HRD talks to Buddle Findlay’s Hamish Kynaston about the rights of casual workers to argue their termination was unfair
The term ‘casual employee’ is normally used with reference to a person who has no guaranteed hours of work, no regular pattern of work, and no ongoing expectation of employment.
On paper, the definition is a far cry from permanent employees who have a full set of employment rights and responsibilities.
Despite the inconsistent nature of their employment and lack of entitlements, a casual employee can still make a claim for unfair dismissal if their situation goes pear-shaped, according to Hamish Kynaston, partner at Buddle Findlay.
Kynaston told HRD that the usual route the casual employee will take to bring a claim of unjustified dismissal is that they will argue that they are not, in fact, casual.
“The normal course of argument is that over time the relationship developed even if their agreement began with the person labelled a ‘casual employee’,” said Kynaston.
Typically, Kynaston explained that the employer likes what the individual does, more work comes up and the casual employee develops a regular pattern of work.
“There comes a point at which our Courts would say that while you started out as casual you have in fact become a permanent employee, and it’s not for the employer at that point to simply to say ‘sorry, don’t have any more work for you without going through the fair process requirements and having a good reason for that.”
Moreover, Kynaston explored the scenario of someone who is a true casual and only works as and when required.
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“The employer might call you up after you have finished your engagement and say ‘actually, I don’t have a need for you in the casual pool or on my books anymore. I’ve employed someone permanently so we can go our separate ways’.”
In that case, Kynaston said that a casual worker can put forward a claim, but it’s highly unlikely to be successful because there is no ongoing employment relationship.
“The technical analysis is that if you are truly casual then your employment starts and finishes at the start and end of each engagement that you’ve accepted. Consequently, between engagements there is no relationship and, therefore, nothing to dismiss them from.”
While cases such as these don’t come up often, Kynaston told HRD that he has worked on a few involving nurses, as it is very common in hospitals to have casual nursing.
“It’s really important for hospitals or similar employers to have access to people who can work as and when required, and often the arrangements suit the individuals too because they want the flexibility,” said Kynaston.
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He added that one of the key benefits of being a casual is the ability to say ‘no’. For example, the employer might ask the employee to work Thursday and the employee can say ‘no’ because there is no obligation to come in.
“That’s the whole point of casual employment but what tends to happen is someone develops that regular pattern of work and then the employer says ‘look, I don’t want to use you any more or things haven’t gone well’,” said Kynaston.
“It’s at that point the employee says ‘actually, that’s not alright by me and I want to see what legal rights I have and access compensation or other remedies.
“It doesn’t happen very often, but it does happen.”
