This decision of the Fair Work Commission in an unfair dismissal case deals with how to count length of service for casual employees to determine whether a person is protected from unfair dismissal.
“BACKGROUND
[1]
Christopher Mitchell has worked for the Australian Broadcasting Corporation (ABC) on a casual basis since 15 July 2019. Mr Mitchell worked as a presenter, reporter, and producer on ABC NewsRadio from 15 July 2019 until 14 December 2025. Mr Mitchell was unavailable to work from 15 December 2025 to mid-January 2026 because he travelled to the United Kingdom with his family to visit his elderly parents. Mr Mitchell provided the ABC with notice of this trip. The ABC did not raise any concerns with Mr Mitchell about his period of unavailability. When Mr Mitchell returned to Australia in late January 2026, his ABC email account and ABC Network Account had been deleted. Mr Mitchell also stopped receiving a copy of the NewsRadio rosters via email. Mr Mitchell contends that Tanya Nolan (Managing Editor for the Audio News and Current Affairs Department) then told him during a phone call on 5 February 2026 that he would not be provided with any further shifts on NewsRadio. Mr Mitchell subsequently accepted a new casual contract to perform work for ABC Sport1 on a lower rate of pay. Mr Mitchell is continuing to perform casual work for ABC Sport under the terms of that contract. Mr Mitchell’s legal employer has always been the ABC. ABC NewsRadio and ABC Sport are internal operational parts of the ABC, they are not separate legal entities. Mr Mitchell filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 6 February 2026 which alleged his employment with the ABC was terminated on 5 February 2026. ABC raised jurisdictional objections to the application on the grounds that Mr Mitchell was not eligible to make the application because he had not completed the minimum employment period of six months and that Mr Mitchell was not dismissed by the ABC. This decision concerns whether Mr Mitchell was eligible to make an unfair dismissal application.
1 The ABC Sport team manages the sports updates provided on NewsRadio, amongst its other functions. Although the sports report is provided on NewsRadio, the sports team is administered separately within the ABC and is not part of the dedicated NewsRadio team.
[2026] FWC 3009
DECISION
[2026] FWC 3009
2
[2]
I conducted a hearing in Sydney on 27 July 2026. Mr Mitchell relied on evidence from himself and Michael Gardiner (former Manager of ABC NewsRadio). ABC relied on evidence from Ms Tanya Nolan (Managing Editor of the Audio News and Current Affairs Department) and Catherine Bell (Editor of NewsRadio).
AUTHORITIES
Minimum employment period – counting of casual service
[3]
The Full Bench in Shortland v Smiths Snackfood2 made the following important points about how casual employment is assessed under the FW Act:
•
The effect of s.384 of the FW Act is that casual employment does not start and end with each engagement as understood in the common law.
•
It is common for casual employees to transition between intermittent engagements and regular and systematic engagements during their casual employment.
•
A period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service and some which do not.
[4]
Section 384 of the FW Act states that a period of casual service does not count towards an employee’s period of employment unless the casual employee was a regular casual employee3 and the employee had a reasonable expectation of continuing employment on a regular and systemic basis.
[5]
The ACT Court of Appeal has previously confirmed in Yaraka v Gilvevic that it is the casual employee’s engagement that must be regular and systematic, not the hours worked pursuant to the engagement.4
[6]
In Ponce v DJT5, Commissioner Roe identified that where there is not a clear pattern or roster of hours and days worked or clear agreed engagements, a regular and systematic engagement can still be found where the evidence establishes that:
•
the employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and
•
work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.
Termination of casual employment
2 Wayne Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709 at [10] to [13].
3 This is defined in s.12 of the FW Act as a casual employee that has been employed on a regular and systematic basis.
4 Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339 at [65].
5 Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic [2010] FWA 2078 at [76].
