Unfair dismissal; are casuals protected?

Under the Fair Work Act casual employees are protected from unfair dismissal if they have completed a period of employment of at least 6 months, or 12 months in the case of employment with small business employers, provided that the employment has been on a “regular and systematic basis”.

How is the notion of a “regular and systematic” basis tested?

“I must therefore consider whether any of the service of the Applicant as a casual employee can be counted in the Applicant’s period of employment. To do so, I must consider whether the Applicant was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis. If I find in the affirmative for all or any of her service, I must consider whether this service amounted to a period of employment that is at least the minimum employment period of six months………………………

Consideration

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“[29] The Macquarie Dictionary meaning of ‘regular’ relevantly includes:

  1. Usual; normal; customary
  2. Recurring at fixed time; periodic
  3. Observing fixed times or habits

The Macquarie Dictionary meaning of ‘systematic’ relevantly includes:

  1. Having, showing or involving a system, method or plan
  2. Characterised by a system or method; methodical
  3. Arranged in or comprising an ordered system

[30] The Court of Appeal, Australian Capital Territory, in Yaraka Holdings Pty Ltd v Giljevic considered a deeming provision applicable to independent contractors which, in part, deemed an individual to have been employed by an employer if the engagement ‘has been on a regular and systematic basis.’ It should be noted that the deeming provision included matters which should be considered in determining whether an engagement has been on a regular and systematic basis. The following extracts from the judgements of the majority are instructive. Crispin P and Gray J noted:

It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulations under the Workplace Relations Act 1996 (Cth), particularly reg 30B, and this concept has been considered by industrial tribunals in a number of cases.

[31] Their Honours noted that:

…it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement.

[32] Relevantly, their Honours observed in relation to the meaning of ‘regular’ that:

The term “regular” should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”.

and formed the view that the pattern of engagement of the individual in question over the years from 1995 to 2002 satisfied this description.

[33] In respect of the meaning of ‘systematic’, their Honours held:

The concept of engagement on a systematic basis does not require the worker 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 upon the worker’s services as an incident of the business by which he or she is engaged. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses.

[34] Madgwick J concurred with the majority. In a separate judgement, his Honour considered examples provided in the relevant statute of ‘individuals who are workers’ concluding that ‘the meaning to be ascribed to (the deeming provision) is conditioned by the examples.’  Accordingly, his Honour stated:

It is clear from the examples that a ‘regular … basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all.

Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001).

[35] The finding as to whether employment is regular and systematic is a discretionary one having regard to the totality of the evidence. Setting out factors which dictate a finding one way or another is to be avoided, particularly so given the Act is silent as to the matters to be considered.” (citations removed)

[23] It is clear that the Applicant’s hours did vary somewhat from week to week. However, that does not lead to an inevitable conclusion that that the Applicant’s casual employment was not regular or systematic. In Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 8 (Ponce) Roe C stated as follows:

“[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.”

[24] While the Applicant’s hours of work may have varied from week to week the pattern of work did have the following features:

  • She was rostered to work on either a Saturday and/or Sunday of most weeks plus she worked additional hours during the week from time to time. In the 12 month period immediately prior to her termination of employment she worked on Saturday and/or Sunday on 39 of the 52 weekends in that period.
  • There was clearly an ongoing reliance of the Respondent on the Applicant as evidenced by her being regularly rostered to work, notice of which was provided in advance.
  • The Respondent offered work to the Applicant generally and such offers of work were routinely accepted.

[25] The pattern of engagement could not, in my view, be described as irregular or occasional even though the actual days and hours worked each week varied. The fact that her hours fluctuated and did not approximate the hours of a full-time employee, is not fatal for the purpose of establishing a “regular and systematic” pattern.

[26] I have found it unnecessary to consider in detail the entire period of casual engagement of the Applicant for the purpose of establishing “regular and systematic” engagement, although the entire period serves to reinforce the pattern of regular weekend work that I have described above. I am satisfied that the Applicant was clearly engaged as a casual employee on a “regular and systematic” basis.

[27] In relation to whether the Applicant had a reasonable expectation of continuing employment, I note that the Respondent makes submissions that the Applicant regularly declined offered shifts which the Respondent contends would lead to a conclusion that the Applicant could not have had a reasonable expectation of continuing employment. The Respondent failed to adduce evidence to support this claim. I am consequently not persuaded in relation to that submission.

[28] The full period of casual employment of 4 years and 8 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 and the absence of any performance issues, would in my view lead to an entirely reasonable expectation on the part of the Applicant of continuing employment.

[29] 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.

[30] The jurisdictional objection of the Respondent is dismissed.”

McKee v Moama Bakery Pty Ltd (2018) FWC 4246 delivered 24 July 2018 per Masson DP