Case offers employers a lesson on how to terminate casual employment the right way
Casual employment allows organizations to meet staffing requirements year-round while being protected from long-term commitments.
But what happens if there are “gaps” between the employment periods of a casual worker? Is there “unfair dismissal” if an employer fails to provide work?
The Fair Work Commission (FWC) recently dealt with the issue in a case involving an employer who claimed a worker was not entitled to unfair dismissal protection since he was a casual employee and was not employed for the minimum employment period of six months.
The worker was a security guard during weekends from March 2014 to May 2017. He resigned, but the employer then offered casual employment in September 2017 for Saturday shifts.
The employer characterised the worker’s employment with four employment periods:
The worker could not work from March to December 2020 due to the COVID-19 pandemic and from January to March 2022 because he attended his brother’s wedding overseas.
Despite these “gaps,” the worker argued that the employer continuously employed him from 2017 to 2022.
The employer submitted that the gaps in his employment meant that only the final period was relevant. It further said that its casual employees were engaged under its agreement on a “shift to shift” basis.
In Australia, casual employment is defined as an employment arrangement with no firm advance commitment to continuing and indefinite work.
Casual workers are generally employed irregularly and are only paid for hours worked. Generally, they do not have all the same rights and entitlements available to permanent employees, such as paid leave (there are exceptions), and are usually paid more for their lack of job security.
Under the Fair Work Act 2009, casual employees are entitled to “casual loading,” which is an additional payment on top of an employee’s normal hourly rate. This system is designed to compensate casual employees for the lack of job security and access to certain entitlements, such as paid leave. There are also times when casual workers request for their status to become permanent.
The FWC noted that the “established sequence of engagements” of casual employees is “broken only” when either party “makes it clear to the other… that there will be no further engagements.”
The employer argued that the worker was not employed between 14 January and 13 March 2022, and “its practice was to terminate the employment of casual employees who went on leave for over four weeks.”
However, the FWC found no evidence that the employer’s action “definitively brought the casual employment relationship to an end in March 2020,” since it advised the worker that he was on “standby.”
It also said there was no evidence that the employer’s policy was “to terminate casuals who went on longer leave,” and no proof that the parties entered into a new casual engagement.
Therefore, the commission was satisfied that the worker’s employment was “continuous.” The “gaps” or “breaks” were “unpaid authorised absences” and they did “not interrupt continuous service, although it is not added to service length.”
The FWC found that the worker was a “regular casual employee” who had a “reasonable expectation of continuing employment by the employer on a regular and systematic basis.” Thus, the commission ruled that the worker had completed the minimum employment period and was protected from unfair dismissal.
