Can you fire a seasonal employee if there's a 'reasonable expectation' to continue work?

The Fair Work Commission (FWC) recently dealt with a case involving a worker who contended he was unfairly dismissed from work because of having a "reasonable expectation of continuing employment."

In its defence, the employer said no dismissal occurred as the worker's employment was going off-season. 

Work going off-season

Prior to the unfair dismissal case, the worker commenced employment as a ski instructor during winter ski seasons as a casual employee in 2011. 

At the end of 2022, the worker suffered an injury to his knee, which precluded him from working further in that season. During such a time, the ski season was already winding down, and they had one week left. 

Nonetheless, the worker competed in a "Trifecta Spartan" race, as he believed it was consistent with his rehabilitation. 

The employer first learned about the race in early 2023 and formed the view that the worker had dishonestly participated in the race outside of his certified WorkCover restrictions. 

So, the employer wrote a letter to the worker on 7 February 2023 informing him that he would not be offered an employment contract to join the team in 2023. 

"Your dishonesty and decision to participate in an event while undertaking rehabilitation and outside of your certified restrictions, go against our value of Do Right, as does the factual discrepancy that was raised as an issue by the Insurer," the letter read.

The employer also contended that the worker had not been dismissed. Instead, the worker was employed for the winter ski seasons, and his employment was terminated on 28 September 2022 at the end of that season. 

In his submission, the worker relied heavily on the argument that an ongoing employment relationship subsisted even after September 2022.

The worker argued that he was a "regular casual employee," with a "reasonable expectation of continuing employment," on a "regular systematic basis."

HRD previously reported about a case of an Adelaide worker who claimed she was unfairly dismissed for failing to show up for three shifts due to sickness and emotional distress. In its defence, the employer stated that the worker was dismissed as there was no more work for her because the event season was already ending.

FWC's decision

After examining the case, the Commission found that the worker's employment was terminated on 28 September 2022 at the employer's initiative and not because of the winter seasons wind-down. 

Therefore, because the unfair dismissal application was not within 21 days, the Commission also needed to determine whether an extension of time should be granted. 

In deciding such, the FWC noted that on 7 February 2023, the worker was told in clear and plain terms that his contract would not be renewed in circumstances of alleged "dishonesty."

It further noted that nothing prevented the worker from applying for an unfair dismissal claim within the required period. Hence, the Commission dismissed the worker's unfair dismissal claim. 

"The delay of 43 days (assuming 7 February 2023 was the date the dismissal took effect) is itself lengthy and represents a significant factor against there being exceptional circumstances," the FWC noted.