Worker argued he has a ‘reasonable expectation’ of continuing employment, stating that his engagement dictated the scheduling of his personal life and freelance work
A casual news producer challenged the employer's argument that he was not a regular casual employee and did not have a reasonable expectation of continuing employment.
The worker contended he performed work regularly each week for over two years, was contacted two weeks in advance of the monthly roster to ascertain availability, and structured his personal life and freelance work with regard to consistency of engagement.
The employer maintained shifts were offered on an ad hoc basis to cover leave absences, the worker declined numerous shifts over the employment period, and the contract expressly stated the worker should have no expectation of continuing employment with the company.
Employment and contract terms
The worker was employed as a casual news producer from 5 July 2022 until 29 February 2025, when he was told his employment was ending because the employer "had lost faith" in his ability to work autonomously following an incident where a story was published earlier. On 4 July 2022, the worker was sent a letter of engagement that attached a Terms Sheet.
Under the heading "Position" it stated: "Your employment will be on a casual basis, as a casual employee, initially in the position of casual news producer. You will be engaged as and when required by the Company and each shift you are engaged comprises a separate contract of employment, which ceases automatically at the end of that Engagement.”
“In offering you casual employment, the Company makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work. The Company does not guarantee you a minimum number, or any, hours of work or continuous employment. You should have no expectation of continuing employment with the Company," it added.
The Terms Sheet included a term headed "Termination" which stated: "As a casual employee, your employment terminates at the end of each Engagement on which you are engaged. The Company or you may terminate your employment by giving the other party notice, where an Engagement has commenced, of the remainder your Engagement or payment by the Company in lieu of the remainder of the Engagement or, if an Engagement has not commenced, without any notice. The Company may, in its absolute discretion, cease to offer you casual Engagements for any reason."
On 4 July 2022, the worker signed and dated the engagement letter. Above the signature line was text stating: "I accept employment on the terms and conditions set out in this letter and the accompanying Terms Sheet. I understand that each engagement will constitute a separate contract of employment between us."
Rostering and shift allocation process
The employer's Deputy Production Editor shared responsibility for confirming the availability of employees in the production team, which included the worker. The worker was one of eight casual news producers in the casual pool. He stated the production team worked in accordance with a monthly roster.
The editorial administration coordinator or Deputy Production Editor generally reached out to the casual pool by email to understand their availability to perform shifts when it was known that additional staffing would be required, for example, due to personal leave and/or a temporary secondment to higher duties by permanent staff, or when casual shifts were required to cover other staff absences.
Casual shifts were generally offered between two and five weeks ahead of time. However, they were also offered at shorter notice, such as the day before or the day of the shift, when an employee called in sick. Employees in the casual pool were able to accept or decline any shifts at their discretion.
Casual employees, such as the worker, could also be engaged on shorter notice, including the day of the shift, to fill in where a permanent employee was unavailable, including due to illness. Where a production team staff member was unavailable to attend work, they would notify the Deputy Production Editor or the editorial administration coordinator.
Either the Deputy Production Editor or the editorial administration coordinator would then reach out to members of the casual pool, usually by text message or email, to check if they were available to work shifts.
Given the nature of these engagements, casual employees would often be given short notice of when the employer would request their availability to work a shift, including notifying them on the same day of an available shift.
Worker declined shifts over employment period
The Deputy Production Editor attached emails to his statement that related to the worker declining four shifts in 2025, three shifts in 2024, and four shifts in 2023. He also attached text messages that related to the worker declining three shifts in 2025, three shifts in 2024 and three shifts in 2023.
The Deputy Production Editor stated that, based on his review of the "week, start and finish times" of the worker's shifts, there were no set days, start or finish times that he worked. The days and hours varied depending on the needs of the employer.
Some casual news producers got more work than others because of availability, performance, specific skills or reliability. The casual shifts where the worker was "primarily engaged" were covering permanent staff's rostered days off, sick leave, annual leave, temporary secondments and long service leave.
The employer's Deputy Editor explained the number of casual news producers had reduced over time "due to budgetary constraints and when some production staff who were seconded to other roles to the production desk". Casual news producers were advised from April 2024 to September 2024 that the number of available shifts was reducing.
After those dates, the number of casual shifts offered and the number of casuals who were offered shifts reduced. He described the reasons casual production employees were offered shifts: "Casual news producers are offered work for a variety of reasons, including unanticipated or unusual peaks in the news cycle, coverage for staff absences due to leave or other sickness, special projects or staff being assigned to short-term secondments outside of the news production department. Their availability for work is ascertained in different ways, such as phone calls, text messages and email."
