Casual empoyees and unfair dismissal

The question whether a casual employee had a reasonable expectation of continuing employment is a critical issue when determining whether he or she is protected from unfair dismissal, thus;

“Section 384(2)(b)(ii) – Reasonable Expectation of Continuing Employment

[41] The Applicant was engaged under a labour hire arrangement by the Respondent. From the period of May 2020 until his termination on 19 April 2022, the Applicant had worked only for the Respondent at one site, that site being the Tanami site.

[42] During this time, the Applicant had periods of extended unpaid leave. Despite the Applicant taking these additional periods of unpaid leave, the Respondent continued to engage the Applicant for work at the same client site. The repetitive nature and pattern of engagement weighs in favour of the Applicant having a reasonable expectation of continuing employment.

[43] Mr Moss confirmed to a wider pool of employees engaged by the Respondent at the Tanami site that the business had a contract until 2022 with a 2-year continuation.

[44] The Respondent’s client was seeking to engage the Respondent’s labour hire employees as direct hire employees. This practice is not uncommon in the mining and resources sector. The email sent by the Respondent was done so in order to provide clarity and certainty around the Respondent’s continued relationship with Newmont. The email implied that employees, like the Applicant, who did not sign over to work for Newmont would still have the ability to work for the Respondent at the Tanami site.

[45] The Respondent also stated the below:

“We also have other opportunities in the NT, and are focusing building our numbers in that region”

[46] The communication was not directed solely at the Applicant. However, I do believe that the above would have enforced the Applicant’s expectation of ongoing engagement. It is reasonable for the Applicant to expect that, even if there was no longer work available at the Tanami site, there would be other opportunities with the Respondent’s business.

[47] I do not accept that this on its own would have created a reasonable expectation of continuing employment. I also note the tenure of the Applicant’s engagement with the Respondent and that the engagement occurred at the one site. In consideration of all the circumstances, I find the Applicant held a reasonable belief of ongoing engagement on a regular and systematic basis.

[48] I note the wording of clause 4.1(a) in the Applicant’s contract of employment as outlined below:

“The Employee will be employed on a casual basis. The Employee agrees that there is no guarantee of ongoing employment with the Employer”.

[49] I do not find that the above clause, in the context of this matter, excludes a finding of a reasonable expectation of ongoing engagement on a regular systematic basis. The nature of the Applicant’s engagement, coupled with the Respondent’s ongoing reliance on the Applicant, supports the finding that the Applicant held a reasonable expectation of ongoing engagement as specified in the Act.

Conclusion

[50] Based on the evidence submitted, I am satisfied that the Applicant met the requirements of sections 384(2)(a)(i) and 384(2)(a)(ii) of the Act. The Applicant’s engagement was on a regular and systematic basis, the Applicant held an expectation of continuing employment on that basis, and that expectation was reasonable.

[51] Accordingly, the Applicant’s period of service as a casual employee satisfies the minimum employment period under the Act. The Applicant is therefore a person protected from unfair dismissal. The jurisdictional issue is dismissed. The matter will now progress to a hearing on the merits of the application.”

Armour v Mader Contracting Pty Ltd (2022)  FWC 2752 delivered 14 October 2022 per Schneider C