Casual employees and unfair dismissal

It is sometimes quite tricky to establish whether a casual employee’s service with an employer is “continuous” for the purpose of determining whether the employee is protected from unfair dismissal having served the minimum employment period under the Fair Work Act.

“Statutory framework

[15] Relevantly, by s 382(a) of the Act, a person is protected from unfair dismissal at a time if, at that time the person is an employee “who has completed a period of employment with his or her employer of at least the minimum employment period.”

[16] Section 383 of the Act sets out the meaning of “minimum employment period.” It provides as follows:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[17] Section 384 of the Act provides as follows:

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was as a regular casual employee; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis;

[18] The term “regular casual employee” as used in s 384(2)(a)(i) is defined by s 12 of the Act. It provides:

regular casual employee: a national system employee of a national system employer is a regular casual employee at a particular time, if at that time:

(a) the employee is a casual employee; and
(b) the employee has been employed by the employer on a regular and systematic basis.

[19] Section 22 of the Act defines the terms “service” and “continuous service” in the following way:

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or
(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

Consideration

[20] It is not in dispute that the respondent is not a small business employer for the purposes of s 383(b) of the Act. It follows that Mr Wazir must have completed a minimum employment period of at least six months with the respondent pursuant to s 383(a) in order to be a person protected from unfair dismissal.

[21] Mr Wazir was engaged as a casual employee pursuant to the Monjon (Australia) Pty Ltd Collective Agreement 2007 (Monjon Agreement). The respondent submits that Mr Wazir has had four employment periods with the company as a casual employee, as follows:

(a) March 2014 to May 2017 (first period of employment);
(b) September 2017 to March 2020 (second period of employment);
(c) December 2020 to 14 January 2022 (third period of employment); and
(d) 13 March 2022 to 27 July 2022 (final period of employment).

[22] The respondent contends that given breaks in Mr Wazir’s service, 15 only the final period of employment is of relevance in the assessment of whether Mr Wazir has completed the minimum employment period. This period comprised of four months and 20 days.16 Accordingly, the respondent submits that Mr Wazir has not met the six-month minimum employment period under the Act.

[23] Mr Wazir contends that he has been employed on a regular basis by the respondent since 2017. He submits that the only time he was absent from his casual employment with the respondent was (a) one shift in March 2020 when his parents visited from overseas, and (b) between 14 January 2022 and 9 March 2022 when he travelled overseas for his brother’s wedding. Mr Wazir submits that his absence from work between March to December 2020 was on account of the COVID-19 lockdown at which time he remained on “standby.” Mr Wazir contends that he has met the minimum employment period. 17

Was Mr Wazir’s employment with the respondent continuous?

[24] In determining the respondent’s contention that Mr Wazir has not met the minimum employment period, it is first necessary to consider whether Mr Wazir’s employment continued in the periods where Mr Wazir did not perform any work for the respondent, such that Mr Wazir’s employment with the respondent was continuous.

[25] Mr Wazir’s first period of employment concluded in May 2017 by way of Mr Wazir’s resignation. I therefore disregard this period.

[26] Mr Wazir’s second period of employment commenced in September 2017. The respondent contends that this period of employment concluded in March 2020. It is not in dispute that during the period between March 2020 and December 2020, Mr Wazir did not perform any work for the respondent on account of the lockdowns occasioned by the COVID-19 pandemic.

[27] The respondent has not advanced specific submissions in support of its position that Mr Wazir’s employment ceased in or about March 2020. However, I understand its position to be that Mr Wazir’s employment did not continue in the period between March 2020 and December 2020 when Mr Wazir did not perform any work. The respondent relies generally upon the fact that it was never in a position to guarantee ongoing work for Mr Wazir, and he should not have had an expectation of regular and ongoing work as a casual employee, 18 noting that casuals are defined as being engaged from “shift to shift” under the Monjon Agreement.19

[28] The Full Bench of the Commission in Shortland v The Smiths Snackfoods Co Ltd 20 (Shortland) observed that continuous service by a casual employee who has an established sequence of engagements with an employer “is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements.”21 The Full Bench continued by observing that gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous service.22

[29] The respondent’s Chief Operating Officer, Ms Tina Guthrie gave evidence that the casual roster is prepared on a week-to-week basis and shifts are offered based on client demand, skill and availability. 23 With respect to termination, Ms Guthrie said that it is the respondent’s practice to take the proactive step of terminating a casual’s employment, as opposed to simply removing them from the roster. Ms Guthrie takes the view that dealing directly with the situation is the right thing to do by a casual employee. This involves discussing with the casual employee the basis for ending the relationship, rather than not rostering the employee for future shifts.

