18 Jul Casuals – eligible for unfair dismissal
A recent case in the Fair Work Commission (FWC) regarding casual employees and unfair dismissal solidifies the position of employers when considering disciplinary actions.
Sukerti v The Salvation Army Western Australia Property Trust, trading as the Salvos Stores, was heard before the FWC last week. The Salvos Stores challenged the jurisdictional right of Ms Sukerti to file for unfair dismissal. Ms Sukerti was a casual employee from 16 June 2014 to 10 March 2016, and she worked for a number of stores on a rostered basis. At times Ms Sukerti was called into work on short notice, but generally, she worked each week on different days, for different lengths of time and different hours.
Deputy President Clancy found that Ms Sukerti was protected from unfair dismissal by her employer, based on the fact that she was a regular and systematic casual. He reiterated previous decisions that stated, ‘it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement.’ In other words, it is the fact that the employment is on a regular and systematic basis – this does not mean that the hours or days of work must be regular and systematic.
He went onto further clarify in his decision that ‘evidence of regular and systematic employment can be established where:
- The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and
- Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.
The evidence of the shifts worked also supports the conclusion that there was an expectation on the part of Salvos Stores that Ms Sukerti would work when work was available.’
Implication for employers
A number of decisions have looked at this issue of ‘regular and systematic work’ in relation to casuals, and it is important for employers to be aware of the impact this can have on their decision-making in disciplinary matters of their employees. Ms Sukerti was dismissed for misconduct, and whilst the details of the case were not the subject of this hearing, it should alert employers to the fact that even when you have a disciplinary situation with casuals, procedural fairness should apply.
Procedural fairness in a situation such as misconduct means conducting an appropriate investigation, the employee has the opportunity to respond to any allegations and all factors are taken into consideration by an independent decision maker.
If you have any questions about casuals or any other issues relating to disciplinary matters contact our office on (08) 8232 2820