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Casual employees’ right to work

Does an employer of causal employees have an obligation to offer recurrent work?

The issue of a casual employee’s right to be allocated on-going work is of growing importance as the national economy shifts from dependence upon permanent full time employees to a combination of permanent full time and casual employees.

The entitlement of a casual employee to demand recurrent and even regular and systematic rosters is determined by three factors.

The contract.

The first is the contract which is made between the employer and the employee. Although they will not necessarily be conscious of it, the working arrangements made between an employer and a casual employee will constitute a bargain or an enforceable contract between them. That contract may be a simple as an employer agreeing to pay an employee an agreed hourly rate for work, and that the work will be offered as and when it suits the employer.

Or it may be more sophisticated than that, and may be, say, that the employee will present for work at weekends.

An industrial instrument.

On top of the contractual arrangements, there may sit a modern award or an enterprise agreement. If so, it may well contain compulsory provisions which affect a casual employee’s entitlement to be allocated hours of work, and if so, it will have the effect of law.

Unfair dismissal.

Where a casual employee works on a regular and systematic  basis, and does so for at least the minimum qualifying period to be protected from unfair dismissal, there will be circumstances in which a denial of hours of work will be regarded as a dismissal. Here are the principles from a recent case of the Fair Work Commission.

“If, contrary to my conclusion, Ms Foale had been dismissed the issue which would arise is whether, in the context of her employment as a casual employee, she had an ongoing employment contract from which she could be dismissed?

This issue was recently considered by a Full Bench of this Commission in City of Sydney RSL & Community Club Limited v Roxana Balgowan where it was observed: 29

“Although the notion of casual employment developed by reference to the characteristic that a casual employee was someone who had occasional or irregular work, this is plainly no longer the case. Casual employees now frequently work for a single employer on regular hours over extended periods. Casual employees may be used in the short term or for much longer or extended periods; they may be employed as a casual employee on a regular and systematic basis with an expectation of continuing employment on that basis; or they may be called upon to work as a casual employee infrequently or irregularly and have no expectation of being engaged otherwise. That this is so is plainly recognised in s.384(2) of the Act which describes the method by which a period of service as a casual employee is counted towards an employee’s period of employment for the purposes of ascertaining whether an employee has completed a period of continuous service with the employer at the time of his or her dismissal so as to meet the minimum period of employment identified in s.383 of the Act.

The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment.”

The evidence before me is that Ms Foale was regularly employed as a casual and had a reasonable expectation of continuing employment. However, it was also established on the evidence before me that Ms Foale’s hours varied from day to day and week to week, that she had no contractual guarantees of working set hours or days, and was working based on the combination of her availability and business needs.

In these circumstances, there is no basis on which it could be said that the Seaton Hotel repudiated Ms Foale’s contract by not offering her the shifts she sought.

Nor do I consider that Ms Foale could sustain a claim for unfair dismissal beyond the shift she was working on Friday 10 November even if she were to have established that the employer’s words or conduct on that day expressly or by implication constituted a dismissal.”

Foale v Davsan Pty Ltd T/A Seaton Hotel  (2018) FWC 1085 delivered 21 February 2018 per Anderson DP

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