Understanding Rights Under the Fair Work Act 2009
Working as a casual employee in Australia can feel a bit uncertain especially when it comes to job security. You might be thinking, “If I get let go, do I have any rights?” The good news is: yes, you do. Even though casual jobs are known for their flexibility, that doesn’t mean you’re completely unprotected. Under the Fair Work Act 2009 (Cth), casual employees can make a claim for unfair dismissal — but there are a few conditions that need to be met first. It’s worth knowing what they are, just in case you ever need to make a claim.
What Is Unfair Dismissal?
Under the Fair Work Act, unfair dismissal occurs when an employee is dismissed in a way that is:
- Harsh, unjust or unreasonable in accordance with section 385 of the Fair Work Act 2009.
- Not a case of genuine redundancy
- Not consistent with the Small Business Fair Dismissal Code (for small businesses with less than 15 employees)
The Casual Employee Test
Not all casuals are eligible to claim unfair dismissal. The Act distinguishes between “regular and systematic” casuals and those with more ad hoc arrangements.
To be eligible to lodge an unfair dismissal claim, a casual employee must:
- Meet the minimum employment period:
- 6 months if the employer is not a small business (i.e. 15 or more employees)
- 12 months if the employer is a small business (fewer than 15 employees)
- Be employed on a regular and systematic basis, with a reasonable expectation of ongoing work.
This means casuals who work consistently over a period of time — for example, with a regular weekly roster or predictable shifts — are likely to meet the test, especially if they can demonstrate an ongoing pattern of work and an expectation that it would continue.
In unfair dismissal cases, the focus is not just on the label “casual” but on the substance of the working relationship. The Fair Work Commission will examine factors such as:
- Frequency and pattern of shifts
- Advance rostering
- Length of employment
- Any ongoing commitment between the parties
Lodging a Claim
Eligible casual employees must lodge their unfair dismissal application with the Fair Work Commission within 21 days of the dismissal taking effect.
Other Options for Casuals
If a casual employee does not meet the criteria for unfair dismissal, they may still be able to seek remedies under:
- General protections provisions of the Fair Work Act, if they believe the dismissal was for a prohibited reason (e.g. exercising a workplace right, discrimination)
- State-based anti-discrimination or human rights legislation
- Breach of contract or other common law claims (in rare cases)
Conclusion
Casual employees in Australia are not automatically excluded from claiming unfair dismissal. Those employed on a regular and systematic basis, who meet the minimum period of employment, may have access to the same protections as permanent staff. Given the legal complexities, employees and employers alike should seek professional advice to understand their rights and obligations under the Fair Work Act. Should you need assistance, give Adams and Partners a call on 02 4721 6200.
Written by David Hampton
