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Wow – casuals being eligible for redundancy entitlements, being able to bring claims of unfair dismissal…where to next?

Historically casual employment has been described as employment which is intermittent or irregular in nature. We know that this is no longer the case, casual employment has evolved but many organisations often engage casuals because of the presumed ease of this arrangement. However, the pervious 12 months saw some interesting decisions with respect to casual employment that you might want to consider.

Redundancy entitlements have commonly been calculated on the basis of an employee’s part-time or full-time service, casual service did not count. The case of AMWU v Donau Pty Ltd [2016], FWCFC 3075, now changes this paradigm. In a contentious decision, splitting the Full bench 2-1, the FWC  made a ruling that casual service which has been regular and systematic prior to an employee transitioning, without a break in time, to a part-time or full-time role and whose role is subsequently made redundant will have their period of casual service counted for the purposes of redundancy pay. The issue in question for the Full bench was the concept of “continuous service”. Section 22 of the Fair Work Act defines a period of service as a period during which the employee is employed by the employer, but does not include:

• Any period of unauthorised absence; or

• Any period of unpaid leave or unpaid authorised absence (except community service leave or stand down).

The Full bench determined therefore, that a period of service by a regular and systematic casual employee is not identified as one of the exclusions from a period of service in the Act and as such, where this is established, it should count as services for the purposes of calculating redundancy pay.

It should be noted, where the role of a genuine casual is being made redundant, S.123 of the Fair Work Act continues to provide that redundancy provisions do not apply. This decision only relates to situation in which a permanent employee’s role is made redundant and they have transitioned from a casual engagement which can be demonstrated to be regular and systematic in nature.

The ramifications of this are yet to be seen. Given we know the right to request flexible working arrangements or take unpaid parental leave is driven by a service pre-requisite and entitlements to annual leave and paid personal /carer’s leave are also calculated with reference to continuous service, could these be challenged too? We will wait to see. For employers who are seeking to transition casuals who have been utilised in less than an adhoc manner to permanent staff, the Donau decision is something to keep in mind.

Most employers are aware that permanent employees, are entitled to access unfair dismissal provisions under the Fair Work Act when their employment is terminated in circumstances that they believe to be harsh, unjust or unreasonable provided they completed the minimum qualifying period of 6 or 12 months, depending on the size of the organisation. Employers beware, The Fair Work Commission in the matter of Cole, determined that in relation to the minimum qualifying period, a period of service as a casual employee does count towards the employee's period of employment if the employment was on a regular and systematic basis; and the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

The case of Skene v Workpac Pty Ltd [206] FCCA 3035 highlights a further anomaly with respect to casuals. In this case it was established that an employee can be a casual employee under the terms of an enterprise agreement (and therefore have no entitlement to annual leave under that agreement) yet not be a casual under the Fair Work Act 2009 (FW Act) and therefore entitled to annual leave under the FW Act. In this case, although both the employer and employee believed the employee was a casual and although the employee was paid a casual loading, the Federal Circuit Court ruled that the employee was not in fact a casual. This meant that the employee was entitled to annual leave in addition to his casual loading.

This case sits uneasily with the Fair Work Commission decision in Telum Civil (Qld) Pty Ltd v CFMEU [2013] FWCFB 2434, where a Full bench of the Fair Work Commission held that, where employees are engaged under an industrial instrument, the industrial instrument determines the status of the employee’s engagement. 

In the case of Skene, the employee on commencement of employment signed a “Casual or Fixed Term Employee – Terms and Conditions of Employment” document which set out the casual nature of his employment and that he would be paid a casual loading as such. However, the nature of his engagement saw him working a regular work schedule with regular hours which were all determined in advance. In his determination His Honour Judge Jarrett found that Mr Skene’s employment did not have “the essence” of casual employment but instead had the hallmarks of a permanent employee.

