This brief extract from a Fair Work Commission decision explains in simple terms how to assess whether employees’ employment is regular and systematic for the purpose of determining whether a business is a small business employer.
“[11] In Bronze Hospitality Pty Ltd v Hansson (No 2) [2019] FCA 1680 at 40, Jackson J states
that the Fair Work Commission does not limit the matters that may be taken into account in
determining whether the expectation is reasonable when determining ongoing expectation of
continuing employment. If the period of employment is shorter, it will be generally harder for
the employee to establish that he or she reasonably relied on a pattern of work, if that is the
basis of their reasonable expectation. But the reasonableness of the expectation depends on all
the circumstances.
[12] There are numerous decisions regarding the interpretation of what ‘regular and
systematic’ means. 1
‘Regular and systematic’ focuses on the working patterns of the employee,
and not just the hours worked.
[13] After removing the Director (Ms Creffield) from the count of employees on payroll as
she is the employer, I confirm that there are 14 employees that are regular and systematic
employees hired with an expectation of an ongoing basis upon review of the payroll records.
The remaining employees either no longer had shifts with the Respondent or were not regular
and systematic.
[14] Therefore, I find the Respondent to be a small business with less than 15 employees and
the dismissal will be determined with reference to the Small Business Fair Dismissal Code.”
Wade v Quad Care Pty Ltd [2023] FWC 796 delivered 30 May 2023 per Lake DP