[30] The evidence before the Commission also demonstrates that where an employee ceases employment, they are required to return their company issued uniform to the respondent in return for the reimbursement of a uniform bond. 24

[31] I accept that Mr Wazir did not perform his usual weekly shift for the respondent during the period between March 2020 and December 2020 on account of the COVID-19 lockdowns. However, prior to this, Mr Wazir had an established sequence of engagements with the respondent. There is no evidence of any action taken by the respondent that definitively brought the casual employment relationship to an end in March 2020. The respondent did not make it clear to Mr Wazir, through its words or actions, that his employment had ceased or that there would be no further engagements upon the conclusion of Melbourne’s lockdown period. Rather, Ms Guthrie gave evidence that the respondent communicated with Mr Wazir and its broader workforce about the impact of COVID-19 and advised that “there would be less work or a change of work.” Consistent with this, Mr Wazir says that he was advised that he was on “standby” from work. 25 I accept Mr Wazir’s evidence in this respect, noting that it was not in contest.

[32] This lack of action on the part of the respondent in March 2020 is contrary to the practices described by Ms Guthrie at [29] of this decision. It also differs to the respondent’s approach in July 2022 when it made two phone calls to Mr Wazir on 26 July 2022 before issuing the termination letter on 27 July 2022 and requiring Mr Wazir to return his work uniform. 26 There is no evidence of the respondent requiring Mr Wazir to return his uniform between March 2020 and December 2020.

[33] Furthermore, it is not in dispute that Mr Wazir was not issued with a new employment contract in December 2020, at the time that the respondent contends Mr Wazir entered into the third period of employment.

[34] I find that Mr Wazir’s employment did not cease in or about March 2020 as contended. The gap in Mr Wazir’s engagements between March 2020 and December 2020, occasioned by the COVID-19 pandemic, constitutes a period of unpaid authorised absence and does not interrupt Mr Wazir’s period of continuous service. As s 22(1)-(3) of the Act makes clear, periods of unpaid authorised absence do not break an employee’s continuous service, although they do not count towards an employee’s length of continuous service.

[35] The respondent further contends that Mr Wazir’s third period of employment commenced in December 2020 and concluded in January 2022 when Mr Wazir travelled overseas to attend his brother’s wedding.

[36] Ms Guthrie gave evidence that “when casual employees are leaving to go overseas for a period of more than 4 weeks (or without a confirmed date of return), it has been Monjon practice to end our relationship.” 27 It is on this basis that the respondent contends that Mr Wazir’s employment did not continue in the period between 14 January 2022 and 13 March 2022.

[37] There is no evidence before the Commission which establishes a basis for the respondent’s general practice of ending a casual’s employment on account of authorised absences of more than four weeks. To the extent that this practice is contained in any policy document, such document is not before the Commission and there is no evidence as to the manner in which this practice is communicated to employees or how it is applied by the respondent. Moreover, there is no evidence of the respondent providing this advice to Mr Wazir in response to his 23 December 2021 email to the respondent in which he advised the respondent of his intended period of leave. 28 In these circumstances, there is no material against which the Commission can assess whether such the respondent’s practice is lawful and reasonable, or that Mr Wazir was aware of it. Furthermore, there is no evidence of any steps taken by the respondent in March 2022 to support the respondent’s contention that the final period of employment constituted a new engagement. Relevantly, Ms Guthrie confirmed that the respondent did not issue Mr Wazir with a new casual employment contract in March 2022 and accepted the proposition that Mr Wazir was simply placed back on a roster that suited his availability from 13 March 2022. Nor was Mr Wazir required to return his work uniform during this period.

[38] The Full Bench in Shortland stated that a period of continuous service within the meaning of s 384(1) of the Act is not to be seen as broken by a period of leave, or an absence due to illness or injury. 29

[39] I find that Mr Wazir’s employment did not cease on or about 14 January 2022 as contended. The gap in Mr Wazir’s engagements between 14 January 2022 and 13 March 2022 was occasioned by a period of unpaid authorised leave, which does not interrupt Mr Wazir’s period of continuous service (although it does not count towards Mr Wazir’s length of continuous service as prescribed by s 22(1)-(3) of the Act).

Conclusion – continuous service

[40] For the reasons stated, Mr Wazir’s employment with the respondent did not cease in or about March 2020, and nor did it cease on 14 January 2022.

[41] Accordingly, I am satisfied that Mr Wazir’s employment with the respondent was continuous in the period between September 2017 to 27 July 2022, being the date that Mr Wazir was dismissed from his employment with the respondent.

What periods of service count towards Wazir’s period of employment?

