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Casual employees: the right to work (or not)

A true casual employee is a person who is not guaranteed work and makes no guarantee to be available to work. It is a two way street. Of course in the real world (which is almost always entirely distinguishable from the legal word) this is the exception rather than the rule because both small and large businesses depend upon the reliability of casual staff to arrive for work, and most casual employees become accustomed to working to regular rosters, and attending to their obligations and debts in an orderly manner as a result.

But the categorizing of true casual employees is an important legal point because if a person is a true casual employee, and therefore not guaranteed regular and systematic shifts and rosters, is it reasonable to regard the relationship of employer and employee of one which can come to an end by a resignation or a dismissal.

The answer is yes and no.

Yes. Under the Fair Act the termination of employment of a casual employee who works on a regular and systematic basis for the minimum statutory qualifying period will be regarded by the Act as being capable of being dismissed when not offered shifts. This is the unfair dismissal world, a world made by legislation. The concept is also dealt with in various modern awards.

No. Under the common law, a true casual is an employee who can come and go from work as he or she wishes and conversely has absolutely no guarantee of on-going work. It follows in this non-statutory world that a decision by an employer not to offer work to a true casual employee is not regarded either as the repudiation of the employee’s rights, or as a dismissal.

Here is an extract from a recent decision of a Full Bench of the Fair Work Commission which deals with the issue.

“As we have already observed, there was no contest as to the Respondent’s status as a casual employee. There was no written contract of employment. The work the Respondent performed involved a variety of general hospitality duties including bar attendant, café, cash box and gaming floor services. 25 The Respondent was rostered an average of approximately 30 hours per week but this would fluctuate depending upon the operational needs of the Appellant as well as the nature of casual employment.26 The Respondent’s evidence was that she could work between four (4) to six (6) shifts a week, but the number of shifts she would work would be dependent upon whether she picked up extra unrostered shifts.27 Moreover, we accept the Appellant’s submission that there was no suggestion that an entitlement to work an average of 30 hours or to undertake work cash box shifts was an implied term of the contract of employment.

We would adopt with one modification the observations of Gooley DP in Andrew Kim v. ORC International Pty Ltd 28in which the Deputy President said:

“It is difficult to see how this common law concept of repudiation has any work to do in relation to casual employees. At common law a casual employee’s contract of employment ceases at the end of each engagement. An employer of a causal employee does not repudiate that contract when it fails to offer another shift.” 29

The one modification is that it seems to us plainly possible that there can be a repudiation of a contract of employment governing the engagement of a casual employee during a shift. A simple example will suffice. There may be a repudiation of an employment contract in circumstances where during a casual shift the casual employee is assaulted by his or her employer or is told by the employer that the casual employee will not be paid for the hours already worked by that employee.”

City of Sydney RSL & Community Club Limited v Balgowan (2018) FWCFB 5 delivered 16 January 2018 per Gostencnik DP, Clancy DP and Saunders C

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