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 [2010] 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 determined.

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 Uncle Tobys
  • Such termination of his employment was harsh unjust and unreasonable.

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 dismissal.

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 unreasonable as:

  • 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 employment.

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.