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Unfair dismissal and the “casual” employee

That the test whether an employee is a casual employee (and thus excluded from qualifying for protection from unfair dismissal) is the regularity of hours available to work and not what the written arrangement between the parties may say is the authority, if it was needed, provided by John Perry v Nardy House Inc. (2016) FWC 73. In that case the agreement described the status of the employee as a casual employee and stated that he was not guaranteed any set numbers of hours per week, that he wold would receive a 25% casual loading (normally an entitlement of casuals to compensate them for lack of security and holidays) and overtime in accordance with the applicable award.
Nevertheless the evidence revealed that the employee worked “systematic” and “regular” hours in accordance with his roster throughout his engagement ( 128 hours each month) and even when rostering arrangements changed, this did not result in a decrease in the number of hours worked. Additionally, the employee was found as fact to have a reasonable expectation of continuing employment since from the outset he was advised that he would be rostered each month for 128 hours of work.
The Fair Work Commission had no hesitation concluding that the employee was not a casual employee for the purposes of the Fair Work Act and was protected from unfair dismissal when the employer decided to cease offering him work.

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