Can a Casual Employee Claim Unfair Dismissal?

If you are a casual employee, you may be wondering what rights you have to pursue an unfair dismissal claim if your employment is suddenly terminated.

There are enormous numbers of casual employees around Australia. Many industries like retail, hospitality and tourism depend heavily on the availability and flexibility of a vast casual workforce.

With casual employment, of course, comes a balancing of pros and cons. As a casual employee, you get a degree of flexibility and some potential for a higher hourly rate of pay. You might even get a casual leave loading. Of course, these pros can be counter-balanced by the fact that you don’t get paid leave, such as annual leave or personal leave, and you don’t have a lot of job security. Subject to what your employment contract says,our employer can usually just decide one day that they don’t want you to come in anymore, and that’s the end of it. No more employment.

So how does casual employment interact with our unfair dismissal laws? As you may recall, unfair dismissal requires an employee to demonstrate that their termination was “harsh, unjust or unreasonable” (amongst other things, which we’ll deal with in more detail in other articles).

So can a casual employee who can normally be terminated without notice or reason bring a case for unfair dismissal?

Surprisingly, the answer is yes… Sometimes.

The Requirements for a Casual Employee to Make an Unfair Dismissal Claim

Before we get too far ahead of ourselves, it’s essential to appreciate that there are some significant limits on which casual employees might be able to bring an unfair dismissal claim.

In broad terms, the types of casual employees that might be eligible to file an unfair dismissal claim are those who the law is starting to recognise as moving out of the strict “casual” sphere and into a more permanent-looking role, despite technically still be casually employed.

What’s that mean?

It means that to even think about bringing an unfair dismissal claim as a casual employee, you need to show that:

1. You had been employed for more than 6 months (or 12 months for small business employers);
2. your employment was as a regular casual employee (i.e. you have been employed on a regular and systematic basis); and
3. you had a reasonable expectation of continuing work on a regular and systematic basis into the future.

The reason why this is important is that your employer might object to your application for an unfair dismissal remedy if they do not believe you are eligible to bring the application given your casual status. They will argue that your employment was not regular or systematic and that you had no reasonable expectation of continuing work and therefore you are not eligible to bring the claim. You need to be prepared to counter these arguments.

Six Months/Twelve Months Employment

The six month/twelve month issue is relevant to determining whether or not you have completed the minimum employment period necessary in order to be eligible to file an unfair dismissal claim.

You see, the Fair Work Act states that at a minimum, you must have been employed for six months (if the business is a large business employer) or if your employer is a small business with fewer than 15 employees at the time you were dismissed, then the minimum employment period becomes twelve months.

The Fair Work Act then says that a period of casual employment doesn’t count towards the calculation of the minimum employment period, unless you tick the next two boxes we mentioned above and discuss more below.

If you haven’t been employed for at least six months (or 12 months depending on the size of your employer) at the time of termination, your unfair dismissal claim as a casual employee is a non-starter.

Regular and Systematic Employment

More and more the law in Australia is starting to recognise that some casual employees are less casual than others.

So, for example, coming in on 21 September 2021 is a law that requires employers to offer certain categories of casual employees a permanent position after a period of time.

Here, for a casual employee to consider an unfair dismissal claim, they would need to show that their historical employment patterns were regular and systematic.

Now that doesn’t necessarily mean you need to have set hours each day or each week. Nor does it require you to demonstrate that you worked precisely the same number of hours month by month.

It does need you to show, however, that over the course of your employment:

1. you were regularly offered work;
2. you regularly accepted that work; and
3. the work was reliably and systematically offered and accepted.

As with many things, there isn’t a hard and fast checklist for this one, so the Commission will look at all the circumstances historically through your employment to figure out the answer. That will include looking at how your hours were determined, times you were offered and declined work, and your overall pattern of work hours and days over your employment.

A Reasonable Expectation of Continuing Employment

Almost all casual employment contracts state that the employer is not guaranteeing ongoing work and can terminate your employment at any time.

So you might think it would be difficult to establish an expectation of continuing employment in the face of such an explicit declaration.

Again, however, the Commission will look at all the circumstances. The question isn’t whether you as an employee knew you could theoretically be terminated at some point, but rather whether you had a “reasonable expectation” of continued employment on a regular and systematic basis.

So that might incorporate things like:

1. performance reviews;
2. salary rises;
3. statements by managers or supervisors about your work;
4. discussions about your future within the company; and
5. planning your schedules and work into the future.

Tthe Commission will look at all the circumstances, both for and against, to decide whether you had a reasonable expectation of continued employment.

So You’re Saying…. There’s a Chance?

Yes.

If your gut feeling is that you have a shot at meeting the criteria we’ve set out above, the best place to start is to get in touch for an initial consultation to discuss things further.

Unfair dismissal is a complex area of law and has some strict timeframes in which to bring claims, so you should get advice sooner rather than later. Lodging an unfair dismissal claim only to be met with a jurisidictional objection from your employer can be an exhausting and frustrating experience. To be sure you have a claim, make sure you seek legal advice first so you know where you stand and what your prospects are.