Who is a Casual Employee?

According to section 15A of the Fair Work Act 2009 (Cth) (the “Act”), “a person is a casual employee of an employer if an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person”.

Who is protected from Unfair Dismissal?

Section 382 of the Act establishes that a National System Employee is protected from unfair dismissal if, at the time of their dismissal, they meet two criteria. Firstly, the employee must have completed a period of employment with his or her employer of at least the minimum employment period. That period is six months, or twelve months if the employer is classified as a ‘small business employer’. Secondly, that employee must also either be covered by a modern award, enterprise agreement, or the person earns less than the high-income threshold which is currently $153,600.00. Importantly, the high-income threshold is only relevant to an employee not covered by an award or enterprise agreement.

It is explained in more detail in Section 384 of the Act which states that an employee’s period of employment is to be determined by the continuous service they have completed with their employer. Due to the nature of casual work, for casual employees, this involves consideration of two key concepts, ‘regular and systematic work’ and ‘a reasonable expectation of ongoing employment’.

An assessment of whether a casual employee receives ‘regular and systematic work’ involves an objective consideration of the nature and frequency of the employee’s work, including:

  • Whether a clear pattern of work is being offered with reasonable frequency. This does not necessarily require the work to be frequent, uniform, often or constant (Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6);
  • Whether the work is systematic, meaning that the engagement is something that could fairly be called a system, method or plan (Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6);
  • Whether the work offered is accepted sufficiently often and was therefore not occasional (Ponce v DJT Staff Management t/as Daly’s Traffic (2010) FWA 2078);
  • If offers of work were contingent on another factor such as illness of the employee or other unavailability (Ponce v DJT Staff Management t/as Daly’s Traffic (2010) FWA 2078).

The fact that an employee works more hours in one week or one month than another, where dates are irregular or unrostered and the fact that an employee might have variable start and finish times is not conclusive evidence of irregular, occasional, or non-systematic employment or engagement.

The Act does not define the term ‘reasonable expectation of continuing employment’, and this will depend on the particular circumstances. The focus on the reasonable expectation of continuing employment is not about the expectation at the point of termination but about the expectation during the period of service. One test that applied in Ponce v DJT Staff Management t/as Daly’s Traffic (2010) FWA 2078 is “whether or not during a period of at least six months prior to the dismissal … the employee had … a reasonable expectation of continuing employment on a regular and systematic basis”. Regular and systematic work is generally evidence of a reasonable expectation of continuing employment.

In summary, as regular and systematic engagements with a reasonable expectation of continuing employment are usually not characteristic of casual employment, where these elements are present, a casual employee may be protected from unfair dismissal.

Our Employment Law Team Can Help

Whilst not a required, many precautionary steps can be taken that may protect you from an adverse finding in an unfair dismissal claim. Given the severity of the consequences of misclassifying employees we encourage employers to contact our employment law team to assist you in assessing your employment arrangements and assist in any termination process. We are also able to assist you where an employee has brought an unfair dismissal claim against you.

Likewise, if you are a casual employee, believe you are protected from unfair dismissal and believe you have been unfairly dismissed, we are also able to assist you with assessing and filing an unfair dismissal claim. Be sure to contact us as soon as possible as there is only a short 21-day timeframe to bring an unfair dismissal from the date of termination.

Written by Amelia Hatton.

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