Casual Employees – can be protected by unfair dismissal legislation

It is common for employers to believe that because the employee is a casual worker they are not protected under the unfair dismissal provisions of the Fair Work Act 2009.

Before being able to make a valid unfair dismissal application, the dismissed casual worker must, among other things:

  1. make the application within 21 days from the date the dismissal takes effect;
  2. be employed by a constitutional corporation (private business); and
  3. earn less than $138,500 per year.

It is also important that the dismissal is unfair, unjust or unreasonable.  This means that it is not acceptable to terminate an employee who is a casual worker for any reason.  The reasons must not be unjust, unreasonable or unfair.

The Fair Work Act 2009 also states that the criteria for making an unfair dismissal application includes a certain period of employment. If the private business has less than 15 employees then the minimum qualifying period of employment must be 12  months.  If the business has 15 employees or more then that qualifying period is 6 months.

To establish the requisite qualifying period the Fair Work Act 2009 also states that a casual employee can count his or her period of employment only if:

  1. The casual work was regular and systematic; and
  2. There was a reasonable expectation of continuing employment.

Just remember that it is okay to terminate a casual employee without notice as long as the reason is not unfair, unjust or unreasonable.

The thing to think about is why are you terminating the employee, is it because they took a day off for being sick? Or did they just not turn up for a shift. The reason will make all the difference.

If you are a small business, you can use the Small Business Fair Dismissal Code and go through the checklist when you decide it is time to terminate an employee even if they are casual.