Unfair dismissal and true casual employees

The concept under the fair work system of the dismissal of a true casual employee is a litle tricky sometimes.

“CONSIDERATION
[19] There is no contention that the Applicant was not a regular and systematic casual
employee by the parties. I made an Order requiring the Respondent to produce timesheets of
the Applicant which indicate the Applicant was working consistent hours most week. In
determining whether the Applicant was dismissed or whether the Applicant resigned from his
employment, I am required to consider whether the Applicant had a reasonable expectation of
continuing employment by the employer on a regular and systematic basis.
[20] In Bronze Hospitality Pty Ltd v Hansson (No 2) [2019] FCA 1680 at [43], Jackson J
stated the following:
What the employer tells the employee must be relevant. If the employee in fact has the
necessary expectation, and if what the employer said at the beginning of the employment
was sufficient to make the expectation reasonable, and nothing in the circumstances
indicated that what the employer said was unreliable, implausible or was otherwise to
be disbelieved, then the criterion may be satisfied from that time. If nothing happens
subsequently to show that the expectation will not be fulfilled, then it may subsist, as
a reasonable expectation, throughout the entire period of service as a casual
employee. There is nothing in the legislation which indicates that the employee’s
[2023] FWC 795
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expectation cannot be reasonable until a pattern of regular and systematic
employment, such as regular shifts, has in fact emerged.
[21] The Respondent’s position was that there was a downturn in trade and that the temporary
reduction of work was genuine. A downturn in work particularly in agricultural pursuits,
seasonal demand, weather events, change in consumer preferences and demand would impact
of the expectation of ongoing employment even if they did not occur frequently. Financial
information was provided by the Respondent which had supported this claim.
[22] The Applicant refutes that there was a downturn in trade as the Respondent was a
supplier for Woolworths and therefore there would be work available. Furthermore, the
Applicant stated that in previous downturns there were other tasks or roles he could have
performed for the Respondent.
[23] The Applicant receives his roster through text from one of the former partners of the
Respondent’s business. The Applicant stopped receiving shifts on 15 September 2022 from the
Respondent ‘due to drastic drop in orders (icebergs [lettuce] being cheap), give tomorrow and
Saturday a miss please and will be back in touch when things get busy. Thank you’.
[24] The Applicant sent a text message to the former partner that was responsible for
providing the shifts on 19 September 2022 at 6.38am stating ‘just wondering what’s going on
No roster at, Sorry tapped the wrong button, Yeah no roster at all??? Is that for every one or
just me? Have I done something wrong? Should I be looking for other work? Just want to know
where I stand’.
[25] He also sent the Respondent a text on the same day at 2.25pm stating ‘Hey Darryl, I
messaged Nat this morning but got no reply. Just wanted to know what was going on. I didn’t
receive a roster this week. Was that the same for every one or just me?…’
[26] The former partner of the Respondent stated on the same day at 3.12pm that she ‘would
keep in touch when required when things get busy’.
[27] In order to establish that the Applicant was dismissed, there must be action by the
employer that either intends to bring the relationship to an end or has that probable result. There
must be repudiation of the employer.
[28] The Full Bench decision of City of Sydney RSL v Mrs Roxana Balgowan [2018] FWCFB
5 states at 24:
“The general contractual characteristics of casual employment is that a person who
works over an extended period of time as a casual employee will be engaged under a
series of separate contracts of employment on each occasion a person undertakes work,
however they will not be engaged under a single continuous contract of employment.”
It is difficult to see how this common law concept of repudiation has any work to do in
relation to casual employees. At common law a casual employee’s contract of
employment ceases at the end of each engagement. An employer of a causal employee
does not repudiate that contract when it fails to offer another shift.”
[2023] FWC 795
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[29] Generally, downturns in business are valid reasons for dismissal of an employee and
permanent employees would be eligible to obtain and redundancy. However, the Applicant is a
casual employee and is not entitled to redundancy pay per s123 of the Act.
[30] Casual employees are compensated for the risk of dismissal in cases where a business
is experiencing a downturn by receiving casual loading. Mr McNamara had been offered a fulltime permanent position with the Respondent prior to the downturn which he declined. The
Respondent provided evidence of their financial performance which established that there was
a downturn and was consistent with their submission raised on this point.
[31] The Respondent had not repudiated any employment arrangement between them and
therefore the Applicant was not dismissed within the definition of s.386(1) as a persons
protected from unfair dismissal. I order this Application to be dismissed.”

MacNamara v Wilson S Farm Fresh Fruit & Veg [2023] FWC 795 delivered 14 April 2023 per Lake DP