Employer argues variable hours and gaps prevent casual worker from claiming protection
The Fair Work Commission (FWC) recently examined whether a casual employee met the minimum employment period required to pursue an unfair dismissal claim.
The case involved a disability support worker who transitioned from casual to full-time employment before being dismissed after just over a year of total service.
The worker argued her casual employment was regular and systematic, meaning it should count towards the minimum employment period needed for unfair dismissal protection.
She maintained that despite being classified as casual, her work pattern demonstrated the consistency required under the Fair Work Act to qualify for protection against unfair dismissal.
The employer contested the application, arguing the worker's casual employment period should not count towards her minimum employment period.
The employer claimed her casual work was irregular and variable, lacking the systematic nature required by law, which would leave her short of the six-month minimum period needed to pursue an unfair dismissal remedy.
Disability support role creates employment dispute
The employment relationship began on 25 January 2024 when the worker started as a casual team leader with a national disability support provider employing approximately 600 staff.
She was part of a team providing 24-hour care for a National Disability Insurance Scheme participant in the Central West region of New South Wales, with additional responsibility for preparing the team roster.
On 22 April 2024, the worker and employer entered into a written casual employment contract that explicitly stated the employment "does not involve any representation of continuing work or regular and systematic engagement" and that working hours and days "may vary, due to the irregular nature of casual employment."
Despite these contractual terms, the worker maintained consistent work patterns throughout most of her casual employment period.
The worker's schedule was responsive to the participant's needs, with work only being unavailable when the participant returned to her family home or was incarcerated.
A significant gap occurred between July and September when the participant was incarcerated, though both parties agreed the worker remained an employee throughout these periods even when not offered any work.
Employment transition marks key period change
On 22 October 2024, the worker accepted an offer of full-time employment as national rostering officer and team leader, starting this position on 28 October 2024. This transition marked a significant change from casual to permanent full-time employee.
The full-time period lasted until her dismissal on 13 February 2025, representing approximately three months and 16 days of continuous service.
During the casual period, there were three specific pay periods where no work was available at all. However, the FWC noted that the dismissal occurred on 13 February 2025 during a meeting conducted over Microsoft Teams, with total employment spanning approximately 12.5 months of continuous service.
The transition from casual to full-time employment became crucial in determining whether the worker had sufficient service to meet the minimum employment period required for unfair dismissal protection under the Fair Work Act.
Legal requirements determine employment protection eligibility
The FWC applied section 384 of the Fair Work Act 2009, which defines when casual employment counts 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 casual employment was irregular because it was "subject to variations in the day or days of the week worked, the hours worked each day, and the daily starting and finishing times."
The employer also pointed to the gaps in employment during July to September as evidence that the work was not regular and systematic enough to meet the legal threshold.
The worker cited established case law arguing that it is not necessary to show a fixed or predictable schedule and that her consistent pattern of Monday to Friday work averaging 36-38 hours per week demonstrated sufficient regularity for legal protection.
FWC applies systematic employment test
The FWC determined that the worker's casual employment was both regular and systematic despite variations in daily schedules. The Commission found it "abundantly clear from the hours worked each week that [the employer's] engagement of [the worker] was regular" noting she was engaged to work every week between January and October except when the participant was unavailable.
The FWC found the employment was systematic because "the engagements exhibited a plan in that [the worker] was part of team engaged to provide care to the [participant] 24 hours per day, 7 days week, and that plan was implemented through a roster prepared by [the worker]." This emphasised the structured nature of the work arrangement despite the casual classification.
The Commission rejected the employer's argument that irregular daily schedules made the employment non-systematic. The FWC found the worker's reasonable expectation of continuing employment was satisfied because she was the team leader responsible for coordinating the team and preparing weekly rosters.
Casual employee or regular employment?
The FWC concluded that the worker's casual employment period counted towards her minimum employment period, finding she had completed 12.5 months of continuous service.
The Commission stated: "I am satisfied that [the worker's] period of service as a casual employee was as a regular casual employee and that during the period of service as a casual employee, [the worker] had a reasonable expectation of continuing employment on a regular and systematic basis."
This finding meant the worker exceeded the six-month minimum employment period required for unfair dismissal protection. The Commission noted:
"[The worker] has therefore met the minimum employment period of 6 months as provided by s.383 of the FW Act" and concluded that she "is a person protected from unfair dismissal."
The FWC ordered: "The [employer's] jurisdictional objection is dismissed" and confirmed "The matter will be further programmed for consideration of the merits of the Application." This decision allows the worker to proceed with her unfair dismissal claim, having established that she has the legal standing to bring such a claim under the Fair Work Act.
