In a recent case Amy Greene v Floreat Hotel Pty Ltd  FWCFB 6019, a Full Bench of the Fair Work Commission has highlighted that a casual’s hours of work do not need to be consistent or predictable for it to be considered regular and systematic.
In September 2019, the case was dismissed due to the fact that the casual employment that the employee served prior to her full time employment, could not be considered as it was performed over irregular hours and therefore the employee could not reasonably expect continuing employment.
For almost a year prior to going to a full time arrangement , the casual employee worked hours that had varied widely from week to week without a discernible pattern or system of allocation. The outcome was determined that due to this irregularity, the casual employment could not be counted and therefore the case was dismissed due to the employee not completing the 6-month minimum term.
The full bench found this was inconsistent with the principles concerning the interpretation and application of the expression, employment on a regular and systematic basis.
In this case, as with a similar case in January where the irregular pattern of hours meant that the employee had not met the minimum employment period, both Deputy Presidents had misconstrued the provision. Whilst the engagement is to be regular, the pattern of work does not necessarily need to be regular, predictable or assured.
The full bench determined that since March last year, the employee was allocated a basic roster each week and performed additional shifts as required (having first choice of available hours), deeming her employment regular and systematic.
Attendance sheets evidenced that the ‘regular’ was due to the employee being rostered consistently each week to work substantial hours with an average of about 36 hours, and ‘systematic’ due to the roster being created in consultation with the employee and the actual working hours being the majority of a working week. Regular casual rostering may reasonably be described as systematic in nature.
Further, it was found that evidence lacked in the employee not being able to reasonably expect continuing employment when the employee was consulted as to how many hours of the available hours she would be available to work in each upcoming roster.
Due to this, it was determined that with the casual period of employment plus the full time period of employment, the employee had completed the minimum employment period and therefore her unfair dismissal was referred for consideration.
For assistance with determining if your employees are considered regular and systematic, please contact us at 1300 720 004 or [email protected]
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