All AFA Members who employ staff on a casual basis should know that their entitlements including their dismissal rights, change over time.
Casual employment is becoming increasingly popular in Australian business with a whopping one in five employees classified as “casual”. Small businesses
in particular are drawn to employing more casuals given the savings in employee entitlements (including holiday pay and sick leave). Businesses also
enjoy the flexibility of being able to roster on casuals during busy periods in advance to maximise service to their customers to increase growth and
profits. This flexibility and the higher rate of hourly pay (casual loading) clearly resonates with the lifestyle of Generation Y.
It is important for members to be aware of the dismissal rights of casuals under the Fair Work Act 2009 (“the Act”). There are several hurdles for casuals
to overcome before they can establish jurisdiction to make a claim for unfair dismissal. Casuals must first satisfy “the minimum employment period”.
In relation to businesses which employ 15 employees or more, casual employees after a minimum period of 6 months service, have the same unfair dismissal
rights as permanent employees (part-time/full-time). For small business employers (employers with fewer than 15 employees), the minimum employment
period for casuals is 12 months.
In satisfying the minimum employment period above, casuals must then establish that they were employed on a “regular and systematic basis” and during the
period of service as a casual employee, they had a “reasonable expectation of continuing employment by the employer on a regular and systematic basis”.
Determining what regular and systematic means will likely fall on the facts of each case and is an evolving area of the common law.
Members should also consider Part 3 section 14 of the Timber Industry Award 2010 which deals with notice requirements, in considering dismissing a casual
who would likely satisfy the jurisdictional employee requirements as set out above.
We always stress the importance of businesses having employment agreements for all their employees. This provides both parties with clarity over the type
of employment and may help limit employee expectations over time as well as their scope for bringing litigation.
The Workplace Law Team at Aitken Partners is willing to assist with all workplace matters including dismissals and drafting employment agreements to ensure
that your business is best advised and legally protected.
By Elliott Mitchell