This passage from an unfair dismissal decision deals with the issue whether a casual employee seeking to pursue an unfair dismissal case was working on a “regular and systematic basis”.
“4. Jurisdiction – was Ms Aitken protected from unfair dismissal?
[47] IK Enterprises submits there is a jurisdictional question over whether Ms Aitken can access the unfair dismissal jurisdiction as she was a casual employee with irregular hours.39 IK Enterprises further submits that Ms Aitken’s hours were not consistent, and her hours varied from week to week depending on business needs.
[48] IK Enterprises did not explicitly state in either their written or oral submissions the sections of the Act they rely upon or how Ms Aitken being a casual bars her from this jurisdiction.
[49] Section 382 of the Act provides that a person is protected from unfair dismissal at a time if they have completed at least the minimum employment period (among other things). As IK Enterprises is a small business employer, the relevant minimum employment period is 12 months.40
[50] A period of service as a casual employee does not count towards a period of employment unless the employee was a regular casual employee and had a reasonable expectation of continuing employment by the employer on a regular and systematic basis. A ‘regular casual employee’ is a casual employee who has been employed on a regular and systematic basis.41 To be ‘systematic’, the casual employment does not need to be predictable.42
[51] Ms Aitken was employed on a casual basis and IK Enterprises employed her from February 2023 until Thursday 1 August 2024.
[52] Ms Aitken submitted 85 payslips, which appears to be every single payslip she received while employed with IK Enterprises. From examining these payslips, it appears that Ms Aitken worked every week during her employment with IK Enterprises.
[53] 59 out of the 85 payslips show that Ms Aitken worked 23 hours for the relevant week. This includes the week before Ms Aitken was dismissed.43 The remaining 26 payslips show that Ms Aitken worked between 16 to 22 hours.44
[54] Ms Aitken’s unchallenged evidence is that she worked every Wednesday.45 She also regularly worked Thursdays and Saturdays. Ms Aitken also provided text messages from Ms Nguyen confirming that Ms Aitken’s days of work were Wednesday and Saturday.46
[55] Ms Nguyen’s evidence is that Ms Aitken’s hours were not consistent and that they fluctuated depending on business needs. Further, that Ms Aitken would often advise what days she required off. Fluctuation in hours and Ms Aitken taking days off are not in themselves indicators that Ms Aitken was not a regular casual employee.
[56] I find that IK Enterprises employed Ms Aitken on a regular and systematic basis. While Ms Aitken did not work the exact same number of hours every week, the evidence clearly shows that she worked every week; she worked similar or the same days each week; she worked between 16 to 23 hours per week; and for nearly 70% of her employment, she worked the same amount of 23 hours per week.
[57] Ms Aitken was therefore a regular casual employee. I also find that Ms Aitken had a reasonable expectation of continuing employment on a regular and systematic basis. This can be seen in the dismissal text, where Ms Nguyen told Ms Aitken not to come in on Saturday as rostered. I find that Ms Aitken completed the relevant minimum employment period at the time she was dismissed and so was protected from unfair dismissal.”
Aitken v IK Enterprises Pty Ltd [2025] FWC 561 delivered 24 February 2025 per Lim C