Full Bench further clarifies ‘regular and systematic’ casual employment equation

A hospitality worker has won the right to pursue her unfair dismissal application after a Full Bench of the Fair Work Commission (FWC) confirmed Deputy President Binet wrongly dismissed the application in September, when she disregarded the employee’s initial period of casual employment to determine the worker had not served the minimum employment period.  

The Food & Beverage Attendant had been employed as a casual for about a year before accepting conversion to a full-time engagement several months before she was terminated. Originally, Deputy President Binet determined the Attendant was not an employee protected from unfair dismissal at the time of her termination because the Deputy President concluded her casual hours had “varied widely from week to week” which meant they were not regular or systematic and that she could not have had a reasonable expectation of ongoing employment. This meant her casual service was not counted and Deputy President Binet deemed she was not an employee who had served the minimum employment period.  

In quashing the Deputy President’s decision of September, the Full Bench noted some of the same errors had occurred as evidenced in a 2019 decision of Deputy President Mansini, which was also overturned by a Full Bench of the FWC early this year (see our related article).

In exploring where Deputy President Binet had erred, the Full Bench reiterated that the pattern of a casual’s hours need not be consistent or predictable for their work to be regular and systematic. The Full Bench emphasized that the Attendant’s hours were regular in that she was “consistently engaged to work substantial numbers of hours in every week” (an average of 36) and it was systematic in that she worked “in accordance with a roster that was established… in consultation with her”. The Full Bench was also satisfied the Attendant had a reasonable expectation of ongoing employment while engaged as a casual because she was effectively given first choice of hours and days when settling the roster for a period.

Upon confirming the Attendant to be a person protected from unfair dismissal at the time of her termination, the Full Bench referred the matter back to Deputy President Binet for determination.

Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019 (11 November 2020)

Dismissal a case of “genuine redundancy”

After winning the right to press her claim for unfair dismissal, Deputy President Binet was required to make a determination in respect of the employer’s second jurisdictional objection that the Attendant’s termination was a case of genuine redundancy.

The parties participated in a Hearing in February, with both employer and employee failing to convince the Deputy President they should be represented during proceedings.

Upon consideration of all matters, the Deputy President concluded the Attendant’s dismissal constituted a genuine redundancy, owing to the fact that her role was no longer required to be done by anyone (as a result of COVID-induced operational changes); she was engaged in a consultation process prior to termination as required by the Hospitality Industry (General) Award 2020 which governed her employment; and, there existed no “reasonable” opportunities for redeployment within the employer’s enterprise or associated entities.

The Attendant’s application for unfair dismissal was subsequently dismissed.

Greene v Floreat Hotel – CEH GROUP T/A Floreat Hotel [2021] FWC 2198 (21 April 2021)