Does it count? Fair Work probes 'regular and systemic' work
The Fair Work Commission (FWC) recently dealt with a worker’s claim that her part-time employment should be counted in considering her minimum employment period. The latter was crucial in determining whether she was protected from unfair dismissal or not.
On 16 August 2023, the worker, Sophie Fazzolari, initiated a claim that alleged unfair dismissal by her employer, Domestic and General Insurance PLC.
The worker, who started her role on 15 February 2022 and faced termination on 2 August 2023, transitioned from part-time to casual employment on 9 May 2022 under a casual employment contract.
Minimum employment period
The employer said that the worker was employed from 15 February 2022 until 2 August 2023, but argued that her employment does not meet the applicable minimum employment period required for her to be a person protected from unfair dismissal. It said that she failed to meet the one-year requirement.
Under the Fair Work Act, the minimum employment period is:
“(a) if the employer is not a small business employer – six (6) months ending at the earlier of the following times:
- the time when the person is given notice of the dismissal;
- immediately before the dismissal; or
(b) if the employer is a small business employer – one (1) year ending at that time.”
As for the “period of employment,” the FW Act states that:
“(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was as a regular casual employee; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.”
‘Reasonable expectation’ to work
The employer, which is not a small business, acknowledged the regularity of the worker's shifts, it disputed its "systematic" nature, asserting shifts were offered based on operational needs, particularly when permanent employees were on leave.
According to records, the employer presented a detailed spreadsheet covering the worker's working hours from October 2022 to July 2023. The data revealed varying days of work and fluctuating weekly hours, challenging the idea of a "consistent" pattern.
Crucially, the employer emphasised the casual contract's provisions, adding the absence of a guarantee for ongoing or regular work. The employer also cited recent High Court decisions, saying that the clear language of the casual contract should negate any reasonable expectation of continuous employment.
In a similar case, an airport screening officer also argued to include his pre-employment training as part of his employment period. His employer objected to the application, arguing that his employment did not start until after he had completed mandatory training.
‘Regular and systemic employment’
The FWC said it was “not satisfied that [her] engagement as a casual employee that followed her initial engagement as a part-time employee was such that it can be concluded that she had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.”
“In order for a period of service as a casual employee to count towards the employee’s period of employment there must be a period of regular and systematic employment that coincides with a reasonable expectation of ongoing employment.”
“On the material before the Commission, these prerequisites are absent. While the [worker’s] employment as a casual employee may have been regular, [it cannot be considered that] it was on a regular and systematic basis having regard to the evidence before the Commission detailing the hours that she worked.”
“Moreover, having regard to the hours worked (in circumstances where the mode of engagement appeared to conform with the terms of the casual contract) and the absence of evidence from the [worker] suggesting otherwise, [the FWC is not] persuaded that it is open to the Commission to conclude that [she] had a reasonable expectation of continuing employment.”
Thus, it said that her period of service as a casual employee did not count towards her period of employment, adding that she lacked the required minimum employment period in order to be a person who is protected from unfair dismissal.
Consequently, it dismissed the worker’s application for an unfair dismissal remedy.
