Members are urged to carefully manage the termination of Casual employees in light of the Fair Work Act and a recent decision by Fair Work Australia.
Under the previous legislation it was generally difficult for a casual employee to claim unfair dismissal, however under the Fair Work Act, it is no longer the case that a casual employee can be dismissed without the risk of an unfair dismissal claim.
Under the Act, if a casual employee is working regular and systematic hours and has an expectation of continuing to work on that basis, then once they serve the minimum period of employment, they have the same rights to make a claim for unfair dismissal as a permanent employee. The minimum periods of employment (the qualifying period) is that of a regular permanent employee, 6 months or 12 months for small business employers. (From 1 January 2011, a small business employer means 15 employees based on a total head count rather than the current full-time equivalent count of employees).
The question is then, what is regular and systematic?
Fair Work Australia in a recent case, has cautioned that the fact an employee works more hours in one week than another, or has variable start and finish times, is not conclusive evidence of irregular or non-systematic employment.
Positive indicators of regular and systematic employment may include:
- a clear pattern or roster for the hours and days worked; or
- where there is no pattern or roster then the regular offer of work when available, at times when the employer knows that the employee has generally made themselves available to work; and
- instances where work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.
ARTIO’s assessment of the ruling is that it will be difficult for an employer to assert that a casual employee did not work on a ‘regular and systematic’ basis in defence of a claim. Members should as a matter of course appraise the performance of their employees within the qualifying period. Otherwise, as with full time employees, members will be forced to performance manage casual employees for non-performance and or consider the redundancy process when business does not sustain the use of casual labour.
In any instance of termination it is advisable to seek professional advice from the ARTIO branch in your State.