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Case Summary

Are casual workers protected from unfair dismissal?

Greene v Floreat Hotel Pty Ltd [2020] FWCFB 609

Under section 382(a) of the Fair Work Act 2009 (Cth), an employee is protected from unfair dismissal if they have completed the minimum employment period. Under section 383, the minimum employment period is 6 months unless the employer is a small business in which case it is 12 months. Under section 384(2), the period of employment excludes any time the employee was engaged on a casual basis unless they worked on a regular and systematic basis and had a reasonable expectation of continuing employment.

Nes Demir
Published:

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Determining whether a casual employee is engaged on a regular and systematic basis

There are a number of factors in determining whether a casual employee is engaged on a regular and systematic basis, as highlighted in the case of Greene v Floreat Hotel Pty Ltd [2020] FWCFB 609.

Ms Green was employed as a casual food and beverage attendant at the Floreat Hotel. She was allocated a basic roster each week and performed additional shifts as required. Ms Green was always given the first choice of hours and days, and effectively able to select when and for how long she worked each week.

The business decided to reduce its use of casuals due to increased staffing costs and offered Ms Green permanent employment. Initially she refused, but later accepted the offer after she was offered fewer casual shifts.

Shortly after Ms Green commenced permanent employment, she was stood down due to government directions around the closure of hospitality venues. She was later informed her position was redundant.

Ms Green’s unfair dismissal application was initially dismissed on the basis she had not worked the minimum employment period as a permanent employee to qualify for protection against unfair dismissal.

On appeal, a FWC Full Bench confirmed Ms Green did qualify for protection as her engagement as a casual employee was on a regular and systematic basis.

  1. Ms Green’s engagement was regular because she was consistently engaged to work substantial hours each weeks which averaged at approximately 36 hours per week.
  2. Her engagement was systematic because she worked in accordance with a roster and the rostered hours constituted the large majority of the hours she actually worked each week.

By including this engagement in the count toward her total period of employment, the Full Bench found she worked well over the minimum employment period required.

Ms Green’s unfair dismissal application has been referred back to the FWC for final determination.

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Lessons for Employers

  • When determining whether a casual employee was engaged on a regular and systematic basis, it is not necessary to identify a consistent pattern of engagement in:
    • the number of days worked each week;
    • the days of the week worked; and/or
    • the duration of each shift.
  • An employee has a reasonable expectation of continuing casual employment on a regular and systematic basis if they are involved in the preparation of rosters and/or if they are provided with rosters well in advance, which was the case in WorkPac Pty Ltd v Rossato [2020] FCAFC 84, summarised here.
  • Where casuals are deemed permanent on the basis that they worked on a regular and systematic basis, any associated entitlements (such as annual leave, long service leave, allowances etc.) cannot be offset by the casual loading already paid to the employee. This was the key takeaway in WorkPac Pty Ltd v Rossato [2020] FCAFC 84, summarised here.

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Principal Lawyer and Head of Workplace