[42] I have established that Mr Wazir’s employment with the respondent was continuous from September 2017 to 27 July 2022. However, as a casual employee, only periods of Mr Wazir’s service that meet the requirements of ss 384(2)(a)(i) and (ii) count towards Mr Wazir’s period of employment for the purposes of s 384 of the Act. I turn now to consider this matter.

[43] In the second period of employment, the evidence discloses that Mr Wazir performed work on the same shift each weekend. He initially worked from 6:00am to 4:00pm on Saturdays, and then from 6:00am to 4:00pm on Sundays.

[44] As earlier noted, the respondent generally submits that Mr Wazir should not have had an expectation of regular and ongoing work as a casual employee. 30 However, in response to questions from the Bench about Mr Wazir’s second period of employment, Ms Guthrie gave evidence that the respondent had introduced a new human resources system and she no longer had access to historical data dating back to this period, as the replaced system had been decommissioned. Accordingly, Ms Guthrie said that she could provide “not a lot” of practical information about Mr Wazir’s employment during the second period of employment, other than to confirm Mr Wazir was a casual employee.

[45] I am satisfied, having regard to the evidence before the Commission, that Mr Wazir’s casual employment with the respondent in the second period of employment meets the definition of a “regular casual employee” for the purposes of s 384(2)(a)(i) of the Act. During this period of service, Mr Wazir had a reasonable expectation of continuing employment by the respondent on a regular and systematic basis under s 384(2)(a)(ii), notwithstanding clause 6.3 of the Monjon Agreement. Mr Wazir performed the same shift on Saturday, and then Sunday pursuant to working hours that were consistent with his specified availability in the “personal details form” that Mr Wazir completed upon commencement of his casual employment in September 2017. There is no evidence of any variation to Mr Wazir’s shift roster in this period. It is not in dispute that Mr Wazir missed only one shift during this two-and-a-half-year period, on Sunday 29 March 2020, which Mr Wazir provided the respondent with advanced notice of.

[46] Having satisfied the requirements in s 384(2)(a)(i) and (ii) of the Act, it follows that Mr Wazir’s service as a casual employee during the second period of employment counts towards Mr Wazir’s period of employment. This is sufficient to dispose of the respondent’s jurisdictional objection. As the Full Bench in Shortland confirmed: 31

“It is clear from the language of s 384(2) that an employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s 384(2)(a)(i) and (ii) are met.”

[47] On this period alone, Mr Wazir has exceeded the six-month minimum employment period in s 383 of the Act. It is therefore strictly unnecessary to consider the remaining periods of Mr Wazir’s employment. I am satisfied that, having met the minimum employment period, Mr Wazir is a person protected from unfair dismissal.

[48] However, I make the following observations to address the respondent’s contentions.

[49] I would disregard the period between March 2020 and December 2020 from the calculation of Mr Wazir’s period of employment. Mr Wazir was on “standby” during this period and was not required to perform any shifts. I am satisfied that this period constitutes an unpaid authorised absence from Mr Wazir’s employment with the respondent. As s 22(1)-(3) of the Act makes clear, periods of unpaid authorised absence do not break an employee’s continuous service, although they do not count towards an employee’s length of continuous service. Furthermore, I would not be satisfied that Mr Wazir had a reasonable expectation of continuing employment with the respondent on a regular and systematic basis during this period within the meaning of s 384(2)(a)(ii) of the Act. 32 The reasonableness of the expectation depends upon all the circumstances33 and it could not have been known at that time when his casual shifts would resume.

[50] I would also disregard the period between 14 January 2022 to 13 March 2022 from the calculation of Mr Wazir’s period of employment. During this time, Mr Wazir was on a period of unpaid authorised absence from his employment with the respondent. This period therefore does not count towards Mr Wazir’s length of continuous service pursuant to s 22(1)-(3) of the Act.

[51] I otherwise make no findings in respect of Mr Wazir’s employment with the respondent during the third period of employment and the final period of employment, as it is not necessary to do so in the determination of the respondent’s jurisdictional objection.

Conclusion – period of employment

[52] I am satisfied that Mr Wazir has completed a period of employment with the respondent of at least the minimum employment period which, in this case, is six months.

Conclusion and disposition

[53] Having regard to the above matters, and the conclusions reached, I find that Mr Wazir is a person protected from unfair dismissal for the purposes of s 382(a) of the Act.

[54] The respondent’s jurisdictional objection is dismissed.

[55] Directions will issue for the further programming of Mr Wazir’s application for an unfair dismissal remedy.”

Extract from Wazir v Monjon Australia Pty Ltd (2022) FWC3180 delivered 7 December 2022 per Millhouse DP