Casual employees, unfair dismissal and general protections: recent commission rulings

Angela Backhouse CHAMBERLAINS LAW FIRM

Introduction

The evolution of workplace protections has shown little signs of slowing in recent times. More and more often, the Fair Work Commission (FWC) has provided decisions on the broadening protections for employees and correspondingly broadening responsibilities for employers.

The FWC frequently has to rule on the eligibility of employees to make claims under the Fair Work Act 2009 (Cth) for unfair dismissal or for adverse action under the general protections. Two recent cases before the FWC have touched on the level of protections enjoyed by casual employees.

To summarise their effect, the FWC has confirmed in these matters that casual employees have a greater standing in unfair dismissal and general protection claims than previously held.

This has the practical effect on employers of requiring greater care in their decision-making process surrounding termination of casual employees.

This article comes from the exerts behind the Employment Law Bulletin. This bulletin examines changes both in the law and government policy, keeping readers at the forefront of new liabilities and legal procedures and helping them minimise the risk of non-compliance.

Subscribers to Employment Law Bulletin can read the full article HERE.

No allocation of shifts — was the employee “dismissed”?

The first of the notable decisions is Jackson v The Trustee for L & L Chua Family Trust No 17 t/as Brisbane Quarters, decided on 17 March 2023.

Outline of facts

The facts of the matter were as follows:

• Mr Jackson, who was a casual guest services attendant at the employer respondent’s workplace, was forced to take on higher duties and responsibilities because the regional manager was consistently absent from the workplace.
• Mr Jackson made submissions to his employer, complaining about the higher duties and responsibilities and was ultimately forced to take a fortnight of personal leave after experiencing a significant stress.
• On his first day of leave, he was contacted by the respondent and advised that he no longer had shifts allocated to him due to his inconsistent moods and conflict with the regional manager.
• Subsequently, Mr Jackson filed a general protections claim against his employer.

Jurisdictional issue

Initially, the FWC had to resolve a jurisdictional question raised by the respondent in respect to whether the applicant was dismissed or left of their own volition.

The FWC found that ultimately, it did have jurisdiction over the matter, citing the decision in Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli, which says that a resignation forced by an employer due to lack of choice otherwise is still a dismissal. This is reflective of s 386(1) of the Fair Work Act.

In the words of the FWC:

So far as is relevant, the Act provides that a person has been dismissed if their employment “has been terminated on the employer’s initiative”. Whether on the basis put forward by [the employer] or Mr Jackson it is clear that the latter’s employment ended on or around 22 November 2022. It is further clear that irrespective of which version of words are considered the intention conveyed by [the employer] was that Mr Jackson would no longer work for the business. Whether he was told he was dismissed due to his “moods being ‘up and down” and because he was ‘constantly butting heads’ with the Regional Manager” (as alleged by Mr Jackson) or that “we no longer had hours for him” (as alleged by [the employer] the plain fact is that the employment relationship was intended to be ended.

The FWC found that by simply “dispensing” a casual employee and subsequently reducing their hours to zero can result in an unfair dismissal or general protections claim, and the matter was decided in favour of Jackson. This is a further affirmation of the decision in Torres-Carne v Darwin Aboriginal and Islander Women’s Shelter (DAIWS), broadening the protections afforded for this class of employee.

As is the current view on dismissal, the FWC took into account the nature of the employment relationship between Mr Jackson and his employer, and more importantly, which of those two parties was the greater contributor to ending the employment relationship. Ultimately, the FWC found that it was the respondent that contributed substantially to ending the employment relationship with Mr Jackson and did so by “reducing his hours to zero”. This is not an approach which avoids an employer’s obligations in terms of dismissal.

Casual employee and unfair dismissal application

The second of the two notable recent decisions was Arbon v Bunnings Group Ltd t/as Bunnings Warehouse.

Outline of facts

The facts of the matter were as follows:

• Mr Arbon was a full-time university student who worked as a casual employee at Bunnings.
• He was rostered on a casual basis between the period when he commenced his employment in April 2021, and continued to work until February 2023 when he was then no longer rostered for any future shifts.
• In the 26 weeks before he was dismissed, he worked at least one shift in 21 of the weeks, consistently being rostered on alternate weekends. His shifts showed a measure of consistency in their timing and rostered days of those shifts, consistent with the original offer of employment.

Casual worker definition and minimum service period

Ultimately, the FWC refined its analysis of what constitutes “regular and systematic” employment. The FWC reiterated the definition contained within s 15A of the Fair Work Act in which the status of a casual employee is contained and the irregularity of hours did not at all dissuade the FWC as to whether Mr Arbon met the definition of a casual employee.

The FWC made this examination of Mr Arbon’s status within the context of the last 6 months of his employment. By finding that Mr Arbon satisfied the definition of a casual employee for this period, the FWC was also able to determine that Mr Arbon had met the minimum service period to pursue an unfair dismissal claim. His working schedule, which was categorised as “unpredictable” shifts, and provisions in his contract that did not guarantee regular and consistent hours were insufficient to disqualify Mr Arbon from making the application for unfair dismissal.

What is systematic and regular employment?

In coming to this judgment, the FWC clarified a test for regular and systematic employment, outlining that an employment will be held to be regular if the work is frequent, even if it is unpredictable.

Meanwhile, an employment will be held to be systematic where there is a pattern of engagement as a consequence of business reliance on the worker’s services.

Furthermore, it was held that the limited number of shifts worked by Mr Arbon did not diminish his right to an unfair dismissal claim, as he consistently made himself available for work.

Impact of recent cases

Both of these cases bolster the rights of a casual employee to an unfair dismissal or general protections claim. This is even more evident in circumstances where they have worked regular and systematic hours.

It is essential for employers to note the import of these judgments, and to action the requisite care and diligence in dealing with casual employees. As always, obtaining legal advice prior to taking an action affecting the employment of a casual employee is highly recommended to mitigate the risk of liability arising.

Meanwhile, for casual employees, it is important to be aware of the remedies that are available where casual employment rights have been breached. Despite having the legal status of a casual employee, such employees may still have a valid unfair dismissal or general protections claim depending on the circumstances surrounding termination of employment.