FWC Grants Unfair Dismissal Access to Casual Employee

The Fair Work Commission has rejected an employer's claim that a dismissed employee was not engaged as a casual on a regular and systematic basis and should, therefore, not be able to contest his dismissal.

The employee, 'JA', was engaged and classified as a casual employee, employed by retail gardening and hardware giant Bunnings under the industrial agreement Bunnings Warehouse Small Format Stores Agreement 2013. He was at all relevant times a casual employee placed into a casual pool which made him available to be rostered at multiple stores across the city of Adelaide.

He was effectively dismissed from 16 February 2023 in the sense that he was removed from the roster prior to working the shifts he had been rostered that day. He also did not work on 17,18 and 19 February 2023, which were days he had been rostered for.

As noted by Deputy President Peter Anderson, to successfully pursue a claim, JA has to prove that he was a casual employee (as defined), that he was a "regular casual employee" (as defined), and that he had a reasonable expectation of continuing employment on a regular and systematic basis.

His roster was based around his university studies, in that he normally worked every second weekend and was able to do additional shifts if required on some weekdays when he did not have course commitments and during tertiary semester breaks. He often advised his supervisor, in advance, of his ability to work particular shifts.

In the six months prior to his dismissal, he worked approximately eight days per month in every month.

Deputy President Anderson acknowledged that there was no dispute between the parties that the employee was a casual employee.

The Deputy President further noted

"I find that Mr (A's) employment as a casual employee was regular, having regard to its frequency. The concept should be applied liberally and implies a regular pattern … I also find that Mr (A) was systematically employed in the sense that his employment was part of a pattern of engagement occurring as a consequence of business reliance on his services".

In support of this argument, the Deputy President highlighted that in the period commencing 19 September through to 2 January, there were only 5 weeks where JA did not work.

Further, the Deputy President determined that JA had a genuine expectation of ongoing employment. As he noted,

"Was there an expectation? I conclude there was. The evidence establishes that Mr (A) had an expectation of continuing employment on a regular and systematic basis. He organised his work around his tertiary studies and made this known to his employer. He made himself available on a consistent basis to work on weekends, and to supplement that with weekday work when he was available. Mr (A) continued to make himself available again to be rostered after having been previously rostered. This also supports a conclusion that he had an expectation of ongoing employment on that basis".

Consequently, the Deputy President determined the application has met the jurisdictional requirements, and he will list the matter for further directions.

JA v Bunnings Group Limited T/A Bunnings Warehouse [2023] FWC 972 (1 May 2023) (austlii.edu.au)

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