As a casual worker, can you claim unfair dismissal?
In Australia, part-time and full-time employees are equally entitled to claim unfair dismissal for unreasonable and unjust termination of work. There are nuances, however, between casual and full-time employment if one is to make a claim of unfair dismissal.
Regular or Systematic Patter of work?
Eligibility for unfair dismissal claims depends on demonstrating a regular and systematic pattern of work, rather than the length of employment, with clear evidence of consistent offers or expectations of continuous work
Fair Procedures and Valid Reasons
Eligibility for such claims depends on demonstrating a regular and systematic pattern of work, rather than the length of employment, with clear evidence of consistent offers or expectations of continuous work
Minimum Qualifying Period
Casual workers must meet a minimum qualifying period, and their rights are protected even if they have intermittent work patterns or absences due to illness.
In Australia, it has been estimated that employment issues have increased by 26% every year, with matters mostly involving unfair dismissal or unfair treatment due to discrimination and harassment.
If you are a casual worker and you were dismissed, you will probably wonder if you have the right to be entitled for an unfair dismissal claim. The answer is yes.
But before knowing the rest of the details it is imperative to know first the definition of unfair dismissal.
Under the Fair Work Act a person has been unfairly dismissed, if the Fair Work Commission is satisfied that an employee (who is protected from unfair dismissal) has been dismissed and the dismissal:
- was harsh, unjust or unreasonable, and
- was not consistent with the Small Business Fair Dismissal Code[1] (in the case of employees of a small business), and
- was not a case of genuine redundancy
Most employees working in a part-time or full-time work conditions are aware of such entitlements. Still, casual employees are equally enabled to make such a claim if dismissed under unreasonable and unjust circumstances.
So, what sets a casual employee apart from permanent employees?
For most permanent type of work conditions, the eligibility to be able to make a claim is dependent on the qualifying period of either 6 or 12 months which is dependent on the total number of employees decided by an organisation.
It will be based on the casual worker’s pattern of work on a regular and systematic basis to determine their eligibility, hence the duration of employment barely takes into account unlike permanent workers.
Although Fair Work Act did not define what regular and systematic basis means, the eligibility is not conditional on the hours worked but on employment itself. Fair Work Commission stressed that a pattern of roster is strong evidence of an employment that is regular and systematic.
This means that ‘regular’ pertains to repetitive system of work and does not equate to any duration of frequency; and that ‘systematic’ is something that an engagement can be considered a method or a system.
In the events that a clear pattern of roster is not obtainable to casual workers, chances are they can either fight for their right relating to consistent acceptance of regular offers by their employees that it could no longer be evaluated as occasional and irregular; or whenever casual employees made themselves generally available after having a reasonable expectation of having regular and continuous employment.
Any absences due to injuries or illnesses should not be an issue against continuous period of service.
An employee is considered unfairly dismissed if the dismissal is not a case of genuine redundancy.
What is considered non-systematic?
It has been attributed on multiple accounts that casual workers who engage in small shifts with days without workloads or having long hours of gaps are considered irregular and therefore non-systematic.
It would be worthy to note however that even casual employees are still adhered to a minimum qualifying period before being entitled to file an unfair dismissal claim. In their case, the period of service outweighs more the period of employment. More importantly, casual workers are obviously entitled to basic human rights, so any absences due to injuries or illnesses should not be an issue against continuous period of service.
About Terminating a Casual Worker
Examining the pattern of work of a casual employee is the first step to consider when thinking about termination. If you are convinced well enough on all grounds of just and fairness, make sure to provide your employee with a notice containing a valid reason, opportunity for the person to respond, and an opportunity to allow the person to engage with support for open discussions.
How Can Gabito Lawyers Help You?
Contact us at 0408010982 to discuss your situation further and leave employment matters such as these in the hands of our experienced and friendly team of lawyers.
