Regular and systematic casual employment – when will casual employees have access to the unfair dismissal regime?

In Angele Chandler v Bed Bath N’ Table Pty Ltd [2020], the Full Bench of the Fair Work Commission held that the decisions in Workpac v Skene[efn_note][2018] FCAFC 131. [/efn_note] (and now, WorkPac Pty Ltd v Rossato[efn_note][2020] FCAFC 84.[/efn_note]) remain judicially relevant in determining whether an employment relationship is casual, however the test is different for regular and systematic casual employment.

While a casual employee may not work set hours or set days, if they are regularly engaged and there is a rostering system or contract of employment governing their engagements, the employee could have a reasonable expectation of continuing employment on a regular and systematic basis and, therefore, have access to the unfair dismissal protections in the Fair Work Act 2009 (Cth).

The decision, which we summarise below, serves as a timely reminder that the nature of casual employment continues to be subject to significant scrutiny by courts and commissions.

Facts

Ms Chandler commenced casual employment with Bed Bath N’ Table Pty Ltd on 25 June 2018 and was terminated effective 28 February 2019. Following the termination of her employment, Ms Chandler made an unfair dismissal claim to the Fair Work Commission (FWC).

At first instance, the Deputy President found that Ms Chandler was not engaged on a regular and systematic basis because, despite working three days per week, the number of days worked, the days of the week and the duration of the shifts varied such that there was no identifiable pattern.

The FWC therefore determined that Ms Chandler was prevented from progressing her claim for unfair dismissal. Ms Chandler appealed the decision.

Legal framework

Section 382 of the Fair Work Act 2009 (Cth) provides that an employee is protected from unfair dismissal if the employee has completed a period of employment of at least the minimum period of employment. The minimum period of employment is 6 months (or 12 months for a small business).

For a casual employee, section 384 of the Act states that a period of service does not count towards the employee’s period of employment unless:

• the employment as a casual employee was on a regular and systematic basis; and
• during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment with the employer on a regular and systematic basis.

Full Bench decision

The Full Bench were critical of the first instance decision on the basis that it is the engagement that must be regular and systematic; not the hours worked pursuant to the engagement. In determining whether an engagement has been on a regular and systematic basis, the Full Bench considered the following factors:

• contractual terms
• period of engagement
• frequency of work
• the employer’s rostering system
• number of hours worked.

Regular and systematic

The Full Bench determined that Ms Chandler’s employment was:

• regular in that she was employed every week for the duration of her employment and worked three or four shifts each week (despite those shifts being of varying lengths and being on different days each week)
• systematic because it was arranged pursuant to an identifiable system – specifically, Ms Chandler’s employment was governed by a monthly roster system that included her having to indicate her availability.

Reasonable expectation of continuing employment

The Full Bench also found that Ms Chandler had a reasonable expectation of continuing employment on a regular and systematic basis because there was:

• an ongoing contract of employment that established a legal framework for the employment
• a monthly roster system under which shifts were allocated to Ms Chandler based on her prior indication of availability
• a frequency with respect to the amount of work that was allocated to Ms Chandler over the course of her employment.

Based on the above reasoning, the Full Bench determined that Ms Chandler was protected from unfair dismissal.

Learnings

Employers who decide to no longer engage a casual employee should be aware that their decision will not be without legal ramifications if the casual employee has been employed on a regular and systematic basis for the required period and they have a reasonable expectation of ongoing regular and systematic employment.

Further, while a casual employee can be engaged on a regular and systematic basis and have a reasonable expectation of ongoing employment, the employee can still be ‘casual’ at law so long as there is an absence of a mutual, firm and advance commitment as to days and hours of work (as required for permanent employment).