Nearly two years ago to the day, we expressed outrage at
a Fair Work Commission decision that, in our view, incorrectly held
that casual service must be recognised when calculating redundancy
Thankfully, the Commission regained its senses this week by ruling the exact opposite in a separate case.
A quick recap: casual employees are not entitled to redundancy pay. However, two years ago, in a decision that caused most employment lawyers to pause with a collective "WTF!?", the Fair Work Commission ruled that, despite the casual exclusion, if an employee converts from casual to permanent employment, their casual service counts towards calculating redundancy pay. It didn't make sense then and it still doesn't. Luckily the Commission has taken steps to correct its mistake... err misjudgement.
The case involved the same situation, the redundancy of employees who at some point were casuals. This time though, the Commission said casual service didn't count towards redundancy pay.
Rather than just come out and admit it got it wrong last time, the Commission downplayed the significance of the previous decision saying the usual things like it "turned on its own facts" and it didn't set any general principle in relation to the treatment of casual employment.
While the Commission also cautioned about applying its latest decision beyond its own particular set of facts, we see it as a needed step to return to a time when casuals, and casual service, doesn't attract redundancy pay.
We do not disclaim anything about this article. We're quite proud of it really.