Dismissal of a casual employee, Be Warned Employers.
In a recent case an Employer was guilty of unfairly dismissing a casual employee.
The Employee was terminated within 12 months of employment and was employed on a casual basis throughout the period of her employment with the Employer.
The Employer submitted that:
• She was engaged as a casual employee who worked approx less than 20 hours per week and there was no guarantee of any further employment or hours;
• The Employee was formally warned on three occasions as to behaviour and attitude and counseled;
• The Employer from an operations basis – reviewed a number of casual positions in the past year that resulted in a reduction of the overall workforce and;
• The Employee position was reviewed and was deemed unsuitable for future employment as a casual employee and was terminated appropriately and in accordance with her status as a casual employee.
The Employer believed that a casual employee with less than 12 months of service did not have a remedy for unfair dismissal.
Under the Fair Work Act, casual employees are protected from unfair dismissal if they have been engaged on a regular and systematic basis with the employer for at least 6 months (or 12 months in a small business) and would have had a reasonable expectation of ongoing employment on that basis if not for the dismissal.
The Fair Work Commission found that because the Employee worked an average amount of hours per week, she had been employed on a ‘regular and systematic basis’ and would have had a reasonable expectation that those hours would have continued, if not for the dismissal. The dismissal was found in this case to be unfair.