All too often I see and hear people comment that casual workers don’t have rights in regard to unfair dismissal. “You’re a casual, they can sack you at any time.”
This is a false statement and casual workers who rely upon this information are potentially losing out on entitlements. Casual workers do have rights, which include, in some circumstances, actions for unfair dismissal.
Casual workers are excluded from bringing unfair dismissal claims unless they:
- worked on a regular and systematic basis,
- had a reasonable expectation of ongoing employment, and
- worked in excess of 6 months (if their employer is not a small business employer) or 12 months (if their employer is a small business employer (under 15 staff).
Regular and Systematic basis
The Fair Work Commission considers the following factors when determining whether a casual’s employment was regular and systematic:
- the worker is offered work regularly and generally accepts work when offered
- a pattern or system is clearly established that the casual worker is offered work regularly and the worker would accept that work.
- the casual worker generally works as part of a regular crew and has a reasonable expectation of work on particular days of the week. The casual does not need to be told each and every day to be required to work in these circumstances. This illustrates evidence of a regular and systematic basis for the employment.
- there is a clear pattern of work being offered with reasonable frequency and of the work being generally accepted.
- the employer has a reasonable expectation that the casual worker would work when work is offered. The pattern of employment cannot be described as irregular, informal or occasional.
- it is not necessary to establish that shifts and start and finish times are regular or rostered to establish that the employment is on a regular and systematic basis.
- whether during the period of employment there was a reasonable expectation of ongoing employment.
- the evidence of what actually happened supports the finding that there was a reasonable expectation of ongoing employment on the same basis as had been occurring during the period of employment.
The recurring factors are that a casual worker is regularly offered work when it was available and came to expect that.
Reasonable expectation of ongoing work
The Fair Work Act also provides that a “long term casual worker “ is a national system worker of a national system employer at a particular time if, at that time:
(a) the worker is a casual worker; and
(b) the worker has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.
The next step a casual need to consider is if they meet the requirements to bring an unfair dismissal on the basis that the dismissal was harsh, unjust or unreasonable. Strict 21-day time limits apply, so legal advice should be obtained urgently.
Employers and workers should also remember that just because a worker is called a casual does not necessarily mean that they are one! Many times, casuals have been found to be permanent employees.
This article is written to provide information only. You should consult with a qualified lawyer with questions about your employment entitlements, specific to your circumstances. State and Territory workers will need to review the State and Territory Laws, where they are not a national worker. Other avenues also exist for general protection matters (involving termination) which has not been covered in this information sheet.