Do casual employees’ hours need to be consistent to file unfair dismissal?

The short answer is ‘no’.  It all comes down to the meaning of “regular and systematic” employment.  A reliable pattern of days worked, numbers of days worked and shift duration is not necessary, says the Full Bench of the Fair Work Commission.

In the recent decision of Amy Greene v Floreat Hotel Pty Ltd [2020], the Full Bench of the Commission has reiterated that casual employees' hours need not be consistent or predictable for their employment to be regular and systematic.

This case involved an employee, who was originally employed as a food and beverage attendant on a casual basis for approximately 12 months. After this period of time, the employee was offered a full-time position with the same employer.  The employee was in this full-time position for three months, before she was dismissed.  The employee then brought an unfair dismissal application.

The employer argued that the Commission did not have jurisdiction to hear the unfair dismissal application, stating that the employee had not met the “minimum employment period” of six months (in this instance) to be eligible to lodge an unfair dismissal claim.

The Act states that a period of casual employment will count as service for the purposes of an unfair dismissal claim if:

• The employment is on a regular and systemic basis; and
• The employee has a reasonable expectation of continuing employment

In the first instance, the Commission noticed that during the initial period of casual service, the employee’s hours ‘varied widely from week to week’ without a ‘discernible pattern or system’ of allocation. ‘Most critically’, the employer had made it very clear to the employee that she did not have an expectation of continuing employment.

The Commission decided that the period of casual employment did not count as service, and therefore the employee was ineligible to lodge an unfair dismissal application.

The employee appealed the Commission’s decision to throw out her unfair dismissal application.   

On appeal, the Full Bench recognised that the Commission had given improper consideration to the fact the employee’s hours of work did not appear to be regular and systemic from week to week.

The Full Bench indicated that this approach was inconsistent with the proper construction of the clause ‘employment … on a regular and systematic basis’ in the Act.

In overriding the decision of the Commission, the Full Bench emphasised that the pattern of hours worked in accordance with the engagement does not have to be regular, predictable, or certain. Instead, the Full Bench held the engagement of the casual employee simply needs to be regular.

The Full Bench decided that the employee’s casual hours were to be counted as service towards the minimum employment period, because the employee:

• worked approximately 36 hours per week;
• worked in accordance with a roster that was established in consultation with her; and
• was allowed to choose the hours and days that she worked, and felt secure enough to turn down an offered shift.

It is important to note that if a casual employee has been employed on a regular and systemic basis prior to the acceptance of permanent employment, that period of casual service will count as service for the basis of an unfair dismissal claim.

The case highlights the importance of obtaining advice prior to dismissing an employee.  We encourage you to contact us should the practice be contemplating terminating any staff member’s employment.  In terms of general advice, we incite you to join us for the private practice webinar on this topic of termination of employment, which will go live on 26 July of this year.