A Serious Win for Casual Employees and a Warning to Employers
A new decision by the Fair Work Commission has opened the door for casual employees to bring unfair dismissal claims against their employers.
A casual employee at retail giant Bed Bath N’ Table, who had been working for around eight months on a “regular and systematic” basis, was eligible to make an unfair dismissal claim, according to a new decision by the Full Bench of the Fair Work Commission.
The decision is a significant development in the area of employment law, given it challenges previous decisions on casual employment and has the potential to expose other businesses to new unfair dismissal claims from disgruntled employees.
Does this mean all casual workers can now make unfair dismissal claims?
No, but it does mean that more casual employees might be entitled to make a claim. Casual employees (other than those working for small business employers) still need to have completed the standard ‘minimum employment period’ of six months to be eligible to bring an unfair dismissal claim. That six-month period must also be one of “continuous service”.
In Angele Chandler v Bed Bath N’ Table Pty Ltd  FWCFB 306, there was a range of criteria that the Fair Work Commission looked at when deciding the casual employee was in fact employed for a period of continuous service. The crucial factor was the “regular and systematic” nature of their employment, such that it led to the expectation of ongoing work.
What makes employment “regular and systematic”?
The Fair Work Commission decided that the actual hours or days worked each shift by the employee weren’t what characterised “regular and systematic” employment; rather, it was whether the employee was regularly engaged to work. To answer this, the Commission looked at a number of factors, including:
Bed Bath N’ Table required their casual employees to indicate their availability in advance for the coming month.
The ongoing contract of employment
The employee had worked three or four shifts per week for 32 weeks in a row.
The employee’s expectation of continued employment
Although shifts were of differing hours, they were assigned to the employee on a consistent basis.
Is our company at risk of unfair dismissal claims following this decision?
As every situation is different, we encourage you to seek specialist legal advice from our employment law team at Pace Lawyers.
The above is a general overview of a case and should not be relied upon in place of specialist legal advice. For more information on employment law and other commercial matters, please call us on 8410 9294 or send an email via this form.