Full Bench casts wide net for “regular and systematic” casuals protected from unfair dismissal

Periods of casual employment may be more likely to count as service for the purposes of eligibility to bring an unfair dismissal claim following a recent decision by the Fair Work Commission Full Bench (FWCFB). The decision emphasised that the pattern of a casual worker’s hours is not required to be consistent or predictable in order for their work to be regular and systematic. In this instance the decision cleared the way for a full-time worker first engaged as a casual to file an unfair dismissal claim.

It is a common misconception that a casual employee is not entitled to run an unfair dismissal case. However, an exception to that general rule applies under section 384(2)(a) of the Fair Work Act (FW Act), in that a period of casual employment will count as service for the purposes of an unfair dismissal claim if that employment is on “a regular and systematic basis”, and the employee “had a reasonable expectation of continuing employment on a regular and systemic basis”.

At first instance

Deputy President Melanie Binet (Deputy President Binet) determined that the food and beverage attendant (the Employee) had not completed the minimum 6-months employment period with Floreat Hotel (the Company) and was therefore not a person protected from unfair dismissal.

The facts of the case were as follows:

• The Employee was initially engaged on a “zero hours” contract. This meant there was no guaranteed minimum period of engagement and was classified as a casual employee.

• After a period of a few weeks, the Employee was allocated the duties of an assistant manager, which included managing staff, training and banking, and thereafter worked an average of approximately 36 hours per week, other than during periods of pre-arranged leave. The Employee also gave evidence that she was “always given first choice of hours and days”.

• From March 2019 the majority of the Employee’s working hours were rostered in advance in consultation with her, with the balance of hours being allocated to her when required.

• In August 2019, the company offered to convert the Employee to full-time employment, but the Employee declined. The Employee subsequently agreed to convert to permanent employment in January 2020, and her employment was terminated in 15 April 2020.

• Despite the Employee working as a casual for almost a year before accepting a full-time position three months before her dismissal, Deputy President Binet held that the casual tenure could not be counted because its irregular hours meant she lacked “reasonable expectation of continuing employment on a regular and systemic basis”.

Deputy President Binet held that the Employee’s casual hours “varied widely from week to week” without a “discernible pattern or system” of allocation, said Deputy President Binet considered that, “most critically”, the hotel had made it “abundantly clear to the attendant that she should not, and could not, expect ongoing employment on a regular and systematic basis while employed on a casual basis”.

The Full Bench Decision

The FWCFB held that Deputy President Binet erred in her decision that the Employee’s “hours of work did not appear to her to be consistent or predictable from week to week”.

“This was inconsistent with the proper construction of the expression “employment. . . on a regular and systematic basis” in section 384(2)(a), and indeed inconsistent with the principles concerning the interpretation and application of that expression stated in the decision by the Deputy President herself,” the FWCFB said.

The FWCFB held that the attendant’s employment was in fact regular and systematic from March last year, when she was “allocated a basic roster each week and performed additional shifts as required, with her having the first choice of available hours”.

It said an attendance sheet demonstrated the “regular” nature of the attendant’s casual employment from this time, showing the hotel consistently engaged her to work substantial numbers of hours in every week and an average of about 36 hours.

The employment was also “systematic” because she worked in accordance with a roster established in consultation with her, with rostered hours constituting the large majority of her actual weekly hours.

The FWCFB said “regular casual work undertaken in accordance with an established rostering system may reasonably be described as systematic in nature”.

It was also “difficult to avoid the conclusion that she had a reasonable expectation of continuing employment on the same basis”, given she was able to “select when and for how long she worked out of the available hours for each upcoming week”.

The FWCFB held that Deputy President Binet made the same error identified in the Chandler v Bed Bath N’ Table FWCFB finding that Deputy President Amanda Mansini wrongly focussed on a worker’s irregular “pattern” of days and hours in holding she had not met the minimum period (See related article).

The FWCFB in Chandler v Bed Bath N’Table said by “treating the degree of regularity in the pattern of hours worked … as the only or decisive consideration in the application of s384(2)(a)(i) (rather than merely as one of a number of relevant considerations in the analysis)”, Deputy President Mansini misconstrued the provision.

It referred also to the finding in the 2006 ACT Supreme Court decision, Yaraka Holdings Pty Ltd v Giljevicin, that casuals’ engagement on a regular and systematic basis in s11 of the ACT’s Workers Compensation Act required the engagement to be regular, while the “pattern of hours worked pursuant to the engagement did not necessarily need to be regular, predictable or assured”

The FWCFB was therefore satisfied that the Employee had completed the minimum employment period and was eligible for protection against unfair dismissal. The FWCFC referred the unfair dismissal application back to Deputy President Binet.

Takeaway

The decision is a timely reminder to employers about the risks associated with long term casual employees.

This is particularly relevant with the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 whereby employers must offer casual conversion to employees who have worked for at least 12 months and a “regular pattern of hours” for the past six months.

The wide scope of the recent decision in Amy Greene v Floreat Hotel Pty Ltd [2020] may expand the unfair dismissal jurisdiction of the FW Act to large numbers of casual employees who are rostered to work for a particular employer every week for an extended period of time, particularly in industries with high levels of casual employment (such as hospitality, retail, and fast food).

If you have any questions in relation to converting employees from casual to permanent employment and/or terminating the employment of long-term casual employees please do not hesitate to contact Nick Stevens or Luke Maroney.