FWC clarifies what it means to have 'regular, systemic' employment
The Fair Work Commission (FWC) recently dealt with an application for unfair dismissal protection of a casual worker who said she satisfied the minimum employment period.
The worker was a casual relief teacher between 19 June 2020 and 15 September 2022 in the Roman Catholic Trust Corporation For The Diocese Of Cairns.
The Commission said that the worker will be protected from unfair dismissal only if she is an employee who has completed a period of employment, that is, at least the minimum employment period.
The worker said that since she was not a new employee to the Roman Catholic Trust Corporation on that date and had been registered since 20 November 2019, and teaching regularly for over two years. She argued she was “not subject to a six-month probationary period” and that she was protected from unfair dismissal.
What is the nature of ‘casual’ employment?
Under the Fair Work Act, only the following considerations may be regarded in determining whether an employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work:
- whether the employer can elect to offer work and whether the person can elect to accept or reject work
- whether the person will work as required according to the needs of the employer
- whether the employment is described as casual employment
- whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
What is the minimum employment period?
Under the Fair Work Act, the minimum employment period is a period of six months, ending at the earlier of:
(i) the time when the person is given notice of the dismissal
(ii) immediately before the dismissal.
Under the same, a person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum period of employment.
Employer insists casual employment status
The worker argued that her period of service, which involved both casual and full-time contracted roles, met the criteria for the minimum employment period due to the following reasons:
- Her employment as a casual worker was regular, and at times, she worked as a contracted full-time employee.
- Throughout this period, the worker had “a reasonable expectation” of ongoing employment by the employer on a regular and systematic basis.
She said that during term time in 2021 and 2022, her work followed a consistent and systematic pattern, averaging 3-4 days a week while in Cairns.
She also argued that there was an expectation that when she was available for work in Cairns, she would be assigned tasks, often with advance bookings facilitated through her key school contacts.
In 2022, for example, she said she had more than three short-term full-time contracts, all of which were pre-arranged and encompassed planning and assessment responsibilities.
Meanwhile, the employer argued that the worker's role as a relief teacher, from 19 June 2020 to 15 September 2022 can be properly categorised as casual employment due to the following reasons:
- The worker entered this employment arrangement with the understanding that the employer did not commit to providing continuous and ongoing work following a set work pattern;
- The worker willingly accepted the offer for casual relief teaching under these terms;
- In this capacity, the employer had the discretion to offer work, and the worker had the freedom to choose whether to accept or decline such offers;
- The worker could only engage as a relief teacher when the employer required her services;
- The worker's position as a relief teacher has consistently been described as casual employment;
- Casual loading was included in the remuneration paid to the worker in her capacity as a relief teacher;
- There was no regular or predetermined work schedule associated with the worker’s role.
The Commission’s decision on unfair dismissal
In its decision, the Commission examined the circumstances surrounding the worker’s employment and determined if she was protected from unfair dismissal.
“[She] was engaged as a casual relief teacher who on certain occasions was engaged for short term continuous periods of several weeks on a relief basis.”
“[She was not] engaged in any full-time work prior to 2023, and the consecutive engagements on consecutive days sometimes spanning several weeks was still casual employment.”
“The very nature of casual relief teaching generally involves engagements to cover periods of work where a need to do so arises, because of the absence of a permanent teacher for various reasons and is generally not as part of a regular and systematic arrangement,” the FWC said.
The Commission added that it was “not satisfied” that the periods of work performed by the worker as a casual relief teacher between 2020 and 2022 can count towards the minimum employment period because, “despite there being a considerable volume of work performed, the nature of the work was not on a regular and systematic basis.”
“It also cannot be said that during this period of service as a casual employee, [she] had a reasonable expectation of continuing employment on a regular and systematic basis given whether work was offered or not was contingent on whether a casual relief teacher was required, and that cannot be predicted in advance as work that is going to be offered as part of a system or pattern of work, but will necessarily be unpredictable,” it added.
“The [worker] cannot rely on the casual relief work performed prior to her being offered a permanent position, it follows the period of work performed as permanent employment is not sufficient to satisfy the minimum employment period,” it said.
Thus, the Commission rejected the worker’s application and said she was not protected from unfair dismissal at the time her employment was terminated.
