When does a casual employee have unfair dismissal rights?

One Minute Summary

The employee’s employment contract had all the right wording relating to casual employment.
The employee had two types of casual engagements. The first was a structured approach with a casual roster being sent out at the start of the month based on the employer’s casual hours needs and the employee’s availability. The second related to ad hoc days of casual work to cover permanent employee’s last-minute absences for sick leave etc.
The Commission found that despite the intention of the employer and employee to have a casual employment relationship the fact there was a structured process to how the work was allocated resulted in a pattern.
The contract wording was secondary to the actual practice of how the casual was engaged.
The employee having worked casually (with varying days and hours) for a period of 2.5 years resulted in a reasonable expectation that the casual work would continue.

An important question we regularly discuss with clients is what steps are legally required before terminating an employee when there are performance or attitude issues. Unfortunately, as many employers have learnt the hard way, the Fair Work Act and various Commission and Federal Court decisions have made this a proverbial minefield.

This question becomes more complicated when dealing with casual employees as certain types of casual employees can make an application for unfair dismissal. Envisage a minefield in a swamp!

In the following case the employer appears to have done all the right things in respect to the engagement of the casual and making it clear about future expectations of work. However, regardless of the upfront casual employment contract and expectation management the Fair Commission decided that was insufficient.

The employee, Mr McLeish, was engaged as a casual news producer with GNM Australia from July 2022 to February 2025 when the employer informed him that they were no longer engaging him as a casual as they ‘had lost faith’ in his ability to work autonomously. Mr McLeish then claimed unfair dismissal.

In response to the unfair dismissal claim GNM claimed that the Commission had no jurisdiction to deal with the matter as Mr McLeish was not a regular casual employee and did not have a reasonable expectation of continuing employment.

To access unfair dismissal rights under the Fair Work Act 2009 the employee must have been employed as a regular casual and the employee had a reasonable expectation of continuing employment on a regular and systematic basis.

On engagement the employee had been issued with an employment contract clearly stating the casual nature of their employment and that each casual shift worked was a separate legal engagement. It also stated that GNM made no firm advance commitment to continuing work and did not guarantee minimum hours or continuous employment: ‘you should have no expectation of continuing employment with the company (GNM) and it may cease to offer casual engagements for any reason’.

The nature of the casual engagement between 2022 and 2025 was that Mr McLeish was invited to apply for casual shifts at the end of the previous month for the following month. Thereafter casual shifts were allocated as the month commenced. The shifts allocated were usually in response to predictable permanent employee absences or additional staffing needs. In addition casual shifts were regularly offered on an ad hoc basis at short notice when permanent employees called in sick. There were no set days or hours and the start/finish times for engagements regularly varied depending on GNM’s needs.

Mr McLeish had the right to decline work. In his evidence he stated that he worked on a regular basis throughout his employment except for times he wished to take leave.

The majority of shifts worked by Mr McLeish were those planned in advance with some ad hoc shifts worked in between. Therefore, his pattern of work was fairly consistent.

The days of the week worked and starting and finishing times changed from week to week.

The Commission looked at the quantity, regularity and pattern of work data very closely. It was found that over the course of his employment Mr McLeish had worked an average of 2.5 shifts per week. During the same time, he had declined approximately 50 work shifts with GNM.

The Commission found that working an average of 2.5 shifts per week amounted to Mr McLeish being engaged on a regular basis.

However, the Commission stated that for his engagement to be viewed as systematic there was an additional requirement – which was a system or a plan. In addition, it did not require predictability or an assurance of work at all.

In having a structured system for work allocation, where the employer called for availability and allocated casual work shifts at the start of the month, this provided a pattern of work whereby Mr McLeish worked weekly shifts over the period of his employment.

While there were no predictable hours, and that Mr McLeish worked additional ad hoc casual shifts to cover others being sick, there was still a systematic engagement of him as casual through the monthly allocation system.

The terms of the employment contract, which attempted to clearly state his employment was casual with no guarantee of regular or ongoing work did not displace the systematic nature of his engagements planned on a monthly basis. The Commissioner stated, ‘For the purposes of s384, the contract is not ‘King’. It is but one factor to be considered in the assessment of regular casual, reasonable expectation and regular and systematic in s 384(2).’

The Commission found that Mr McLeish declining work to take periods of leave did not affect the systematic nature of the engagements.

Given he had worked an average of 2.5 shifts on a weekly basis (in addition to ad hoc shifts) for well over 2 years it was reasonable that he had an expectation of further ongoing employment. The past practice led to a reasonable expectation of ongoing employment on a regular and systematic basis.

On that basis the Commission rejected GNM’s jurisdictional argument allowing Mr McLeish’s unfair dismissal claim to be heard.

Commentary

The employer having a structured system for calling for availability and then allocating casual shifts for the month was sufficient to form a pattern. If this system had not been in place and a more unstructured/last minute approach utilised, it is less likely this conclusion would have been reached.

The fact that Mr McLeish also worked additional ad hoc days around his rostered casual hours did not change this fact.

It is interesting that the Commission looked at the ‘average’ of hours worked in a week rather than what hours were worked in each particular week. You will always find a pattern in an average approach.

Where a casual employee has worked regular casual hours for some time they can claim they have an ongoing expectation of work based on their past hours of work.

It appears as though the interpretations around casual employment are becoming more difficult to negotiate for employers. Real casuals are those persons who receive the last-minute call in to cover a shift. Casuals who have some kind of pattern in their engagements are likely to be covered under a broader definition of regular and systematic.

Employers need to be careful when terminating casual employees. If you wish to discuss a casual termination or other aspects of casual employment please contact Hunter Employee Relations.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au