Mr S worked very frequently. Between 12 January 2009 and 20 July 2009 he worked 103 shifts as a Security Guard at one location. Apart from 1 day, he worked every one of the 27 Saturdays in that period. Apart from 4 days in late February and early March, he worked every Sunday in the same period. On the week days, he usually worked between 2 and 4 days, with the actual days worked varying from week to week. Mr S almost always worked 12 hour shifts.
Just looking at Mr S’ hours worked and the regularity of his work, he does not appear to be a casual employee.
The ERA agreed and held that the employment of Mr S changed from being truly casual once a regular and reliable pattern was established of him doing Saturday and Sunday shifts, even though his week day work varied.
Things turned bad for Mr S in July 2009 when his employer told him there was no more work for him at the place he had been stationed as a Security Guard. He was also told there was no alternative work for him within the company. RSSL had lost two service contracts and was reallocating work to its permanent rostered staff. The shift previously done by Mr S (which RSSL considered to be on a casual basis) was then done by other Security Officers.
The ERA held that Mr S was unjustifiably dismissed from his regular ongoing work with RSSL. It was effectively a redundancy situation. Mr S should have been treated as a permanent employee and RSSL should have gone through a redundancy procedure.
Mr S was awarded approximately $7,500 in lost wages and $5,000 compensation for hurt and humiliation.
So how can employers be clear about when an employee is permanent and not casual and avoid this situation?
Casual work has an element of chance. It requires that the voluntary and immediate availability of a potential employee coincides with the unforeseen need of an employer to have work done.
When the need for work becomes foreseeable to the employer, part-time permanent work is automatically created. The employee is no longer a casual worker.
So really it is not that difficult to determine whether your employee is casual or permanent. It is just a matter of assessing the situation objectively. Once you have done this, I would advise that you arrange for your employee to sign an Employment Agreement setting out the terms of their employment.
