Regular and systematic ‘engagement’, not hours, protects Casual from unfair dismissal

A casual sales assistant has won the right to pursue her unfair dismissal application after successfully appealing an earlier decision of Deputy President Mansini, with a Full Bench of the Fair Work Commission (FWC) ruling the Deputy President had erred in finding the worker was not an employee protected from unfair dismissal.

In September 2019, Deputy President Mansini determined that the employee was not a person protected from unfair dismissal because she had not completed the minimum employment period, and accordingly dismissed the application for want of jurisdiction. As a casual employee, the worker needed to have achieved six months’ continuous service (the employer was not a small business), been employed on a regular and systematic basis and, had a reasonable expectation of continuing employment by the employer on a regular and systematic basis in order to satisfy the minimum employment period.

Although the employee had been employed for a period of just over 8 months at the time she worked her last shift, the Deputy President initially made the following observations:

“An objective analysis of [the evidence]… reveals no regularity of [the employee’s] engagements over the period. Whilst [the employee] worked at least 3 days each week, [the evidence] shows the number of days worked each week, the days of the week worked and the duration of the shift on each occasion varied significantly such that no pattern is able to be identified.”

The Deputy President concluded the employee’s employment had not been regular and systematic and further, that she had not had a reasonable expectation of ongoing employment, thereby finding the worker failed to satisfy the minimum employment period to be protected from unfair dismissal.

The sales assistant sought leave to appeal the Deputy President’s decision, arguing it was both contrary to many previous rulings by the FWC and, affected the rights of nearly 2000 casual employees of her former employer.

FWC Vice President Hatcher and Commissioners Cambridge and Booth agreed, determining that the Deputy President’s finding involved a “significant” error of principle. The Full Bench noted, “the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic. We do not consider this to be the correct approach.”

The Full Bench cited a series of relevant rulings and went on to determine that the sales assistant’s casual employment had indeed been regular and systematic. It was regular in the sense of being “frequent” in that the worker was employed in every week which formed the subject of the analysis until her termination and, in 30 of those weeks, she was employed for 3 or 4 shifts in the week. The Full Bench further explained her employment could be characterized as systematic, owing to the fact it was “arranged pursuant to an identifiable system”.

This included the employee’s employment being subject to an employment contract which confirmed the employee “was employed to work in a particular position in [the employer’s] operational structure in accordance with a pre-established and ongoing framework of legal obligations”. In addition, “the evidence demonstrated that, for the most part, [the employee’s] employment was the subject of a monthly roster system involving her having to indicate in advance her availability to work for the month in question and then working shifts in accordance with the roster that was subsequently prepared and posted”.

In light of these considerations and, due to “the frequency and amount of work that was allocated to [the employee] over the course of her employment”, the Full Bench further determined the employee had a reasonable expectation of continuing employment on a regular and systematic basis. For these reasons, the Full Bench concluded the employee’s period of service from the commencement of her employment until its termination counted towards her period of employment; that she had therefore completed the minimum employment period; and, is a person protected from unfair dismissal.

The original decision of Deputy President Mansini was subsequently quashed with the employee’s unfair dismissal application being referred back to the Commission for allocation to another member.

Chandler v Bed Bath N’ Table Pty Ltd [2020] FWCFB 306 (23 January 2020)

UPDATE – Employee unfairly dismissed following “bungled” process

In April 2020, after failed attempts to resolve the matter by way of conciliation, Commissioner Lee of the FWC conducted a determinative conference to determine the application.

On 13 August 2020, the Commissioner issued a decision, finding the employee had been unfairly dismissed, labeling the process adopted by the employer in terminating the employee’s employment as “bungled and incompetent”.

Commissioner Lee stopped short of finding that reinstatement was an appropriate remedy, as the employee had covertly recorded a number of discussions with managers prior to her dismissal. Whilst the employer had been unaware of the existence of the recordings at the time they terminated her employment, the Commissioner found this act provided a valid reason for dismissal adding that, “trust and confidence have been lost as a result of the secret recording” of the conversations.

The Commissioner subsequently issued directions to elicit the necessary information to allow a suitable compensation amount to be determined.

Chandler v Bed Bath N’ Table [2020] FWC 3706 (13 August 2020)

CONCLUSION – Compensation awarded

After a Full Bench of the FWC refused the employee permission to appeal Commissioner Lee’s finding that reinstatement was not an appropriate remedy in December 2020, the employee was ultimately awarded compensation of $4,495.64 (gross), plus superannuation, more than two years after having been terminated.

Chandler v Bed Bath N’ Table [2021] FWC 1346 (12 March 2021)