In a decision set to add further complexity to casual employment arrangements, a Full Bench of the Fair Work Commission (FWC) has found a casual employee was wrongly denied access to unfair dismissal remedies due to the nature of her working hours.

In the original single-member decision in Chandler v Bed Bath n’ Table Pty Ltd, Deputy President Mansini rejected the applicant’s unfair dismissal claim because the casual sales assistant had not served the minimum employment period and was not protected from unfair dismissal.

Under s.384 of the Fair Work Act (FW Act), a casual employee is protected from unfair dismissal if they had worked for a non-small business employer for a minimum of six months. However, the employment must be on a regular and systematic basis and the employee must have had a reasonable expectation of continuing regular and systematic employment.

This provision is broadly in support of the rights afforded to casual employees under many Modern Awards, to request conversion to permanent employment after a period of “regular and systematic employment”, typically 12 months.

In her original decision, the Deputy President used a company timesheet record of calendar days, daily hours and weekly hours worked by the employee in each week from Thursday 5 July 2018 through to her last shift on Thursday 28 February 2019, to determine whether “regular and systematic employment” was a feature in this case.

She found this to be “the most reliable and relevant source of evidence” to reach her decision.

After “objective analysis” found “no regularity” of the employee’s engagements over the period, it was found the employee worked at least three days each week, but due to the duration of shifts varying significantly, the Deputy President could not identify a “regular and systematic” pattern.

“Further, the objective documentary evidence including employment contract, position description, workplace policies, rosters prepared in advance when compared with actual hours worked and pay advices does not support a finding that Ms Chandler had a reasonable expectation of ongoing employment,” DP Mansini found.

The employee’s unfair dismissal application was dismissed as she was not considered to be protected from unfair dismissal.

Appeal granted ‘ín public interest’

The self-represented employee sought permission to appeal, arguing the decision would be in the public interest as it affected the rights of over 1700 casual employees engaged by BBNT.

The Full Bench, comprising Vice President Hatcher, Commissioner Cambridge and Commissioner Booth agreed, and ultimately found in favour of the applicant.

In overturning the Deputy President’s decision, the Full Bench relied heavily upon Yaraka Holdings Pty Limited v Giljevic (2006) in which the ACT Court of Appeal judges noted “that it is the ‘engagement’ that must be regular and systematic; not the hours worked pursuant to such engagement”.

They cited the application of these principles across other cases as key justification for why the Deputy President’s approach in seeking to identify a consistent pattern of engagement was incorrect.

“In WorkPac Pty Ltd v Skene the Federal Court full court favoured (without needing to finally adopt) the view that the construction in Yaraka Holdings should be applied to the definition of ‘long term casual employee’,” the Full Bench said.

“The Commission in its own decisions has consistently applied Yaraka Holdings to s 284(2)(a), including in the Full Bench decisions in Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell and Bronze Hospitality Pty Ltd v Janell Hansson as well as in numerous first instance decisions.

“By treating the degree of regularity in the pattern of hours worked by [the sales assistant] as disclosed by [the timesheets] as the only or decisive consideration… 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 [the sales assistant’s] contract of employment and the rostering system adopted by BBNT.”

The Full Bench found during the employee’s period of service with BBNT as a casual employee, she had a reasonable expectation of continuing employment on a regular and systematic basis.

That expectation was engendered by a written contract and monthly roster system where she indicated her availability to work in advance, along with the frequency and amount she was allocated over the course of her employment.

The Full Bench ruled the ongoing contract of employment established a legal framework for the allocation of work for the employee in a particular position, effectively required her to hold herself available to work during “blackout periods”.

It further determined her period of service from the commencement of her employment until its termination counted towards her period of employment, and she was protected from unfair dismissal as she had completed the minimum employment period.

The matter was referred back to the Commission for allocation to another member.

Implications for employers

This decision to afford a casual employee access to unfair dismissal remedy, despite DP Mansini finding limited evidence of “regular and systematic employment”, is the latest in a number of matters related to casual employment which are creating significant risk and confusion for employers and employees alike.

Casual employment plays an important role in providing flexible employment options for both employers and employees.

In recent times however, several long-standing principles of casual employment have seemingly been overturned in favour of contemporary interpretations of Australian employment law; occurring with union campaigns and other activism against casual employment in the backdrop.

The highest profile of these controversial ‘casual employment cases’ is that of WorkPac v Skene, which effectively overturned the common understanding that casual employees could be defined as those ‘engaged and paid as such’ under an industrial instrument.

The decision spurred a number of opportunistic class actions launched against labour hire employers seeking multiple millions and in some cases billions, in unpaid historic entitlements. The matter is due to be settled with a highly anticipated High Court ruling regarding a separate WorkPac case due in 2020.

AMMA’s current campaign for industrial relations reform, Pathway to Productivity, includes a priority to “restore common sense to casual employment”.

Through this campaign AMMA, on behalf of resources and energy employers, is urging the Australian Government to resolve the uncertainty and risk exposure to Australian businesses by legislating that if a worker is engaged and paid as a casual, they are a casual.

This clear definition would align the law with the longstanding and widely accepted understanding of casual employment prior to the Skene decision. It would also ensure this legitimate mode of employment remains a feature of our workplace system.

AMMA members requiring assistance with casual employment and their obligations with the FW Act are encouraged to contact an expert AMMA Workplace Relations Consultant via your local AMMA office.