Are casual workers included in the count? FWC clarifies in recent case
The Fair Work Commission (FWC) recently dealt with a case involving an unfair dismissal claim in the entertainment industry.
The decision highlighted important considerations for small businesses and the complexities surrounding employment periods in casual and contract work arrangements.
At the heart of the matter was a worker's eligibility to file an unfair dismissal claim against their former employer, a circus company.
The case revolved around the minimum employment period required for such claims and whether the employer qualified as a small business under the Fair Work Act 2009.
The worker had a complex employment history with the circus company. Initially, they worked in the tent crew through a separate maintenance service provider from 28 July 2023.
Later, they were directly employed by the circus company from 28 August 2023 until 29 January 2024, when they were dismissed.
Following their dismissal, the worker filed an unfair dismissal claim with the FWC on 30 January 2024.
This led to a jurisdictional objection from the employer, which was dismissed after it was determined that the worker was indeed an employee of the circus company at the time of dismissal.
The key question before the FWC was whether the worker had met the minimum employment period required to be eligible for unfair dismissal protection. This period varies depending on whether the employer is classified as a small business or not.
The FWC explained:
"If the employer is not a small business employer, the minimum employment period is 6 months ending at the earlier of when the person is given notice of dismissal, or immediately before the dismissal. If the employer is a small business employer, the minimum employment period is one year from the earlier of those times."
This distinction was crucial in determining the worker's eligibility to pursue their unfair dismissal claim.
The FWC had to consider the number of employees at the circus company to determine if it qualified as a small business. This process involved examining various types of workers, including regular employees, casual workers, and contractors.
The decision stated:
"A national system employer is a small business employer if they employ fewer than 15 employees at the relevant time. Casual employees are only included in this count if they are 'regular casual employees', which is defined as those who have been employed as a casual on a regular and systematic basis."
This definition played a significant role in the final determination of the company's status as a small business. The FWC identified 14 regular employees, including performers who were engaged as 'contract' performers but were counted as employees for this purpose.
The FWC said that the circus owner and the tent manager were excluded from the count as they were operating their own businesses. A casual employee who was not a regular casual employee and a motorbike rider who worked for another business were also excluded from the count.
After consideration of the evidence, the FWC concluded that the circus company employed fewer than 15 employees at the time of the worker's dismissal, qualifying it as a small business employer. This meant that the relevant minimum employment period for unfair dismissal protection was one year.
The FWC found:
"I find that [the worker] did not complete the minimum employment period as an employee of [the employer]. Accordingly, it is not necessary to determine the nature of the relationship between [the worker] and [the maintenance service provider], or between [the maintenance service provider] and [the employer], or whether there was a transfer of business and related transfer of employment from [the maintenance service provider] to [the employer]."
This decision emphasised the importance of understanding the specific requirements for unfair dismissal protection, particularly for small businesses and workers with complex employment arrangements.
The worker's total employment period, even including their time with the maintenance service provider, was less than one year, which meant they did not meet the minimum employment period required for unfair dismissal protection in a small business.
The case serves as a reminder for both employers and employees to be aware of the nuances in employment law, especially regarding minimum employment periods and the classification of businesses under the Fair Work Act. It also highlights the complexities that can arise in industries with unconventional employment arrangements.
