Employer takes heat over 'casual conversion rights' dispute

How should HR handle a “conversion” request to change a casual employee’s status into “permanent” if the said worker faces allegations of breach in the employer’s policies?

Such was the dilemma of an employer in a recent case, who faced an unfair dismissal allegation before the Fair Work Commission (FWC), when the employee said he was unfairly dismissed due to his request for conversion. As for the employer’s defence, it maintained that the worker’s poor performance triggered the disciplinary measures that eventually caused his dismissal.

Learn about the different ways that HR could balance the interests between an employer and workers in this unique but delicate relationship.

Background of the case

The employee has worked for the employer as a casual driver since 2019. Around November 2021, his employment was terminated for “serious misconduct with immediate effect” over allegations that the employee falsified run sheets and failed to take fatigue breaks under the heavy vehicle fatigue management law and company policy.

The employee claimed he was unfairly dismissed because he was not warned about his conduct, arguing that the “real reason” for his dismissal was that the employer “did not want to convert his employment from casual to permanent.”

According to records, before the employee was dismissed, the employer had advised him of casual conversion rights. The employee said that “he wished to convert his employment, but this was resisted by his employer.”

The employer then argued that the dismissal was not unfair because it “had a zero-tolerance policy to breaches of safety requirements.”

The employee submitted that the relevant laws and policies did not apply to his role, and while he made mistakes, the employer “condoned his conduct through instructions given by supervisors and their approval of his run sheets.”

The Commission’s decision

The FWC considered whether the dismissal was harsh, unjust or unreasonable. It accepted that the employee’s run sheets were not always accurate and found it likely that his supervisors “were aware of the inaccuracy.”

It further noted that the employee was subjected to the employer’s fatigue management policy and obligations but said that these standards “were not met by anyone, but only the said employee was subject to investigation and disciplinary action.”

It was due to this employer’s action of singling out the employee that brought the FWC to conclude that his “wish to convert to permanent employment” was not “supported” by the employer, signifying that the latter “actively discouraged him.”

Ultimately, the FWC recognised that the employee’s repeated false recording on his run sheets of the time his breaks finished constituted a valid reason for dismissal. However, the employer’s “lack of consistency in applying the policy, lack of consideration given to alternative disciplinary action and lack of action concerning other persons involved in the breaches” supported the employee’s submission that his run sheets “were audited in connection with his casual conversion request.”

Thus, the FWC ruled that the employee’s dismissal was unreasonable and unfair.

Takeaways for HR leaders when interacting with casual employees

Casual employees are also an essential part of the success of every employer. As such, they should not be discriminated against or treated unfairly based on their status in the company.

In balancing this truly unique relationship, HRD has provided a guide in facilitating interactions among HR personnel and casual workers, especially when it comes to navigating the time when casual employees ultimately request if they could be kept as “permanent” employees: 

• At the start of their employment, openly and honestly communicate HR’s expectations about “conversion requests” in changing a casual worker’s status to “permanent”;
• Ensure that casual workers fully understand the standards and requirements that should be met to facilitate the said conversion;
• Regularly assess the performance of casual workers and keep a diligent and accurate record of evaluation reports to avoid misunderstanding or miscommunication. It is best to provide copies to said casual workers;
• Consistently apply rules and regulations among all employees to prevent accusations of bias and preference;
• If feasible, have casual workers sign each report that they receive to signify their acknowledgment and ensure that contents and terms have been adequately read and accepted by them;
• In case of breach of company policy that might be a severe violation, ensure that proper grievance mechanisms are in place, giving said workers the opportunity to defend and explain their positions.