Can a Casual Employee claim Unfair Dismissal?
Most employers are aware that employees employed under permanent type arrangements, such as full-time and part-time employees, are entitled to file an unfair dismissal claim when their employment is terminated in circumstances that they believe to be harsh, unjust or unreasonable. Furthermore, this is only available to employees that have served at least the minimum qualifying period of 6 or 12 months, depending on the total number of employees employed by the employer.
Does a casual employee have the same rights as permanent type employees in relation to unfair dismissal?
The answer is yes they do. The only difference is that, in relation to the minimum qualifying period, a period of service as a casual employee does not count towards the employee's period of employment unless:
- the employment as a casual employee was on a regular and systematic basis; and
- during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
Although the Fair Work Act 2009 does not provide us with a definition of what casual employment on a 'regular and systematic basis' is, case law provides us with some guidance in this respect.
In Ponce v DJT Staff Management Services Pty Ltd  FWA 2078, the Commission established the following principles:
- a casual employee that works varying hours from week-to-week or month-to-month, and / or has different starting and finishing times, is not conclusive evidence of irregular non-systematic employment
- unpredictable but frequent casual work may constitute regular and systematic employment
- if the number of hours worked are small, and the gap between days and times worked is long and irregular, this is evidence of an irregular and non-systematic casual employment.
In any event, the Commission will generally analyse the circumstances of each case on its own merits.
Employers that are considering terminating a casual employee should first examine that employee's pattern of work to determine whether he or she may be entitled to make an unfair dismissal claim due to having been employed on a regular and systematic basis.
Note that even if a casual employee has been working on a regular and systematic basis from the beginning of their employment, the employee will still need to have served at least the minimum qualifying period before being entitled to file an unfair dismissal claim.
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