This also needs constant review by the employer as the nature of a position may change during the course of employment. The Fair Work Act does not define the meaning of ‘casual employee’ so this term has its own general meaning as determined by case law. The following factors have been considered in case law as relevant indicators of the existence of a casual employment relationship. It should be noted this is not exhaustive, nor is any particular factor a greater determinant of the question. • The way in which wages are paid – hourly rates are more consistent with casual employment than are weekly wages • The period of time over which the employment extends – the longer the length of service the less likely the employee is a casual employee • The number of hours worked per week – the more numerous the hours worked the less likely the employee is a casual employee • Whether the employee had a consistent starting and set finishing time – the more consistent the hours the less likely the employee is casual • Whether the employee worked according to a roster system that was published in advance – the more regular and planned are the hours the less likely the employee is casual • Whether there was a reasonable mutual expectation of continuity of employment – if
so, the less likely the employee is a casual • Whether notice was required by the employer prior to the employee being absent or on leave – if so, the less likely the employee is a casual • Whether the employee was informed of the casual nature of the employment – if not, the employee is less likely to be casual. Unfair Dismissal Under the Fair Work Act (FWA) part-time and full-time workers may be able to challenge an unfair dismissal, but what about casual workers who make up one fifth of the Australian workforce? What rights do they have? Read on and find out. Generally speaking, casual workers are not afforded the right to make a claim of unfair dismissal even if they believed it was harsh, unjust or unreasonable. Workers who are able to bring an action of unfair dismissal are covered by a modern award or an enterprise agreement – avenues which a casual employee may not be able to pursue. So, where does this leave the casual employee? Well, a casual employee who has been employed on a regular and systematic basis, with a reasonable expectation of continuing in their course of employment, might be able to bring a claim of unfair dismissal. It should be noted that a casual employee must be employed for at least six months in a business that has more than 15 employees, or for 12
months in a small business in order to bring a claim for unfair dismissal. Australian case law has reinforced the regular and systematic employment requirements under the Fair Work Act and has made further additions to what constitutes regular and systematic work. The courts have judged that if the number of hours worked were small, and the days of work irregular, further proof may be needed in order to show that a casual employee has been regularly employed by the company. However, if there was a clear pattern of rostered hours, proof of regular employment might be established in such a circumstance. Furthermore, if the number of hours a casual has worked exceeds a full-time workload, this may be used as proof of regular and systematic employment. So, casual employees aren’t completely denied from making a claim against unfair dismissal.
April 2018 www.tha.asn.au
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