A noteworthy case from the Fair Work Commission has found that it can be reasonable to expect ongoing casual employment from early in the working relationship.

Employment law can be a difficult topic to navigate in relation to casual employees. Typically, the law states that ongoing casual employment can only be expected after 12 months with an employer. However, as it always happens, precedents (important cases) are set by new judgements which can develop the law. In a recent case from the Fair Work Commission, it was found to be a reasonable expectation to expect ongoing casual employment after six months as opposed to twelve. Let’s discuss this important case in detail.

A Six-Month Casual Employee: Facts of the Case

A casual employee has successfully established that their six months of service constitutes a reasonable timeframe to expect ongoing casual employment.

The employee of Norfolk Island Regional Council was dismissed on 16 July 2020 after commencing in January that year. The employee claimed that their sacking was unfair however, the employer argued against this. Norfolk Island Regional Council argued that certain periods of time should not count towards the total service of the employee, such as: the 11 days of paid training and one week in May wherein the employee worked a different role. They also held that there were periods where the employee was appearing on a less frequent basis to work due to COVID-19-related restrictions.

Arguments

The employer said there was no reasonable expectation of ongoing casual employment as the letter of offer did not support any expectation.

However, the Commissioner of the Fair Work Commission, noted that the employee’s work fit the criteria of ‘regular and systematic’ due to a regular roster that was clear and compelling. The Commission also found that paid training and alternative duties counted as service to the business. Even though the work and duties were different, the employee was paid at the same rate and was merely given a different role in accordance with COVID-19 legislative rules.

Decision: Expectation of Casual Ongoing Employment is Reasonable

The expectation of ongoing employment was therefore found to be reasonable because the employee believed the reduction in working hours due to COVID was temporary. Further, as the employee’s hours of work were regular and systematic, there was a reasonable expectation of ongoing casual employment.

While the claim is listed for further proceedings, the current precedent affirmed by Pataki v Norfolk Island Regional Council [2021] is noteworthy in relation to ongoing casual employment. It means that an employee can expect ongoing casual employment when there is a systematic and regular pattern of work.

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