In the course of oral submissions, the solicitor for the employer made submissions on the number of shifts the worker was offered but declined, stating there was a period between July 2023 and 2024 in excess of 50 days unavailability and in the last six months, there were 26 days of unavailability.
The solicitor on behalf of the worker did not take issue with the number of days identified, but submitted it was more accurate to say that it was either gaps or absences in availability serving as leave or at the request of the worker as part of providing his availability to the employer as part of the ordinary course of them seeking and him confirming availability.
Worker stated performed work regularly each week
The worker filed a statement which stated he performed work for the employer on a regular basis each week between 5 July 2022 and the termination of his employment "except for times during which I communicated to the employer that I wished to take a period of leave for holidays or rest, or on occasions where I was unwell".
The employer operated on a monthly roster and generally would make enquiries about his availability to work two weeks in advance of the commencement of that month's roster. On occasion, additional shifts would be offered on an ad hoc basis via phone call and text message. His understanding was that these shifts were to cover unplanned absences such as sick leave. At no point in his engagement with the employer was there "any suggestion that this process would change".
The majority of shifts he performed for the employer were those planned in advance as opposed to the ad hoc shifts offered and accepted by phone call or text message. His "pattern of engagement" with the employer was consistent to the extent that it dictated the scheduling of his personal life and freelance work. At the time of his termination, he "had been engaged for further shifts".
Regular and systematic employment found
The Commissioner noted that according to analysis of the roster data, for the months July 2022 to August 2024, the worker worked an average of 11 shifts a month. From September 2024 until February 2025, he worked an average of two shifts a week or nine a month. The number of shifts he completed dropped off in the last six months of his employment.
Over the period of his employment from July 2022 to February 2025, he worked an average of 2.5 shifts per week. It was not contested that, consistent with his contract of employment, the worker declined work for 50 days between July 2023 and July 2024 and 26 days in his last six months of employment.
The Commissioner found the worker was employed for a period of two years and eight months. Over that period, he worked at least one shift most weeks, reaching an average of 2.5 shifts per week. It would defy the English language to deny that there was an engagement on a "regular basis".
The Commissioner noted that in order for his engagement to be regarded as systematic, something more than frequency was required: "a system, method or plan". The Commissioner also noted that it need not involve either predictability of engagements or any assurance of work at all.
The Commissioner found the employer had a system for the allocation of work to the casual pool that was either allocated through a roster two weeks in advance or alternatively on an as-needed basis, often on less than a day's notice to fill in for unplanned absences. What was required by the Act was something more.
In this case, that something derived from the fact that the system by which work was allocated to the worker, in fact, delivered a pattern of engagement that involved weekly shifts over the course of years.
The Commissioner accepted his evidence that the "majority of the shifts he performed were those planned in advance as opposed to the ad hoc shifts". The fact that the majority of his shifts were set two weeks in advance supported the systematic nature of his engagements.
The Commissioner found that the fact there were no predictable hours, or that the engagement for the unplanned absences was not predictable, or that the frequency of shifts diminished over time, did not displace the systematic nature of the engagements.
Given the manner in which the individual engagements were actually worked, the contract terms did not defeat the systematic basis of the engagements. The length of time over which that system delivered shifts to the worker must be a relevant factor in determining its systematic nature.
On balance, given the length of the period of engagements, the Commissioner did not consider the evidence that he declined work during the period as fatal to a finding of a systematic basis of engagement.
Reasonable expectation of continuing employment found
The Commissioner found the worker entered into a contract of employment which did not require the employer to provide him any work and made no firm advance commitment to continuing employment.
Despite these terms, from the start of his engagement on 5 July 2022 until the end of it on 22 February 2025, he worked consistently and frequently for the employer. On the day of the termination of his employment, he had already agreed to provide further shifts for the employer.
The worker worked under a roster system and was also requested to work ad hoc shifts to cover unplanned absences for two years and seven months.
Over that period, he almost always worked on a weekly basis. It was therefore reasonable that he had an expectation of further employment which he could have reasonably held from the time he began to receive regular shifts which, on the Commissioner's estimation, would have occurred after his first two months of employment.
Past performance of the contract over the course of years created a subjective, reasonable expectation that in the future, work would continue.
The Commissioner found the worker's period of service as a casual counted towards his period of employment because he was a regular casual employee, and during almost all of the approximately two years and seven months he was employed, he had a reasonable expectation of continuing employment on a regular and systematic basis.
The worker was therefore a person protected from unfair dismissal because he had completed the minimum employment period. The employer's jurisdictional objection was dismissed.
