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Casual employees

All too often, I am advised that a person has no rights to make a claim for an unfair dismissal remedy because they are a casual employee. This is a nonsense of course, because that is not the effect of the Fair Work Act. Similarly, many people think that if a business has fewer than 15 employees, not counting casual employees (s.23 (2), then it is a small business employer and cannot be sued for unfair dismissal if it has followed the Small Business Fair Dismissal Code, can only be sued for unfair dismissal if the employee has been employed for at least one year, or, if the employee is made redundant, the employer is exempt from having to pay redundancy pay.

The test is not whether the employee is a casual employee. The test is whether if the employee is a casual employee, he or she has been employed on a regular and systematic basis. I have encountered many occasions since the Fair Work Act came in, where employers have categorized employees as casuals when in fact they ought to be regarded as permanent part time employees due to the regular and systemic basis of their engagements.

A true casual employee is an employee who is offered work as and when it is available, in circumstances where the employer is just as free to change patters of work as the employee is entitled not to feel obliged to go to work unless it suits them. That is why the true casual employee is paid a loading, to compensate him or her for the lack of permanency, security, holidays and other benefits enjoyed by permanent full time or par time employees.

In my experience, employees are just as naïve about this as most ordinary small businesses.

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