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Casual employees and redundancy pay

As a general rule true casual employees are not entitled to redundancy pay or notice of dismissal. This is because s.123 of the Fair Work Act expressly excludes them from those entitlements.    However, the exclusion only applies if the employee in question is a casual employee as at the date of their dismissal.

In AMWU v Donau (2016) FWCFB 3075 delivered 15 August 2016 the Fair Work Commission  decided that the definition of “continuous service” in s.22 of the Fair Work Act “includes [any] period of regular and systematic casual employment” , notwithstanding that  s.22 does not expressly say that.  Nor does s.22 expressly exclude casual service from the concept of “continuous service” and the Commission was not prepared to read that limitation into it. Until this decision it was unclear whether employees who had worked casually for a period, intermingled with part-time or full-time employment with the same employer, will be entitled to include their period of casual service as relevant to the calculation of an entitlement to notice or redundancy pay.

Consequently, when calculating a permanent employee’s period of continuous service for notice and redundancy pay purposes, any intermingled period of systematic and regular casual service must be included. In other words, the entitlements to notice of dismissal and to receive redundancy pay will not depend only on the period in which the employee was permanently employed.

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