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Casual employment and the ‘Regular and Systematic’ test

An Applicant’s appeal against a decision by the Fair Work Commission’s Deputy President Binet has been upheld by the Commission’s Full Bench.

Originally Deputy President Binet dismissed the Applicant`s request for an unfair dismissal. President Binet had determined that the Applicant was not eligible to pursue an unfair dismissal application because she had not completed the minimum six month employment period.  

The Applicant had worked as a casual for more than six months before accepting a full-time position three months before the dismissal with Floreat Hotel Pty Ltd (the Respondent). However, Deputy President Binet determined that during the Applicant’s casual employment, and taking into account the Applicant’s roster pattern, that the  irregularity in her hours of work did not  support a reasonable expectation of regular and systematic work.  Therefore, the Applicant had no reasonable expectation of continuing employment by the Respondent on a regular and systematic basis.

In a decision that quashed the original decision of Deputy President Binet the Full Bench of the Fair Work Commission looked at the facts of the case and found that the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic and found that they did not consider that to be the correct approach.

The Bench said “By treating the degree of regularity in the pattern of hours worked by the Applicant rather than merely as one of a number of relevant considerations in the analysis, we consider that the Deputy President misconstrued the provision. This erroneous approach resulted in the Deputy President failing to take into account a number of matters which pointed to a different conclusion, including Ms Chandler’s contract of employment and the rostering system adopted by the Respondent.”

The Bench said “the Applicant’s employment was in fact regular and systematic from March last year, when she was allocated a basic roster each week and performed additional shifts as required, with her having the first choice of available hours”.

The Bench found that the Applicant’s period of casual employment until she became a permanent full-time employee formed part of employment and therefore, she had completed the minimum employment period to be protected from unfair dismissal.

The Applicant’s unfair dismissal application was referred back to Deputy President Binet for final determination on the basis of the finding of the Full Bench.

Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019 (11 November 2020)

Key takeaways

  • The recent full bench decision of Greene v Floreat Hotel [2020] FWCFB 6019 may expand the unfair dismissal jurisdiction of the Fair Work Act 2009 for casual employees.
  • Employers seeking to terminate or convert long-term casual employees should seek legal advice.

This article has been prepared for information purposes only and is not legal advice. For legal advice regarding your specific circumstances, please contact WR Law directly on (03) 5499 6131 or by email at admin@wrlaw.com.au