No minimum period before casuals can expect 'regular and systematic' work

In brief 3 min read

The Federal Court has decided that, from the commencement of her employment, a casual employee was engaged on a 'regular and systematic' basis and had a reasonable expectation of continued employment.¹

How does it affect you

• Employers should be aware that no minimum period of employment is required before a casual employee can be found to be working on a 'regular and systematic' basis or to have a reasonable expectation of continuing employment on that basis.
• Statements made to casual employees at the start of their employment can be relevant to an employee's expectation of their continuing employment.
• Employers should monitor their casual employees' shifts and be careful when making statements about the nature of their employment, to avoid inadvertently creating this expectation.

Background

Ms Hansson worked for Bronze Hospitality Pty Ltd (as a food and beverage attendant for a period of six months and 10 days. She was employed as a casual for the first seven-and-a-half weeks and was then on a full-time contract until her dismissal.

Bronze objected to an unfair dismissal claim brought by Ms Hansson, on the basis that she had not completed the minimum period of employment (relevantly, in this case, six months) required to be eligible to make such a claim. Bronze argued her initial period of casual employment should be excluded, and that a casual employment period of seven-and-a-half weeks was too short to be 'regular and systematic' or for Ms Hansson to have a reasonable expectation of her employment with Bronze continuing.

The decision - there was work on a 'regular and systematic basis'

The Fair Work Commission disagreed with Bronze, and the Federal Court affirmed the decision on the basis that:

• Ms Hansson had been called in for a trial the day after applying for the job and received an offer of employment that night. She believed this meant she would need to work frequently from the start of her employment;
• when Ms Hansson started work, she was told that the restaurant was going to be busy for the Christmas period, that she would get lots of hours and that she needed to be 'reliable'. This could be understood to be a request for her to work on a 'regular and systematic basis'; and
• from the start of her employment, Ms Hansson was rostered for five or six shifts per week and for an average of 65 hours per fortnight. At times, she worked more hours than full-time employees.

These factors were considered sufficient to establish that there was work on a 'regular and systematic basis', and a reasonable expectation of continuing employment. Bronze's objection was therefore dismissed, allowing Ms Hansson to bring her unfair dismissal application.