What constitutes ‘regular and systematic’ employment for casuals?

The applicant was a casual employee in a Melbourne retail store. On 3 January 2021, the applicant discovered that her forthcoming January shifts, for which she had already been rostered, had been removed.

Throughout January, the applicant tried to clarify the status of her employment with the respondent on several occasions.

On 30 January, the applicant received an email from the respondent stating that she was indeed not a current employee of the company. Although the respondent asserted that this was not an “official letter”, the Commission was satisfied that the applicant was dismissed on 30 January.

The respondent objected to the applicant’s unfair dismissal claim, submitting that she had not completed the required minimum employment period of six months under the General Retail Award 2020.

Under the Fair Work Act 2009 s 384, a casual employee does not accumulate a “period of service” unless the casual employment was on a “regular and systematic basis”, and the employee had a “reasonable expectation of continuing employment…”

The applicant asserted that her employment met this definition. The respondent, submitting that the applicant’s employment started at the beginning of every shift and ceased at the end of each shift, refuted it. The issue for the Commission was therefore whether, at the time she was dismissed, the applicant’s casual employment was “regular and systematic”.

The respondent submitted that the applicant’s qualification for JobKeeper should not be considered. It asserted that the relevant test considers the employee’s engagement and stated that the applicant had not worked during two periods when the store was closed due to COVID-19 restrictions.

The Commission rejected this, finding that, by stating the applicant was eligible to receive JobKeeper, both parties accepted that “she had been employed by the entity on a regular and systematic basis during the period of 12 months that ended at that time.”

The Commission was satisfied that the two periods of absence due to the COVID-19 store closure were periods of service, ultimately bringing the applicant’s employment period to 454 days. Satisfied that the applicant had completed the minimum employment period required to be protected from unfair dismissal, the Commission dismissed the respondent’s jurisdictional obligation. A further hearing of the matter is yet to be issued. 

Key Takeaways:

• Whether or not a casual employee was eligible for JobKeeper is relevant to whether their employment is “regular and systematic”
• Periods of absence due to COVID-19 may still be considered “periods of service”