Today in the world of Australian property, contingent workers
fit the bill.
Contingent workers are the freelancers, or independent
professionals and consultants, or temporary contract workers, who
provide their services to an organisation on a non-permanent or
There's recently been an upshot of fit-outs in residential
property across the country. From Warringah Mall in NSW, to the
Pacific Fair Centre in Brisbane, to Ringwood's Eastland
Shopping Centre in Victoria (to name a few), refurbishments are
increasing the appetite for contingent workers in every state.
However, the fear of 'unfair dismissal' claims often
haunts employers as they weigh up the decision of whether to hire a
It is important to remember that unfair dismissal is not
available for everyone. If someone is truly a 'casual
employee' (i.e. only works for you sporadically), then they are
not entitled to access an unfair dismissal claim. Likewise, if
someone is under probation (formerly known as the minimum
employment period), you can terminate them during that period
without any fear of the FWC barging down your doors. For businesses
with less than 15 staff, that period is 12 months and for larger
businesses six months.
But what if you hire an employee for a particular project or
task and at the end of that you dismiss them. Are you allowed to do
One of the exceptions to unfair dismissal is if a person is
"...for a specified period
of time, for a specified task, or for the duration of a specified
season and the employment has terminated the end of the period, on
the completion of the task or at the end of the
Nominating a period of time can be tricky because you don't
know exactly how long a project is going to run. Instead, engaging
them until the completion of a particular task can be a better
One central question that I am often asked is: how do you define
a "task"? Given a recent decision of the FWC as to what a
task is, the message is that if you want to employ people for a
specified task or project, you can. However, it is important that
it be clear to all parties when that arrangement comes to an end.
That will be the case by ensuring the definition of the task is
specific, so that there is no uncertainty as to when it
In Shop Fitting, the projects are often short – so this
may not often arise as an option– noting that the probation
period will generally be a sufficient way of avoiding unfair
dismissals. However, they may not always be an option.
So, in short, unfair dismissal does not apply to:
truly casual employees (ie. where they are engaged
employees who have worked for you for less than 6 months (if
> 14 staff) and 12 months (if < 15 staff); or
staff members engaged on a fixed term or fixed period
An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).