What NOT to say to your Christmas Casuals

16 December 2019

The Fair Work Act 2009 (Cth) (FW Act) provides that a period of casual employment may count towards an employee’s qualifying period of employment for unfair dismissal purposes if the following requirements are satisfied:

  • the casual was employed on a regular and systematic basis; and
  • they had a reasonable expectation of continuing employment on a regular and systematic basis.

The recent decision of the Federal Court in Bronze Hospitality Pty Ltd v Hansson (No 2) [2019] FCA 1680 sheds lights on when these requirements will be met in situations where an employee becomes permanent after an initial period of casual employment.

Facts

Bronze Hospitality Pty Ltd (Bronze) is in the business of supplying labour to a restaurant, the Harbour Terrace Bar and Grill.

Bronze initially employed the Plaintiff, Ms Hansson, as a “Christmas Casual” for two months and subsequently offered her a full-time position.  Four months later Bronze terminated Ms Hansson’s employment.  An unfair dismissal claimed ensued.

Bronze sought to defend the claim on the basis that her full-time employment was for less than 6 months and therefore she did not satisfy the minimum qualifying period of service and was not eligible to bring the claim. Bronze argued that her period of casual employment should not be counted because the requirements in the FW Act were not satisfied.

Outcome

In relation to the first criterion, the Federal Court considered that Ms Hansson was employed on a regular and systematic basis from the commencement of her employment as a Christmas casual.  From the beginning she worked 5 or 6 shifts each week. The fact that those shifts were of differing lengths and had differing starting and finishing times did not alter the Court’s view that her casual employment was regular and systematic.

In relation to the second criterion, the Court determined that from the commencement of her casual employment Ms Hansson held a reasonable expectation of continuing employment on a regular and systematic basis.  The Court relied on the following evidence in particular:

  • she was asked by Bronze to be the “reliable” employee; and
  • she was told that Christmas was Bronze’s busiest period.

Accordingly, Ms Hansson’s two-month period of casual employment counted towards her qualifying period of service (meaning that her overall period of employment was 6 months) and she was eligible to bring an unfair dismissal claim against Bronze.

Lessons for employers

This case illustrates the risks arising from unintended promises or representations made to casual employees regarding the continuity of their employment. 

In order to minimise the possibility that a period of casual employment will give rise to unfair dismissal liability, employers should:

  • take care to avoid making any comments with respect to a casual’s future employment prospects; and
  • have in place a well drafted casual employment contract to expressly limit or refute any expectation of ongoing employment.

 

This article provides general comments only. It does not purport to be legal advice. Before acting on the basis of any material contained in this article, we recommend that you seek professional advice.

 

Authors:

Paul Dugan, Principal in our Disputes Team

Contact
Email: pdugan@dmawlawyers.com.au
Direct Telephone:  +61 8 8210 2266

 

Kylie Dunn, Senior Associate in our Disputes Team

Contact
Email: kdunn@dmawlawyers.com.au
Direct Telephone:  +61 8 8210 2286