Unfair Dismissal Matter Looks At The Definition Of A Casual Employee
The latest case about the which means of a 'casual employee' into the purposes of
those unfair dismissal regime is likely to lead to a lot far more Rather than a lot much less confusion over this essential issue.
In the case of Ponce v DJT Management, DJT Management claimed that Fair Work Australia (FWA) had no jurisdiction to hear Ponce's unfair dismissal claim as he was a casual employee. Under the Fair Work Act 2009, a casual employee does not have unfair dismissal rights unless:
(a) the employee has regular and systematic employment; and
(b) the employee has a reasonable expectation of continuing employment on a regular and systematic basis.
DJT Management argued that Ponce's employment did not satisfy the above test.
The evidence revealed that Ponce worked for DJT Management as a traffic controller to get a period of approximately 18 months. The Respondent provided him with work when its contractual obligations generated a need for his services. even though he mostly worked to get a passing fancy days of these week, the number and spread of hours varied (although during times of night shift the hours worked formed a stronger pattern). In addition, the availability of work was communicated to him on a regular basis, often everyday but weekly when he was on night shift. Mr. Ponce was entitled to consider work elsewhere, but he declined to do so, and relied on DJT Management as his sole way to obtain income.
Many businesses would assume that an employee in Ponce's position was a typical casual who can typically not take action for unfair dismissal. although he generally worked on regular days, his hours varied greatly, he was free to think about work elsewhere, and the offer of work was communicated to him on almost a everyday basis.
However, Commissioner Roe determined that Ponce did have an entitlement to lodge an unfair dismissal claim. The Commissioner interpreted the tests to be applied in the following way:
The employer regularly offers work when suitable work is on the business at times when the employer knows that the employee has generally made themselves available; and
Work is offered and accepted sufficiently often that it may well no longer be regarded as simply occasional or irregular.
Think about it to get a minute. Most employers utilise casual labour when work flow is variable. That means that the offer of work turns on 'suitable work being available'. This extremely is generally regarded as One of numerous hallmarks of casual employment. Based on Commissioner Roe, This really is evidence that the employee is being provided along along with other other regular and systematic employment.
And The exact reason is it relevant that the employee has 'made themselves available'? Most employers accept that casual employees are entitled to work elsewhere when they can't provide work to the employee. The truth that an employee 'makes themselves available' is very a matter towards the employee, and shouldn't be a matter that's relevant to the employee's right to bring an unfair dismissal claim.
Unfortunately, the decision is unlikely to be appealed due in to the fact Ponce's situation is undoubtedly a borderline one: he did work regular days and numerous of his shifts fell right in to a regular pattern. however, if Commissioner Roe's test is applied in much much less borderline situations it will possibly be unlikely to survive the scrutiny of these Full Bench on appeal. Commissioner Roe's test, along with other respect, just does not reflect the truth of workplace practice.
In the meantime, the lessons seem to be clear for employers:
Manage casuals carefully to ensure they're truly casual under the Fair Work Act unfair dismissal regime in particular, avoid work falling into routine patterns, and make certain employees appear to be regularly told that work is irregular and cannot be guaranteed in the future;
Put processes in place to prevent unwitting oversights review the work patterns of all casual employees regularly;
If There is genuinely a actual need to get a continuous employee, make him or her permanent; and
Use third person based labour hire arrangements where possible.
At the end of the day, Australian management has for far at the same time long relied on casuals as a swiftly fix for workload fluctuations. There appear to be so several other techniques to cook the goose the access to fixed-term or specified task employees, or the use of labour employ really should typically be considered.
by: reviewcompare
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