Moreland Bus Lines Pty Ltd (Moreland) employed the Applicant, Mr Richard Warren as a casual bus driver. Mr Warren lodged an unfair dismissal application claiming that he was a regular and systematic casual employee and that his employment was terminated effective when his shift was replaced following a passenger complaint and he was not allocated further shifts.
Moreland objected to the unfair dismissal application on the basis that Mr Warren had not served the minimum employment period necessary to make an application as he was not employed on a regular and systematic basis and had no reasonable expectation of continuing employment on a regular and systematic basis; and in any event he was not dismissed.
As such there were two matters of jurisdiction to determine whether Mr Warren:
- had served the minimum employment period.
- was dismissed.
The minimum employment period is determined in accordance with s 384 of the FW Act. In considering whether Mr Warren had served this period, the following issues were considered:
- was Mr Warren engaged on a regular and systematic basis; and
- did Mr Warren had a reasonable expectation of continuing employment.
The FWC was satisfied that Mr Warren was employed on a regular and systematic basis, relying on the views of the Court in Yaraka Holdings Pty Ltd v Giljevic  ACTCA 6. A review of Mr Warren’s pattern of engagement indicated that it was regular and in applying the above approach, was systematic. Even if it is that Mr Warren was allocated work the day before via job sheets, systematic does not mean predictable, but rather connotes some reliance. Whilst Mr Warren may have worked varying hours each day, the engagements were systematic and predictable.
The FWC also found that Mr Warren had a reasonable expectation of continuing employment given the pattern of his employment with Moreland and that he had been engaged on a regular and systematic basis for an extended period of time.
In terms of whether Mr Warren was dismissed within the meaning prescribed by s 386 of the FW Act, the FWC found in favour of Moreland as it accepted the evidence that termination was never communicated to Mr Warren. Further, the FWC was satisfied that Moreland had not stopped offering any shifts to Mr Warren in the future, but that the restrictions imposed in Victoria because of COVID-19 resulted in Mr Warren not being offered any shifts at the present time.
Having found that the Applicant was not dismissed, the FWC ordered the application for unfair dismissal and relief from unfair dismissal be dismissed.
This decision reminds employers than regular and systematic casuals have access to unfair dismissal.
In uncertain times an inability to provide shifts to casuals will not be a termination of employment. Clear communication that there employment has ended and no further work at all will be provided is necessary for a termination of employment.
NOTE: Barry Nilsson acted for Moreland Bus Lines Pty Ltd