A recent appeal of a general protections decision has determined that the judge incorrectly ruled that a casual employee can be terminated at will, confirming that section 340(1) of the Fair Work Act 2009 applies to a casual employee.

 

The Law

Section 340(1) of the Fair Work Act 2009 provides that a person:

“must not take adverse action against another person … because the other person … has … exercised a workplace right.”

 

Trial decision

In Jess v Cooloola Milk Pty Ltd [2021] FCCA 1526 the employee made a general protection claim for adverse action resulting in dismissal arising out of his enquiry as to whether he would be paid overtime for working additional hours and subsequent termination.

Judge Vasta found that cessation of casual employment is not adverse action and the exclusion given in section 342(3) of the Fair Work Act 2009 applied, finding in favour of Cooloola Milk Pty Ltd.

 

Appeal decision

On Appeal, in Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75, Justice McElwaine observed that Judge Vasta provided “very brief reasoning” for his first instance decision.

Notably, Justice McElwaine observed that Judge Vasta failed to establish that the employee exercised a workplace right by offering to perform unscheduled work if he was paid. Further, Justice McElwaine determined that the employee should not have been classified as a casual worker, as he did not receive any casual loading, and Cooloola Milk Pty Ltd had paid him for holidays and sick days.

As such, Justice McElwaine found that Judge Vasta erred in finding that casual employment arrangements allow employers or employees to “simply end employment arrangement whenever either wishes to do so” and that section 342 of the Fair Work Act 2009 applies to dismissal of employees without limitation as to the characterisation of the employment arrangement.

 

Key Takeaways for Employers:

The decision serves as an important reminder for employers to:

  • follow the correct procedure prescribed by the Fair Work Act 2009 when terminating any type of employee;
  • correctly categorise the type of employment to ensure that the correct wage and entitlements are provided for each arrangement; and
  • document arrangements for the performance of additional hours of work or overtime.