Can a Casual Employee Claim Unfair Dismissal?

To determine whether a casual employee is entitled to claim unfair dismissal, it is first necessary to understand what unfair dismissal is.

What is Unfair Dismissal?

Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.

If an employee believes they have been unfairly dismissed, they may apply to the Fair Work Commission for compensation or reinstatement of their employment.

The eligibility of an employee to make a claim for unfair dismissal depends on several factors, including:

• whether they have been dismissed;
• whether they are an eligible employee;
• who they worked for;
• how long they worked; and
• whether they are making a claim within 21 days of the dismissal taking effect.

Moreover, employees must prove that they had worked continually for the employer for a minimum period (known as the minimum qualifying period).

For permanent employees (part-time or full-time), the minimum qualifying period is 6 months.

Calculating this period is generally straightforward based on the date that the employee commenced their employment to the date that they were dismissed.

What about Casual Employees?

Casual employees technically enter into a new employment contract each time they work, so they are never technically working on a ‘continuous’ basis.

A casual employee may still satisfy the ‘minimum qualifying period’ requirement if they can prove that they worked:

1. on a ‘regular and systemic’ basis; and
2. with a reasonable expectation of their employment continuing.

The law indicates that a casual employee is likely to be working on a ‘regular and systemic’ basis if they generally work a set number of hours, on set days, with little variation to their work schedule.

It follows that a casual employee who works few hours with large gaps and many variations to their schedule is unlikely to be working on a ‘regular and systemic’ basis.

The circumstances of each case will determine whether a casual employee is, or was, working on a ‘regular and systemic’ basis.

So, Can a Casual Employee Claim Unfair Dismissal?

In short, a casual employee may claim for unfair dismissal provided they worked on a ‘regular and systemic’ basis with a reasonable expectation of their employment continuing.

If you are a casual employee and believe that you may be eligible to claim unfair dismissal, you only have 21 days from the date of your dismissal taking effect to make a claim.

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