Casual On Hire Worker Cleared to Claim for Unfair Dismissal

4 April 2018

In what will be an important case to note for employers, the Fair Work Commission (FWC) has given a casual worker clearance to claim unfair dismissal against the recruitment company that hired her.

The FWC considered that the continuation of her assignment with the host employer was indefinite, given that it had no defined end date, and that she had completed the minimum employment period necessary to claim unfair dismissal.

Background

The worker engaged the services of Spinifex Recruiting (Spinifex) and was assigned to a role with the Department of Justice (the Department). She signed a temporary employee agreement which stated that her employment was to end on 30 June 2017. However, once that period had concluded, the worker continued to engage in work for the Department, and was advised by Spinifex that her position would be ongoing until 30 September 2017.

The worker then continued to be engaged in her work for the Department beyond that date, and Spinifex confirmed on 25 October 2017 that the employment term was considered a “no end date”.

On 26 October 2017, however, the worker was notified via voicemail of the immediate termination of her employment at the Department’s request. The worker claimed unfair dismissal, and in response, Spinifex made a jurisdictional objection contending that the worker had not met the minimum employment period necessary to qualify.

FWC Hearing

The FWC considered 4 primary issues, namely:

  1. Was the worker a casual employee?
  2. Was she employed on a regular and systematic basis?
  3. Had she worked for 6 months?
  4. Did she have a reasonable expectation of continuing employment on a regular and systematic basis?

The first three were relatively straightforward, given that the worker was paid hourly and did not have the entitlements of a full time employee, worked 35 hours a week from Monday to Friday with a half hour lunch break, and had worked for over 7 months.

In resolving the question of the worker’s reasonable expectation of continuing employment, the FWC acknowledged that the temporary employment agreement signed by the applicant indicated against a reasonable expectation of continuing employment.

However, the FWC also asserted that the entirety of the employment and its evolution in practice must be examined. Taking into account the evidence that the worker had been told that there was no end date to the term of employment and the multiple extensions to her initial engagement, the FWC allowed the worker’s claim for unfair dismissal to proceed.

Moving Forward

This is an important and constantly developing area which employers must be cognizant of.

The aforementioned decision by the FWC is consistent with recent cases which emphasise the need to look at the wider employment relationship when determining the category of worker and the subsequent entitlements involved.