When casual work becomes regular and systematic
Casual workers have the right to make an unfair dismissal claim if their work was, as the Fair Work Commission terms it, regular and systematic. So, what does that mean exactly? In this article, we explain the type of casual work that constitutes the Fair Work Commission’s definition of regular and systematic. We also look at a recent unfair dismissal case where the nature of regular and systematic work was outlined.
We also explore another casual worker right which was only recently afforded to casuals. That is, the right for casuals to be offered a permanent position once they complete 12 months of service for their employer.
Casual worker unfair dismissal rights: Key eligibility criteria
Contesting an unfair dismissal via the Fair Work Commission is the right of casual workers like it is for their full and part-time counterparts. However, casual workers must satisfy unique criteria given the nature of their employment.
For the most part, the eligibility criteria for casual and permanent employees are the same apart for one key difference. A casual employee must prove their casual employment was what the Fair Work Commission calls “regular and systematic.” What this means is that the casual worker was regularly rostered hours to work. And these rostered hours must have formed a clear pattern.
With respect to the term “regular,” the Fair Work Commission specifies that it means a repetitive pattern. However, the pattern does not necessarily have to be “frequent, often, uniform or constant.” In addition to regular and systematic work, a casual worker’s right to unfair dismissal also depends on one other factor. The worker must have reasonably expected their regular and systematic work pattern to continue.
Example of regular and systematic casual work
To understand a situation in which a casual worker has the right to make an unfair dismissal claim, here is an example of what regular and systematic work looks like: Casual employee John regularly works every Monday and Tuesday night at a pub. The hours that he works and the days on which he works does not vary.
In the space of half a year, John is absent from two shifts due to being sick. He also took one week of leave during to attend university assessments. This leave was approved by the pub. Despite having taken leave and not attending two shifts due to illness, John’s casual work at the pub still satisfies what the Fair Work Commission considers a “regular pattern of hours.” Even though Dan has taken some time off, this still meets the definition of regular and systematic casual work. He therefore has the right as a casual to make an unfair dismissal claim.
Employer argues casual employee’s work was not regular and systematic
A recent claim the focussed on a casual worker’s right to make a claim is Mr Kyle Pocock v Bayside Gate Frames Pty Ltd [2023]. This case highlights what the Fair Work Commission deems as regular and systematic casual work.
Kyle Pocock began working as a casual concrete labourer for Bayside Gate Farms on 25 July 2022. He remained a casual for his entire tenure at the company. The key event in this unfair dismissal case took place on 9 February 2023. This was when Mr Pocock sustained an injury to his thumb. He was subsequently required to have surgery on 15 February.
Mr Pocock’s recovery forced him out of work from around a month and a half. And during this absence he received workers’ compensation payments. Mr Pocock returned to work on 31 March 2023. On 19 May, he was dismissed by Bayside Gate Farms due to the company’s financial troubles. From his return until his dismissal, Mr Pocock’s hours varied. Feeling as though he had been unjustly treated, Mr Pocock made an unfair dismissal claim via the Fair Work Commission.
Employer disputes unfair dismissal claim
Bayside Gate Farms made a jurisdictional objection to the unfair dismissal claim. The company argued to the Fair Work Commission that as a casual, Mr Pocock’s employment was not regular and systematic. It contended that Mr Pocock did not have a reasonable expectation of ongoing employment. This would therefore make him ineligible for lodging an unfair dismissal claim, as he would not satisfy the minimum employment period.
Bayside Gate Farms noted multiple factors about Mr Pocock’s employment to support its argument. This included that:
- There was no clear commitment between the company and Mr Pocock specifying the duration of his employment, making it inherently casual.
- Work hours were varied and unpredictable, challenging the notion of regularity.
- Mr Pocock had the ability to take on or reject work as he saw fit. He would even not turn up to work on days when work was available.
- Payment was made on an hourly basis, with casual loading.
- Mr Pocock did not receive any annual or personal leave – both benefits of permanent employees.
- He was also not obliged to provide any notice of job termination or notice of his availability for work.
Fair Work Commission rules on the unfair dismissal case
The Fair Work Commission made several findings that countered the argument that Mr Pocock’s employment was not regular and systematic. It noted that he returned to work after his injury-related absence and “continued to work up until his dismissal with no issues.” This provided evidence that Mr Pocock had no break in his employment. And that his absence did not act as such for either him or Bayside Gate Farms.
Employer had a system for allocating casual work
The Fair Work Commission also found that there was an “identifiable system” within which Mr Pocock was employed, such that it was “regular and systematic.” It was found that Bayside Gate Farms would allocate shifts to workers based on its needs and those of its clients. The company told the Fair Work Commission that “there would ‘always’ be work available” to Mr Pocock, if he were to attend work on a given day.
“[This proves] that there was a system which applied to the [worker] and the other casual employees,” the Fair Work Commission stated. It was therefore found that because of this system, Mr Pocock “had a reasonable expectation of continuing employment” on a regular and systematic basis.
