Casual unfair dismissal

Unfair dismissal…and casuals?

Hands up if you know that casual staff can’t claim for unfair dismissal? If that’s you – think again.

In the 2018 decision Gwatkin v Sai Group of Businesses t/as Premier Hotel Pinjarra*, the Fair Work Commission (FWC) held that a casual employee was entitled to an unfair dismissal remedy on the basis they met the minimum employment period, that their work pattern was ‘regular and systematic’ and they had an ongoing expectation of work.

[cue sound of record needle slipping] Yep, you read right….casual employee.

I know a number of employers reading this right now are feeling a cold sweat creep over their bodies at even the thought of this for their flexible workforce. So, before we explain some lessons learned to minimise these issues; let’s first review some facts around unfair dismissal and how it applies to an employee (casual or otherwise).

State and National System

Firstly, as the vast majority of our FAQs on this come from National (Fair Work) system employers, we’ve written it accordingly. Although State system employers have many of the same matters to address in applications for unfair dismissal, they should seek further advice before they do another thing after reading this article!

Now the CYA is out of the way, as a general rule, both National and State regulators will be considering the ‘fairness’ of the decision to terminate an employee’s employment, the process an employer used to decide to terminate and how this was communicated to the employee when considering if a dismissal was unfair.

What is Unfair Dismissal

*unashamedly abridged from the Fair Work Commission website rather than repeat the obvious!

A National system employee’s dismissal may be considered unfair if:

  • the employee was dismissed, and
  • the dismissal was harsh, unjust or unreasonable (harsh, oppressive or unfair in State system), and
  • the dismissal was not a case of genuine redundancy, and
  • they were employed by a National system small business and their dismissal was not consistent with the Small Business Fair Dismissal Code

If an employee makes an unfair dismissal claim and a hearing is held, they will need to provide evidence to the FWC to show that their dismissal was unfair.

Who can apply?

*unashamedly abridged again from the Fair Work Commission website

The Fair Work Commission is limited by law in the unfair dismissal claims that it can deal with – this is called its ‘jurisdiction’.

To make an application, National system employees must:

  • lodge their application within 21 days of dismissal becoming effective (this is 28 days for State System employers)
  • be covered by the national workplace relations system (State System employees will lodge applications through the Western Australia Industrial Relations Commission)
  • be an employee who has been dismissed, and
  • meet eligibility criteria, including the minimum employment period (National System employers is 6 months normally but 12 months for a small business – and State system different again)
  • fall under the high income threshold (as at 1st July 2018, National is $145,400 and State is $162,990)
  • …and for casual employees – they are only entitled to unfair dismissal remedies if their employment is regular and systematic and there is a reasonable expectation of ongoing employment.

Lessons learned for employers

How you prepare and justify a termination of employment will vary depending on the circumstances but here are some critical matters to be able to ‘tick’ when terminating an employee (even a casual where they are more than just true ad hoc employees):

  • Do you have a valid reason for the termination? Remember – it’s costly to recruit so be sure you’ve exhausted all possibilities of the employee doing what the business needs.
  • Have you provided the employee an opportunity to respond to the reasons for dismissal prior to making the decision to terminate?
  • For terminations due to performance, have you genuinely provided sufficient warnings and reasonable timeframes for improvement?
  • Although it’s a requirement for Small Businesses, we recommend all employers encourage and allow the employee to bring a support person to any discussion that may include discussions on termination (this shouldn’t be confused with initial and informal performance improvement discussions).
  • Keep accurate records and issue written records of all meetings with the employee (including where the employee declined to have a support person present for those ‘serious’ conversations).

But what doe this have to do with casuals again?

Now that you know the basic groundwork of unfair dismissals, finally consider if you employ any casuals on a ‘regular and systematic’ work pattern and if they would have a reasonable expectation of ongoing work with you.

If you have just answered ‘I do’ then it’s time to rethink how you will plan the termination of employment when the time comes.

And if, after all this, you still find yourself lodged with an application for unfair dismissal – get some professional advice from RAW (get in touch) on how best to address the claim.

*note: there are further hearings to consider jurisdictional matters about this case but so far, it has reinforced a casuals right to unfair dismissal remedies in certain instances.

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