Can a casual employee make an unfair dismissal application?

Initially, casual employees were only engaged in work on an as-needed basis, worked irregular shifts and their employment period would start and end on the hours they worked. Due to such irregularity, it was impractical for dismissal rights to be extended to them.

However, with the evolution of company structures, casual employment has evolved and it has become more common for companies to depend on the regular availability of their casual employees to sustain business. To keep up with this modern workplace structure, the Fair Work Act 2009 (Cth) extended the eligibility of unfair dismissal claims to casual employees who fulfil the following criteria:

• had been unfairly dismissed;
• had been employed through the minimum employment period;
• had reasonable expectation of ongoing employment; and
• work on a regular and systematic basis.

HAVE I BEEN UNFAIRLY DISMISSED?

To be unfairly dismissed, your employment must have been dismissed at your employer’s initiative (section 394) and the dismissal must have been harsh, unjust or unreasonable. There is no express definition of what may be harsh, unjust or unreasonable, however, Section 387 provides considerations that the FWC must take into account when making a decision. This includes:

• whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
• whether the person was notified of that reason; and
• whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
• any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
• if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
• the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
• the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
• any other matters that the FWC considers relevant.

Too read more about what details should be included into a claim for unfair dismissal, see, https://employmentlawonline.com.au/what-should-i-include-in-my-unfair-dismissal-application/

HAVE I BEEN EMPLOYED THROUGH THE MINIMUM EMPLOYMENT PERIOD?

You must have been employed for the minimum employment period applicable to your employment. This depends on whether your employer is a small business employer section 382 > definition directs to (section 383);

• if your employer is not a small business employer you must have been employed for 6 months prior to your dismissal (section 383(a))
• if your employer is a small business employer you must have been employed for one year prior to your dismissal (section 383(b))

DID I HAVE REASONABLE EXPECTATION OF ONGOING EMPLOYMENT?

There is no express definition of “reasonable expectation of ongoing employment” and this will vary on a case by case basis.

In the case of Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic,[1] Roe C applied a test of “whether or not during a period of at least six months.. the employee had… reasonable expectation of continuing employment on a regular and systematic basis.”

Some indicators that may point to reasonable expectation of ongoing employment include:

• a monthly roster that provides reasonable prior notice onto the required days of work;
• a fixed agreement to work a particular number of hours per week; or
• regular and systematic employment.

You may not have reasonable expectation of ongoing employment if:

• you are only notified of your shifts prior to the start of the shift;
• you do not have fixed days or hours; or
• your time off work is out of proportion to the time spent working.

DID I WORK ON A REGULAR AND SYSTEMATIC BASIS?

In assessing whether you work on a regular and systematic basis, you will only need to consider the employment, and not the hours that you work.[2]

This includes:

• a repetitive pattern of employment (for example, you are expected to be at work every Monday regardless of the number of hours you will complete);
• there was a fair system, method or plan in you employment (for example, you are expected to work every Monday because you are one of the few employees available to work this day);
• your employer has offered you employment on the days that you are available; or
• you have been offered and accepted employment often enough that it cannot be classified to be irregular or occasional.[3]

[1] [2010] FWA 2078

[1] Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6 (30 March 2006)

[1] Above n1.

If you are a casual employee and fulfil all the above-mentioned criteria, you will be eligible to make an unfair dismissal claim against your previous employer.