Unfair Dismissal Claims & Casual Employees

An employer is entitled to end an employment relationship with an employee but this entitlement is subject to certain provisions, some of which are discussed in this article below.

Protection from Unfair Dismissal

Part 3-2 of the Fair Work Act 2009 (Cth) (FWA) contains provisions for the unfair dismissal of an employee. Pursuant to s 382 and s 383 of the FWA, an employee who has been employed for the minimum period of employment is protected from unfair dismissal by the employer. The minimum period of employment is 12 months for small business employment and 6 months for other businesses.

Pursuant to s 384 of the FWA, this employment period is calculated on the basis that this period is of continuous service that the employee has completed with the employer.

In the decision of Holland v UGL Resources Pty Ltd T/A UGL Resources [2012] FWA 3453, the meaning of continuous service in the FWA is not clear and should be given its ordinary meaning, which means it is a period of unbroken service of the employee with the employer.

Casual Employees

Pursuant to s 384 of the FWA, a casual employee can only be protected from unfair dismissal if they meet the following criteria:

• The employment of the casual employee was on a regular and systematic basis; and

• During their employment period they had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

In the case of Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6 (30 March 2006), the term ‘regular’ implies repetitive patterns and does not mean frequent, often, uniform or constant. The term ‘systematic’ requires that the engagement be something that could fairly be called a system, method or plan. A clear patter or roster of hours can be evidence of regular and systematic employment, and where such evidence in not available, the following applies:

• The employer offered suitable work when it was available at times that the employee had generally made themselves available; and

• The work was offered and accepted regularly enough that it could no longer be regraded as occasional or irregular.

The term ‘reasonable expectation of continuing work’ is not defined in the FWA, but pursuant to the decision in Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic [2010] FWA 2078 [76], one test that has been applied is, whether or not during a period of at least six months prior to the dismissal, an employee had reasonable expectations of continuing employment on a regular and systematic basis.

Meaning of ‘Unfair’

Pursuant to s 385 of the FWA, an employee’s dismissal is unfair in the following circumstances:

• the person has been dismissed; and

• the dismissal was harsh, unjust or unreasonable; and

• the dismissal was not consistent with the Small Business Fair Dismissal Code; and

• the dismissal was not a case of genuine redundancy.

Pursuant to the decision in Matthews v San Remo Fisherman’s Co Operative [2019] FWC 4877, an employee is entitled to pursue an unfair dismissal application regardless of the nature of their employment arrangement, provided they meet the requirements contained in the provisions discussed above.

Harsh, Unjust and Unreasonable

Pursuant to s 387 of the FWA, the dismissal is considered to be harsh, unjust or unreasonable on the following grounds:

• whether there was a valid reason for the dismissal (including the safety and welfare of other employees);

• whether the employee was notified of that reason;

• whether the employee was given an opportunity to respond;

• refusal by the employer for the employee to have a support person present during the discussions;

• the size of the employer’s enterprise and its impact on effecting the dismissal;

• the effect of not having a human resources management specialist or expertise in the enterprise and its impact on effecting the dismissal;

• any other matter the commission considers relevant.

The FWA also protects the employee from unfair dismissal for temporary absence due to an illness or injury for a period up to 3 months or a total period of 3 months in the last 12 months. This has been discussed in a separate article titled “Employee Leave Entitlements & Flexible Working Arrangements”.

The employer should be very careful that any termination of the employment, redundancy or dismissal of the employee is lawful to minimise the chance of an unfair dismissal, general protection, unlawful termination or wrongful dismissal claim by the employee and should also be vary of following a proper process to terminate the employee, including providing a notice of termination.

Next Steps

If you think your casual employee may be deemed a permanent employee, feel free to contact us for a free consultation on (02) 9262 5495 or (03) 8899 7870; visit our Website; Like our Facebook Page.

This article is written by Nyeilza Dutt and settled by Damin Murdock. This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.