How to calculate length of service by casual employees
When determining whether an employee has served the minimum employment period required to be protected from unfair dismissal, the total time in employment is calculated by adding together the various periods of employment and in the case of a casual employee who has worked on a regular and systematic basis, the number of days in total of the various periods when so employed.
In Hodder v Ngnampa Health Council (2016) FWC 2016 delivered 27 April 2016 per Gooley DP, the total number of days completed by an employee who was casual when allegedly dismissed was 174, slightly less than 6 months (182 days).
“It was submitted that Ms Hodder had no reasonable expectation of ongoing engagement because at the end of each engagement she was given no promise of further work. I do not accept that submission. There was no evidence that the Council made it clear to Ms Hodder at the end of each engagement that she would not be offered further work. Further, she was placed on annual fixed term, albeit casual, contracts of employment. While it was said that this was done, so as to avoid the necessity to provide separate contracts for each engagement, the contracts speak for themselves and I cannot have regard to the subjective intention of one of the parties to construe the contracts. Further it was clear from Ms Hodder’s evidence that Ms Hodder had a reasonable expectation that when staff were on leave that she would be offered work.
It is clear that during the periods Ms Hodder was engaged her employment was regular and systematic. The question is whether in the period 15 May 2014 – 26 October 2015 Ms Hodder’s aggregate engagements, when added to her period of permanent employment, totalled six months employment.
In the period 15 May 2014 to 26 October 2015 as a casual employee, Ms Hodder was engaged for a period of 89 days on a regular and systematic basis. As a permanent employee she engaged for a period of 85 days which is a total of 174 days.
As this is less than six months, Ms Hodder had not served the minimum period of employment and her application must be dismissed. Accordingly it is not necessary to deal with Ms Hodder’s application for an extension of time to lodge her application.”