Unfair dismissal and casual employees Part 1

Here is a decision of the Fair Work Commission determining that a casual employee was protected from unfair dismissal having been employed for more than the minimum employment period on a regular and systematic basis thus it is a very useful analysis of the legal principles involved in determining that issue.

“[1] Mr Donovan Gough commenced employment with Outdoor Supacentre Pty Ltd (Outdoor Supacentre) as a casual employee on 22 January 2021. He became a permanent full-time employee with Outdoor Supacentre on 10 January 2022. Mr Gough remained in full-time employment with Outdoor Supacentre until his employment was terminated on 5 June 2022.

[2] Outdoor Supacentre contends that Mr Gough was not protected from unfair dismissal on 5 June 2022 because he had not, at that time, completed at least the minimum employment period with Outdoor Supacentre (s 382(a) of the Fair Work Act 2009 (Cth) (Act)). This decision relates to Outdoor Supacentre’s jurisdictional objection in relation to the minimum employment period for Mr Gough.

Relevant legal principles

[3] Sections 383 and 384 of the Act relevantly provide as follows:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer – 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer – one year ending at that time.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) 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; …”

[4] It is the employment that must be on a regular and systematic basis, not the hours worked. 1 However, a clear pattern or roster of hours is strong evidence of regular and systematic employment.2

[5] The absence of any contractual requirement for the employee to work at set times or of any assumption that the employee be present on a daily, weekly or monthly basis unless told otherwise does not preclude a finding that the employee’s engagements were regular and systematic. 3

[6] The term “regular” should be construed liberally. 4 It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant.5 Employment on a “regular” basis may be constituted by frequent though unpredictable engagements.6

[7] The term “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”. 7 The concept of engagement on a “systematic” basis does not require the employee to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance on the employee’s services as an incident of the business by which he or she is engaged.8

[8] For a period of service as a casual employee to count for the purpose of the minimum employment period under s 384, it is necessary that the employee be employed on a regular and systematic basis and have a reasonable expectation of ongoing employment on that basis throughout the relevant period. If during any part of the period of casual employment, one of these elements is not present, that part of the period of casual employment does not count. 9

[9] In Shortland v The Smiths Snackfood Co Ltd, 10 a Full Bench of the Commission explained what is meant by a break in the continuous service of a casual employee:

“[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions, that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”

Relevant facts

[10] Mr Gough’s contract of employment dated 18 January 2021 contains the following relevant provisions:

“I am pleased to offer you casual employment in the position of Sales Representative with us…

1.1 Your employment will be on a casual basis. As a casual employee, there is no guarantee of ongoing or regular work.

3.1 As a casual employee your hours are irregular and intermittent by nature and you are not guaranteed any number or allocation of working hours.

3.2 Your hours may be rostered ahead of time in the staff roster where it is reasonably practicable to do so. These hours may change from time to time according to business needs.

[11] Mr Gough worked in the Gosford Outdoor Supacentre store.

[12] Weekly rosters were provided to staff at the Gosford store a fortnight in advance, but the rosters were commonly edited by management before the commencement of the week covered by the roster.

[13] Mr Gough informed Outdoor Supacentre that he was generally available to work at any time. In the event that Mr Gough became unavailable to work on a particular day, he would let management known beforehand.

[14] When Mr Gough commenced casual employment with Outdoor Supacentre in January 2021, he was told by the manager of the Gosford store, Mr Jamie Clark, that he would be working mostly on weekends between Thursday and Monday. That representation turned out to be true. The rosters tendered by Outdoor Supacentre 11 show that Mr Gough was rostered to work:

  • every Saturday bar three in the period from 22 January 2021 to 10 July 2021;
  • every Sunday bar four in the period from 22 January 2021 to 10 July 2021;
  • 14 times on a Friday in the period from 22 January 2021 to 10 July 2021;
  • nine times on a Monday in the period from 22 January 2021 to 10 July 2021; and
  • occasionally on a Tuesday, Wednesday or Thursday in the period from 22 January 2021 to 10 July 2021.

[15] In about June 2021, Mr Gough had a discussion with Mr Clark about the possibility of becoming a full-time employee of Outdoor Supacentre at the Gosford store. Mr Clark told Mr Gough that there were no full-time vacancies available at the time, but Mr Clark would try to get a full-time job for Mr Gough.

[16] In the period between 22 January 2021 and 9 July 2021, Mr Gough says that he had an expectation of continuing employment by Outdoor Supacentre on a regular and systematic basis. He contends that his expectation in this regard was reasonable on the basis that he was seen as a valuable employee by Outdoor Supacentre and he was working most weekends between Thursday and Monday, as Mr Clark told him would be the case.

[17] In the period between 10 July 2021 and 14 December 2021, Mr Gough did not undertake any work for Outdoor Supacentre. The reason Mr Gough did not work for Outdoor Supacentre during this time was because his health issues meant that he was not vaccinated against COVID-19, and government directives were in place which prevented him from working in the Gosford store of Outdoor Supacentre without being vaccinated against COVID-19. Outdoor Supacentre informed Mr Gough that so long as he remained unvaccinated against COVID-19 and government directives prevented him from working in the Gosford store without being vaccinated, he would not be rostered to work in the Gosford store. Outdoor Supacentre encouraged Mr Gough to be vaccinated against COVID-19 and did not inform him that his employment had ceased or that he would never be offered shifts again in the future.

