A stitch in time; interrupting continuity of service
These are the leading statements about the principles which apply to determining whether breaks in service break continuity of service for casual employees in particular or not.
Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic (2010) FWA 2078 in which, the Commission discussed the situation where there is not a clear pattern or roster of hours and days worked. It was that Commissioner’s view that evidence of regular and systematic employment can be established where: The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.”
However in Shortland v The Smiths Snackfood Co Ltd (2010) FWAFB 5709 it was said that “Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”
Van Kampen v Transfield Services (2013) FWC 8127 and Holland v UGL Resources Pty Ltd T/A UGL Resources (2012) FWA 3453
And for a useful analysis of all of the above dicta see Re Goold v Cal Dive International (Australia) Pty Limited (20125) FWC 2302 per Cribb C