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.

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