Employment Law update – unfair dismissal of casuals

A recent decision of the Fair Work Commission (FWC) serves as a reminder that casuals are not excluded from making unfair dismissal claims.

Provided they have been employed on a regular basis for 6 months (or 12 months for small business employers) and have a reasonable expectation of continuing employment, casuals can make unfair dismissal claims.

Employers should be aware of the risks of a unilateral and significant reduction of casual employee’s hours. If that amounts to a fundamental change to the employment conditions, it can constitute a “dismissal” even though the employer has not expressly dismissed the employee.

Gilda Cohen-Shapira v The Scots College – The Decision

The employee had worked as a teacher for a Sydney private school. The FWC determined that she was a casual. It also found that she was employed on a regular and systemic basis. She had worked for the school for 9 years for about 100 days per year. She had a reasonable expectation that her employment on that basis would continue into 2013.

Accordingly, she was protected from unfair dismissal pursuant to section 382 of the Fair Work Act 2009 (FWA).

FWC held that, on balance, she had been dismissed. She had been advised in an email that “there will not be much casual work at the College this year”. She had been contracted for casual work in each of the previous 9 years but no contract was made for her for 2013 without any adequate explanation. Other casuals were employed and the number of casuals overall did not change very much.

FWC found that there was no valid reason for the dismissal. The school had raised no issues with the employee’s conduct or capacity. Further, the size and resources of the school should have meant that it dealt with the employee in a more appropriate manner given her long and satisfactory service.

The employee’s unfair dismissal claim succeeded and she was entitled to compensation of $10,000.

Implications for Employers

Where a casual is protected by unfair dismissal laws, employers need to take particular care if considering a reduction in a casual’s hours or advising that no work is available.

Employers should take steps to avoid a constructive dismissal. That occurs where an employee resigns because the employer says or does something which the employee can reasonably treat as dismissal, although the employer has not actually stated that the employee is dismissed.

Alternatively, if the employee is to be dismissed, the termination needs to be handled carefully and having regard to the factors relevant to unfair dismissals under the FWA.

Please do not hesitate to contact Tom Read on phone 9670 0722 or email tread@bsplawyers.com.au to discuss your employment or dispute issues.