What this case is saying is simply labelling and paying an employee as a casual, in an attempt to deem them a “casual” under a relevant industrial instrument may not be enough. It is evident the courts in to determining whether an employee is truly a casual for the purposes of the Fair Work Act will consider factors including:

• The permanence and regularity of the employee’s roster patterns;
• What an employee is told and what documents they have signed on commencement of their employment, as well as;
• The terms of any relevant EA or Award.

These cases really highlight that organisations need to be certain that their employment arrangements reflect the true nature of an employee’s engagement, or else they may face exposure to a variety of claims they previously sought were exempted by engaging a casual employee.

As the last week of most people’s working year comes upon us don’t be surprised to find some of your employees using social networking sites such as Facebook or Twitter to display their displeasure or air their grievances about their managers, co-workers or the organisation.

There have been a number of cases before Fair Work Australia (FWA) during 2011 that demonstrate that many of the inappropriate actions of employees in relation to social networking have not actually taken place ‘at work’.

In Mr Damian O’Keefe v Williams Muir’s Pty Limited T/A Troy Williams The Good Guys [2011], Mr O’Keefe’s employment was terminated following his highly abusive comments in relation to suffering delays in the payment of a bonus. FWA confirmed the manner in which Mr O’Keefe went about airing his frustrations warranted dismissal and his approach to making the comments via his home computer and out of work hours did not make a difference.

 Issues taken into consideration by FWA were:

• The public nature of the comments, even though he made them to his ‘Facebook friends’, many of them were work colleagues.
• The abusive and threatening language breached the company’s values of courtesy and respect.
• There were other avenues in which his grievance could have been aired within the company and these were known to him.
• The comments were detrimental to the employers business.

 It is important to know that in certain circumstances you have the capacity to terminate an employee’s employment or to manage their performance for out-of-hours conduct. To be on sure footing here, what must be established is a sufficient link between the conduct and the employment relationship. For example you must be able to establish that the conduct:

• is likely to cause serious damage to the relationship between the employee and employer.
• damages the employer’s interests, or
• is incompatible with the employee’s duties as employee.

Warnings should be taken from the FWA Full Bench decision in Dianna Smith T/A Escape Hair Design v Sally-Anne Fitzgerald [2011].  That decision demonstrates the limitations in terminating an employee for conduct outside of work. The employee expressed her annoyance on Facebook at receiving a lesser bonus than she expected and receiving part of her holiday pay by cheque. She posted the comment: “Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!!! Whoooooo! The Hairdressing Industry rocks man!!! AWESOME!!!” FWA held that whilst the comments were foolish, they were inaccurate and the employee had not named the salon. FWA held that the Facebook comments could not be considered to be detrimental to the employer's business and as such there was no valid reason for dismissal.

 In reflection of these cases it is imperative that organisations take steps to ensure that they have in place clear, transparent and enforceable social networking policies and strategies.

Advice for employers:

• Ensure you have a social networking policy that addresses:
  • Use during work hours
  • Use outside working hours
  • Use through employee’s own technology
  • How employees can use the sites
  • List specific inappropriate uses
  • Monitoring of employees’ access
  • The consequences for non-compliance
• Update other relevant policies such as recruitment, discrimination/bullying and IT policies to reflect the use of social media.
• Consider including in employment contracts specific clauses in relation to social media.
• Ensuring induction programs cover the use of social media and the related policies.
• Providing training and awareness sessions when policies are updated.
• Ensure grievance and investigation training is provided for line managers and HR staff to ensure procedural fairness is always applied.

Where there is a breach:

• Consider whether there is a sufficient link between the conduct and the employment relationship before taking any disciplinary action.
• Take into account the surrounding circumstances, including the employee’s length of service, previous performance or disciplinary issues, reasons given, and whether there was a clear policy in place at the time of the incident.
• Don’t make the decision to terminate before all relevant information has been gathered and considered - thoroughly investigate issues, and ensure procedural fairness is afforded when performance managing, or considering the termination of, an employee for the inappropriate use of social media.

For more information on how we can assist you with your organisational policies, employment contracts or staff training feel free to contact us or in the office on: 49 63 73 73