By Estephen Gear Bugarin
When it comes to unfair dismissal, it is common to acknowledge that casual employees are treated differently to employees under full-time/part-time employment.
Common questions that come up are:
- Do casual employees have a cause of action when met with a possible unfair dismissal?
- Are casual employees entitled to making unfair dismissal claims?
This article will explore the possibilities open to a casual employee with respect to being able to bring unfair dismissal claims, and the criteria that needs to be met under the Fair Work Act 2009 (Cth) (‘Fair Work Act’).
Defining Casual Employees
First, we must look at the legislative definition of a casual employee. Section 15A of the Fair Work Act outlines that:
A person is a casual employee of an employer if:
The offer of employment offered is made on the basis that “the employer makes no firm advance commitment to continue and indefinite work according to an agreed pattern for the person”
What distinguishes a casual employee from any other form of employment is quoted in the above definition. An employee is a casual employee if the nature of the employment is such that, at the time the offer of employment is made, the employer can elect work and the employee can elect to accept or reject the work.
Since the work of the employee is dependent upon the employer’s elected work hours, a casual employee may work for indefinite and inconsistent hours weekly. In comparison to full-time/part-time employees, casual employees are not entitled to a minimum number of weekly hours. This notion may give rise to an uncertain understanding if and when a casual worker has been dismissed from their employment.
Unfair Dismissal Protection
Whether a casual worker may be protected from unfair dismissal depends upon the facts of their employment. This is best taken on a case-by-case basis with the unique circumstances of each employment situation taken in mind. However, s 382 of the Fair Work Act determines protection from unfair dismissal.
Under this section of the Fair Work Act, a casual worker is protected from unfair dismissal if the employee has worked for at least the “minimum employment period” and whether the employee is covered by a modern award, is entitled to an enterprise agreement, or the sum of the employee’s annual rate is less than the high-income threshold.
Determining Employment Period for Casual Employees
The period of employment for a casual employee is outlined by their continuous service with their employer. Determining the period of employment is essential as it is used to evaluate the “minimum employment period” of a casual employee for the purposes of their eligibility for an unfair dismissal claim.
Under the Fair Work Act, s 384 takes into account whether a casual employee has worked for a ‘regular and systematic period’ and whether there is ‘a reasonable expectation of ongoing employment’. When these matters are accounted for, it is then evaluated under s 383. The counted employment period is 6 months if the employer is not a small business and 12 months if they are.
The recent case of Yaraka Holdings Pty Ltd v Gilijevic  ACTCA 6 has determined whether a period of employment is regular and systematic work and whether one should have a reasonable expectation of ongoing employment. Under the case law, it was held that there must be a clear pattern of work with reasonable frequency and that there must be a system, method or plan in relation to the employment period of the casual employee.
Assessing Regular and Systematic Work
The terms which determine regular and systematic work were discussed in Ponce v DJT Staff Management t/as Daly’s Traffic (2010) FWA 2078. There must be a consideration of whether the offer and acceptance of work is sufficiently often to establish that the work is not ‘informal, irregular or occasional’.
Reasonable Expectation of Continuing Employment
The test which determines whether there has been a reasonable expectation of continuing employment has been established in Ponce. The test to apply is to determine whether ‘an employee had reasonable expectations of continuing employment on a regular and systematic basis’. This outlines that a casual employee, who has proven they have been working on a regular and systematic basis, can reasonably establish that there is reasonable expectation of continuing employment.
Casual Employees and Unfair Dismissal Protection
In conclusion, casual employee eligibility for unfair dismissal claims are bound by certain criteria that must be outlined by the Fair Work Act and relevant case law. Eligibility forms part of the question to assessing the regular and systematic nature of their work and reasonable expectation of ongoing employment. However, such matters and contractual agreements between employers and casual employees are different and each matter must be assessed on a case-by-case basis. Parties involved in an unfair dismissal claim should seek professional advice to ensure their rights are protected whilst navigating the complexities of unfair dismissal claims.
This article is not meant to act as legal advice but as generalised information granted for the purposes academically informing casual employee entitlements to unfair dismissal claims. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Foulsham & Geddes are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
 Ibid s 15A(2)(a).
 Ibid s 382
 Ibid s 384.