True casuals not counted for unfair dismissal

A small business employer under the Fair Work Act is an employer which at the material time has fewer than 15 employees; sec 23. True casual employees are excluded from that count.

“On the evidence that has been provided by the Parties, the Commission is satisfied to make a finding that as at the date of the applicant’s alleged unfair dismissal, 13 November 2019, the employer had 15 employees. However, one of those 15 employees was Mr Mitchell, who was engaged as a casual employee and he had commenced employment only two days earlier. Mr Mitchell’s employment circumstances have become vital to the determination of whether the employer was a small business employer at the time of the applicant’s alleged unfair dismissal.

Importantly, subsection (2) (b) of section 23 of the Act operates in respect to the employment circumstances of Mr Mitchell in this instance wherein it states; “(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.”

By application of the well-established principles for determination of whether employment was regular and systematic, as can be found in the recent Full Bench Decision in Chandler v Bed Bath N’ Table  1, the employment of Mr Mitchell as a casual working his third engagement, could not provide for a finding that he had been employed by the employer on a regular and systematic basis. Therefore, by virtue of the operation of subsection 23 (2) (b) of the Act, Mr Mitchell cannot be counted as an employee for the purposes of establishing whether the employer was or was not a small business employer at the time of the applicant’s alleged unfair dismissal.

Consequently, for the purposes of s. 23 of the Act, at the time of the alleged unfair dismissal of the applicant, 13 November 2019, the employer employed fewer than 15 employees because Mr Mitchell was a casual employee who had not been employed by the employer on a regular and systematic basis at that time, and he therefore cannot be counted for the purposes of determining whether the employer satisfied the meaning of a small business employer. Therefore, the employer was a small business employer at the time of the applicant’s alleged unfair dismissal, and as the applicant had not completed the relevant minimum employment period of one year, he was not a person protected from unfair dismissal. The minimum employment period objection raised by the employer must be upheld, and the application for unfair dismissal remedy must be dismissed.”

Battersby v BRM Bulk Resource Management (2020) FWC 1163 delivered 5 March 2020 per Cambridge C