Are your casuals regular & systematic? If so, they may have unfair dismissal rights!

In the decision of Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019, a Full Bench clarified the correct approach to determine regular and systematic employment for the purpose of ascertaining whether a casual employee can bring an unfair dismissal claim.

The employee commenced employment on a casual basis on 24 February 2019, became permanent full-time on 20 January 2020 and was dismissed effective 16 April 2020.  A jurisdictional question arose concerning whether the employee had completed the 6 month minimum employment period and in particular, whether the period of casual service formed part of this period.

The relevant provision for consideration was section 384(2)(a) of the Fair Work Act 2009 (‘FW Act’) which essentially requires:

• The employment as a casual employee to be on a ‘regular and systematic basis’; and
• The employee to have had a ‘reasonable expectation of continuing employment’ with the employer on a ‘regular and systematic basis’.

Deputy President Binet found that the employee’s casual hours did not appear consistent or predictable from week to week, particularly as the employee was unavailable for casual shifts for days or weeks in May, September, November and December of 2019.  Deputy President Binet dismissed the unfair dismissal application on the basis that the employee’s hours did not constitute regular and systematic employment and there could not be a reasonable expectation of regular and systematic employment.

On appeal, the Full Bench overturned Deputy President Binet’s decision on the basis of a misapplication of the law.  The Full Bench referred to an earlier Full Bench decision of Chandler v Bed N Bath [2020] FWCFB 306 295 IR 1 which found that in order for a casual employee’s employment to be regular and systematic it was not necessary to identify a consistent pattern of engagement with the number of days worked each week, the days of the week and the duration of each shift.

The Full Bench then revisited the question and concluded that the employee’s casual hours were:

Regular:

As the timesheet records showed that, except for periods when the employee took pre-arranged holidays, the employee was consistently engaged to work a substantial number of hours every week. Over each casual working week the employee worked an average of approximately 36 hours per week;

Systematic:

The employee worked in accordance with a roster that was established by the Venue Manager in consultation with her. The timesheet records showed that the employee’s rostered hours constituted the majority of the employee’s weekly hours with the additional hours worked to cover business needs making up only a minor portion of the total hours;

Reasonable Expectation:

the employee had a reasonable expectation of continuing casual employment with the employer on a regular and systematic basis because she had an expectation pursuant to a roster system for employment every week to work substantial hours except when taking pre-arranged leave. The employee was also involved with the preparation of rosters that entitled her to first preference of hours and days. Further, the employee felt sufficiently secure with her casual employment to reject an offer of permanent full-time employment after returning from holiday between September and October 2019 and despite this continued to be employed regularly and systematically.

On this basis the Full Bench concluded that the employee’s period of casual employment from 4 March 2019 until becoming a permanent full-time employee on 20 January 2020 formed part of the minimum employment period and therefore was able to proceed with her unfair dismissal application.

Employers need to mindful that the requirement for casual employment to be regular and systematic does not require a regular pattern of engagement in relation to the number of days each week, days of the week and duration of shifts. It is the engagement that must be regular and systematic and not the hours worked pursuant to the engagement.

If you would like to know more about casual unfair dismissal rights, please contact us and a Mapien Workplace Strategist will be in touch within 24 hours.