When are casual employees protected from unfair dismissal?

This portion of a recent unfair dismIssal case dealt with in the Fair Work Commission is a very good summary of the legal principles involved when determining whether a casual employee is protected from unfair dismissal.

“Consideration

[35] Section 384 of the FW Act provides:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is

the period of continuous service the employee has completed with the employer

at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the

employee’s period of employment unless:

(i) the employment as a casual employee was as a regular casual

employee; and

(ii) during the period of service as a casual employee, the employee

had a reasonable expectation of continuing employment by the

employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer

of business from an old employer to a new employer; and

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(ii) the old employer and the new employer are not associated entities

when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the

new employment started that a period of service with the old

employer would not be recognised;

the period of service with the old employer does not count towards the

employee’s period of employment with the new employer.”

[36] Whilst the phrase “continuous service’ is not defined in the FW Act, the ordinary

meaning of “continuous service” is a period of unbroken service by an employee with an

employer.5 However, regularly and systematically rostered casual employees remain in service

notwithstanding that each engagement may be by separate casual contracts. Gaps in time

between such contracts do not necessarily break service because it is the employment

relationship and not the contract that is assessed for continuity.6

[37] For these reasons, the phrases “period of employment” and “continuous service” in s

384 of the FW Act and the phrase “continuous service” in s 22 are best read as relating to a

period of an unbroken employment relationship and not necessarily an unbroken employment

contract (subject to the further statutory provisions in s 22 which deem certain service to be

continuous despite a break in the employment relationship).

[38] Thus, to have served the minimum employment period to be eligible to make an unfair

dismissal application, Mr Arbon needs to establish that three jurisdictional facts existed in the

six months prior to dismissal:

  • that he was a casual employee (as defined);
  • that he was a “regular casual employee” (as defined); and
  • that he had a reasonable expectation of continuing employment on a regular and

systematic basis.

[39] I now deal with each of these issues.

Was Mr Arbon a casual employee?

[40] A “casual employee” is defined in s 15A as:

“15A Meaning of casual employee

(1) A person is a casual employee of an employer if:

(a) an offer of employment made by the employer to the person is made on the

basis that the employer makes no firm advance commitment to continuing

and indefinite work according to an agreed pattern of work for the person;

and

(b) the person accepts the offer on that basis; and

(c) the person is an employee as a result of that acceptance.

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(2) For the purposes of subsection (1), in determining whether, at the time the offer is

made, the employer makes no firm advance commitment to continuing and

indefinite work according to an agreed pattern of work for the person, regard must

be had only to the following considerations:

(a) whether the employer can elect to offer work and whether the person can

elect to accept or reject work;

(b) whether the person will work as required according to the needs of the

employer;

(c) whether the employment is described as casual employment;

(d) whether the person will be entitled to a casual loading or a specific rate of

pay for casual employees under the terms of the offer or a fair work

instrument.

Note: Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12

months and has, during at least the last 6 months of that time, worked a regular pattern of hours

on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment

or part-time employment.

(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm

advance commitment to continuing and indefinite work according to an agreed

pattern of work.

(4) To avoid doubt, the question of whether a person is a casual employee of an

employer is to be assessed on the basis of the offer of employment and the

acceptance of that offer, not on the basis of any subsequent conduct of either

party.

(5) A person who commences employment as a result of acceptance of an offer of

employment in accordance with subsection (1) remains a casual employee of the

employer until:

(a) the employee’s employment is converted to full-time or part-time

employment under Division 4A of Part 2-2; or

(b) the employee accepts an alternative offer of employment (other than as a

casual employee) by the employer and commences work on that basis.”

[41] It is not in dispute that Mr Arbon was a casual employee.

[42] I take into account the terms of the Contract, which was the expression of the offer of

employment by Bunnings and its acceptance by Mr Arbon. It is that and that only which I am

required to consider under s 15A(4).

[43] Each of the four considerations required to be taken into account in s 15A(2) point in

that direction.

[44] In relation to s 15A(2)(a), Bunnings could elect to offer work and Mr Arbon could elect

to not accept work under the terms of the Contract. The Contract stated:7

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“You agree that you have no ongoing expectation of ongoing employment or guaranteed

hours work.”

[45] In relation to s 15A(2)(b), Mr Arbon was required to work according to the needs of the

employer. The Contract stated:8

“You are required to perform the duties of the position and any other duties as Bunnings

may reasonably direct from time to time.”

