Have your casual employees completed their ‘minimum employment period’ under the Fair Work Act 2009 (Cth)? A recent Fair Work Commission decision clarifies the meaning of a ‘minimum employment period’ for casual employees.
A recent Fair Work Commission case, Chandler v Bed Bath N’ Table Pty Ltd (“Primary Decision”) found that a casual employee had no protection from unfair dismissal as she had not completed her minimum employment period, as there was no discernable pattern in the employee’s weekly rosters.1 This was overturned on appeal by the Full Bench of the Fair Work Commission (“Appeal Decision”), which found that it is not the rosters that must be regular and systematic, but the engagement of the casual employee.2
Minimum Employment Period
The ‘minimum employment period’ is a requirement under the Fair Work Act 2009 (Cth) (“FW Act”) for a person to be entitled to protection from unfair dismissal and is six months for an employer who is not a small business employer.3 For a casual employee, for service to count toward the minimum employment period:4
a) the employment of the casual employee must have been on a regular and systematic basis; and
b) during the period of service as a casual employee, the employee must have had a reasonable expectation of continuing employment on a regular and systematic basis.
The Primary Decision
In the Primary Decision, the Commission was provided evidence that showed irregularity in the employee’s rosters. This evidence showed that the employee worked at least three days each week for a period of approximately eight months, but that the days and number of days that the employee would work, as well as the hours each day, were seemingly random. Accordingly, the Commission found that the employee had not completed the minimum employment period, as the pattern of work was not on a ‘regular or systematic basis’.
The Appeal Decision
On appeal, the Full Bench quashed the Primary Decision. The Full Bench found that the long-standing principle is that it is an employee’s engagement that must be regular and systematic, not their roster. Given that the employee was engaged to perform services each week for the duration of employment and was subject to a monthly roster system, the Full Bench found that the employee was engaged on a regular and systematic basis. The Full Bench also noted that, for example, the employee’s contract required her to remain available to perform work during ‘blackout periods’, which created a reasonable expectation of ongoing employment.
The Full Bench therefore determined that the employee had completed her minimum employment period and was protected from unfair dismissal.
When determining whether a casual employee has completed their minimum employment period, the key factor is to determine whether they have been engaged regularly and systematically—not whether there is a discernable pattern in each period of engagement. The casual employee must also have had a reasonable expectation of continued employment throughout that period.
Where a casual employee has completed their minimum employment period, they will be protected from unfair dismissal under the FW Act. In these instances, it is essential that procedural and substantive fairness is applied when managing employees for performance and/or behavioural issues. In addition, where a casual employee is protected from unfair dismissal under the FW Act, the required process for ‘genuine redundancy’ exemptions for unfair dismissal provisions will also apply.
Furthermore, if employers have engaged casual employees on a regular and systematic pattern or roster, the employee may be entitled to (depending on the individual circumstances):
a) request for their conversion to permanent employment under the provision of an applicable modern award or enterprise agreement; and/or
b) paid leave entitlements, following the decision in WorkPac v Skene.5
Require further information/assistance?
If you require further information or advice, please contact one of our consultants.
1  FWC 6448.
2 Chandler v Bed Bath n’ Table Pty Ltd  FWCFB 306.
3 Fair Work Act 2009 (Cth) ss 382, 383.
4 Fair Work Act 2009 (Cth) s 384.
5  FCAFC 131.