Employers can still face unfair dismissal claims after sacking casual staff
Many employers mistakenly believe they can sack a casual employee without the risk of an unfair dismissal claim, but that is not the case.
While it’s true that many casuals are not protected by unfair dismissal laws, in certain circumstances, they can be, which was highlighted in a recent case before the Fair Work Commission.
The details
The case involved security guard Kurt Wallace, who was employed as a casual for AFS Security 24/7, based in Armidale in New South Wales.
Mr Wallace worked a regular roster of four days on and eight days off, along with two other guards.
Earlier this year, Mr Wallace messaged the company’s payroll manager with a query about the roster, and about not being paid for a shift he had worked the previous week.
The manager told Mr Wallace that she was in hospital for a procedure, but promised to fix up the error when she returned to work.
Less than a week later, the manager sent him a text saying: “Effective immediately we no longer require your services as a casual patrol guard”.
He responded with another message asking the payroll manager to “please explain?”
After trying to call the manager, he drove to the company’s office seeking an explanation.
The manager told him that because he was a casual, she didn’t need to give him an explanation for the dismissal.
Employee protected by unfair dismissal laws
In his decision, Commissioner Ian Cambridge said that in most cases, casual employees are not eligible to make unfair dismissal claims, unless they meet a number of conditions.
Those conditions include:
- meeting a minimum period of employment (one year for small businesses),
- having a reasonable expectation of ongoing employment; and,
- being employed on a regular and systematic basis.
Mr Wallace met all of these conditions.
He had been employed for more than two years on a regular roster, and at the time of dismissal, had another shift scheduled for the following week.
Mr Cambridge found that Mr Wallace had been dismissed, rather than being a genuine redundancy.
He also said that the Small Business Fair Dismissal Code did not apply to AFS Security 24/7 , because it did not have reasonable grounds to suspect Mr Wallace had engaged in serious misconduct.
In addition, Mr Cambridge noted that Mr Wallace was given no warning or explanation, and he wasn’t given an opportunity to respond.
He said that the decision to dismiss Mr Wallace was “capricious and ill-founded”.
“In this instance, the summary dismissal of the applicant was not connected with any discernible reason other than the employer’s mistaken belief that it could dismiss the applicant as a casual employee with or without any articulated reason,” he said.
“The employer offered no other explanation for the reason for the dismissal of the applicant other than; ‘[their] services as a casual employee were no longer required’.
“The circumstances in this case have established that there was no sound, defensible or well-founded reason for the dismissal of the applicant.”
AFS Security 24/7 was ordered to pay Mr Wallace $12,465 compensation.
The lesson for employers
Industrial relations expert Miles Heffernan from Employwise said the case should serve as a warning to businesses who employ casual workers.
“As Commissioner Cambridge found, if a casual worker has been with a business for the minimum employment period, and is working on a regular and systemic basis, and has a reasonable expectation that their employment will be ongoing, then they are protected by unfair dismissal laws,” he said.
“That’s why it’s important for managers and business owners to seek expert advice from an industrial relations specialist before deciding to sack someone.”
If you are defending an unfair dismissal claim, or need assistance managing a difficult employee, we can help.
Please call our specialist team at Employwise today on
1800 00 WISE (1800 00 9473)
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