The employee was engaged on 24 February 2019 as a casual food and beverage attendant. The employee received a ‘basic roster’ each week and worked additional shifts as required.

In August 2019, the employee was offered a permanent position, which she declined. The employee then went on holidays between September and October. Upon her return, the employee again declined the offer to become permanent, preferring to retain the higher casual penalty rate.

On 20 January 2020, the employee accepted a full-time role as a food and beverage attendant.

On 15 April 2020, the employee was informed her position was redundant. The employee then filed an unfair dismissal claim.

The Decision in the first instance

For an employee to be protected from unfair dismissal, they must have completed a minimum employment period of six months or 12 months for small businesses with fewer than 15 employees. A casual employee’s service will not count towards this period unless they were employed on a regular and systematic basis and the employee had a reasonable expectation of continuing employment.

The Commission noted “whilst a clear pattern or roster of hours is strong evidence of regular and systematic employment, it is the engagement that must be regular and systematic, not the hours worked pursuant to the engagement. Previous decisions of the FWC have established that employment or engagement can be regular and systematic even where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee.”

The Commission considered the employee’s timesheet records and found that she did not work consistent hours each week, hence determining that her employment was not regular and systematic. Based on this, the Commission was not satisfied that she had completed the minimum employment period to apply for compensation for unfair dismissal and the application was dismissed.

The Appeal

The employee lodged an appeal.

A full bench of the Commission quashed the decision at first instance finding the employee had completed the minimum employment period and was a person protected from unfair dismissal. In reaching its decision the full bench of the Commission considered the engaged was “regular” as timesheets demonstrated the employee consistently worked an average of 36 hours a week.

The FWC full bench also considered the engagement was “systematic” in that the hours worked were consistent with the roster with additional hours only accounting for a small proportion of the hours worked. The full bench considered the roster system used, coupled with the employee’s ability to get first choice of the hours and days worked, supported the contention she had a reasonable expectation of continuing employment.

The full bench confirmed the employee’s decision to reject an offer of permanent employment did not alter the position.

The matter has been referred back to Deputy President Binet for a final determination.

Learnings for Business

This case highlights the diverse interpretation that applies to ‘regular and systematic’ and how, even though an employee’s hours may not be the same every week, they may still be considered regular and systematic. Businesses need to be careful when dismissing casual employees, including permanent employees who were initially engaged as casual.

How we can help

If you are contemplating dismissing an employee, our experienced consultants can lead you through correct procedures and assist your business to develop long-term strategies that support the business through a termination, resignation, or redundancy. Victorian Chamber consultants can represent businesses in addressing claims and draft documentation, from response forms to submissions and witness statements.

The Workplace Relations Advice Line provides general advice on a range of workplace issues, including:

• Award interpretation, classification and minimum entitlements;
• Disciplinary processes, performance management and termination;
• Personal illness and injury;
• Parental leave and flexible working arrangements;
• Redundancy;
• Occupational Health and Safety and WorkCover.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222 or email the team at workplacerelations@victorianchamber.com.au.

[2020] FWCFB 6019