Casual employees and regular and systematic employment

This passage from an unfair dismissal case in the Fair Work Commission reveals how the issue of regular and systematic employment for the purposes of unfair dismissal protection for a casual employee works.

“Consideration

[18] There are well-established principles that apply when determining whether an employee meets these criteria. It is the employment that must be on a regular and systematic basis, not the hours worked. 6 To be systematic, the casual employment need not be predictable, frequent, often, uniform or constant.7 Rather, the engagement must involve “something that could fairly be called a system, method or plan”. 8 In circumstances where there is no clear pattern of work, the employment may still be considered regular and systematic employment if it can be established that the employer offered suitable work when it was available at times when the employee had generally made themselves available and work was offered and accepted regularly enough that it could no longer be regarded as occasional or irregular.9

[19] The Respondent provided a table of shifts setting out the number of shifts worked by the Applicant since August 2018. Between August 2018 and September 2020, the Applicant worked at least one shift every month for the Respondent, with the exception of three months: February 2019 and April and May 2020. The latter two were because the Respondent was closed due to COVID-19. For five of the months between August 2018 and September 2020, the Applicant only worked one shift. During the other months her shifts varied from two to seven. Something of the way shifts were offered may account for their varying numbers. Each month the Respondent would send a text message to the casual nursing staff, asking whether they were available for the relevant shifts. The Applicant would then indicate which shift she could work, taking into account that she also worked at Miami, and would then be included in the roster as required. I think it is fair to say that even though the hours were not uniform, there was a continuity about the Applicant’s engagement such that it could not be considered irregular or occasional. On that basis, I am comfortable that prior to September 2020 the Applicant’s engagement was regular and systematic.

[20] Once continuous service is established, it is only broken in circumstances where the employer or employee makes it clear to the other party that there will be no further engagements. 10 There was never any express communication by either party that the Applicant would no longer work for the Respondent. Although there were some months where the Applicant did not work, I am not satisfied that served to change the regular and systematic nature of her employment. The Applicant clearly considered that her relationship with the Respondent as ongoing. In support of that conclusion is the Respondent’s rostering system. As has been described above, it was common for the Respondent to send texts to the casual nursing workforce indicating the upcoming shifts required to be covered. Each nurse would indicate their availability and desire to work those shifts and the Respondent would then prepare a roster. The Respondent may have stopped offering the Applicant shifts after she stopped responding, however as soon as the Applicant indicated that she would be available to work for the Respondent she was rostered on again.

[21] I consider that the Applicant had an expectation of ongoing regular and systematic casual employment and that this expectation was reasonable, because of the way in which the Respondent’s rostering system worked and how the shifts allocated to her. Once the Applicant indicated she was available for shifts again, she was rostered on each month. While these shifts may have varied in respect of their start times, days and durations, there was a clear and reasonable expectation that the Applicant would receive some shifts from the Respondent.

[22] There is some authority for the proposition that during any part of the period of casual employment, the employment is either not regular and systematic or the Applicant does not have a reasonable expectation of an ongoing commitment, that part of the period of casual employment does not count. 11 If that be so, it may be appropriate to discount from the period of the Applicant’s continuous employment the period from September 2020 to May 2021. Even if one was to do that, the Applicant would still have completed the minimum employment with the Respondent.

[23] On that basis, I am satisfied that the Applicant had completed the minimum employment period. That jurisdictional objection fails.”

Callender v MCI Southport Properties Pty Ltd T/A Southport Day Hospital/ Cosmetic Evolution (2022) FWC 164 delivered 25 January 2022 per Lake DP