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Casual worker applies for unfair dismissal remedy
On 25 June 2018, an employee commenced employment as a casual
sales assistant with a large Australian retail chain.
The retailer had 1700 casual employees.
The employee was assigned to work irregular and differing hours.
Her shifts were quite frequent though, typically being three or
four shifts per week.
The employment contract provided no promise of continuing
Work was allocated according to a monthly roster system and the
employee indicated her availability to work for the month in
After eight months, the retailer terminated the employee's
The employee then lodged a Fair Work Act application,
claiming unfair dismissal and seeking reinstatement and
Under the Fair Work Act, a casual employee is only
protected from unfair dismissal if:
They have completed a period of employment of at least six
Their employment was on a regular and systematic basis;
They had a reasonable expectation of continuing employment on
It was up to the Fair Work Commission to determine if the
employee was eligible to bring a claim for unfair dismissal under
the Fair Work Act.
case a - The case for the employer
case b - The case for the employee
This employee does not meet the law's very clear
eligibility criteria for unfair dismissal applications.
Although we did employ her for eight months, she did not work
on a regular and systematic basis.
Her hours were irregular, she had no set starting or finishing
time and no regular days for work. There were wide variations in
both the hours and days of the week that she worked and the length
of each shift, so there was nothing uniform or predictable in her
employment and no systematic pattern of work that can be
By her own admission, the employee recognised that her
employment was not regular or systematic. She stated in an email to
us that she understands that "ALL casuals do not have
guaranteed hours as well as casuals have a right to refuse any
shift given the nature of the casual position without
Further, the employee could not have had a reasonable
expectation of continuing employment on a regular and systematic
basis. Her employment contract and all other documentation, such as
rosters and pay slips, provided no basis for such an
The employee has not met the law's eligibility criteria and
is therefore precluded from bringing an unfair dismissal
Although I worked on different days with differing hours and my
shifts were not regular, they were frequent in number and allocated
on a consistent basis.
Most of my shifts were planned in advance. They were allocated
to me at the start of each month on a roster after I had indicated
my work availability for the month. This system of monthly
allocation of shifts in advance created my expectation of ongoing
I had an ongoing employment contract, which imposed various
obligations and responsibilities, including that I had to hold
myself available to work during "blackout periods" and
continue to work until a prescribed termination event
I consistently worked three to four shifts every week for an
unbroken 30 weeks. I did not have any long periods without work,
apart from the time over Christmas.
All of these factors clearly demonstrate that I worked on a
"regular and systematic" basis and had a reasonable
expectation of continuing employment on that basis.
I am entitled to bring a claim for unfair dismissal and seek a