[2026] FWC 3009
3
[7]
A period of continuous service by a casual employee is broken only when the employer or employee make it clear to the other party that there will be no further engagements.6
[8]
The Full Bench in Humeniuk v Sculpture by the Sea7 confirmed that assessing whether a casual employee has been dismissed requires an objective assessment of whether the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not left voluntarily by the employee. The question is whether a reasonable person in the position of the parties would have understood that the employer terminated the employment.
CONSIDERATION
[9]
The evidence demonstrates that Mr Mitchell completed 154 shifts from 25 November 2024 to 14 December 2025. A large portion of the shifts were worked on the weekend. Mr Mitchell was rostered for work weeks or months in advance. Mr Mitchell earned over $80,000 gross through his casual employment with the ABC in the 2020/21, 2021/22, 2022/23, 2023/24, and 2024/25 financial years. Mr Gardiner provided uncontested evidence that Mr Mitchell worked under his management and supervision for around six years on an ongoing, regular, and highly systematic basis. Ms Nolan and Ms Bell accepted during cross-examination that Mr Mitchell worked regularly for the ABC.
[10]
I find Mr Mitchell completed over six years of regular and systematic casual employment with the ABC and that Mr Mitchell had a reasonable expectation of continuing casual employment on a regular and systematic basis from 15 July 2019 until late January 2026. I find Mr Mitchell had completed the minimum employment period of six months with the ABC.
[11]
In relation to whether Mr Mitchell was dismissed by the ABC, the evidence establishes that:
(i)
The ABC’s internal administrative system requires casual employment contracts to be renewed after each six-month period. Mr Mitchell’s casual contract was renewed after each six-month period from early 2020 until 28 December 2025. The ABC decided not to renew Mr Mitchell’s casual employment contract when it nominally expired on 28 December 2025.
(ii)
Mr Mitchell’s ABC email address, ABC Network Account, and ABC ID Pass were deleted or deactivated on around 29 December 2025. This occurred as an automatic consequence of the ABC’s decision not to renew Mr Mitchell’s casual contract when it nominally expired on 28 December 2025.
(iii)
Ms Bell confirmed during the hearing that a decision was made within the ABC in late 2025 not to continue providing Mr Mitchell with NewsRadio shifts and this was why his contract was not renewed.
6 Wayne Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709 at [10] to [13].
7 Yuri Humeniuk v Sculpture by the Sea Incorporated [2025] FWCFB 212 at [51] to [53].
[2026] FWC 3009
4
(iv)
The ABC stopped including Mr Mitchell in emails containing its rosters for NewsRadio from mid-January 2026.
(v)
Mr Mitchell and Ms Nolan spoke via telephone on 5 February 2026. Mr Mitchell and Ms Nolan both presented as credible witnesses and have different recollections about what was stated during the phone call. I consider what is clear is that Mr Mitchell raised concerns about having his shifts with NewsRadio removed during the call and that he remained removed from the NewsRadio rosters and from his ABC accounts after he spoke with Ms Nolan on 5 February 2026. There is no evidence Ms Nolan indicated there had been some sort of mistake and Mr Mitchell’s regular arrangements would resume. Mr Mitchell then filed an unfair dismissal application the next day on 6 February 2026. Ms Bell confirmed in her evidence during the hearing that a decision was made within the ABC in late December 2025 to not allocate further NewsRadio shifts to Mr Mitchell. That is completely consistent with what has eventuated because Mr Mitchell has not been allocated any shifts on NewsRadio in 2026.
In all the circumstances, I am satisfied on the balance of probabilities that Ms Nolan did tell Mr Mitchell during the call on 5 February 2026 that he would not be receiving any more shifts with NewsRadio. I accept Ms Nolan does not recall making the statement but consider the surrounding circumstances identified above weigh in favour of preferring Mr Mitchell’s evidence on this point.
(vi)
Mr Mitchell was required to enter into a new casual contract to work for ABC Sport and to have his ABC Network Account and ID Pass reactivated. This new contract with ABC Sport was at a lower pay rate than what Mr Mitchell received when performing work for NewsRadio.
