Employer beware - regular and systematic casuals may be protected from unfair dismissal

Lately, the casual employment relationship has been under intense scrutiny in the courts. To add to this scrutiny, the recent decision in Angele Chandler v Bed Bath N' Table Pty Ltd [2020], saw the Full Bench of the Fair Work Commission hold that the previous decisions in Workpac v Skene [2018] and WorkPac Pty Ltd v Rossato [2020] are relevant in determining whether an employee is casual. However, they were clear that the test is different for regular and systematic casual employment.

Despite a casual employee not working set hours or days, if they are engaged on a regular basis via a rostering system or contract of employment, they may reasonably expect continuing employment on a regular and systematic basis. As a result, such casual employees may be protected from unfair dismissal under Fair Work Act 2009 (Cth), a security which would not otherwise extend to true casuals.

Angele Chandler v Bed Bath N' Table Pty Ltd [2020]

In Angele Chandler v Bed Bath N' Table Pty Ltd [2020], Ms Chandler started working with Bed Bath N' Table Pty Ltd on 25 June 2018 until her termination, effective 28 February 2019. Ms Chandler made an unfair dismissal claim to the Fair Work Commission (FWC). The FWC found Ms Chandler was not engaged on a regular and systematic basis. Despite working three days per week, there was no identifiable pattern due to the variation in the number of days worked, the days of the week and the duration of the shifts she worked. The FWC therefore held she could not make a claim for unfair dismissal. Ms Chandler appealed the decision.

On appeal, the Full Bench found that Ms Chandler's employment was both regular and systematic:

• It was regular in that she worked three to four shifts for every week of her employment, regardless of the fact those shifts were varying lengths on different days each week
• It was systematic in that her shifts were arranged pursuant to an identifiable system - Ms Chandler's employment was directed by a monthly roster, which required her to indicate her availability

The Full Bench also held Ms Chandler had a reasonable expectation of continuing employment on the regular and systematic basis due to:

• The frequency of the work she was offered during her employment
• Her contract of employment, which was ongoing and provided the legal framework for her employment
• the monthly roster system which allocated shifts to Ms Chandler, based on her prior indication of availability

As a result, Ms Chandler was protected from unfair dismissal.

If you are an employer and decide you no longer wish to engage a casual employee who worked on a regular and systematic basis (and had a reasonable expectation to continue this), you need to remain aware that the decision may have legal consequences. If the employee reached the minimum period of employment of 6 months (or 12 months for a small business), they may have a claim if they are dismissed unfairly.

If you are considering terminating a casual employee or would like some guidance on structuring your casuals employees engagement, give our business lawyers a call to ensure there are no legal ramifications for your business. Siobhan Liston (03 5445 1067) and Lachlan Edwards (03 5445 1031) can help you cut through the casual law complexities and keep up to date with your obligations.