News 10 October 2019

Casual service not "regular and systematic" unfair dismissal claim dismissed

The Fair Work Commission (the “Commission”) has found a casual Sales Assistant at a large homewares retailer failed to serve the minimum employment period for an unfair dismissal claim despite being employed over an 8 month and 3 day period.

Overview of the facts

The Sales Assistant was dismissed from their employment with the retailer on 1 March 2018. Upon receiving a claim for unfair dismissal the business filed a jurisdictional objection. They argued the casual worker was not protected from unfair dismissal because they had not served the 6 month minimum period of employment as they were not a “regular and systematic” casual.

The Decision

Work records were provided to the Commission showing the days and hours of the casual engagement, including payroll system data (providing mostly averages of time worked) from the business and hand written rosters from the Sales Assistant. Similarly an Assistant Store Manager provided evidence stating the casual was given 20 – 25 hours per week to “fit the needs of the company”. Other evidence was collected from former Sales Assistants who drew a distinction between “main casuals” and “Christmas casuals”.

The Commission found the work records were reliable and concluded there to be no regularity of engagement noting variations in the number of days per week, the day of the week worked, and the duration of the shift.

The Commission also discussed whether the casuals at the retail store had a reasonable expectation of ongoing employment. Here the Commission drew attention to an admission from the Sales Assistant who stated “with regards to rostering I understand that ALL casuals do not have guaranteed hours as well as casuals have a right to refuse any shift given the nature of the casual position without retribution.”

The Commission dismissed the application.

Lessons for employers

Employers should ensure clarity in casual engagements. This can be achieved in rostering arrangements by including a statement to casual employees when issuing rosters that all working hours and shifts are subject to change and may be declined by the employee. Similarly, employers should ensure rosters are truly casual, meaning that opportunities for a range of working hours and shifts are fairly distributed among employees. Therefore the business can maintain a strong labour pool by ensuring an effective spread of existing skills and genuine opportunities for capability development among casual employees. This could be facilitated by rostering systems that allow staff to ‘bid’ for available rosters and reinforce that each shift is accepted in isolation from the previous or next shift.

How we can assist

Understand your minimum obligations for the workplace relations regulations by attending our Know Your Award course. The program will increase your knowledge of common clauses within modern awards, and assist in classifying your employees within the modern award system.

Written by Stephanie Beckett, Senior Workplace Relations Advice Line Advisor

Media Contact

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0423 883 945

For all other enquiries please contact the Victorian Chamber on 03 8662 5333

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