THE Full Bench of the Australian Industrial Relations Commission has recently confirmed that a casual employee with less than a year’s service cannot claim unfair dismissal under the Federal Workplace Relations Act, even if they have worked on a regular and systematic basis.
In making its decision the Full Bench applied amendments to the WR Act that came into operation in November 2003.
In Nightingale v Little Legends Childcare the applicant was employed by the respondent in March 2003 to work one day a week.
Not long after she commenced she was working 9am to 5pm Monday to Friday, however, the applicant’s employment status was never changed to full-time and she continued to be paid casual rates.
Her employment was terminated about 10 months later.
The commissioner who originally heard the application accepted that had the applicant’s employment not been terminated she would have had a reasonable expectation of ongoing employment.
However, because she did not complete at least 12 months of employment she was not able to lodge an unfair dismissal claim due to the operation of section 170CBA of the WR Act.
Casual employees covered by the State Industrial Relations Act 1979, however, have wider access to the unfair dismissal regime under that act.
If a casual employee is dismissed and that dismissal was unfair then that employee may make a claim for unfair dismissal, regardless of how long the employee has been employed.
As a result of the Nightingale decision, employers may feel more confident about terminating a casual employee’s employment if that employee has been working for them for less than 12 months.
Before deciding to do so, however, the employer should ensure that the employee does not have access to the State unfair dismissal jurisdiction.
If the IR Act does apply then employers will need to ensure the dismissal of a casual employee is fair under the circumstances irrespective of the length of service.
Julie Marchese
Minter Ellison
9429 7553