Can a casual employee submit an unfair dismissal claim?

It is well-known that part and full-time employees can submit an unfair dismissal claim to the Fair Work Commission if they believe they have been unfairly dismissed. If you are a casual worker, or employ casual workers, you may be wondering if there can be an unfair dismissal claim submitted in regards to casual employment. Keep reading this Legal Kitz blog to find out more.

What is an unfair dismissal claim?

First things first: what is an unfair dismissal claim? An unfair dismissal claim is an application for reinstatement or compensation if an employee believes the termination of their employment is unfair (i.e. harsh, unjust or unreasonable). The application can be made under the Fair Work Act 2009 (Cth), and the claim will go to the Fair Work Commission. 

Eligibility criteria

Before attempting to bring an unfair dismissal claim, an employee must be considered eligible. They will be eligible if:

1. The dismissed employee brings their claim no later than 21 days after the termination took effect; and 
2. The dismissed employee was employed for at least 6 months (the minimum qualification period); and
3. The dismissed employee is covered by the national workplace relations system. 

Elements of an unfair dismissal claim

There are three elements which must be satisfied for an employee to successfully bring an unfair dismissal claim under s 385 of the Fair Work Act:

1. The termination was harsh, unjust or unreasonable;
2. The dismissal was not consistent with the Small Business Fair Dismissal Code (if the Code applies to the employment); and 
3. The termination was not a case of genuine redundancy

If the employer is a small business (a business with fewer than 15 employees at the time of dismissal), the dismissal is governed by the Small Business Fair Dismissal Code under s 388(1). To determine if the business is governed by the Code, all employees need to be accounted for, including:

• The employee and other employees being dismissed at that time;
• The regular and systematic casual employees employed by the business at the time (not all casual employees); and 
• The employees of associated entities (including those not based in Australia).

The employee’s remuneration must also be below the high-income threshold of $153,600. 

If under the Code in s 383(b), the employee attempting to submit a claim must have been employed for 12 months or over. 

When is a dismissal unfair? 

Section 385 of the Fair Work Act defines what an unfair dismissal is, but it does not include an express definition of ‘harsh, unjust or unreasonable’. Section 387 of the Act provides considerations that the Commission must take into account when making a decision. This includes:

• Whether there was a valid reason for the dismissal, related to a person’s capacity or conduct, including its impact on the safety and welfare of other employees;
• Whether that person was notified of that reason; 
• Whether that person was given an opportunity to respond to the notification;
• If there was any unreasonable refusal to allow a support person present to assist at any discussions related to dismissal;

If the dismissal related to unsatisfactory performance by the person: 

• Whether the person was warned about that unsatisfactory performance;
• The degree to which the size of the employer’s enterprise would impact the procedures followed in effecting the dismissal; 
• The degree to which the absence of dedicated HR management expertise would impact the procedures followed in effecting the dismissal; and
• Any other relevant factors. 

Consequences for employers

It is very important to avoid circumstances where an employee may be able to claim unfair dismissal against you as an employer. By ensuring that the dismissal of all employees is fair and reasonable, you can avoid claims of compensation or reinstatement. 

For more information on whether your casual employees may be eligible to make a claim due to the nature of their employment, read on. 

Are casual employees eligible?

A casual employee is a person who accepts a job offer knowing that there is no firm commitment for the employer to offer ongoing work, or for consistent work. With the nature of the employment in mind, can a casual employee submit an unfair dismissal claim?

Yes, casual employees are eligible to submit an unfair dismissal claim if they meet the previously defined requirements under the Fair Work Act. However, because casual employees technically enter into a new employment contract every time they work, meeting the minimum qualifying period requires two further elements. 

Firstly, under ss 382-383 of the Act, the casual employee must have been employed for the ‘minimum employment period’, unless the business is a small business employer mentioned above. 

Then, under s 384(2)(a) of the Act, the casual employee must have been employed on a regular and systematic basis during the period of service, and have had a reasonable expectation of continuing employment on a regular and systematic basis. 

Only work which is considered as being on a regular and systematic basis will be considered within the ‘minimum employment period’. An objective determination of the nature and frequency of the casual employee’s work will be considered by the Fair Work Commission. This can include whether regular offers of work were:

• Made to the employee during a time where they had indicated their general availability;
• Accepted by the employee and not occasional; 
• Contingent on another factor, like another employee being sick or unavailable, etc. 

Regular and systematic basis

When considering if an employee has been working on a regular and systematic basis, it is the type of employment which is considered, not the hours that are worked. This includes:

• A repetitive pattern of employment (not considering the amount of hours worked each day);
• If there was a system or method in place when the employment days were decided; 
• If the employer offered the employee work on available days; or
• If there has been offered and accepted employment often enough that it cannot be considered irregular or occasional. 

There has also been case law which can provide guidance on the principles behind a ‘regular and systematic basis’ employment. Ponce v DJT Staff Management Services Pty Ltd [2010] FWA 2078 established that:

• A casual employee that works varying hours from week-to-week or month-to-month is not conclusive evidence of an 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. 

Reasonable expectation of continuing employment

Similar to a regular and systematic basis, it is important to consider the nature of an employee’s work. Indicators which may point to a reasonable expectation of ongoing employment include:

• A monthly roster that provides reasonable prior notice to the required days of work; 
• A fixed agreement to work a particular number of hours per week; or
• Regular and systematic employment.

On the other hand, there may not be a reasonable expectation of ongoing employment if:

• There is a short period of time between notice of the shift and the start of the shift;
• There is no fixed days or hours; or 
• The time off work is out of proportion to the time spent working.

Legal advice

If you need further assistance or advice when considering submitting, or your liability arising from an unfair dismissal claim, Legal Kitz is here to help! Click here to book your free 30-minute consultation.