(vii)
Mr Mitchell has not been offered any shifts with NewsRadio in 2026 despite the ABC being aware that Mr Mitchell had returned to Australia and has been available to work since late January 2026.
[12]
Given the factual findings identified above, I find that a reasonable person in the position of the parties would have understood that the ABC terminated Mr Mitchell’s casual employment on 5 February 2026. When Mr Mitchell returned to Australia in late January 2026, his contract had not been renewed in the ABC’s internal administration system, he was no longer being emailed NewsRadio rosters, his ABC email account had been deleted, and his ABC Network Account had been deleted. When Mr Mitchell escalated the issue to Ms Nolan on 5 February 2026, nothing changed. To the contrary, I consider on balance that Ms Nolan confirmed that no more NewsRadio shifts would be offered to Mr Mitchell. That is certainly consistent with what has occurred in practice. The ABC then required Mr Mitchell to enter into a new contract at a lower rate of pay before he could perform work for ABC Sport. It is a considerable stretch for the ABC to argue that Mr Mitchell’s previous casual employment did not come to an end when the ABC expressly required Mr Mitchell to enter into a new contract at a lower rate of pay before he would be allocated casual work with ABC Sport. It is clear Mr Mitchell remained deactivated as an ABC employee until he accepted the new contract to work for ABC Sport.
[2026] FWC 3009
5
[13]
Given a dismissal does not take effect until it is communicated to the employee,8 I find that Mr Mitchell was dismissed by the ABC on 5 February 2026. Although the ABC decided not to renew Mr Mitchell’s contract on around 28 December 2025, Mr Mitchell did not become aware that any changes had been made to his employment arrangements until he returned to Australia in late January 2026. Mr Mitchell became aware that his ABC email address, ABC Network Account, and ID Pass has been deleted or deactivated in late January 2026. Mr Mitchell then sought confirmation regarding whether a decision had been made to not allocate him any further work with NewsRadio and this culminated with a phone conversation with Ms Nolan on 5 February 2026. I have accepted on balance that Ms Nolan confirmed during this phone call that Mr Mitchell would not be offered any further shifts. I consider the phone call between Mr Mitchell and Ms Nolan on 5 February 2026 constituted the ABC communicating to Mr Mitchell that a decision had been made to terminate his casual employment. Mr Mitchell then subsequently commenced a new and separate casual engagement with the ABC to perform work for ABC Sport.
[14]
I consider the ABC’s argument that what has occurred in 2026 is simply a continuation of Mr Mitchell’s prior casual employment to be somewhat disingenuous. Mr Mitchell was clearly a core part of the NewsRadio team from 2019 until the end of 2025. Mr Mitchell performed an important and high-pressure public-facing role. Mr Mitchell is no longer part of the small NewsRadio team. Mr Mitchell was expressly required to enter a new casual employment contract and is performing less frequent and less responsible work at a lower rate of pay. The ABC’s suggestion that this is essentially just “business-as-usual” with Mr Mitchell’s casual engagement cannot be accepted. While Mr Mitchell’s casual employment contract contained standard language about separate engagements and no guarantee of ongoing engagements, that is not how the relationship operated in practice. Mr Mitchell was a key part of the NewsRadio team for over six years. That only changed when the ABC decided to remove Mr Mitchell from the NewsRadio team in 2026. I consider that conduct from the ABC constituted a termination of Mr Mitchell’s casual employment. That position is consistent with what was recorded within the ABC’s own internal administration systems.
[15]
I find that Mr Mitchell was eligible to make an unfair dismissal application because he had completed the minimum employment period of six months and his employment was terminated at the initiative of the ABC on 5 February 2026.
8 Mohamed Ayub v NSW Trains [2016] FWCFB 5500 at [41].
[2026] FWC 3009
6
[16]
I dismiss the ABC’s jurisdictional objections.
[17]
A conciliation conference will be listed in relation to Mr Mitchell’s application on a date to be advised.”
Mitchell v Australian Broadcasting Corporation [2026] FWC 3009 delivered 7 August 2026 per Crawford C