Unfair dismissal and casual employment

To be protected from unfair dismissal, an employee whose employment is within the national fair work system (as opposed for example to being covered by the Industrial Relations Act 1979 WA) must meet certain qualifying conditions including a minimum employment period. If the employee is a casual, the issue is whether or not for that employee he or she has been in regular and systematic engagement for at the least the minimum qualifying period. Here is an extract from a good Fair Work Commission case which details the legal principles involved in determining whether the employee’s engagement as a casual was regular and systematic.

As is evident from the provisions of s.384(1) of the Act, the matter for determination in this decision is whether the Applicant has a period of continuous service with her former employer that would exceed the minimum employment period. A period of casual employment will not be counted towards the period of employment itself unless that casual employment was on a regular and systematic basis and the employee had a reasonable expectation of continuing employment with the employer also on a regular and systematic basis.

“In City of Sydney RSL & Community Club Limited v Balgowan a Full Bench of this Commission said, at [24]:

“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. There are some, albeit rare, cases where a casual employee has been found to have been engaged under a single continuing contract of employment, but the accepted orthodoxy of casual employment is the notion that each engagement is under a separate contract rather than a continuing contract of employment. True it is that service rendered under a series of separate casual employment contracts may be regarded as continuous in respect of statutory entitlements such as long service leave, certain entitlements prescribed under the National Employment Standards and accident compensation legislation, and as is evident from the above for the purposes of assessing whether a particular employee had been engaged for the minimum employment period for the purposes of making an unfair dismissal remedy application under the Act. But such recognition of casual service does not alter the fundamental contractual character of regular casual employment as a series of engagements, each under a separate contract of employment.” 4

The Full Bench adopted the following observation of Gooley DP in Andrew Kim v. ORC International Pty Ltd 5:

“At common law a casual employee’s contract of employment ceases at the end of each engagement.”

It has been held in relation to predecessor legislation, in which there was also a need to find employment on a “regular and systematic” basis that in order for a casual employee to be entitled to make an unfair dismissal application, “that it is the ‘engagement’ that must be regular and systematic; not the hours worked pursuant to such engagement”. 6 In a finding made under the current legislation, employment is regarded to have commenced when the employee first attended for work, thereby accepting the offer of employment.7

Further, the Full Bench has made plain that the enquiry in matters such as this is an enquiry as to the whole of the period of employment, with an established sequence of engagements being capable of being considered continuous service, with that continuous service being broken only when one party makes it clear to the other by words or actions that there will be no further engagements. I take into account and apply the reasoning of the Full Bench in Shortland v Smiths Snackfood:

“As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.

The criteria in s.384(2)(a) make it clear that s 384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). S.384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service,some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of “leave” or an absence due to illness or injury.” 8 (original emphasis)

The meaning of the term “regular and systematic” was considered by Jones C in Harry Grives v Aura Sports Pty Ltd 9 where she stated as follows:

“[29] The Macquarie Dictionary meaning of ‘regular’ relevantly includes:

1. Usual; normal; customary
2. Recurring at fixed time; periodic
3. Observing fixed times or habits

The Macquarie Dictionary meaning of ‘systematic’ relevantly includes:

1. Having, showing or involving a system, method or plan
2. Characterised by a system or method; methodical
3. Arranged in or comprising an ordered system

[30] The Court of Appeal, Australian Capital Territory, in Yaraka Holdings Pty Ltd v Giljevic considered a deeming provision applicable to independent contractors which, in part, deemed an individual to have been employed by an employer if the engagement ‘has been on a regular and systematic basis.’ It should be noted that the deeming provision included matters which should be considered in determining whether an engagement has been on a regular and systematic basis. The following extracts from the judgements of the majority are instructive. Crispin P and Gray J noted:

It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulations under the Workplace Relations Act 1996 (Cth), particularly reg 30B, and this concept has been considered by industrial tribunals in a number of cases.

[31] Their Honours noted that:

…it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement.

[32] Relevantly, their Honours observed in relation to the meaning of ‘regular’ that:

The term “regular” should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”.

and formed the view that the pattern of engagement of the individual in question over the years from 1995 to 2002 satisfied this description.

[33] In respect of the meaning of ‘systematic’, their Honours held:

The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses.

[34] Madgwick J concurred with the majority. In a separate judgement, his Honour considered examples provided in the relevant statute of ‘individuals who are workers’ concluding that ‘the meaning to be ascribed to (the deeming provision) is conditioned by the examples.’  Accordingly, his Honour stated:

It is clear from the examples that a ‘regular … basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all.

Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3^rd edn, 2001).

[35] The finding as to whether employment is regular and systematic is a discretionary one having regard to the totality of the evidence. Setting out factors which dictate a finding one way or another is to be avoided, particularly so given the Act is silent as to the matters to be considered.” (citations removed)

It is clear that the Applicant’s hours did vary somewhat from week to week. However, that does not lead to an inevitable conclusion that that the Applicant’s casual employment was not regular or systematic. In Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic (Ponce) Roe C stated as follows:

“[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.” 10

The Respondent’s argument that a period of 7 weeks employment is incapable of being regarded as a period of regular and systematic employment is not made out and fails. Further, its contention that the work within that period of 7 weeks was not regular and systematic is also not made out. The evidence of Ms Hansson was that she was engaged to work as a casual with the prospect of being converted to full time employment if the relationship progressed positively. The evidence of the timesheets is that the actual work performed by Ms Hansson in the period in question was part of a continuing relationship between the parties.

I therefore find that Ms Hansson’s employment as a causal was regular and systematic. Her period of employment for the purposes of the minimum employment period was between 28 November 2017 and 7 June 2018, a period of slightly more than 6 months and 1 week.”

Hansson v Bronze Hospitality (2018) FWC 5665 delivered 18 September 2018 per Wilson C