Recent cases decided by the Fair Work Commission (‘FWC’) have gone towards enhancing the protections afforded to casual employees. Specifically, these decisions have confirmed that casual employees have a greater standing in unfair dismissal and general protection claims, forcing employers to be more careful in their decisions surrounding termination of casual employees. Here, we will analyse two recent decisions handed down by the FWC and their implications on the casual workforce.
James Arbon v Bunnings Group Limited T/A Bunnings Warehouse [2023] FWC 972
Mr Arbon was a full-time university student, who worked as a causal employee at Bunnings. He commenced his employment in April 2021, and continued to work until February 2023 when he was then no longer rostered for any future shifts. In the 26 weeks before he was dismissed, he worked at least one shift in 21 of the weeks, consistently being rostered on alternate weekends.
Ultimately, the FWC refined its analysis of what constitutes ‘regular and systematic’ employment, finding that Mr Arbon met the minimum service period to pursue an unfair dismissal claim, despite “unpredictable” shifts and provisions in his contract that did not guarantee regular and consistent hours.
In coming to this judgement, the FWC clarified a test for regular and systematic employment, outlining that an employment will be held to be regular if the work is frequent, even if it is unpredictable. Meanwhile, an employment will be held to be systematic where there is a pattern of engagement as a consequence of business reliance on the worker’s services. Furthermore, it was held that the limited number of shifts worked by Mr Arbon did not diminish his right to an unfair dismissal claim, as he consistently made himself available for work.
Cody Jackson v The Trustee for L & L Chua Family Trust No 17 T/A Brisbane Quarters [2023] FWC 268
In another recent case decided by the FWC, Mr Jackson, who was a casual guest services attendant at the respondent’s workplace, was forced to take on higher duties and responsibilities because the regional manager was consistently absent from the workplace. Mr Jackson made submissions to his employer, complaining about the higher duties and responsibilities, and was ultimately forced to take a fortnight of personal leave after experiencing a significant stress.
However, on his first day of leave he was dismissed from his ongoing employment due to his inconsistent moods and conflict with the regional manager. Consequently, Mr Jackson filed a general protections claim against his employer.
The FWC held in favour of Mr Jackson and found that by simply “dispensing” a casual employee and subsequently reducing their hours to zero can result in an unfair dismissal or general protections claim.
Key Takeaways
Both of these cases affirm a casual employee’s right to an unfair dismissal or general protections claim, particularly where they have worked regular and systematic hours. For employers, it is essential to take heed of these decisions and exercise care in managing the employment of casual employees. Employers who are considering terminating a casual employee should consult legal counsel to ensure that they do not expose themselves to a plethora of legal consequences.
Meanwhile, for casual employees, it is important to be aware of the remedies that are available where casual employment rights have been breached. Despite the status of a casual employee, such employees may still have a valid unfair dismissal or general protection claim depending on the circumstances surrounding termination of employment.
If you would like advice in relation to casual employment or any other workplace issues, please do not hesitate to reach out to our Workplace Law team.
** Prepared with the assistance of Oscar Arnott **
If you have any questions or concerns please contact our Workplace Law Director Angela Backhouse on 02 6188 3600