The truth about your “casual” employees
These days the lines between casual and permanent workers are becoming increasingly blurred. As a business owner you can not assume that your workers are deemed and treated as casuals, even if you have a written agreement in place stating so. For example, if their employment is regular and systematic, your casual employees are likely to be protected by the unfair dismissal laws.
Generally, even if they are employed as a casual, an employee will be protected from unfair dismissal if they have completed a minimum employment period of at least 6 months (or 12 months if the employer is a small business that employs fewer than 15 employees). They will also be protected if they are in one of the following categories at the time of dismissal:
• covered by a modern award or a pre-modern award instrument, such as a federal award, a state reference transitional award or a notional agreement preserving state award (NAPSA)
• covered by an enterprise agreement or an agreement-based transitional instrument, or
• earning less than $113 800 a year.
The Fair Work Act 2009 also provides protection for casual employees that don’t really undertake casual work. For instance, an employee that was employed on a regular and systematic basis; and had a reasonable expectation of continuing employment on a regular and systematic basis, will be treated as a permanent employee in unfair dismissal cases.
Whether an employee is engaged on a regular or systematic basis will differ between each case, however, generally speaking, it could be defined as a clear pattern or a roster for the hours and days worked.
Evidence of regular and systematic employment can also be established when you as the employer regularly offer suitable work when it is available and at times when you know your employee is generally available. This is also the case when you offer work and it is accepted often enough that it could no longer be regarded as simply occasional or irregular. As an employer it is important to remember that an employee can be working on a regular and systematic basis, even if the hours or days of work are not.
When terminating any employee, including casuals, you should always take a fair and systematic approach, since simply having a written agreement stating that an employee is a casual is no longer suitable to determine the status of employment or protect you from possible unfair dismissal claims.
Another thing to remember is that although you may pay your casual employees more than the award rate, you may still be liable to pay your employee full-time entitlements such as annual leave, should it be proved that the employee is deemed a permanent employee.
Employment law is a very intricate and complicated area, therefore it is always important to deal with a professional when it comes to employment law issues such as the termination of employees and what is and isn’t classed as unfair dismissal. For more information on your rights as an employer submit an online enquiry or call us on 1300 QUINSS (784 667) or on +61 2 9223 9166 to book an appointment.