Unfair dismissal for casual employees

Here is an extract from a recent Fair Work Commission unfair dismissal case decision in which the concept of regular and systematic employment is addressed.

“In considering whether the Applicant has been employed on a regular and systematic basis, it is the ‘employment’ that needs to be considered, not the hours worked. 13 However, a clear pattern of hours is strong evidence of regular and systematic employment.14 The term ‘regular’ implies a repetitive pattern and does not mean frequent, often, uniform or constant.15 The term ‘systematic’ requires that the engagement be ‘something that could fairly be called a system, method or plan’.16 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. 17

[45] For a period of service as a casual employee to count toward the minimum employment period, it will be necessary that the employee be employed on a regular and systematic basis and have a reasonable expectation of ongoing employment on that basis throughout that period. 18 If during any part of the period one of these elements is not present, that part of the period will not count toward the minimum employment period.19 Once continuous service is established, the employer or employee may only break continuous service by making it clear to the other party that there will be no further engagements.20 Absence for illness or injury does not break a period of continuous service.21

[46] In my opinion, between 24 November 2020 and 25 February 2021, the Applicant was employed on a regular and systematic basis. While there were some days that the Applicant did not work, including over the end of year period and to attend medical appointments, over the period in question the Applicant’s employment was regular in that she was engaged most weeks. I also find that the employment was systematic as I accept the Applicant’s evidence that she generally worked according to a pattern of hours, Monday to Friday, albeit with a slight variation to the start and finishing times as set out in the First Contract.

[47] As to whether the Applicant had a reasonable expectation of ongoing employment over this period, I accept the Applicant’s evidence that she considered that her employment was ongoing and I consider this expectation to be a reasonable one. Indeed, her contract foreshadowed a review with the potential to move to full time employment at the completion of her probationary period and this ultimately occurred. Whether the position was created as a favour to the Applicant or not is not a relevant consideration. I find that the Applicant’s service between 24 November 2020 and 25 February 2021 counts towards the minimum employment period. Adding this service to the Applicant’s service between 26 February 2021 and 7 July 2021, I find the Applicant’s service meets the requirements of s.384 of the FW Act and that the Applicant’s service meets the minimum employment period.

Conclusion

[48] The Applicant has completed a period of employment with the Respondent that is at least the minimum employment period, as required by s.382(a) of the FW Act. The Respondent’s jurisdictional objection is dismissed. The Applicant’s unfair dismissal application will now be programmed and listed for further hearing.”

McCallum v Everstone Pty Ltd (2021) FWC 6358 delivered 16 November 2021 per Matheson C