A casual employee, by definition, is one that has “no advanced commitment to ongoing work”.  This gives rise to questions around ending the employment relationship.  Does tearing up a contract after 4 days of employment make a dismissal unfair?  Can someone with no commitment to ongoing employment even be dismissed?  A recent case explores these questions and provides guidance to all businesses.

What is a Casual?

A casual is an employee who is offered work and may either accept or reject that work.  There is not a firm advance commitment to offer work or to accept work.  A casual employee receives a premium  payment when compared to a permanent employee that provides for the lack of paid leave, notice  and redundancy as well as the lack of advance commitment to employment.

The differences between casual and permanent staff mean that there are different requirements for engaging, managing and terminating the employee.

Case Review

A recent case has explored the intersection between an employee having “no advance commitment to ongoing work” and termination of employment.

In this case the employee was engaged as a casual on 31/10/2024.  On 4/11/2024 the manager sent an email to the employee that stated;

“Please be advised that you are no longer required to return to site.  If you would like to discuss this further, please feel free to arrange a visit to our office at your convenience.  I am also available for a call during standard business hours”.

The employee lodged an unfair dismissal claim.

The business contested the claim outlining that the employee was not dismissed because he had “no guarantee of ongoing work”.

The Fair Work Commission set out to first determine if there had been a dismissal, before turning to if the dismissal had been unfair.

The Fair Work Act defines “dismissal” as the end of an employment relationship at the businesses initiative.  In practical terms there is a dismissal when the business does something that results in the employment relationship ending – so anything other than a self determined resignation or death of the employee would therefore be a dismissal.

The Commission explained: “[The employer] relies on clause 3.1 of [the worker’s] employment contract, which provides that they do not give casuals any advance commitment to continuing and indefinite work and that [the employer] is not required to offer any further work. This is not some loophole that means casuals cannot be dismissed.”

“So that is a clear answer to at a couple of the questions in this case.  A casual can be dismissed and is in fact dismissed anytime the business communicates that there will be no further work”, explains ACAPMAs Elisha Radwanowski.

“This then turns the attention to the fairness (or otherwise) of the dismissal, which the Commission will determine in future proceedings, but there will be some serious hurdles for the business to clear from a procedural fairness perspective”, added Elisha.

Learnings for all businesses

“In this case it is clear that the employee was engaged for only 4 days and was no longer required by the business.  Whether the employee was not required because the business needs had changed, or because the employees performance in his short tenure was not to the expected standard, is not clear.  What is clear is that either reason would be a valid reason for dismissal”, continued Elisha.

“However, even if there was a valid reason for the dismissal this case will be troubled by procedural fairness elements because the employee was not provided with the reason for termination in writing or being provided an opportunity to provide comment on conduct etc PRIOR to a decision to terminate being made, both of which are entitlements all employees, including casuals hold”.

When the business is considering ending a relationship with an employee, casual or permanent, long serving or probation, there are procedural elements that are more than ‘tick and flick’ and will be critical in determining if a dismissal was ‘fair’.

For more on the procedural elements of Dismissal see the ACAPMA Unfair Dismissal Series

More information and the ACAPMA Employing Casuals Guide

The nuances and legislative requriements surrounding casual employment have been in a state of unprecedented flux in the last 4 years.  All businesses are advised to ensure that they are familiar with the current broader requriements.  For more information see; https://acapmag.com.au/2024/08/new-law-recap-casual-employment/

As part of the 2024-2025 Employment Guides Pack ACAPMA has released the Employing Casuals Guide.  This detailed Guide outlines the interaction between the Fair Work Act and National Employment Standards and the Award provisions that govern employment of casual staff in the context of fuel wholesale and retail with consideration for the coming changes in definition and casual conversion operation.  The Guide focuses on the practical elements that employers need to be aware of.

There is a difference in the requirements, approach and templates to use when engaging permanent or casual staff.  This is true for all industries, but is particularly important for fuel industry employers to understand.  Fuel adds special context to many of our interactions, from safety, to customer interactions, and staff management requirements are no different.

Casuals in the fuel industry have very specific elements that businesses need to understand, from unique casual conversion requirements through to “special” casual rates and constructions.

“Employing any staff comes with a need to understand the unique context, but when it comes to fuel that need takes on a pressing imperative.  In wholesale the special provisions that apply to oil distribution workers extend to and interact with casual status in ways that payroll and schedulers need to be aware of, a task that is often complicated by the rarity of casual staff in this segment of the industry, that can lead to simple errors.  In retail, where casual staff are the standard, fuel operates very differently to other retail staff.  In addition to a unique pay structure (no 25% loading for fuel retail) there is also very specific (and different) casual conversion requirements” explains Elisha.

“All fuel operators need to understand the unique context that fuel brings to employing casuals and ensure that engagement documents, casual conversion, payroll and day to day management reflects this context” continued Elisha.

“Too often we see the same Letter of Offer used for both permanent and casual staff, leading to the potential for confusion when it comes to leave, termination and redundancy.  There are some fundamental differences between casual and permanent staff, these need to be understood and reflected in the documents, but also the practices of the business” commented Elisha.

“One example is the capacity to reject shifts.  One of the protections that casual staff have, is the ability to reject a shift.  This is reported as one of the top reasons that casuals choose to remain casual, so businesses need to ensure that their practices recognise and reflect this capacity.  Often leave applications and notification process fail to address this element completely” outlined Elisha.

“Employing any type of staff comes with compliance requirements, that are often changing and evolving.  Where there is a business need for casual staff it is important that the unique considerations and requirements for casual status, and particularly casual status in the fuel context, are well understood, so that compliance can be demonstrated, and so that all parties understand clearly expectations, entitlements and outcomes” concluded Elisha.

The ACAPMA Guide 2024-2025 – Employing Casuals covers the legislative context, engagement documents, leave, payroll, casual conversion and the Casual Employment Information Statement (CEIS).  The Guide is available now on the ACAPMA Member Portal or by request to employment@acapma.com.au

Here to help

ACAPMA members are reminded that they can access the advice support resources and representation of the ACAPMA Employment Professionals on this issue, or indeed any other employment issue, via employment@acapma.com.au.

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by contacting the ACAPMA Employment Professionals via employment@acapma.co.au  its free for members. Click here to apply for ACAPMA Membership.

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