Casual employees and unfair dismissal

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Here is an extract from a recent Fair Work Commission decision which is an excellent summary of the law about the minimum employment period for casual employees to be protected from unfair dismissal.

“The relevant statutory regime insofar as it relates to the present case may be summarised in the following way:

(a) An employee must have completed at least the minimum employment period to be eligible to bring an unfair dismissal claim against their former employer (s.382, s.390 & s.396 of the Act);

(b) For a person employed by a small business employer, the minimum employment period is one year (s.383 of the Act);

(c) An employee’s period of employment with an employer is the period of continuous service the employee has completed with their employer (s.384(1) of the Act);

(d) For a casual employee, the employee’s period of employment must satisfy particular criteria in order to count to the employee’s period of employment (s.384(2)(a) of the Act);

(e) The expression “continuous service” is not defined in the Act. The ordinary meaning of “continuous service” is the period of unbroken service by an employee with an employer. 1 However, the ordinary meaning of “continuous service” is affected by s.22 (s.12 of the Act);

(f) A period of “service” by an employee with their employer is a period during which the employee is employed by the employer, but does not include certain “excluded periods” (ss.12 & 22 of the Act);

(g) An “excluded period” does not break an employee’s “continuous service” with their employer, but does not count towards the length of the employee’s “continuous service” (s.22(3) of the Act). “Excluded periods” include a period of unauthorised absence and a period of unpaid leave or unpaid authorised absence, subject to certain exceptions (s.22(2) of the Act);

(h) Subsections 22(5) and (7) of the Act alter the ordinary meaning of “continuous service”. In effect, in particular circumstances they deem 2 service by an employee with one employer to be service with another employer if there is a transfer of employment within the meaning of s.22(7) of the Act.3 In addition, those provisions stipulate that, in the event of such a transfer of employment, the period between the termination of employment with the first employer and the commencement of employment with the second employer does not break the employee’s “continuous service” with the second employer, but the “gap” does not count towards the length of the employee’s “continuous service” with the second employer (s.22(5)(b) of the Act); and

(i) In order for an employee’s service with a previous employer to be deemed to be part of their “continuous service” with a subsequent employer as a result of a “transfer of employment”, one of the following sets of conditions must be satisfied (s.22(7) of the Act):

  • First, the first and second employers must be “associated entities” and the “gap” in employment must not be more than three months; or
  • Secondly, the first and second employers are not “associated entities” and the employee is a “transferring employee” in relation to a “transfer of business” within the meaning of s.311 of the Act. However, even if these conditions are satisfied, there is an exception which must be considered. In particular, the employee’s period of service with the first employer will not count towards the employee’s period of employment with the second employer for the purpose of the unfair dismissal provisions of the Act if the second employer informed the employee in writing before the new employment started that a period of service with the first employer would not be recognised (s.384(2)(b) of the Act).”

Allan v Celesty Family Trust Pty Ltd T/A Toukley Family Doctor (2017) FWC 2937 delivered 1 June 2017 per Saunders C

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