Case explains 'regular and systematic' requirement for dismissal protections
The Fair Work Commission (FWC) recently dealt with a jurisdictional challenge in an unfair dismissal case involving a casual worker who was terminated after a workplace incident.
The worker argued that her employment had a regular and systematic pattern despite varying hours and several periods of absence. She claimed these absences for caring duties and bereavement were consistent with ongoing employment and shouldn't count against her service period.
At issue was whether the worker met the minimum employment period required for unfair dismissal protection, with both sides presenting contrasting interpretations of what constitutes regular and systematic casual employment under Australian workplace law.
Understanding casual employment periods
The worker started casual employment with a residential care services provider on 26 January 2024 as a youth mentor/worker, providing services for vulnerable young people.
On 13 July 2024, she suffered a workplace injury following an incident involving a client in her care. She was dismissed on 14 October 2024 for her handling of this incident.
After lodging her unfair dismissal application with the FWC, the employer objected on jurisdictional grounds, arguing the worker hadn't completed the six-month minimum employment period required for non-small business employers under Section 383 of the Fair Work Act 2009 (the Act).
For casual employees, Section 384(2)(a) of the Act states that periods of service only count toward this minimum if the employment was regular and systematic and the worker had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
Examining casual work patterns
The worker's employment showed an irregular pattern initially. After induction in January and a shift in February, she took a pre-planned holiday. She completed required training in February, but then didn't work from late February to mid-April while caring for her injured mother.
Upon returning to work on 13 April, she claimed this was when her regular employment pattern began. She worked consistently from 23 April to 14 June, before taking further time off first for her son's medical emergency and then for a friend's terminal illness and passing.
She resumed work in early July before suffering the workplace injury that led to workers' compensation leave until her October dismissal. The FWC examined detailed timesheets showing this fragmented pattern to determine whether she met the six-month threshold.
Assessing casual employment status
The worker maintained that her casual employment had a regular and systematic character from either February or April 2024. She said that from mid-April until July, she worked approximately 55-65 hours per fortnight with fixed client commitments.
She argued that her periods of absence were consistent with ongoing employment and shouldn't break her continuous service. Particularly, she noted that her workers' compensation period should count toward her service, as she was expected to return to work around December 2024.
Despite variable hours, she highlighted that the consistent clients she serviced demonstrated she was carrying out regular and systematic work, and that the employer relied on her to fulfil its service obligations.
Interpreting casual employment law
The employer countered that the worker's unavailability at various times proved she wasn't engaged on a regular and systematic basis. Their people and culture manager pointed to the employment contract, which stated the arrangement was not intended to give rise to an expectation or intention of an ongoing or continuous employment relationship.
They presented payslips showing the worker received pay for only nine fortnights during her employment and argued her absences should be considered typical casual unavailability, not leave.
In its decision, the FWC referenced Shortland v Smiths Snackfood Co Ltd, which explained:
Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements.
Applying casual employment principles
The Commission also cited Chandler v Bed Bath N' Table Pty Ltd, which clarified:
It is the 'engagement' that must be regular and systematic; not the hours worked pursuant to such engagement...The concept of engagement on a systematic basis does not require [the worker] to be able to foresee or predict when his or her services may be required.
After reviewing the evidence, the Commission determined:
I consider that [the worker] had regular and systematic work as a casual employee, with a reasonable expectation of it continuing from the week ending 28 April 2024. That week commenced on 22 April 2024. The period of her regular and systematic work was from 23 April 2024 until her dismissal on 14 October 2024. That is not a period of six months, and accordingly, the minimum employment period of six months has not been met.\
The Commission further noted that the worker's two-week period of absence in June 2024 didn't count toward service:
Whilst [the worker] had valid reasons not to be in attendance at work, it was unpaid leave. Pursuant to s.22(2) of the Act, this is a period of unpaid leave and does not count towards continuous service.
The worker fell approximately three weeks short of the required minimum employment period, and the FWC dismissed her application, noting:
The six-month period is a threshold requirement for making this application under s.394 of the Act and there is no discretion under the Act for this to be varied.
https://www.hcamag.com/au/specialisation/employment-law/when-does-casual-work-count-fwc-provides-clarifications/532910
