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Can still be a “regular casual” with “irregular” hours

Casual work hours were counted in order to lodge a claim of unfair dismissal.
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Can still be a “regular casual” with “irregular” hours

Can still be a “regular casual” with “irregular” hours

24 November 2020

By Mike Toten

A hospitality worker has had her period of casual work counted towards length of service for the purpose of eligibility to lodge a claim of unfair dismissal, despite there being wide fluctuations in the number and timing of hours worked as a casual. The employee was permanent when dismissed, but for most of the time with her employer had been a casual. The case interpreted the meaning of “regular and systematic” casual employment.



Facts of case

The woman had been a casual food and beverage attendant at a hotel for about 11 months, then a permanent employee for about three months before being dismissed.
 
The Fair Work Commission (FWC) rejected her claim of unfair dismissal on the basis that she had not worked the minimum six-month qualifying period to be eligible. In doing so, it disregarded her entire period of casual work. It found that because of the wide variation in work patterns, she had not established a pattern of regular and systematic employment. Also, the hotel had specifically stated that she could not expect regular and systematic casual work, which had influenced her decision to accept an offer of permanent employment. The woman then appealed to a Full Bench of the FWC.
 
The Full Bench referred to previous similar decisions, which had established that (to be eligible to claim) work shifts only had to be regular, but the actual pattern of hours did not need to be regular, consistent or predictable, nor assured.
 
In this case, the woman had consistently worked an average of 36 hours per week as a casual, which met the definition of “regular”. Most of those hours were allocated via a roster compiled after consultation with her. Being able to choose the hours she worked each week from a well-established roster system met the definitions of “systematic” and having a reasonable expectation of continuing employment.
 
The employee claimed that some of the hours she worked were to cover the absences of other employees who were unavailable, and only those hours were unpredictable. The hotel claimed that during four of the 11 months of her casual employment period, she was unavailable for work, but the employee disputed that.


Decision

The Full Bench allowed her claim of unfair dismissal to proceed, overruling the FWC’s rejection of it. As the combined amount of her casual and permanent employment exceeded six months, she was eligible to claim unfair dismissal.
 
The bottom line: Casual work will be “regular and systematic” for the purposes of counting towards length of service if:
  • It is regularly offered (in this case, every week)
  • An established work roster system is used

If it meets those criteria, it does not have to follow a particular pattern, such as similar shifts or hours each time.
 
If an employee can choose the hours/shifts to be worked, this makes it more likely that there will be a reasonable expectation of continuing employment.
 
The above applies regardless of what the employer may have said to the employee about what his/her expectations should be.


Read the judgment

Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019, 11 November 2020

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