Regular and systematic employment – when will a period of casual employment count as service for the purposes of an unfair dismissal claim?

In the recent decision of Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019, the Full Bench of the Fair Work Commission has reiterated that casual employees’ hours need not be consistent or predictable for their employment to be regular and systematic.

Facts

An employee was initially employed as a food and beverage attendant on a casual basis for almost 12 months before accepting a full-time position with the same employer. The employee was then only employed for three months in the full-time position before she was dismissed, and she sought to bring an unfair dismissal application.

The employer argued that the Fair Work Commission (FWC) did not have jurisdiction to hear the claim as the employee had not met the minimum employment period of six months in section 383(a) of the Fair Work Act 2009 (Cth) (FW Act).

Decision at first instance

Section 384(2)(a) of the Act provides that a period of casual employment will count as service for the purposes of an unfair dismissal claim if:

• the employment is on a regular and systematic basis; and
• the employee has a reasonable expectation of continuing employment.

At first instance, the FWC observed that during the period of casual service, the employee’s hours ’varied widely from week to week’ without a ’discernible pattern or system’ of allocation and ’most critically’, the employer had made it abundantly clear to the employee that she did not have a continuing expectation of employment.

The FWC determined that the period of casual service did not count as service and therefore, the employee was not eligible to pursue an unfair dismissal application because she had not completed the minimum employment period and was not a person protected from unfair dismissal under the FW Act.

Decision on appeal

The Full Bench determined that the FWC had given improper weight to the fact that the employee’s hours of work did not appear to be consistent or predictable from week to week. The Full Bench noted that this approach was inconsistent with the proper construction of the expression ‘employment … on a regular and systematic basis’ in section 384(2)(a) of the Act.

In overturning the FWC’s decision, the Full Bench reiterated that it is not necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order for a casual employee’s employment to be regular and systematic. Rather, it is the engagement of the casual employee that needs to be regular, but the pattern of hours worked pursuant to that engagement do not necessarily need to be regular, predictable or assured.

The Full Bench determined that the employee’s casual employment was to be counted as service for the purposes of the minimum employment period as the requirements in section 384(2)(a) of the Act were satisfied because the employee:

• worked approximately 36 hours per week
• worked in accordance with a roster that was established in consultation with her
• was allowed to choose the hours and days that she worked, and felt secure enough to turn down an offered shift.

Learnings

This decision is a helpful reminder for employers that, if a casual employee has been employed on a regular and systematic basis prior to accepting permanent employment, that period of casual service will count as service for the purposes of an unfair dismissal claim.