Fair Work Australia has held that the termination of a casual
worker's employment was unfair on the basis that the employee
was not provided with reasonable opportunity to respond to the
employer's concerns about criminal proceedings against him
relating to sex offences before his employment was terminated.
In Steve Leigh (aka Wilson) v Nestle Australia Limited t/a
Uncle Tobys  FWA 4744, Uncle Tobys became aware of media
articles relating to the conviction of one its casual employees for
sex offences outside the workplace. At that time, the employee had
proceeded to appeal those convictions, which by law meant that he
was technically not convicted of the offences until the appeal was
The employee had been a casual worker for about seven years,
however following the media coverage about his criminal
proceedings, he was not offered any more shifts. His security
access to the Uncle Tobys plant was cancelled which prompted him to
commence unfair dismissal proceedings.
The primary issues in the case were whether:
The employee was a "regular
and systematic" casual employee
The employee had been terminated as a result of the actions of
Such termination of his employment was harsh unjust and
Casual employment on regular and systematic basis
In order to access remedies for unfair dismissal, the employee
needed to establish that his casual employment counted towards the
minimum employment period required to permit protection from unfair
The employee gave evidence that he was one of a number of casual
employees on a list who would cover absences or peaks in
production. The frequency of his work was variable with breaks
rarely exceeding a month, although there were rare occasions where
there were breaks of up to two months.
He also gave evidence that he had worked at least once a week
for 40 – 46 weeks in any one year.
SDP Drake held that the organisation of casual employment at
Uncle Tobys involved a very systematised arrangement. The employee
had the reasonable expectation of continuing employment on a
regular and systematic basis and therefore was entitled to make an
application for unfair dismissal.
Harsh, unjust and unreasonable
SDP Drake determined that the conduct of Uncle Tobys in failing
to adequately justify the failure to provide the employee with
casual shifts and the fact that his security access had been
cancelled constituted termination of the employment.
That termination was determined to be harsh, unjust and
He was not notified of the reason for the termination of his
employment at the time it occurred
At the time of termination, he had not been convicted of any
crime (due to the impending determination of his appeal)
He was not afforded the opportunity to make submissions as to
his guilt or innocence, respond to the articles in the local
newspaper or raise any matters in mitigation.
By the time of the hearing, the employee's appeal had been
dismissed and he was in fact incarcerated. Therefore due to the
seriousness of the crimes, the fact that those crimes were
particularly offensive towards females and that the workplace had a
significant female employment base, it was determined that the
convictions would have provided valid reason for the termination of
Uncle Tobys was criticised for failing to give the employee an
opportunity to respond to the matters in the media and it was
suggested that he should have been suspended from inclusion in the
casual roster until the determination of his appeal.
Therefore the employee had not been afforded procedural fairness
in the termination of his employment.
Consequently, SDP Drake considered that the employee was
entitled to payment of compensation under the Fair Work
Act calculated on the basis of the time the employee should
have been provided to present any explanation, justification or
mitigation of his conduct: a period of four weeks. Taking into
account all of the circumstances of the matter, Uncle Tobys was
ordered to pay the employee the equivalent of ten days pay.
This case reinforces important issues relating to the
application of the Fair Work Act:
That most casual employees working on a "regular and
systematic basis" will be potentially able to seek remedies
for unfair or unlawful dismissal
That employers must ensure procedural fairness in approaching
the termination of an employee's employment irrespective of
whether a valid and serious reason exists for that termination
That even if there is a valid reason for dismissal, the
employee may be entitled to some compensation if the manner of
termination is found to be unfair.
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.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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