Unfair dismissal and casual employees

This is an extract from the Fair Work Commission’s unfair dismissal benchbook with an explanation of the concept of a regular casual employee.

“Who is a regular casual employee?

See Fair Work Act s.12

An employee is a regular casual employee at a particular time if, at that time, the employee is a casual employee, and the employee has been employed on a regular and systematic basis.

What is employment on a regular and systematic basis?

The Fair Work Act does not define employment on a ‘regular and systematic basis’.

It is the employment that must be on a regular and systematic basis, not the hours worked.213 However, a clear pattern or roster of hours is strong evidence of regular and systematic employment.214

The term ‘regular’ implies a repetitive pattern and does not mean frequent, often, uniform or constant.215

The term ‘systematic’ requires that the engagement be ‘something that could fairly be called a system, method or plan’.216

Where there is no clear pattern or roster, evidence of regular and systematic employment can be established where:

  • the employer offered suitable work when it was available at times that the employee had generally made themselves available, and
  • work was offered and accepted regularly enough that it could no longer be regarded as occasional or irregular.217

What is a reasonable expectation of continuing employment?

The Fair Work Act does not define the term ‘reasonable expectation of continuing employment’, this will depend on the particular circumstances.

One test that has been applied is ‘whether or not during a period of at least six months prior to the dismissal … the employee had … a reasonable expectation of continuing employment on a regular and systematic basis’.218″