Employee rights: casual work history counts for dismissal claims

he Fair Work Commission (FWC) recently dealt with a case about whether periods of casual employment should count towards the minimum employment period needed for unfair dismissal protection.

A worker who had been working both casually and part-time for several years was dismissed for alleged serious misconduct before completing six months in their latest part-time role.

The worker argued that their previous casual employment should count towards meeting the minimum employment period, citing regular work patterns and consistent engagement with the employer. The case turned on how casual service periods affect unfair dismissal eligibility.

Employment history and dismissal

The case involved a teacher who worked for a Catholic school network operating 45 schools across New South Wales' Central Coast, Northern Beaches, and North Shore regions. He started working as a casual teacher in 2016, later taking on a temporary part-time position at St Patrick's Catholic Primary School, East Gosford, from 30 January 2024.

While contracted to work part-time until 30 January 2025, the employer dismissed him on 14 June 2024 after approximately four-and-a-half months, citing serious misconduct. To qualify for unfair dismissal protection, he needed to show six months of continuous service.

The teacher's work history showed significant engagement with the school network. He earned $59,321.02 during the 2023/24 financial year, demonstrating substantial casual work before his part-time role began.

Worker’s evidence of regular casual work

The evidence revealed a consistent pattern of engagement. Each weekend, the teacher would contact schools about his availability, and they would respond with work offers for the following week. The Commission noted:

"[The worker] would send a text message to [the assistant principal], or the staff member that manages casual rostering, with his availability for work. The schools would respond over the weekend to advise if they had any work for [the worker] in the following week."

The teacher's work pattern showed regular engagement. Between August and December 2023, he worked 73% of all available school days, breaking down to 17 out of 23 days in August, 12 out of 16 in September, 10 out of 17 in October, 18 out of 22 in November, and 8 out of 11 in December.

Casual employment towards continuous service

The Commission examined earlier court decisions that established when casual employment counts towards continuous service. This included looking at whether the work was regular and systematic, rather than just focusing on specific hours worked. The Commission noted:

"The effect of s.384 of the FW Act is that casual employment does not start and end with each engagement as understood in the common law... A period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service and some which do not."

The Commission analysed the evidence and found the teacher maintained a regular working relationship with the employer. The decision explained:

"I am comfortably satisfied that [the worker] was a casual employee with a reasonable expectation of continuing employment on a regular and systematic basis in August, September, October, November, and December 2023."

Supporting this finding, the Commission added:

"I do not accept [the worker's] casual engagements with [the employer] can be described as occasional or irregular when [the worker] performed work on 73% of the days that [the employer's] schools were open from August to December 2023."

The final determination stated:

"I find [the worker] had at least 9 months of continuous service with [the employer]. [The worker] had completed the minimum employment period of 6 months when [they were] dismissed on 14 June 2024. [The worker] was a person protected from unfair dismissal."

The Commission dismissed the employer's jurisdictional objection, allowing the unfair dismissal application to move forward to a full hearing scheduled for November 2024.