Definition of casual employment
In Ponce v DJT Staff Management Services Pty Ltd trading as Daly’s Traffic (2010) FWA 2078 Commissioner Roe of Fair Work Australia (as it was then known) set out some of the principles to be applied in determining under s.384 of the Fair Work Act whether casual employment is on a regular and systematic basis, which if satisfied is one of the qualifications for casual employees to be able to take proceedings for an unfair dismissal remedy. The Commissioner observed that
Regular and systematic does not necessarily mean the hours and days must be regular andsystematic: ‘regular and systematic’ under the Act means that there must be “sufficient evidence to establish that a continuing relationship between the employer and the employee has been established” – which is the reason why the Act has included within its provisions, that an employee must also have a reasonable expectation of continuing employment.
If the hours worked are brief, and the gaps between days and times worked is long, other evidence must be produced to demonstrate regular and systematic employment: in instances where there is no clear pattern of employment, evidence of employment on a regular and systematic basis can also include the following: the employer regularly offered work when suitable work was available at the times when an employee has made him or herself available to work for the employer; and work had been offered and accepted on a sufficient basis where it can be no longer regarded as simply occasional or regular.
Hours worked by the employee which are similar or exceed full-time ordinary hours can also be deemed as strong evidence of regular and systematic employment.
The reasonable expectation of continuing employment is not only about having that expectation at the moment of termination, but the expectation during the period of service as well.