What is 'Regular and Systematic' for Casual Employees

 

Not all employees are protected under the unfair dismissal provisions contained in Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act). One of the requirements for coverage is that the employee has completed the minimum employment period. The minimum employment period being either six months for employers who are not small business employers or one year for employers who are small business employers.

Usually there is no issue in defining this time period for permanent or part-time employees. However, problems arise for casual employees as the service must be continuous service. For casual employees their shifts/days of work are distinct separate periods of services, meaning their employment is not continuous service. Section 384(2)(a) of the FW Act allows a casual employee’s service to be considered continuous if the casual employee is employed on a ‘regular and systematic basis.’

In Angele Chandler v Bed Bath N’ Table Pty Ltd [2020] FWCFB 306 the Fair Work Commission (the FWC) has reaffirmed how ‘regular and systematic basis’ is to be determined and overturned the first instance decision of Deputy President Mansini who rejected a casual employee’s application for unfair dismissal.

Decision of Deputy President Mansini

Deputy President Mansini rejected Ms Angele Chandler’s application for unfair dismissal finding that Ms Chandler had not completed the required minimum employment period to be protected under the unfair dismissal provisions.

Ms Chandler had worked for Bed Bath N’ Table for eight months and three days. Deputy President Mansini held that there was no regularity in her engagement. There was no identifiable pattern to the number of days Ms Chandler worked each week, the days she worked and the duration of her shifts.

Finding that there was no regularity of employment, Deputy President Mansini was not required to make a ruling on whether Ms Chandler had a reasonable expectation of ongoing employment. However, Deputy President Mansini did comment that Ms Chandler had no reasonable expectation of ongoing employment because:

  • there was no formal or specific factor differentiating ‘main casuals’ from ‘Christmas casuals’ and ‘other casuals’ submitted by Ms Chandler;
  • Ms Chandler’s email that stated casual employees did not have guaranteed hours and had the right to refuse hours without repercussion; and
  • there was no reasonable expectation of ongoing employment in the employment contract, position description, workplace policies and rosters compared to actual hours worked and pay advice.

The Full Bench Decision

The full bench granted permission for Ms Chandler to appeal Deputy President Mansini’s decision. The full bench held that Deputy President Mansini had not applied the correct approach when determining whether Ms Chandler was employed on a ‘regular and systematic basis.’ The full bench noted that the correct approach was that in Yaraka Holdings Pty Ltd v Giljevic [2006] ACTA 6 (Yaraka Holdings), which had been followed by the full court of the Federal Court and the FWC in both full bench and first instance decisions.

The Yaraka Holdings approach considers a range of matters to determine if a casual employee is employed on a ‘regular and systematic basis’, including the:

  • terms of the contract;
  • working relationship and all associated circumstances;
  • period/s of engagement;
  • frequency of work;
  • number of hours worked;
  • type of work; and
  • normal arrangements for someone who performed the same type of work.

The full bench also held that Deputy President Mansini erred in her comments about Ms Chandler’s reasonable expectation of continued employment. The full bench held that Deputy President Mansini placed too much significance on Ms Chandler’s email that only set out the rights of a casual employee.

The full bench held that Ms Chandler was employed on a ‘regular and systematic basis’ as she was employed every week until her employment was terminated, where 30 of those weeks Ms Chandler was employed for three or four shifts in a week.

Ms Chandler was employed on a ‘systematic’ basis because Ms Chandler was employed in a particular position and her employment contract contained pre-established and ongoing legal obligations, including:

  • that she was to protect and promote the reputation of Bed Bath N’ Table ‘at all times’;
  • her hours of work were subject to the operational needs, however she was required to be available during certain ‘blackout periods’. Any leave taken during those times were unauthorised leave and her hours were not guaranteed when she returned to work if she took leave during these times; and
  • her employment could be terminated due to operational needs if the employee was no longer required, the employee resigned, or an employee has been rostered and/or worked for Bed Bath N’ Table for longer than four weeks.

Further, the full bench held that Ms Chandler had a reasonable expectation of continuing employment on a regular and systematic basis, because:

  • she was required to be available during ‘blackout periods’ and her employment continued until it was terminated;
  • the use of a monthly roster that required Ms Chandler to notify her availability in advance; and
  • the frequency and amount of work allocated to Ms Chandler.

Holding that Ms Chandler had satisfied the minimum period of employment and was protected under the unfair dismissal provisions, the full bench referred Ms Chandler’s unfair dismissal application back for consideration by a Commissioner.

Take Home

Not all casual employees will be protected by the unfair dismissal provisions in the FW Act, but some casual employees will be. To determine if an employee is covered by these protections the FWC and a court will look at more than just the regularity of hours and days a casual employee works. They will consider the whole relationship for determining whether a casual employee’s employment has been ‘regular and systematic’. Employers should be aware of these additional factors before dismissing a casual employee. When dismissing casual employees employed on a ‘regular and systematic’ basis, employers should follow the same steps for dismissing permanent employees to decrease the risk of an unfair dismissal claim.

It should be noted that there may be other avenues for an employee, not just casual employees, to bring a claim about their termination, such as the general protections provisions, for employees who are not protected under the unfair dismissal provisions.

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