Can a casual employee claim Unfair Dismissal?
In short, yes.
Let’s cut to the chase early – there’s nothing in legislation that defines what a casual employee is.
However, the term usually refers to an employee who:
Has no guaranteed hours
Has no regular work patterns
Has no ongoing expectation of employment
As an employer you don’t have to offer work to the employee, and the employee doesn’t have to accept work if it’s offered. The employee works as and when it suits both them and the employer. Each time the employee accepts an offer of work it is treated as a new period of employment.
On paper, the definition is a far cry from permanent employees who have a full set of employment rights and responsibilities.
Despite the inconsistent nature of their employment and lack of entitlements, a casual employee can still make a claim for unfair dismissal if their situation goes pear-shaped, and the usual route the casual employee will take to bring a claim of unjustified dismissal is that they will argue that they are not, in fact, casual.
As with many employment matters, the devil is in the detail.
It is not uncommon for employers often confuse part time employees and casuals. In some cases, employees may begin working on a casual basis, yet over time the employer likes what the individual does, more work comes up and a regular pattern of work develops, meaning the employee has become a permanent part timer, even if neither party realises this has happened.
When this happens, there comes a point where while the employee may have started out as casual they really have in fact become a permanent employee, and it’s not for the employer at that point to simply to say ‘sorry, don’t have any more work for you without going through the fair process requirements and having a good reason for that.
A true casual employee only works as and when required and technically their employment starts and finishes at the start and end of each engagement that they've accepted. Consequently, between engagements there is no relationship and, therefore, nothing to dismiss them from.
The whole point of casual employment is that there is no expectation or obligation on either side of the employment relationship for ongoing work, but what tends to happen is the employee goes good and develops that regular pattern of work. After some time the employer may try to dismiss reliant on the "casual" nature of the agreement which is no longer in effect.
In these situations, the employee has the right to pursue an Unfair Dismissal claim. It doesn’t happen very often, but it does happen.
Whether an employee is casual or permanent part time depends on the real nature of the employment relationship, not just on the words used to describe it. If you have casual staff it’s worthwhile keeping a close eye on their employment status to avoid any confusion.
Disclaimer This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.