Unfair dismissal: casual employees

When irregular work will be regarded as regular and systematic?

Casual employees are protected from unfair dismissal if they meet the general jurisdictional requirement AND they work on a regular and systematic basis (see s.384, Fair Work Act 2009).

The requirement for a pattern of work to be regarded as regular and systematic is noit always an easy issue to resolve and there are shades of grey. What follows is an extract from a Fair Work Commission case which deals with the legal issues.

“The issue of regular and systematic casual employment was considered by Commissioner Roe in Ponce in which he observed 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.

…

[75] I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.

[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:

• The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and

• Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.

[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.” (Footnotes not included, underlining added)”

Twigley v Fieldforce Services Pty Ltd T/A UASG Skilltech  (2017) FWC 4018 delivered 1 August 2017 per Kovacic DP