).
Cahill said test is whether the employee completed the minimum employment period. Moreover, it must be determined that the employee was covered by an industrial instrument, or was paid less than the high-income threshold; and, finally, that the employee was dismissed.
The first requirement around determining that the employee finished the minimum employment period is especially relevant for casual employees.
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He added that this is because a casual’s service will only count towards the “minimum employment period if the employee was engaged on a “regular and systematic basis” and had a “reasonable expectation of ongoing employment”.
He also noted that regular and systematic employment can be established in different ways.
The most straightforward way is where the employee worked according to a clear pattern or roster.
“This does not require the employee’s hours of work to be frequent or uniform. It simply requires a repetitive pattern.”
However, Cahill noted that where there is no clear pattern or roster, an employee “may still be regular and systematic” if the employer offered suitable work when it was available at times that the employee had generally made themselves available.
The other condition is if the work was offered and accepted regularly enough that it could no longer be regarded as occasional or irregular.
This second formulation of “regular and systematic” is likely to capture a large number of casual employees across Australia.
“Whether an employee had a reasonable expectation of ongoing employment will depend on the circumstances,” said Cahill.
“It will often be determined by the nature of the engagement and what was communicated between the parties.”
Moreover, the employee must show that the employment was regular and systematic for at least the minimum employment period.
In fact, the length of the minimum employment period depends on the size of the employer.
At a small business (with fewer than 15 employees), the minimum employment period is 12 months. At all other businesses, the period is six months.
He also explained that the term dismissal is often associated with a “deliberate and formal termination of employment”.
However, as far as the law is concerned, a dismissal is any termination of employment that is at the initiative of the employer.
In the case of a regular and systematic casual, this could include a situation where the employee’s hours of work are significantly reduced or where the employee is simply “taken off the roster”.
Cahill concluded that the key lesson employers will need to keep in mind is the risk of unfair dismissal when making decisions that will impact on “long standing and regular and systematic casuals”.
Sam Cahill is a Senior Associate at Australian Business Lawyers & Advisors (ABLA)
