Casual employees and the expectation of on-going work

One (not the only) of the statutory requirements for the employment of a casual employee to be regarded as being protected from unfair dismissal is that there be a reasonable expectation of on-going employment. This is how the Fair Work Commission views this legal issue.

“Regarding the reasonable expectation of continuing employment, Jackson J in Bronze

Hospitality Pty Ltd v Hansson (No 2) (Bronze) noted the following in relation to forming an

expectation:

“If the employee’s expectation was based, not on anything the employer said, but solely on her

own observation of the regularity of her work shifts, it would be wrong to look back and say

that, as it turned out, there was a reasonable expectation from the very beginning. An expectation

could not be reasonable until the time at which the pattern necessary to make it so has

emerged.”

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[17] In relation to the reasonableness of an expectation, Jackson J stated:

“If that expectation has been formed, it is necessary to assess whether it is a reasonable one. It is

true that the word ‘reasonable’ is generally used in the law to import an objective standard:

Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at [33] (Lord

Hoffmann). But the FWA does not limit the matters that may be taken into account in

determining whether the expectation is reasonable.”

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Rutherford v The Apprentice And Traineeship Company Inc [2023] FWC 2757 delivered 20 October 2023 per Schneider C