Unfair dismissal and casual employees

A casual employee qualifies for protection from unfair dismiss if he or she has completed a period of employment of at least the minimum employment period. That period is 12 months in the case of a small business employer and 6 months in the case of a non-small business employer.

A period of service as a casual employee does not count towards the employee’s period of employment unless the employment was on a regular and systematic basis AND during the period of service as a casual employee the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; see sec 384 Fair Work Act 2009.

Of course this begs the question. At what point do we test the expectation of continuing employment. Clearly it would defeat the exercise if the point was at the end of the employment, for example as the employee is summonsed to a meeting to terminate his or her employment. Well,  here is the answer.

‘In the context of casual employees pursuing an unfair dismissal remedy, Commissioner Roe considered the meaning of the terms “regular and systematic” engagement and “reasonable expectation of ongoing employment” in Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 13 (Ponce). Commissioner Roe specifically considered at what point the expectation of ongoing employment must be determined and relevantly stated as follows:

“[57] The other significant change is that the WR Act required that for a casual to achieve jurisdiction:

“the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer (Section 638(4) (b)).”

[58] Whilst the 2009 Act requires that:

“during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis (Section 384(2) (a) (ii)).”

[59] The focus on the reasonable expectation of continuing employment is not now about the expectation at the point of termination but about the expectation during the period of service that is to count towards achievement of the minimum employment period to achieve jurisdiction.

……………..

[64] So it is clear that a period of continuous service for the purposes of Sections 22 and 383 and 384 of the Act can include a period of casual employment notwithstanding the fact that the employee may be engaged and re-engaged on a daily or even an hourly basis during that period of casual employment. The test is simply whether or not during a period of at least six months prior to the dismissal the employment as a casual employee was on a regular and systematic basis and the employee had, during that period, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.” 14(emphasis added)

[64] I regard Ponce as authority for the proposition that it is not at the point of termination that one must assess whether there is a “reasonable expectation of continuing employment on a regular and systematic employment”. Rather, the focus is on whether such an expectation existed during the period of service. Based on Ponce with which I respectfully concur, it is not the test to assess whether the Applicant had a reasonable expectation of continuing casual employment on a regular and systematic basis as at the 29 December 2018. Rather, the assessment is to be made during her period of continuous service that counts towards the six month minimum employment period.

[65] The full period of casual employment of 17 months is particularly relevant in considering whether the Applicant could have had a reasonable expectation of continuing employment. That period during which she maintained her casual employment, combined with the “regular and systematic” nature of her employment, would in my view lead to an entirely reasonable expectation on the part of the Applicant of continuing employment.

[66] In all the circumstances, I conclude that the Applicant was a casual employee who was employed on a “regular and systematic” basis and that during her period of service as a casual employee, had a reasonable expectation of continuing employment. The period of the Applicant’s employment was in excess of the minimum period of employment of six months at the time of her dismissal as required by s 382 of the Act. Furthermore, the period of the Applicant’s employment was in excess of 12 months which would be the relevant minimum employment period if my conclusion on Hammock Time being an associated entity of the Respondent is incorrect.”

Wylie v Szauer Holdings Pty Ltd T/A Robinsons Bookshop and Cafe (2019) FWC 2038 delivered 4 April 2019 per Masson DP