[46] In relation to s 15A(2)(c), the Contract described Mr Arbon as a casual employee.9

[47] In relation to s 15A(2)(d), the Contract provided that Mr Arbon was entitled to a casual

loading under the terms of the relevant enterprise agreement.10 Clause 13.2 of the Agreement

provided for a 22.5% casual loading.

[48] I find that Mr Arbon was a casual employee as defined.

Was Mr Arbon a regular casual employee?

[49] A “regular casual employee” is defined in s 12 as:

“a national system employee of a national system employer is a regular casual

employee at a particular time if, at that time:

(a) the employee is a casual employee; and

(b) the employee has been employed by the employer on a regular and

systematic basis.”

[50] Section (a) of this definition is satisfied.

[51] Was Mr Arbon employed on a regular and systematic basis (ss (b))?

[52] For a casual employee to have worked on a regular and systematic basis it is sufficient

for their employment to have been “regular” in the sense of being frequent notwithstanding it

being unpredictable, and “systematic” in the sense of it being part of a pattern of engagement

occurring as a consequence of businesses reliance on the employee’s services notwithstanding

that the precise pattern of working may not be foreseeable to the employee.

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[53] I find that Mr Arbon’s employment as a casual employee was regular, having regard to

its frequency. The concept should be applied liberally and implies a regular pattern.12

[54] Of the twenty-six weeks in the six months prior to dismissal Mr Arbon worked at least

one day in twenty-one of these weeks. In only five of those weeks (weeks commencing 19

September, 3 October, 12 December, 26 December and 2 January) did Mr Arbon not work.

[55] Whilst I accept Bunnings’ submission that the number of hours worked by Mr Arbon in

a given week varied and was not predictable given that Mr Arbon was rostered according to

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Bunnings’ needs and also his availability around tertiary studies (resulting in some roster

changes at short notice), this does not mean that Mr Arbon did not work regularly.

[56] Aside from frequency, there is evidence of a pattern of work whereby Mr Arbon made

himself available to work on weekends and was rostered on alternate weekends and, when his

studies permitted, supplemented that by making himself available to work on weekdays and

was rostered on weekdays according to his availability and store needs. Whilst there were

exceptions to this pattern, it was frequent enough for it to be somewhat of a default arrangement.

[57] Bunnings commonly rostered Mr Arbon on alternate weekends. Of the twenty six

weekends in the six month period, Mr Arbon worked at least one day on fifteen of them. Of

those fifteen, Mr Arbon worked both the Saturday and the Sunday on eleven of them.

[58] For these reasons I find that Mr Aaron was regularly employed.

[59] I also find that Mr Arbon was systematically employed in the sense that his employment

was part of a pattern of engagement occurring as a consequence of businesses reliance on his

services.

[60] There is clear evidence of an established and identifiable system by which Mr Arbon

was offered casual work by Bunnings.

[61] Aside from being continuously on the books as a casual employee, Mr Arbon made his

availability known in advance to Bunnings, and usually well in advance. Moreover, Mr Arbon

was provided a roster by Bunnings at least a fortnight in advance of a shift and occasionally

more than a month in advance.

[62] Mr Arbon was not a casual employee who worked simply when contacted by the

employer shortly prior to a shift to ascertain if he was available to work that shift. Whilst that

occasionally occurred, it was the exception and not the general position. The general position

was that Mr Arbon was on the store roster, his forward availability was known to the employer

and he was provided a forward roster of his allocated shifts with ample notice, so much so that

Mr Arbon’s evidence was that he routinely screenshot the roster and placed it on his kitchen

fridge as a reminder.

[63] When Mr Arbon worked on a Saturday or Sunday, he would commonly though not

always be rostered to work in the car park. Of the twenty-seven Saturdays or Sundays worked

in this period, Mr Aaron worked the car park on twenty of them.

[64] This also suggests some system of routine reliance by Bunnings on Mr Arbon as one its

weekend car park employees.

[65] Mr Arbon did not work in the car park on weekday shifts. His weekday shifts were

worked in a variety of other in-store departments or in goods inward. This is consistent with Mr

Arbon’s evidence that his weekday work was supplementary to his weekend shifts.

[66] I find that Mr Arbon worked on a systematic basis in the relevant sense.

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[67] For these reasons I conclude that Mr Arbon was employed on a regular and systematic

basis.

