Unfair dismissal: what casuals are covered?
Most Australian employees are protected from unfair dismissal under the Fair Work Act provided that they have been employed for at least the appropriate period of employment, which will ordinarily depend upon whether or not the employer is a small business employer or not. S.384 of the Act provides that a period of employment as a casual employee does not count towards the employee’s period of employment unless the employment as a casual employee was on a regular and systematic basis and the employee had a reasonable expectation of continuing employment on that basis. The meaning of this test is explained in the passage from a Fair Work Commission case below.
“As is evident from the provisions of s.384(1), 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.
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 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”. 8
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. S.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.”  FWAFB 5709, (2010) 198 IR 237, –. (original emphasis).”
Kneen-McDaid v Jaycorp Pty Ltd T/A Homestart (2017) FWC 1819 delivered 28 April 2017 per Wilson C