The Fair Work Commission was satisfied there was evidence that “the [employer] consistently offered [Mr Pocock] shifts.” And that this was “notwithstanding the variance in [his] weekly hours.” It was therefore ruled that Mr Pocock satisfied the minimum employment period for an unfair dismissal claim. The merits of his claim will now be heard by the Fair Work Commission.
Casual worker rights: The right to permanent role offer
A recent workplace right afforded to casual workers is the right to be offered a permanent position. There are two ways casual workers in Australia can exercise this right transition to permanent employment. One is via their employer making an offer to convert them to a permanent position.
Under the Fair Work Act 2009, employers (except small business employers) must offer casual conversion to eligible employees within 21 days after the employee’s 12-month anniversary. The employee must have worked consistent and regular hours worked during their last six months of employment. And they must be given the ability to continue as a full-time or part-time employee without significant adjustments.
However, employers are exempt from making this offer if they have reasonable grounds not do so. This includes, for instance, if they plan to make the casual employee’s position redundant. Or if they plan to make significant changes to their work hours or days, based on known or foreseeable facts at the time of the decision.
Casual worker’s have the right to request casual conversion
Eligible casual workers also have the right to request conversion from casual to permanent employment. They can make this request 21 days after their 12-month anniversary. They must have maintained a regular work pattern for at least the last six months of their employment. And must be provided the ability to continue as a full-time or part-time employee without substantial adjustments.
Small business employers do not have the obligation to offer conversion. But their casual employees can still request it at any time after their 12-month anniversary. In both cases, the offer or request must be in writing.
Employer’s obligation to maintain casual worker rights
Once an offer or request for casual conversion is made, an employer is obligated to ensure certain steps are taken. They must confirm the type of employment (full-time or part-time) and the permanent hours of work. They must also confirm the start date of permanent employment. All this information must be provided to the casual worker in writing within 21 days after the offer is accepted.
Employers are prohibited from reducing or changing an employee’s hours or dismissing them to avoid offering or accepting casual conversion. If an employer does this or fails to offer an eligible casual worker their right to casual conversion, they can escalate the dispute to the Fair Work Commission.
Unfair dismissal case: Casual worker alleges failure to offer permanent position
The unfair dismissal case Mr Mikhail Mochalov v AMES T/A AMES Australasia Pty Ltd [2023]. Mr Mikhail Mochalov began working for AMES Australasia as a casual store person on 21 September 2021. His employment came under the Storage Services and Wholesale Award 2020 (the Award). Mr Mochalov’s employment ended on 23 November 2023. This was due to AMES’ financial troubles, which forced it to let go of several casual workers.
Mr Mochalov subsequently lodged an unfair dismissal claim with the Fair Work Commission. In his claim, he argued that AMES violated its duties under the Award. Namely, the provision that stipulates a casual worker, after 12 months of service, may be entitled to transition to a permanent position upon negotiation.
Mr Mochalov claimed that AMES failed to offer him the chance to transition to a permanent position when he completed 12 months at the company. He claimed that the company had breached the Fair Work Act 2009 by not providing him a written offer for permanent employment.
Employer tells a different story to the Fair Work Commission
In its response to Mr Mochalov’s unfair dismissal claim, AMES argued that it had in fact offered him a permanent position. The company claimed that it had “informal conversations” with him on this topic. However, the company claimed that Mr Mochalov had dismissed the offer, as he was not happy with the hourly rate. AMES defended its decision to dismiss him, stating that it had experienced a downturn in sales.
Were casual rights breached? Fair Work Commission decides.
At the unfair dismissal hearing, the Fair Work Commission accepted that Mr Mochalov did not accept the permanent position due to the pay difference. However, it was found that had AMES could have broached the conversion “in the manner required.” And that if it had, Mr Mochalov would have been in a more “fully informed position” to consider the permanent role offer.
Employer breached rights of casual worker
The Fair Work Commission said that a “proper consultation could have assisted his awareness of the situation.” And that it could also have “clarified the very probable outcome of termination.” AMES’ obligations under the Award and the National Employment Standards were also highlighted.
The Fair Work Commission said that the company was obligated to “consult with employees if there is a major change in the operational environment which is going to impact on employee’s employment.” It found that AMES had not consulted Mr Pocock about the changing operational and casual labour requirements of the company. Based on these findings, the Fair Work Commission found that Mr Pocock’s casual rights had been infringed. And therefore, it ruled that he had been unfairly dismissed.
If your casual rights have been infringed, call A Whole New Approach
Our team of experienced workplace advisors can help you take action via the Fair Work Commission. Do not let your employer violate your rights as a casual worker. We can help you if you have faced unfair dismissal, harassment, discrimination. Or if your employer has violated your casual rights in any way. For instance, failing to offer you a permanent position after 12 months of service.
If you feel you have been unfairly dismissed, contact us right away. You only have 21 days from the date of your dismissal to make a claim. With a free and private consultation, our team can help you through the process of making a claim. And we can prepare you to make the best argument to the Fair Work Commission. Take advantage of our no win, no fee service and our over three decades of experience. We are not lawyers or a law firm, we are the nations leading advisors and commentators
Call us today at 1800 333 666 for a no-obligation discussion about your situation.
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