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Can a casual employee claim unfair dismissal? Which case won?
17 Jun | Which Case Won

Can a casual employee claim unfair dismissal? Which case won?

by Mark Shumsky, Hornsby

The Facts

Casual worker applies for unfair dismissal remedy

On 25 June 2018, an employee commenced employment as a casual sales assistant with a large Australian retail chain.

The retailer had 1700 casual employees.

The employee was assigned to work irregular and differing hours. Her shifts were quite frequent though, typically being three or four shifts per week.

The employment contract provided no promise of continuing employment.

Work was allocated according to a monthly roster system and the employee indicated her availability to work for the month in advance.

After eight months, the retailer terminated the employee’s employment.

The employee then lodged a Fair Work Act application, claiming unfair dismissal and seeking reinstatement and compensation.

Under the Fair Work Act, a casual employee is only protected from unfair dismissal if:

  • They have completed a period of employment of at least six months;
  • Their employment was on a regular and systematic basis; and
  • They had a reasonable expectation of continuing employment on that basis.

It was up to the Fair Work Commission to determine if the employee was eligible to bring a claim for unfair dismissal under the Fair Work Act.

casea
The case for the employer
  • This employee does not meet the law’s very clear eligibility criteria for unfair dismissal applications.
  • Although we did employ her for eight months, she did not work on a regular and systematic basis.
  • Her hours were irregular, she had no set starting or finishing time and no regular days for work. There were wide variations in both the hours and days of the week that she worked and the length of each shift, so there was nothing uniform or predictable in her employment and no systematic pattern of work that can be identified.
  • By her own admission, the employee recognised that her employment was not regular or systematic. She stated in an email to us that she understands that “ALL casuals do not have guaranteed hours as well as casuals have a right to refuse any shift given the nature of the casual position without retribution.’”
  • Further, the employee could not have had a reasonable expectation of continuing employment on a regular and systematic basis. Her employment contract and all other documentation, such as rosters and pay slips, provided no basis for such an expectation.
  • The employee has not met the law’s eligibility criteria and is therefore precluded from bringing an unfair dismissal claim.
caseb
The case for the employee
  • Although I worked on different days with differing hours and my shifts were not regular, they were frequent in number and allocated on a consistent basis.
  • Most of my shifts were planned in advance. They were allocated to me at the start of each month on a roster after I had indicated my work availability for the month. This system of monthly allocation of shifts in advance created my expectation of ongoing employment.
  • I had an ongoing employment contract, which imposed various obligations and responsibilities, including that I had to hold myself available to work during “blackout periods” and continue to work until a prescribed termination event occurred.
  • I consistently worked three to four shifts every week for an unbroken 30 weeks. I did not have any long periods without work, apart from the time over Christmas.
  • All of these factors clearly demonstrate that I worked on a “regular and systematic” basis and had a reasonable expectation of continuing employment on that basis.
  • I am entitled to bring a claim for unfair dismissal and seek a remedy.

So, which case won?

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Expert commentary on the court's decision

Mark ShumskyLawyer
“Before an employer terminates a casual employee on the presumption that he or she cannot claim unfair dismissal, the employer should ask themselves several questions. Has the casual employee’s work frequency and amount of work allocated increased? Has their system of shift rostering become more regular and systematic? And would they have developed an expectation of continuing and regular employment if they have been employed continuously for more than six months?”
Fair Work Commission finds in favour of employer, employee appeals to Full Bench

When Bed, Bath n’ Table terminated Angele Chandler’s employment as a casual sales assistant, she applied to the Fair Work Commission for an unfair dismissal remedy.

The Deputy President of the Fair Work Commission dismissed Ms Chandler’s application, finding that she did not meet the eligibility criteria to claim unfair dismissal.

In Angele Chandler v Bed Bath N’ Table Pty Ltd [2020] FWCFB 306, Ms Chandler appealed this decision to the Full Bench of the Fair Work Commission.

The Full Bench granted Ms Chandler’s appeal, concluding that the Deputy President had erred in her interpretation of the law, and that based on the facts, Ms Chandler did meet the eligibility criteria.

Eligibility criteria for a casual employee to apply for unfair dismissal

The Fair Work Act 2009 dictates when an employee is a “person protected from unfair dismissal” and therefore eligible to lodge an unfair dismissal claim.

To be eligible under the Act, a casual employee must have completed a requisite minimum period of “continuous employment”, being at least six months for a large business, such as Bed, Bath n’ Table, or 12 months for a small business.

Relevant to Ms Chandler’s application, section 384(2)(a) of the Act provides that a period of service as a casual employee does not count towards the employee’s continuous period of employment unless two criteria are met.

