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A recent decision of the Full Bench of the Fair Work Commission has further clarified the meaning of ‘regular and systematic’ for the purposes of determining when a casual employee qualifies for protection under the unfair dismissal regime in the Fair Work Act 2009 (Cth) (Act).

The recent decision of Chandler v Bed Bath N’ Table [2020] has confirmed that it is the nature of the engagement, and not simply the pattern of an employee’s working days and hours, when determining an employee’s minimum employment period.

the facts

Bed Bath N’ Table (the employer) dismissed Ms Chandler, one of its casual Sales Assistants. During her employment, Ms Chandler had worked at least three days each week, but the days and duration of each shift varied significantly from week to week.

Ms Chandler brought an unfair dismissal claim. The employer objected to the claim on the basis that she was a casual employee and had not worked the minimum employment period.

In the first instance, the Fair Work Commission decided that because of the variation in the days and duration of Ms Chandler’s shifts, she was not engaged on a ‘regular and systematic basis’ and did not, therefore, satisfy the ‘minimum employment period’ to bring an unfair dismissal claim.

Ms Chandler appealed that decision to the Full Bench of the Fair Work Commission.

outcome

The Full Bench determined that when calculating the minimum employment period and determining whether someone is engaged as a casual employee, it is the ‘engagement’ itself that must be ‘regular and systematic’; not the hours or days worked.

Accordingly, the Full Bench decided that it was not necessary to identify whether there was a “consistent pattern of engagement in the number of days worked each week, the days of the week worked [or] the duration of each shift”, but rather whether the engagement was consistent or not.

Applying this reasoning, Ms Chandler was determined to have worked on a ‘regular and systematic basis’ (because her rostering was regular and systematic). This meant that she had worked the minimum employment period required by the Act and was therefore entitled to proceed with her unfair dismissal claim.

lessons

Chandler’s case is a timely reminder to employers of the complexities of casual engagement and that it does not necessarily come with immunity from such claims.

If you would like further information on the implications of this decision, and/or tailored and practical advice with respect to casual engagements, please contact our Employment, Safety and Migration team.

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casual engagements: umpire clarifies what makes a casual employee

21 February 2020
adam foster erin mcLeod

A recent decision of the Full Bench of the Fair Work Commission has further clarified the meaning of ‘regular and systematic’ for the purposes of determining when a casual employee qualifies for protection under the unfair dismissal regime in the Fair Work Act 2009 (Cth) (Act).

The recent decision of Chandler v Bed Bath N’ Table [2020] has confirmed that it is the nature of the engagement, and not simply the pattern of an employee’s working days and hours, when determining an employee’s minimum employment period.

the facts

Bed Bath N’ Table (the employer) dismissed Ms Chandler, one of its casual Sales Assistants. During her employment, Ms Chandler had worked at least three days each week, but the days and duration of each shift varied significantly from week to week.

Ms Chandler brought an unfair dismissal claim. The employer objected to the claim on the basis that she was a casual employee and had not worked the minimum employment period.

In the first instance, the Fair Work Commission decided that because of the variation in the days and duration of Ms Chandler’s shifts, she was not engaged on a ‘regular and systematic basis’ and did not, therefore, satisfy the ‘minimum employment period’ to bring an unfair dismissal claim.

Ms Chandler appealed that decision to the Full Bench of the Fair Work Commission.

outcome

The Full Bench determined that when calculating the minimum employment period and determining whether someone is engaged as a casual employee, it is the ‘engagement’ itself that must be ‘regular and systematic’; not the hours or days worked.

Accordingly, the Full Bench decided that it was not necessary to identify whether there was a “consistent pattern of engagement in the number of days worked each week, the days of the week worked [or] the duration of each shift”, but rather whether the engagement was consistent or not.

Applying this reasoning, Ms Chandler was determined to have worked on a ‘regular and systematic basis’ (because her rostering was regular and systematic). This meant that she had worked the minimum employment period required by the Act and was therefore entitled to proceed with her unfair dismissal claim.

lessons

Chandler’s case is a timely reminder to employers of the complexities of casual engagement and that it does not necessarily come with immunity from such claims.

If you would like further information on the implications of this decision, and/or tailored and practical advice with respect to casual engagements, please contact our Employment, Safety and Migration team.