Casuals and unfair dismissal

The Western Australian Industrial Relations Commission has an unfair dismissal jurisdiction, not unlike that of the Fair Work Commission. However the latter applies to unfair dismissal cases involving national system employers and the WAIRC has jurisdiction over alleged unfair dismissals involving (essentially) sole traders in Western Australia, some local governments (see for example Heather Boyd and Rossheedom v Shire of Yalgoo (2016) FWC 2190) and State government instrumentalities and departments.

The Fair Work Act expressly excludes the FWC having jurisdiction over unfair dismissal cases brought against national system employers by true casual employees and does so by excluding casual employees who do not work on a regular and systematic basis and who had no reasonable expectation of continuing employment on a regular and systematic basis (sec 384(2)(b).

However causal employees are not excluded from the unfair dismissal jurisdiction of the WAIRC per se and are able to prosecute unfair dismissal cases provided that they can show that they have been dismissed by an employer to whom the WA system apples (see above).

Accordingly an employee of an employer which is subject to the WAIRC’s unfair dismissal jurisdiction only needs to be able to show that he or she has been dismissed, something which does not always follow in the case of casual employees. It is submitted that this will occur in two situations where a person who is treated by an employer as a casual; the first being where the characterisation of an employee as a casual employee is a sham (ie where the employee is called a casual but in reality works as a permanent full time or part time employee) and the second where an employee works on the basis that he or she works regularly and has a reasonably objective basis for an expectation of on-gong work. This will often be implied were the employee works regularly unless it is clear that the employee is not guaranteed on-going employment and is only engaged from engagement to engagement or from short separate distinct contracts (see Kellie Stratton v Hidden Valley Handcrafts [2014] WAIRCOMM 1258)

What then will constitute the dismissal of a casual employee?

According to WAIRC v Haydar Family Restaurants TA McDonalds (2003) WAIRC 09489, dismissal occurs when there is some some action on the part of the employer which leads to or effects the termination of the employee’s employment or where the employee does not consent to the termination of his or her employment. Metropolitan (Perth) Passenger Transport Trust v Gersdorf 61 WAIG 611 . The Full Bench of the WAIRC pointed out that there is no statutory definition of “dismissal” in the Act; cf Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205 where it was held that a dismissal in which the action of the employer is a principal contributing factor leading to the termination of the employment relationship constitutes a constructive dismissal.