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ACCESS TO UNFAIR DISMISSAL BY CASUAL EMPLOYEES - SOME POSITIVE DEVELOPMENTS

Pursuant to the Fair Work Act 2009 (Cth) (“FW Act”), a casual employee is excluded from seeking a remedy under an unfair dismissal claim. However, if a casual employee can establish that they are employed:

• for the minimum employment period;
  
  
• on a ‘regular and systematic’ basis; and
  
  
• have a reasonable expectation of continuing employment.

Fair Work Australia (“FWA”) may have the ability to provide an unfair dismissal remedy, and a casual employee may have the same rights to make a claim as a permanent employee would.

A casual employee filing a claim for unfair dismissal will need to address each requirement independently.

Minimum Employment Period

Under section 383 of the FW Act, a casual employee must have completed the minimum employment period in order to be eligible to apply for an unfair dismissal remedy. The minimum employment period is twelve months for an employee of a small business employer, and six months for all other employers.

FWA has, in many cases, chosen to read the provisions of this section quite strictly. In the case of Prigge v Manheim Fowles Pty Ltd [2010] FWA 28, it was ruled that a man who was terminated at 9am on the morning of his final day of the 6 month minimum period of employment was not eligible to apply for unfair dismissal, as the minimum period expired at midnight! Casual employees should take care to be fully cognizant of their length of employment prior to dismissal.

Employment on a ‘regular and systematic basis’ with a ‘reasonable expectation of continuing employment’

Under section 384(2) of the FW Act, in order to be eligible to apply for an unfair dismissal remedy, a casual employee’s period of employment must have been ‘regular and systematic’, and the employee must have had a ‘reasonable expectation’ of continuing regular and systematic employment.

A positive development for casual workers- Cori Ponce v DJT Staff Management Services Pty Ltd [2010] FWA 2078

While section 384(2) of the FW Act is ostensibly straightforward, the case of Cori Ponce v DJT Staff Management Services surprised many in its expansive reading of these provisions. The judgement comes as a positive development for casual employees who are looking to file an unfair dismissal claim with FWA.

Mr Ponce was engaged by DJT on a casual basis from 6 September 2006 to 29 October 2006 and then from 3 February 2008 to 29 October 2009. His period of employment was found to be approximately 18 months.

During his employment, Mr Ponce was offered, on average, four to five days of work each week. He accepted the offer of shifts most, but not all, of the time. His shifts were on a need-to-work basis, and were not subject to a roster. DJT provided him with work when its contractual obligations generated a need for his services. While he mostly worked on the same days of the week, the number and spread of hours he worked varied week to week- and sometimes he had no shifts during a week at all. The availability of work was communicated to him on a regular basis- sometimes daily, sometimes weekly. Mr Ponce was entitled to take work elsewhere, but he declined to do so.

Key considerations identified in Ponce v DJT Staff Management in determining whether an employee is engaged on a regular and systematic basis:

• It is the employment that must be regular and systematic basis, rather than the hours or days of work themselves.
  
  
• If there is a clear pattern or roster of the hours and days worked, this is strong evidence of regular and systematic employment.
  
  
• If the employer regularly offers work when available and the employee generally makes themselves available for work, the employee is more likely to be found to be engaged on a regular and systematic basis.
  
  
• If work is offered and accepted sufficiently often the employee is more likely to be found to be engaged on a regular and systematic basis.
  
  
• If the average hours of a casual employee meet or exceed 38 hours a week, the employee is more likely to be found to be engaged on a regular and systematic basis.
  
  
• That an employee works more hours in one week or one month than another and might have variable start and finish times is not, in of itself, conclusive evidence of irregular, occasional or non-systematic employment.
  
  
• If the number of hours worked is small and the gaps between days and times worked is long and irregular, other evidence addressing the above considerations will need to be provided.
  
  
• The nature of the employee’s expectation of continuing employment is to be assessed by reference to the period of service, not merely at the time of dismissal.

Case law since Ponce v DJT Staff Management

Commissioner Roe’s detailed judgement in Ponce v DJT Staff Management has been received as a clear effort to define the jurisdictional application of sections 383 and 384.

Although Ponce v DJT Staff Management was decided in March 2010, it has already guided subsequent FWA decisions. One very recent example is the case of Tilbrook v Willall Industries Pty Ltd [2011] FWA 6300, decided on 5 October 2011. In Tilbrook, Commissioner Hampton adopted Commissioner Roe’s considerations in Ponce in determining whether an employee was engaged on a regular and systematic basis, noting subsequent decisions’ consistency with Ponce, and acknowledging that Ponce now “informs the meaning of the (Fair Work) Act” in respect of section 384.

Conclusion

The case of Ponce v DJT Staff Management may have significantly opened up the opportunities of casual workers to access unfair dismissal remedies. Of critical importance, however, are the particular factual details of every claim. The information provided in this article should not be taken as a substitute for legal advice.

If you or your friends believe that you may have been unfairly terminated, please do not hesitate to contact our Melbourne Office on (03) 9600 2577 or our Sydney Office on (02) 9251 6699.