Casual employees and unfair dismissal: Know Your Rights
If you believe your dismissal was unfair, your eligibility to claim unfair dismissal depends on whether you are a casual or permanent employee Under the Fair Work Act 2009 (Cth), you must meet the minimum employment period to qualify. Casual employees may find this harder to prove, as their employment often ends after each shift. This article explains how casual employees can still file for unfair dismissal.
Who is Considered a Casual Employee?
You are considered a casual employee if your employer offers no firm commitment to ongoing or indefinite work. The Fair Work Commission looks at factors like job description, your ability to accept or reject shifts, and any casual entitlements.
Unfair Dismissal for Casual Employees
To file an unfair dismissal claim, casual employees must meet the minimum employment period. They also need to be under the high-income threshold or covered by an award/enterprise agreement. The main issue is whether the employee worked as a regular casual employee.
When Does Casual Service Count?
Casual employees must prove two things:
- They were regular casual employees.
- They expected ongoing employment on a regular, systematic basis.
Regular Casual Employment:
Under section 12 of the Fair Work Act 2009 (Cth), a regular casual employee works on a regular, systematic basis. You don’t need to work frequent or uniform shifts, but there must be a pattern of ongoing work.
Systematic Work:
Systematic work means having a roster or planned shifts. This is crucial in proving regular casual employment.
Reasonable Expectation of Employment for Casual Employees
Casual employees may expect ongoing employment if they worked regularly and systematically. However, some contracts state there is “no commitment to ongoing work.” Even with such clauses, the Fair Work Commission considers the work pattern to decide if the expectation of continued employment is reasonable.
Does Receiving Zero Shifts Count as Unfair Dismissal?
In Jackson v The Trustee for L & L Chua Family Trust No 17, Mr. Jackson, a casual worker, stopped receiving shifts after raising concerns. The Fair Work Commission ruled that zero shifts can amount to unfair dismissal if it ends the employment relationship. Even without a formal dismissal, the employer can still be liable.
Conclusion
If a casual employee faces unfair dismissal, they must meet the criteria under section 382 of the Fair Work Act. This includes determining whether they were working on a regular and systematic basis with an expectation of employment. Since each employment case differs based on personal circumstances, it is crucial to seek independent legal advice to understand your rights and prospects.
Disclaimer:
This article is not construed as legal advice but rather generalised legal information regarding a causal employee’s protection under unfair dismissal. If you require legal advice or want to discuss the article, contact our team at Jake McKinley who are here to help you. Please contact us on (02) 9232 8033, office@jakelaw.com.au, or at https://jakelaw.com.au/contact/ to make an inquiry.