[68] I make this finding without reliance on whether Mr Arbon had been offered but declined

conversion to part time employment and whether this was an offer of conversion required by

the FW Act or an offer made at the employer’s initiative. I do so for two reasons. Firstly, the

state of the evidence as to the context in which any refusal by Mr Arbon occurred is

unsatisfactory such that no finding of fact could safely be made. Secondly, even if Mr Arbon

declined either a statutory offer of conversion or a discretionary offer to become a part time

employee, that does not re-characterise whether, whilst employed as a casual, he was regularly

and systematically employed. It cannot alter a jurisdictional fact if that fact existed.

[69] Accordingly I find that Mr Arbon was a regular casual employee.

Did Mr Arbon have a reasonable expectation of continuing employment on a regular and

systematic basis?

[70] I adopt the approach set out by Deputy President Beaumont in Liting Gu v Geraldton

Fishermen’s Co-operative Pty Ltd:

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“[41] In my view, the consideration of ‘reasonable expectation’ is twofold. It requires, as

was identified in Bronze Hospitality No.2, an examination of whether: (a) the employee

had an expectation of continuing employment by the employer on a regular and

systematic basis (subjective); and (b) that expectation, if held, was ‘reasonable’

(objective).

[42] In determining whether the expectation was ‘reasonable’, regard is had to the

employment contract as established at the time employment commenced. However, in

my view consideration extends to all circumstances throughout duration of employment,

as they prove relevant. As observed in Bronze Hospitality No.2, the Act does not limit

the matters that may be taken into account in determining whether the expectation is

reasonable. Such matters will include, for example, whether there are any mutual

undertakings that are to be inferred from conduct or implied that take effect as

contractual variations, or any subsequent express contractual variation. Matters may

also include the period of employment, representations made (and by whom), rostering

arrangements (particularly those made amply in advance), the industry in which the

work is performed, and so on.”

[71] Was there an expectation?

[72] I conclude there was. The evidence establishes that Mr Arbon had an expectation of

continuing employment on a regular and systematic basis. He organised his work around his

tertiary studies and made this known to his employer. He made himself available on a consistent

basis to work on weekends, and to supplement that with weekday work when he was available.

Mr Arbon continued to make himself available to again be rostered after having previously been

rostered. This also supports a conclusion that he had an expectation of ongoing employment on

that basis.

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[73] Nor is the existence of an expectation discounted by reference to the relatively low

number of days worked per week or that his work was secondary to his tertiary studies. There

is no reason why an employee who makes themselves available to work a limited number of

shifts in a week necessarily has less of an expectation of ongoing employment on that basis

than an employee who makes themselves available for multiple shifts.

[74] Was the expectation reasonable in objective terms?

[75] I take into account that the terms of the Contract provided that as a casual you “may”

(not shall) be offered shifts and “that you have no ongoing expectation of ongoing employment

or guaranteed hours of work”.14

[76] The Contract is a relevant consideration which weighs against a finding that a reasonable

expectation existed.

[77] However, the practical manner in which the Contract operated is also relevant.

[78] In the circumstances of this matter, the performance of the Contract and the course of

dealings between the parties over a period of nearly two years including the offer and

acceptance of casual shifts on a regular and systematic basis in the six months prior to Mr

Arbon’s dismissal weigh strongly in the other direction notwithstanding the discretionary nature

of Bunning’s contractual right to offer or not offer work.

[79] The fact that Mr Arbon was rostered to work on 16, 17, 18 and 19 February 2023 and

would have worked on those days but for being dismissed is also evidence that supports a

finding that he had a reasonably held expectation of continuing employment on a regular and

systematic basis.

[80] For these reasons, I conclude that Mr Arbon had a reasonable expectation of continuing

employment on a regular and systematic basis.

[81] Section 384(2)(a)(ii) is made out.

Conclusion

[82] As ss 384(2)(a)(i) and (ii) are satisfied, Mr Arbon’s service as a casual employee in the

six months prior to dismissal counts for the purposes of the minimum employment period.

[83] Mr Arbon was relevantly employed for at least six months prior to dismissal.

[84] Mr Arbon’s application is within jurisdiction. Having served the minimum employment

period, he was a person protected from unfair dismissal. He was eligible to make a claim under

s 394 of the FW Act.

[85] The jurisdictional challenge by Bunnings is dismissed.

[86] As the application has been the subject of conciliation, I will list the matter for further

directions.”

 

Arbon v Bunnings Group Limited T/A Bunnings Warehouse [2023] FWC 972 delivered 1 May 2023 per Anderson DP