Working on a regular and systematic roster of 3 days a week since 2017, the worker was deemed a regular and systematic casual whom had a reasonable expectation of ongoing work. The dismissal occurred towards the end of a shift in January 2019 when the employer told the worker “due to your lack of working hours we will be letting you go and hiring someone else that can work full-time”. This statement constituted the dismissal.

The Decision

The Commission assessed whether the business had a valid reason for dismissing the casual worker. In their assessment they found there to be “no evidence” the employee was responsible for the lack of working hours. The casual worked the agreed 3 days a week consistently since the beginning of their employment. The terms of his employment began in 2017 where both parties agreed to 3 days a week, with no further shifts as the worker needed to meet family commitments. The Commission also noted “there was no occasion [the worker] was spoken to by the employer and refused to agree or negotiate a mutually acceptable roster for the following week or weeks”. Therefore there was no valid reason for dismissing the casual employee.

The Commission also highlighted the businesses failure to give the worker the opportunity to respond, commenting “on the day of dismissal [the employer] knew one of his tasks was to dismiss [the worker] but waited until 4:30pm because that was when he ‘got around to it’.” Therefore the dismissal also lacked procedural fairness in giving the casual worker the opportunity to supply their views on the businesses need to increase hours. As a remedy the Commission ordered the business to reinstate and pay the worker $4,216.00 (plus superannuation) of lost remuneration.

Lessons/Learnings

Regular and systematic casual employees can access unfair dismissal claims where their work has a pattern and there is a reasonable expectation of continuing employment. The facts of this case demonstrate the need for employers to be informed about the rights casuals hold in the employment relationship. In particular, where the business wishes to introduce changes to the working environment, including regular hours of work, a proper process should be considered to best mitigate risks. 

How we can assist

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Stephanie Beckett, Senior Workplace Relations Advice Line Advisor

Keith Hills v Lobethal Nominees Pty Ltd [2019] FWC 2889