A Look At Casual Employee Engagement, Termination & Definitions

Casual employees are quick workforce solutions for the unseasonal, unexpected or inconsistent workload. Casual is a misleading word because it does not place the ‘casual employees’ casual treatment in a good light.

Some casual employment relationships become ‘regular’ or ‘systematic’. Take note that this may allow entitlements not available to casual employees. Here are some case study overviews.

Casual Versus Regular

A truck driver, employed on a casual basis, could be recategorised as a regular even with varying hours week on week and a three week period away from the employer.

The Fair Work Commission (FWC) found that the work commenced at the same time, involved similar functions and occurred for similar reasons as thus was regular and systematic.

A telemarketer was also reclassified as a regular and systematic casual employee. Their weekly hours varied from 20 – 70 hours per week and had different start/end times. The FWC ruled the employee had worked consistently.

Breaks. Including seasonality, between periods of casual employment do not disrupt the regular and systematic nature of the casual employment.

Another case study example is a dump-truck driver employed to work a rotating roster, preset for twelve months, twelve-hour days, every 2nd week and with a flat rate payment. At the time of their ‘casual employee termination”, they disputed their casual employee status, declaring permanent employee status with benefits due.

The Court confirmed that true casual employment is irregular, unpredictable and intermittent.  There is a lack of pattern in the work and no forward commitment.

The employee was recategorised as a permanent employee with accrued benefits due upon termination of the employment.

What Employers Need To Know

It is prudent to examine casual employment arrangements currently in place. Employment must be on an ad hoc basis. Ensure you are aware of any minimum engagement periods for casual employees and any obligations to notify casual employees of conversion-to-full-time rights.

As a casual employee, there is no guarantee of ongoing or regular work and there are no minimum or maximum hours that are guaranteed. Hours worked will be as directed by the employer and may include weekend work. There is no obligation on you to accept the hours as offered. As a casual employee, you are not entitled to paid annual leave or paid personal/carer’s leave. Your unpaid leave entitlements are set out in the National Employment Standards.

Any termination or dismissal has to be valid as ruled by FWC. A written termination letter or explanation must be issued and a Statement of Service. An Individual Flexibility Agreement (IFA) with an employee requires a 4 weeks’ notice of termination by either party.

Under most modern awards, a “regular casual employee” can request to convert their employment if they have worked:

  • for a period of 6 or 12 months or more; and
  • a pattern of hours on an ongoing basis, which the employee could continue to perform as a full-time employee or part-time employee (as applicable), without significant adjustment.

Recent decisions impacting on Casual employment

In WorkPac Pty Ltd v Rossato [2020] FCAFC 84 the Full Federal Court determined that Mr Rossato had entitlements under the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (FW Act) and the relevant Enterprise Agreement; These were – being paid annual leave, paid personal/carer’s leave, paid compassionate leave, and payment for public holidays.  This came about when the court made the finding that Mr Rossato was not a casual but a permanent employee.

The essential question asked was – “ if an employee agrees to a contract that labels them a casual but their work is systematic (rostered well in advance for example) and regular (set hours and days) and longer-term (happening for years) are they still a casual?”

In the WorkPac decision, the Federal Court says NO

Conclusion

If a casual employee has become a regular and systematic casual employee, the employee will have to serve a minimum qualifying period before being entitled to file an unfair dismissal claim.

It is, however, advisable to seek H.R. professional advice before proceeding with any terminations.

Contact our experienced, efficient professionals for the management of your casual employees’ engagement and termination.  We can work in-house or remotely within your budget.