The Full Bench of Fair Work Australia has held that a 3 month absence from the workplace did not prevent a casual employee from making an unfair dismissal claim, because he had already served the minimum employment period required under the Fair Work Act 2009 (Cth) (FW Act).

The case provides important guidance to employers in relation to the cessation of casual employment and unfair dismissal claims.

Facts

The Employee, Wayne Shortland (the Employee), made an unfair dismissal application after his employment was terminated by his employer, The Smith’s Snackfood Company Ltd (the Employer).

The Employee had been employed as a casual night packer since July 2006. He worked consistently until 17 June 2009 when he produced a medical certificate which indicated he was fit only for light duties. The Employee then made a WorkCover claim for repetitive strain and occupational overuse syndrome. The WorkCover claim was rejected.

Between July and September 2009 the Employee worked approximately 100 hours on alternative duties. The Employer then advised the Employee that the current arrangements would have to cease as there were no alternative duties available. The Employee was told that his employment was not terminated however he would be required to obtain a full clearance from his General Practitioner before he could return to work.

The Employee did not return to work. In January 2010 the Employee received a letter from the Employer which stated that his employment was to be terminated on the basis that he had been absent from work for more than 3 months and there was no prospect of him being able to return to work in the foreseeable future.

The Employer’s arguments

The Employer opposed the Employee’s application of Unfair Dismissal for several reasons, including on the basis that he was not protected from unfair dismissal in accordance with section 382 of the FW Act.

Section 382(a) of the FW Act provides that a person is protected from unfair dismissal if they have completed “a period of employment … of at least the minimum employment period ...”

The applicable minimum employment period in the Employee’s case was 6 months.

Section 384(2)(a) of the FW Act provides that a period of service does not count towards a casual employee’s period of employment unless:

  1. the employment is on a “regular and systematic basis”, and
  2. during the period of service the casual employee had a “reasonable expectation of continuing employment … on a regular and systematic basis.”

The Employer argued that from the time the Employee suffered the injury in June 2009, he had not worked on a regular and systematic basis such that the Employee was not protected from unfair dismissal.

The decision at first instance

In Shortland v The Smith’s Snackfood Company Ltd [2010] FWA 2826 Commissioner Cloghan agreed with the Employer.

His Honour held that from June 2009 Shortland’s engagement was not regular and systematic and he had no reasonable expectation of continuing employment.

This meant that at the time his employment was terminated, the Employee was not protected from unfair dismissal.

The Full Bench decision

In the full bench decision of Shortland v The Smith’s Snackfood Company Ltd [2010] FWAFB 5709 Vice President Lawler, Senior Deputy President Drake and Commissioner Lewin overturned Commissioner Cloghan’s decision.

The Full Bench found that the Employee had satisfied the minimum employment period required under section 382(a) of the FW Act, as he had been employed on a regular and systematic basis from 2006 to 2009, during which time he had a reasonable expectation of continuing employment on a regular and systematic basis.

Although at the time that the Employee’s dismissal occurred he was not employed on a regular and systematic basis, he had already served the minimum employment period. His continuous service was not broken by the subsequent irregularities and gaps that occurred from mid 2009 due to his incapacity.

The Full Bench stated that "continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements."

The Employee was therefore entitled to bring an unfair dismissal claim.

Lesson for employers

This case is a good reminder that casual employees can make unfair dismissal claims in defined circumstances.

The employee need only convince Fair Work Australia that they have served the minimum employment in order to meet the requirements of section 382(2) of the FW Act, even if there are previous or subsequent periods of intermittent shift patterns.

If your business is considering dismissal in relation to a casual employee, you should seek advice as to whether they may be entitled to make an unfair dismissal application before taking any action.