In determining that a casual employee who worked in accordance with an established rostering system was protected from unfair dismissal under the Fair Work Act 2009 (Cth) (the “FW Act”), the Full Bench of the Fair Work Commission (the “FWC”) has issued a warning about rostering casual employees.

1. Facts

The facts of the matter can be summarised as follows:

• the Appellant commenced employment on a casual basis on 24 February 2019 (without a written employment agreement);
• from about 4 March 2019, the Appellant was allocated a basic roster each week and performed additional shifts as required, with the Appellant having the first choice of available hours;
• in August 2019, the Appellant was told by the Company that unless she accepted an offer of permanent employment, she could not hold a reasonable expectation of continuing employment on a regular and systematic basis;
• the Appellant converted to permanent full-time employment on 20 January 2020; and
• the Appellant was dismissed, effective 16 April 2020.

2. When does a casual employee’s service count towards the minimum employment period?

Under the FW Act, a person is only protected from unfair dismissal if, amongst other things, the person has completed the “minimum employment period”. An employee’s service as a casual employee does not count towards the minimum employment period 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 by the employer on a regular and systematic basis.

The minimum employment period is six months’ continuous service, or 12 months’ continuous service with a small business employer. In this matter, the Appellant had completed less than three months’ continuous service with the Company as a permanent employee, and so the decision considered whether the Appellant’s period of service as a casual employee was “regular and systematic” and could thereby be counted towards the six-month minimum employment period.

3. Regular and systematic engagement

These principles emerge from the case law on what constitutes regular and systematic employment:

• the term “regular” implies a repetitive pattern and does not mean frequent, often, uniform or constant;
• a “regular” basis may be constituted by frequent, though unpredictable engagements;
• the term “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”;
• it is the engagement that must be regular and systematic, not the hours worked pursuant to the engagement; and
• employment can be regular and systematic even where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to the needs of the employee

4. Full Bench of the FWC issues warning about rostering casual employees

In this matter, the Full Bench of the FWC found that the Deputy President in the original FWC decision had erred by treating as the decisive consideration, the fact that the Appellant’s hours of work did not appear to be consistent or predictable from week to week.

Regular: The timesheet records demonstrated that the Appellant’s employment was “regular” because, apart from periods in which she took holidays by arrangement with the Company, the Appellant was consistently engaged to work substantial numbers of hours in every week (averaging approximately 36 hours per week).

Systematic: The Appellant’s employment was “systematic” because she worked in accordance with a roster that was established by the Company in consultation with the Appellant. The Appellant’s rostered hours constituted the large majority of the hours she actually worked in every week, with the additional hours worked to cover business needs making up only a minority portion of the total hours.

Expectation: Noting that the Appellant was effectively able to select when, and for how long, she worked out of the available hours for each upcoming week, the Full Bench of the FWC said it was difficult to avoid the conclusion that she had a reasonable expectation of continuing employment on the same basis as her past regular and systematic employment.

The Full Bench of the FWC found that the Appellant’s employment was on a regular and systematic basis from 4 March 2019 and that she was protected from unfair dismissal.

5. Key takeaways

There have been a number of significant decisions about “casual” employees this year. PCS can assist your organisation with mitigating its legal risks in relation to the engagement and dismissal of casual employees. Specifically with respect to this decision, we note the warning about rostering casual employees and how this may lead to the employee being protected from unfair dismissal.

See the full decision here.

People + Culture Strategies