- Tough lessons learnt in unfair dismissal for casual
We are looking back at the 2020 Fair Work Commission Unfair Dismissal case, Angele Chandler v Bed Bath N’ Table Pty Ltd, which highlighted key issues relating to unfair dismissal for casuals along with the importance of due process.
The case determined that despite a valid reason for Chandler’s termination existing, the company’s incompetent National HR Manager had contributed to bungling the employee’s sacking, resulting in it being unreasonable. Say what?!!
In an earlier hearing before the Commission, arguments were heard regarding whether a casual employee could claim unfair dismissal. This particular summary can be found here.
The HR Manager’s bungled termination
In this particular case, the Commission found that the National HR Manager was “incompetent in respect of her ability to deal with the termination of an employee”. In an overall messy process, the National HR Manager relied on a number of invalid justifications for terminating the employee, while avoiding due process for another allegation which was, in fact, a valid reason for dismissal. Therefore, despite a valid allegation existing for a termination, the National HR Manager failed to allow the employee to respond to it, and therefore the dismissal was deemed unreasonable.
What does this mean for employers?
Ensuring that due process is followed during disciplinary and termination processes is critical to the employer’s ability to defend an unfair dismissal claim, even where there is a valid reason for a termination. Therefore employers should carry out the correct process each and every time. It is also extremely important to check the credentials of your appointed HR resource. They should have abundant recent experience in handling disciplinary and termination matters – this goes for both internal and outsourced providers. If they don’t stack up, we recommend engaging a specialist.
Casuals and unfair dismissal
Despite initial debates in the Commission as to whether Chandler could claim unfair dismissal as a casual employee, the Fair Work Commission determined that even though the employee had been classified as a casual by the employer, the employee was entitled to claim as they had been employed continually for over six months. In coming to this decision, the Commission considered the employee’s rosters, the ongoing contract of employment, and whether the employee had an expectation of ongoing employment and ultimately decided the employment was regular and systemic.
What does this mean for employers?
Essentially, this case further clarified the current stance on how casual employment is to be handled by the Commission and could mean that more casuals may be entitled to make unfair dismissal claims in the future.
Despite this decision, we are keeping a close eye on possible upcoming reforms for casual employees.
Get in touch with the team at Industryus if you would like to find out more about how we can support your organisation.
- New Laws for Casuals: have you met your obligations?
No doubt you may have heard a lot in the media recently about the new laws for casuals. And, it may seem a bit overwhelming at times as there is so much information and sometimes it can seem a bit sensationalised. In this three minute read, Industryus has done the hard work and summarised the important bits for you.
Where did all this casual talk suddenly come from?
The court case which has caused the recent attention on casual employment was Workpac v Rossato. While the matter was heard in the Federal Court about 12 months ago, the 250 odd page decision took until late May 2020 to be finalised. That is one big read!
As you can imagine with anything of this size, it is complex. We are sure you don’t have any interest (or time for that matter) to read through it. So, to make it simple here is a very quick summary of how the new laws for casuals came about.
The recent Workpac v Rossato decision re-affirmed the 2018 Workpac v Skene decision which found that some casual workers might be able to ‘double-dip’ (receive a casual loading plus be entitled to paid leave like a permanent employee receives). What is significant however about Workpac v Rossato is that the decision contradicts new government regulations introduced to stamp out the right to double-dip in casual employment. Essentially the Workpac v Rossato case means that the new regulations are useless and in certain situations where casuals are employed regularly and systemically they could be entitled to paid leave – even when they are receiving a loaded rate of pay.
Does the Workpac v Rossato decision mean that all casuals will automatically be entitled to back payments of leave or offers of permanent work?
No. You may have heard in the media that future legislation could be introduced to correct this decision made by the courts. This is true, but we don’t know exactly when this may happen. Therefore, as it currently stands, the decision made in Workpac v Rossato is currently the law and employers need to be mindful about how casuals are engaged, or they could risk back payment claims being made by casual employees.
We don’t think that employers need to panic, however. Rather, employers should carefully review their casual workforce to get an understanding of how casuals are engaged and work on strategies that will reduce the organisation’s exposure to underpayment claims from casuals or breaches of Fair Work rules. If you are concerned about or unsure whether casual obligations are being properly met, we recommend engaging a professional to work through it all with you. Rectifying issues now will place your organisation in the best position to defend any future claims.
What should employers do?
- Ensure the casual conversion obligations in the relevant modern award are adhered to.
- Review your casual workforce and consider which employees might be regular and systemic and could be offered permanent employment. Follow casual conversion rules in this regard.
- Implementquality employment contracts for all casual employees so that your business is in a defensible position.
- Ensure your casual employees are treated as such. E.g. casuals will have no firm expectation of future shifts/work, and generally have more control over when they work.
How to get help regarding the new laws for casuals
The information above is general guidance. Industryus HR strongly recommends employers seek advice from an employment relations professional to implement the steps required for better compliance with the new laws for casuals.
Don’t hesitate to organise a Free Introductory Callto find out how we can help.