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How much notice should you give casuals?

Are businesses required to give casual employees notice of termination?
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How much notice should you give casuals?

How much notice should you give casuals?

18 November 2019

Are we required to give casual employees notice of termination?

Our Workplace Advice Line recently received this question from a Workplace Assured subscriber.


Q We employ several casual employees on an 'as needed' basis. Sometimes the anticipated amount of work for the day doesn't eventuate and the worker's engagement is terminated.

The applicable modern award (Clerks – Private Sector Award 2010) doesn't appear to provide a period of notice of termination for a casual employee, although there are minimum notice provisions in the Fair Work Act. Conversely, casual employees have resigned without giving the company any notice.

How much notice should we give a casual employee? 
 

A There are several factors an employer needs to take into account. These include the Fair Work Act and, if relevant, the terms of the applicable modern award or enterprise agreement. 

National Employment Standards (NES)

Under the FWAct (s123(1)(c) a casual employee is excluded from the required minimum periods of notice of termination of employment. The required period of notice to be given by either party would be subject to the relevant notice provisions of the applicable modern award, enterprise agreement or individual contract of employment.

In this case, the FWAct does not require the employer to give a minimum period of notice of termination to a casual employee. 

Modern award

Generally, a modern award would not provide a period of notice when terminating a casual employee. It should be noted, however, that it may provide a minimum payment for each occasion a casual employee presents for work. For example, the Clerks – Private Sector Award 2010 (cl 12.4) refers to the NES with respect to the minimum period of notice required to be given by the employer (which does not provide a period of notice to a casual employee).

The award also provides that casual employees are entitled to a minimum payment of three hours’ work at the appropriate rate, that being the casual rate. This means a casual employee who works for one hour and is terminated by the employer must be paid for three hours work at the casual rate.
 
The minimum payment for a casual employee is based on the understanding the employee is ready, willing and able to work for the minimum period, but is terminated by the employer before the minimum period of employment has elapsed. The minimum payment of three hours however would not apply if an employee decided to resign from their employment without notice after (say) one hour. 

Unfair dismissal

Under the FWAct, a casual employee cannot access an unfair dismissal remedy, however casual employees employed on a regular and systematic basis with a reasonable expectation of continued employment by the employer are entitled to make application for unfair dismissal, subject to having completed the relevant minimum period of employment.

The relevant period is six months if the employee is employed in a business of 15 employees or more, or 12 months if employed in a business of fewer than 15 employees.

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