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