[18] The Gosford Outdoor Supacentre was closed for about two months in about July 2021. Once the store re-opened, it was initially opened with minimal staff on a click-and-collect basis only.

[19] Mr Gough understood that he could not expect full-time employment with Outdoor Supacentre while COVID-19 restrictions were impacting the Gosford store.

[20] In about October 2021, Mr Gough heard that the government directives concerning working in retail outlets were going to be lifted. Mr Gough had a discussion with Mr Clark about returning to work. As a result of those discussions, it was planned that Mr Gough would return to work when the directives lifted in about November 2021. The lifting of the government directives did not take place until 14 December 2021. As a consequence, Mr Gough could not return to work until that time.

[21] During his discussions with Mr Clark in about October or November 2021, Mr Gough was told that he would be working full time hours leading up to Christmas 2022.

[22] Mr Gough returned to work at the Gosford Supacentre store, as a casual employee, on 15 December 2021. On that day he spoke to Mr Clark again about the possibility of becoming a full-time employee of Outdoor Supacentre. Mr Clark informed Mr Gough that he was looking into it, but it depended on a range of matters including COVID-19, any government directives requiring staff to be vaccinated, and the Gosford store remaining open. Mr Clark informed Mr Gough that he needed to “get Christmas out of the way” before making a decision about full-time employment for Mr Gough.

[23] Mr Gough worked about 35 hours a week in the period from 15 December 2021 to 9 January 2022.

[24] Mr Gough was provided with a letter of engagement, dated 5 January 2022, as a full-time employee of Outdoor Supacentre. Mr Gough accepted that offer and commenced as a full-time employee of Outdoor Supacentre on 10 January 2022. He remained in that position until his dismissal on 5 June 2022.

Application of legal principles to the facts

[25] Because Outdoor Supacentre was not a small business employer at the time of Mr Gough’s dismissal, his minimum employment period was six months (s 383(a) of the Act).

[26] It is not in dispute and I am satisfied on the evidence that Mr Gough was employed by Outdoor Supacentre as a casual employee in the period from 22 January 2021 until the commencement of his full-time employment on 10 January 2022. In order for any part of that period of service as a casual employee to count towards Mr Gough’s 17 weeks and one day’s service as a full-time employee, both limbs of s 384(2)(a) must be satisfied.

[27] As to the period from 22 January 2021 until 9 July 2021, I am satisfied that:

(a) Mr Gough’s employment with Outdoor Supacentre as a casual employee was as a regular casual employee. It was regular because it involved Mr Gough working a repetitive pattern constituted by shifts almost every weekend during the period, together with other frequent engagements, particularly on a Friday and Monday; and

(b) throughout the period from 22 January 2021 until 9 July 2021 Mr Gough had a reasonable expectation of continuing employment by Outdoor Supacentre on a regular and systematic basis. I accept Mr Gough’s evidence that he had such an expectation. I also accept that his expectation was reasonable given that he was told by Mr Clark at the commencement of his employment that he would be working mostly on weekends between Thursday and Monday. That representation matched the reality of what happened. Mr Gough’s employment was on a systematic basis because he was engaged to work pursuant to a rostering system which resulted in Mr Gough working a pattern of engagements almost each weekend during the period.

[28] As to the period from 10 July 2021 to 14 December 2021, Mr Gough did not work for Outdoor Supacentre but his continuous service as a casual employee was not broken by this period. That is because neither Mr Gough nor Outdoor Supacentre made clear to the other party, by words or actions, that there would be no further engagements. Outdoor Supacentre made clear to Mr Gough that he would not be offered shifts during this time because the government regulations in place at the time meant that, in his capacity as a person who was not vaccinated against COVID-19, he was not permitted to work in the Gosford store.

[29] As to the period from 15 December 2021 until 9 January 2022, I am satisfied that:

(a) Mr Gough’s employment with Outdoor Supacentre as a casual employee was as a regular casual employee. It was regular because it involved Mr Gough working almost full-time hours (about 35 per week) across frequent engagements each week; and

(b) throughout the period from 15 December 2021 until 9 January 2022 Mr Gough had a reasonable expectation of continuing employment by Outdoor Supacentre on a regular and systematic basis. It was a reasonable expectation because Mr Gough was told by Mr Clark that he would be working full-time hours leading up to Christmas and Mr Clark was considering the possibility of making Mr Gough a full-time employee after Christmas. Mr Gough’s employment was on a systematic basis during this period because he was engaged to work pursuant to a rostering system which resulted in Mr Gough working a pattern of engagements which gave him, on average, about 35 hours work each week.

[30] It follows that Mr Gough’s period of service as a casual employee in the periods from 22 January 2021 to 9 July 2021 and 15 December 2021 to 9 January 2022 count towards his period of employment with Outdoor Supacentre. Once these periods are combined with Mr Gough’s period of service from 10 January 2022 until 5 June 2022 as a full-time permanent employee, it is clear that, at the time of his dismissal, Mr Gough had completed at least the minimum period of employment (six months) with Outdoor Supacentre.

Conclusion

[31] For the reasons given, Outdoor Supacentre’s jurisdictional objection is dismissed and the application may proceed to be dealt with on its merits. The parties will be advised in due course of the next step to be taken in the proceedings.”

Gough v Outdoor Supacentre (2022) FWC 2435 delivered 13 September 2022 per Saunders DP