The Facts

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 employment.

Work was allocated according to a monthly roster system and the employee indicated her availability to work for the month in advance.

After eight months, the retailer terminated the employee's employment.

The employee then lodged a Fair Work Act application, claiming unfair dismissal and seeking reinstatement and compensation.

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 months;
  • Their employment was on a regular and systematic basis; and
  • They had a reasonable expectation of continuing employment on that basis.

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 identified.
  • 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 retribution.'"
  • 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 expectation.
  • The employee has not met the law's eligibility criteria and is therefore precluded from bringing an unfair dismissal claim.
  • 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 employment.
  • 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 occurred.
  • 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 remedy.

So, which case won?

Cast your judgment below to find out

Mark Shumsky
Employment law
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.