Unfair dismissal; length of service by casuals

Continuity of service can be terribly important to the legal issue of whether or not a casual employee is protected from unfair dismissal. Service in those circumstances can be severed by a clear direction from the employer to the effect that the employment has ended. The issue is the subject of the following legal issue in a recent Fair Work Commission unfair dismissal case.

“The respondent does not dispute that the applicant had a prior period of service being from 4 October 2011 until 23 March 2020. Rather, the submissions for the respondent were that on 23 March 2020 the applicant’s employment with the respondent was terminated. This meant, the respondent’s submissions continued, that the applicant’s employment and service were broken, and any service before her employment recommenced on 28 April 2020 does not count. In so submitting, the respondent’s submissions referred to Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709 (“Shortland”) at [10]-[14], particularly including the following quote:

“[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.”

[16] The respondent submitted, relying on the authority of Shortland, that the service of a casual employee is broken when one party makes it clear to the other party that there will be no more engagements; and this was the case here, it was further submitted, with the respondent-issued ESC of 23 March 2020 relevantly breaking the applicant’s service. In so submitting the respondent referred also to Holland v UGL Resources Pty Ltd [2012] FWA 3453 (“Holland”) at [33]-[34].

[17] The respondent submitted the application must be dismissed because the applicant’s period of service with the respondent was broken on 23 March 2020. The second period of employment, commencing on 28 April 2020, lasted for 20 days and that period fails to meet the minimum employment period prescribed by the Act.

…………………………………..Conclusion

[37] I accept the submissions for the respondent concerning its minimum employment period objection. The applicant was not, at the time of her dismissal on 18 May 2020, a person who was protected from unfair dismissal – and this is so notwithstanding her earlier service in the period 4 October 2011 to 23 March 2020. In the circumstances, an order will be issued in conjunction with this decision dismissing the application.

[38] The proceedings are concluded.”

Aming v Gledswood Homestead & Winery Pty Ltd – [2020] FWC 4145 – 17 August 2020 – Mc