By Mike Toten Freelance Writer

When a teacher’s past service as a “regular casual” employee was added to the 4.5 months service in his current job, he met the 6-month threshold for being eligible to make a claim of unfair dismissal. This judgment made the point that casual employment has to be regular and follow a pattern in order to be counted, and there must be a reasonable expectation that work will continue to be available.

 

Facts of case

The teacher had worked both casually and part-time for a Catholic schools network of 45 schools for about eight years. Four-and-a-half months into a one-year part-time contract with a school he was dismissed for alleged serious misconduct.

He had received salary of almost $60,000 during the current financial year, indicating regular casual employment before the part-time contract began. 

Each week the teacher would contact various schools about his work availability, and they would respond with work offers (if any). Between August and December 2023 he had worked 73% of all possible work days. The Fair Work Commission (FWC) ruled that this amounted to a regular and systematic basis of work with a reasonable expectation that employment would continue. 

Therefore, combined with the 4.5 months of part-time work, the employee had at least nine months of continuous employment – clearing the minimum requirement of six months for unfair dismissal claims. 

 

What this means for employers

In eligibility (to claim) cases like this, the FWC takes into account whether casual work comprised a regular and systematic pattern, rather than looking at specific hours worked. When such a pattern exists, it establishes “continuous employment”. The other factor affecting eligibility is whether the employee had a reasonable expectation that casual work would continue. Each casual shift is then not a single separate employment contract.

A period of continuous service is only ended when the employer makes it clear to the employee that there will be no further work.

 

Read the judgment

Mr Daniel McManus v Catholic Schools Broken Bay - [2024] FWC 3132 | Fair Work Commission