Unfair dismissal action live for casual employee

I mentioned in a recent post about a sacked, drunk barista that most casual hospitality employees are employed on a “regular and systematic basis”. Just in time, a procedural decision on whether a casual F&B attendant is protected from unfair dismissal, answered by whether she was employed on a “regular and systematic basis”.

The employee was a casual, covered by the Registered and Licensed Clubs Award 2010. She worked for a smidgen over six months and was sacked. Her employer, a golf club, sacked several employees around the same time due to a downturn in business in the club’s bistro.

The employee brought a claim for unfair dismissal. The employer sought to knock out the claim as she hadn’t been employed for six months.

The Fair Work Commission laid out the one of the main questions in answering the question of “regular and systematic basis”:

It is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement.

Put differently:

The hours were irregular but occurred regularly.

The employee’s hours:

  • averaged 9.5 hours per week, with a range of between 2.5 and 20.5 hours duration in one period before Christmas 2015; and
  • averaged 7.25 hours per week, with a range of between 2.5 and 13 hours duration after Christmas.

The Fair Work Commission heard evidence about the rostering system and hours. The Commission found that she had a reasonable expectation of continuing employment on a regular and systematic basis. Accordingly, the employee worked for six months and four days. That allowed the unfair dismissal claim to stay alive.

If the employer had sacked her a week earlier, it would have had good grounds for knocking out the claim early. It looks like there may be some procedural issues in claiming she was laid off or made redundant.

Moral of the story: in most cases, casual hospitality employees are employed on a regular and systematic basis. That means unfair dismissal is a real risk.

Further reading

Bridge v Amstel Golf Club Incorporated [2016] FWC 5205

 

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