The first is that the employment as a casual employee was on a regular and systematic basis. The second is that the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Deputy President of Fair Work Commission rejects employee’s application

Relying on a detailed review and analysis of the evidence, including Bed, Bath n’ Table’s timesheet records of hours and days worked by Ms Chandler, the Deputy President found that she did not have a “regular and systematic” pattern of employment. There was no regularity of engagements over the period, and the duration of shifts had varied significantly.

The Deputy President also found that when Ms Chandler’s employment contract, position description, workplace policies, and rosters were compared with actual hours worked and pay slips, the comparison did not support a finding that she had a “reasonable expectation of ongoing employment”.

Accordingly, the Deputy President concluded that Ms Chandler had not served the required minimum employment period under section 384 of the Act and, therefore, could not seek an unfair dismissal remedy.

Worker appeals decision to Full Bench on public interest grounds

Ms Chandler appealed the decision to the Full Bench of the Fair Work Commission on public interest grounds.

Ms Chandler contended that the grant of permission to appeal would be in the public interest, because the decision affected the rights of over 1700 casual employees engaged by Bed, Bath n’ Table and the decision was contrary to many previous decisions concerning the circumstances in which casual employees could be characterised as working on a regular and systematic basis.

Full Bench finds Deputy President erred and grants permission to appeal

The Full Bench found that the Deputy President’s determination as to whether Ms Chandler’s casual employment was regular and systematic was attended by a significant error of principle.

Specifically, in applying the law to the facts of the case, the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift, in order to be able to conclude that the employment was regular and systematic.

The Full Bench disagreed with this interpretation, stating that the approach the Deputy President should have applied is as set out in the ACT Court of Appeal decision in Yaraka Holdings Pty Ltd v Giljevic.

According to that decision, it is the “engagement” that must be regular and systematic, not the hours worked under such an engagement. Further, the absence of contractual requirements to work at set times or of any assumption to be present at work on a daily, weekly or monthly basis did not preclude a finding that the engagement had been “regular and systematic”.

The Full Bench found that the Deputy President’s error in construing section 384 of the Act led to her failure to take into account other relevant matters that might point to a different conclusion as to Ms Chandler’s eligibility to apply for unfair dismissal remedies.

The Full Bench concluded that it was in the public interest to grant permission to appeal based on these errors. This was because the Deputy President’s decision departed from well-established principles concerning the construction of section 384(2)(a) of the Act, depriving Ms Chandler of the opportunity to litigate her unfair dismissal remedy application.

Employee “protected from unfair dismissal” and appeal upheld

After granting permission to appeal, the Full Bench stated that the most efficient course of action was for them to redetermine the question of whether Ms Chandler was a person protected from unfair dismissal based on the evidence that was before the Deputy President.

The Full Bench found that Ms Chandler’s employment as a casual employee was on a regular and systematic basis. The data demonstrated that it was “regular” in the sense of being frequent. Ms Chandler was employed in every week until the termination of her employment, and in 30 of those weeks she was employed for three or four shifts in the week.

The employment could also be characterised as “systematic” – that is, arranged according to an identifiable system. This was due to two factors.

First, Ms Chandler’s ongoing contract of employment established a legal framework for the allocation of work to her in a particular position.

Secondly, a roster was posted in advance of each month setting out allocated shifts.

These factors, as well as the frequency and amount of work that Ms Chandler was allocated, led the Full Bench to conclude that she had a reasonable expectation of continuing employment on a regular and systematic basis, satisfying section 384(2)(a)(ii) of the Act.

The Full Bench quashed the decision of the Deputy President. They also referred the matter back to the Unfair Dismissal Case Management Team for final determination, given that Ms Chandler was a person protected from unfair dismissal in her employment with Bed, Bath n’ Table.

Significant development in Australian employment law

Casuals must prove their employment was “regular and systematic” over the minimum period required to enable claims of unfair dismissal. Because of this, it has often been difficult for casual employees to claim under unfair dismissal provisions, especially if they have worked irregular, infrequent or inconsistent hours.

This case is a significant development in Australian employment law in respect of casual employees.

It sets out how the law determines whether a casual employee’s employment is regular and systematic for the purposes of the unfair dismissal jurisdiction.

Since this decision, an increasing number of casual employees may be able to avail themselves of unfair dismissal protections if they have been employed for at least the required six month period.

For employers, the case clarifies what comprises a “regular and systematic pattern of work”.

Proving frequent provision of work, rather than a consistent pattern of work, is crucial for a casual employee claiming a remedy for unfair dismissal.

Frequency of work can also go to establishing “an ongoing expectation of continuing employment”.

Before an employer terminates a casual employee on the presumption that he or she cannot claim unfair dismissal, the employer should ask themselves several questions.

Has the casual employee’s work frequency and amount of work allocated increased? Has their system of shift rostering become more regular and systematic? And would they have developed an expectation of continuing and regular employment if they have been employed continuously for more than six months?

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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