Worker maintains labour hire pattern proves systematic employment despite breaks
The Fair Work Commission (FWC) recently examined whether a casual registered nurse met the minimum employment period required to pursue an unfair dismissal claim.
The case involved a labour hire worker who completed multiple hospital assignments across different states before being removed from the employer's register due to alleged performance issues.
The worker argued her series of casual assignments with the labour hire company constituted continuous employment, meaning it should count towards the minimum employment period needed for unfair dismissal protection.
She maintained that despite gaps between assignments, her ongoing relationship with the employer demonstrated the systematic nature required under the Fair Work Act.
The employer contested the application, arguing that each hospital assignment was a separate contract with gaps that broke continuity of service. The employer claimed the worker's final assignment lasted only 24 days, leaving her well short of the six-month minimum period needed to pursue an unfair dismissal remedy.
Labour hire assignments create employment continuity debate
The employment relationship began on 2 October 2023 when the worker started as a casual registered nurse with a labour hire company specialising in nursing placements.
Over approximately 17 months, the worker completed nine distinct assignments across six different medical facilities in various locations including hospitals in Launceston, Rockhampton, Grafton, Mildura, and Murray Bridge.
Each assignment required the worker to sign an "Employment Contract – Casual Engagement" outlining start dates, expected duration, hours of work, and accommodation arrangements.
The worker's final assignment was scheduled to run from 10 February 2025 to 30 March 2025, but ended early on 6 March 2025 following a workplace incident.
Between assignments, there were several gaps ranging from nine to 105 days when no work was available. The employer argued these gaps meant the worker was not employed during these periods, which would break the continuity of service required for unfair dismissal protection.
Performance incident triggers early assignment termination
On 3 March 2025, the worker emailed a placement specialist advising that she had been asked to speak with a nurse coordinator about an incident during her last shift.
Following a telephone conversation on 6 March 2025, the placement specialist confirmed that the hospital had ended the worker's engagement early that same day.
The communication stated: "Following on from our discussion regarding another contract option, unfortunately at this time, given this matter has not been reviewed or resolved, we would not be able to assist with another contract, as per our performance management procedures."
On 20 March 2025, the worker received a call advising that she would be removed from the register due to unsatisfactory performance.
Importantly, the worker had already been advised in January 2025 that her next assignment had been secured for April to June 2025, demonstrating the company's intention to continue offering work despite the incident.
Legal framework determines continuous service requirements
The FWC applied section 384 of the Fair Work Act 2009, which addresses when periods of casual employment count towards the minimum employment period.
The law requires that casual employment must be "as a regular casual employee" and the employee must have had "a reasonable expectation of continuing employment by the employer on a regular and systematic basis."
The employer argued that the worker's employment consisted of "a series of distinct engagements, each for a defined and finite period" and that gaps between assignments meant the worker was not employed during these periods.
The worker disputed this, citing legal precedent establishing that casual employment does not start and end with each engagement.
The FWC noted that since the employer had more than 15 employees, the minimum employment period was six months rather than the 12-month period that applies to small business employers.
Commission applies continuous employment principles
The FWC determined that the employment relationship covered the entire period from 2 October 2023 through 20 March 2025, rejecting the employer's argument that each assignment was a separate contract.
The Commission found that the worker's casual employment was regular and systematic, noting there was "a clear pattern of engagements being offered to [the worker] when available."
The Commission referenced established legal precedent that continuous service is "broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements." The FWC found that next engagements were "regularly locked in before the present engagement had ended."
The Commission applied a two-part test for reasonable expectation of continuing employment and noted that the worker had been advised in January 2025 that her next assignment had been secured for April to June 2025, demonstrating the company's pattern of ongoing work offers.
FWC's decision on unfair dismissal protection
The FWC concluded that the worker had completed the minimum employment period required for unfair dismissal protection. The Commission found the worker "had continuous service for 300 days with [the employer]" and consequently "had worked more than 6 months for [the employer]," exceeding the six-month minimum employment period.
The Commission stated: "I find [the worker] had at least 6 months of continuous service with [the employer]. [The worker] had completed the minimum employment period of 6 months when she was dismissed on 20 March 2025. As such, [the worker] was a person protected from unfair dismissal."
The FWC ordered: "[The employer's] jurisdictional objection is dismissed" and confirmed that "[the worker's] unfair dismissal application will be listed for case management conference." This decision allows the worker to proceed with her unfair dismissal claim, having established that she meets the service requirements under the Fair Work Act.
