Casual employee working three days a week deemed “regular and systematic”

The Full Bench of the Fair Work Commission has overturned a tribunal ruling made by Deputy President Mansini which prevented a casual employee from pursuing an unfair dismissal claim against her previous employer Bed Bath N’ Table.

Casual employees are not entitled to make an unfair dismissal claim unless they have worked on a regular and systematic basis and have a reasonable expectation of the work continuing.

The casual employee had been working three days per week for 8 months as a casual Sales Assistant at Bed Bath N’ Table when she was dismissed.

The First Decision

At first instance, the Deputy President ruled that the employee was not eligible to make an unfair dismissal claim on the basis that the work was not regular and systematic. In her decision, the Deputy President reviewed the employee’s work roster and established that “no pattern was able to be identified” to support an indication of regular and systematic work due to the significant variation in the shift length and rostered days.

The Full Bench Decision

The Full Bench disagreed, ruling that her work was regular and systematic, and that she had a reasonable expectation of such work continuing, based on the following factors:

  • the frequency and regularity of her shifts, being 3 or 4 days almost every week until her termination;
  • she was employed under an ongoing and single written contract in which there was a detailed job description; and
  • she was subject to a monthly availability roster system whereby she had to indicate her availability in advance.

The Full Bench subsequently upheld the employee’s appeal and the unfair dismissal claim will now be heard by the Commission.

The Takeaway

When engaging casual employees, variations to the number of days of the week, the specific days of the week or the length of shifts they are allocated to work is not necessarily sufficient to establish that work is not regular and systematic.

This decision is yet another reminder to carefully characterize employment and to periodically review arrangements to ensure employees are labelled “casual” are just that.

If you have any questions about eligibility for unfair dismissal or the unfair dismissal process generally, please do not hesitate to contact Nick Stevens or Jane Murray.

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