Regular and systematic casuals not so regular and systematic

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In a decision which appears to have further broadened the scope of what constitutes ‘regular and systematic employment’ for casual employees, a Full Bench of the Fair Work Commission (FWC) has upheld an appeal by a former employee seeking to have her prior period of casual employment counted towards the minimum employment period needed to pursue an unfair dismissal claim.

In Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019 (11 November 2020) the Applicant had worked as a casual employee at the Respondent hotel for a year before being made permanent in January 2020. She was dismissed in April 2020.

What the Fair Work Act says

Under the Fair Work Act 2009 (FWA) at s384(1)(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

The employment as a casual employee was on a regular and systematic basis; and
During the period of service as a casual employee, there was reasonable expectation of continuing employment by the employer on a regular and systematic basis.

The requirement for a casual employee to be employed on a “regular and systematic” basis is also used as a threshold test for employee access to other statutory entitlements and benefits in the FWA and in other legislation such as the various long service leave acts in each jurisdiction. It is also currently used as part of the test for certain casual employees to qualify for JobKeeper payments.

Commission findings in the first instance

The Commission in the first instance found that there was no regular and systematic employment because:

The Applicant worked a basic roster that was prepared week to week but she worked extra hours every week that were not in the roster (eg covered sick staff members);
The Applicant was given first choice of the available hours and she was free to decline work at will;
The timesheet records of rostered hours of work varied widely from week to week and there was no discernible pattern or system to the allocation of the rostered hours; and
The evidence showed that the Applicant had not been available for casual shifts for days or weeks in May, September, November and December 2019

It also found that there was no reasonable expectation of continuing employment that was regular and systematic because:

The irregularity in her hours of work; and
Her manager had made it clear to the Applicant that she should not and could not expect ongoing employment while employed on a casual basis. The Commission said that this was confirmed by the Applicant signing the contract for permanent employment in January 2020 as evidence of this.

The Full Bench’s decision

In quashing the decision, the Full bench found that the Commissioner’s decisive consideration that the Applicant’s hours of work did not appear to her to be consistent or predictable from week to week was erroneous.

The Full Bench found that the Applicant’s employment as a casual employee was regular because, aside from scheduled holidays that she arranged with her manager, the Applicant was consistently engaged to work substantial numbers of hours every week, with an average of 36 hours per week.

It was deemed systematic because she worked in accordance with a basic roster that was established by her manager in consultation with her. It was these rostered hours that formed the large majority of the hours she actually worked each week, the fact that she covered other shifts for business needs (such as covering a sick employee) was only a minor portion of her total hours.

The FWC confirmed that it considers that regular casual work undertaken in accordance with an established rostering system may reasonably be described as ‘systematic’ in nature.

In determining whether the Applicant had a reasonable expectation of continuing casual employment on a regular and systematic basis the Full Bench focused on:

the roster system that the Applicant’s hours of work were based around;
The fact that the Applicant was able to select when and for how long she worked for each upcoming week; and
When first offered a permanent contract in October 2019 the Applicant felt sufficiently secure in her casual employment to reject the offer and remain as a casual

What does this mean for employers?

It means that most casual employees who are employed with some level of regularity under formal rostering arrangements will be regarded as being engaged on a “regular and systematic” basis for the purposes of the FWA, and possibly for the purposes of other employment legislation.

Employers should therefore have regard to the unfair dismissal provisions in the FWA when deciding to terminate a casual employee’s employment as it seems that the ‘regular and systematic’ test is a relatively easy threshold for most casual Applicants to overcome.

If you are concerned about your current casual workforce or have queries about how best to manage your casual workforce then please contact our employment team.