Business Law

Unfair dismissal and casual employees: Some things small business owners should be mindful of

Published in: July 2017

Small business owners will obviously employ a number of casual employees and one of the things that owners should have an awareness of are laws concerning unfair dismissal. Small business owners should be mindful that yes, some casual employees are protected from unfair dismissal provided the requirements outlined in the Fair Work Act 2009 (Cth) (the Act) are met.

The law

Casual employees must have worked for an employer for the ‘minimum employment period’ referred to in ss 382-383 of the Act. Under the provisions of the Act, the minimum employment period is six months, unless the employer has fewer than 15 employees (small business employer), than the minimum employment period is 12 months (s 383(b)).

If the casual employee has fulfilled the minimum employment period criteria, they then must have been employed on a regular and systematic basis during the period of service, and the employee must also have had a reasonable expectation of continuing employment on a regular and systematic basis as outlined in s 384(2)(a) of the Act.

The meaning of employment on a ‘regular and systematic basis’

The decision in Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic [2010] FWA 2078 in some ways paved the way for casual employees to bring an unfair dismissal claim in reliance upon s 384(2)(a) of the Act.

The applicant in the case, Cori Ponce, worked for the respondent company daily and nightly over a 21 month period, satisfying the s 384(2)(a) requirement of employment on a regular and systematic basis, while also meeting the six month minimum employment period set out in s 383(a) of the Act. Commissioner Roe who oversaw the matter, articulated the principles attached with employment on a regular and systematic basis, which included the following observations:

·         Regular and systematic does not necessarily mean the hours and days must be regular and systematic: Commissioner Roe found that ‘regular and systematic’ under the Act, meant that there must be “sufficient evidence to establish that a continuing relationship between the employer and the employee has been established” – which is the reason why the Act has included within its provisions, that an employee must also have a reasonable expectation of continuing employment.

·         If the hours worked are small, and the gaps between days and times worked is long, other evidence must be produced to demonstrate regular and systematic employment: in instances where there is no clear pattern of employment, evidence of employment on a regular and systematic basis can also include the following: the employer regularly offered work when suitable work was available at the times when an employee has made him or herself available to work for the employer; and work had been offered and accepted on a sufficient basis where it can be no longer regarded as simply occasional or regular.

·         Hours worked by the employee were similar or exceed full-time ordinary hours can also be deemed as strong evidence of regular and systematic employment.

·         The reasonable expectation of continuing employment is not only about having that expectation at the moment of termination, but the expectation during the period of service as well.   

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