Unfair dismissal minimum casual employment

 

For the purposes of determining whether a person is protected from unfair dismissal under the Fair Work Act, a length of service with a particular employer which is regular and systematic will be taken into account when determining whether an employee who may have been employed thereafter on a less regular casual basis, and perhaps immediately before a dismissal, if the former exceeds 6 months.

“Relevant Time for Determination of Nature of Employment

[55] In the Respondent’s submission, the Applicant was required to be employed as a regular

casual employee, and to have a reasonable expectation of continuing employment by the

Respondent on a regular and systematic basis, in the six-month period from 3 May 2022 to the

dismissal date of 3 November 2022.

[56] The Respondent acknowledged that the Applicant had approximately seven years of

regular and systematic employment from the commencement of his employment,

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but

submitted that was irrelevant as s.383 provided the “minimum employment period” as being

six months ending at the earlier of the following times:

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

(ii) immediately before the dismissal.

[57] I reject the Respondent’s submissions above, as pursuant to S.382 of the Act:

“A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or

her employer of at least the minimum employment period; …”

[Emphasis added]

[58] The meaning of period of employment is set out in s.384, and the period of employment

for the purposes of s.382(a) is determined by reference to s.384, not s.383. As the Full Bench

observed in Shortland v The Smiths Snackfoods Co Ltd,

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(Shortland):

Moreover, it is more than tolerably clear that s.384 is concerned with how an

employee’s period of employment is calculated for the purposes of s.382(a). Section

384(2) draws a distinction between a period of service and a period of employment. It

also draws a distinction between a period of continuous service and a period of service:

a period of continuous service can be made up of a series of periods of service, some of

which count towards the period of continuous service (ie. where the conditions in

s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions

in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an

employee may have series of contiguous periods of service with an employer that may

[2023] FWC 815

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count towards a single period of employment with that employer. Any given period of

service in such a contiguous series of periods of service will count towards the

employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are

met. Section 384(2) is concerned only with determining which periods of service in such

a contiguous series count toward the employee’s period of employment with the

employer for the purposes of s.382(a).

[59] The Applicant had approximately seven years of regular and systematic employment

from the commencement of his employment the Respondent, and that period “counts” toward

the Applicant’s period of employment. That employment continued until the dismissal on 3

November 2022, albeit on a less regular basis for approximately the last two years.

Notwithstanding that less regular attendance at work, it is clear that the Respondent was

continually in contact with the Applicant in order to secure his performance of minimum

requirements up until a month before his dismissal.

[60] I find that the Applicant has met the relevant minimum employment period and is

therefore a person protected from unfair dismissal.”

 

Murimwa v David Jones Pty Ltd [2023] FWC 815 delivered 24 May 2023 per Cross DP

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