The Fair Work Commission has been increasingly expanding the rights of casual employees. And the Commission’s January 2020 decision against Bed Bath N’ Table now confirms that casual employees will be able to access unfair dismissal remedies.
The facts of the case are outlined below and what the decision means for employers.
The case
The employee was a casual at Bed Bath N’ Table for about 8 months before she was terminated. She lodged an application for unfair dismissal, seeking reinstatement and the payment of compensation.
To access unfair dismissal remedies, she needed to demonstrate that she had completed a minimum of 6 months of continuous employment, and that her employment had been (and would otherwise have continued to be) on a regular and systematic basis.
The employee had been employed for Ben Bath N’ Table for 8 months, working 3-4 shifts each week for consecutive weeks. Her contract required her to be available during certain periods. Her roster was posted monthly in advance based on her availability, and there was plenty of work for her.
The Full Bench of the Commission found that the employee was employed on a regular and systematic basis because Bed Bath N’ Table relied on her services to conduct its business. It was enough that their broad pattern of engagement was regular and systematic, rather than the employee’s precise working hours.
What does this mean for employers?
This decision opens up a can of worms for employers because most casuals who work fairly consistently will have the benefit of unfair dismissal protections if they are terminated.
The decision also reinforces that employing someone casually is not a ticket to an easy or flexible employment arrangement. Casual employees can potentially be a minefield of hidden entitlements, if their employment is later deemed to have been ‘regular and systematic’ and they have served the requisite employment period (1 year for small businesses, 6 months for other businesses). This begs the question – is it worthwhile for employers to pay a 25% premium to employ someone casually if they may later be required to top them up with other entitlements?
What should employers do?
The first action you should take is to review all your casual employees. Consider whether any longer-term casuals (more than 6 or 12 months as applicable) should be converted to permanent part-time. Converting their employment will give you certainty about their entitlements, and reduce their hourly rate. However, converting casuals to part-timers only works when their hours are sufficiently predictable.
The next action you should take is to review your casual contracts for any requirements regarding availability or expectations about regular/ongoing employment. A true casual arrangement is a shift-by-shift proposition, whereas most casual contracts require a certain level of ongoing availability and commitment. Revise your contract to remove or water-down those sorts of terms.
Another action you can take is to review your casual rostering policy and procedure. Consider posting rosters more frequently and for shorter periods, to account for actual fluctuations in work. Also consider spreading the work among a larger pool of casuals who work more sporadically. If certain casuals preferentially get shifts because they are good workers, consider making them permanent.
Key take-away
The Fair Work Commission has again confirmed that casual employees must be just that – casual. If their shifts or their ‘broad pattern of engagement’ is regular and systematic, they may have access to the same rights as permanent employees.
While this gives casual employees better protection and greater rights, it causes a real headache for employers who are paying a premium for a flexible employment arrangement.
Employers shouldn’t bury their heads in the sand and wait for an (inevitable) claim. Instead, taking action now to review and revise your casual employment arrangements can prevent pain down the track.
