A recent decision of the Fair Work Commission is a reminder to employers to ensure the dismissal of a regular and systematic casual employee is based on valid reasons and is not unfair, unjust or unreasonable.
It is not uncommon for employers to approach dismissal of a casual employee with the mistaken belief that, as they are not permanent employees, the employer can terminate the employment without cause by providing the minimum notice period (often one hour or one day).
However, provided they have served the minimum employment period, a casual employee employed on a “regular and systematic basis” is eligible to make a claim for unfair dismissal on the basis that there was no valid reason for the dismissal and/or the dismissal was harsh, unjust or unreasonable. “Regular and systematic” has been interpreted widely by the courts to include situations where there is no clear pattern or roster of work, for example if the employee was generally available when requested to work and the engagement was regular enough that it could not be regarded as occasional or irregular.
The case involved a casual employee who was engaged by APS Group (Placements) Pty Ltd (“APS”), a labour hire company, and performed work as a “pick packer” at Coles. The employee was advised that he would not be given further shifts following a series of heated conversations and derogatory comments by the employee about APS and Coles. At the time the employee was working on a full-time basis for another organisation and was only available to work weekends as a casual employee. The employee had been absent for a period of time due to a non-work related injury and was seeking to be put back on the roster.
In determining whether the dismissal was harsh, unjust or unreasonable, Deputy President Bull considered the criteria set out in section 387 of the Fair Work Act 2009 (“FWA”) which include:
(a) whether there was a valid reason for the dismissal;
(b) whether the person was notified of that reason;
(c) whether the person was given an opportunity to respond;
(d) any unreasonable refusal by the employer to allow the person to have a support person; and
(e) whether the person had been warned about unsatisfactory performance (if relevant).
Deputy President Bull ultimately dismissed the application having found that the employee was not unfairly dismissed after consideration of all of the elements of section 387 of the FWA.
Lessons for Employers
Employers should carefully consider the reasons and process undertaken in dismissing a casual employee who is engaged on a “regular and systematic” basis, including:
- Ensuring there is a valid reason for the dismissal, and
- Notifying the employee of the reason (and giving them an opportunity to respond if appropriate)
The casual nature of the employment does not excuse employers from the requirement to demonstrate a valid reason for the dismissal and establish that the dismissal was not unfair, unjust or unreasonable.
1. Mr Bradley Richmond v APS Group (Placements) Pty Ltd  FWC 4710 (8 September 2020)
2. Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic  FWA 2078