Are casual employees protected by unfair dismissal laws?
In Marie Axmann v Global Players Network Pty Ltd t/a GP Network Pty Ltd (2013), GP Network was found to have unfairly dismissed casual employee Marie Axmann.
Ms Axmann started working as a customer service consultant with GP Network on 14 February 2012 and was notified of her dismissal on 7 February 2013. Ms Axmann was employed on a casual basis throughout the period of her employment with GP Network.
GP Network submitted that:
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Ms Axmann was engaged as a casual employee who worked on average 16.8 hours per week and there was no guarantee of extended employment offered to her;
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Ms Axmann was a disruptive employee and had low call centre results;
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Ms Axmann was formally warned on three occasions that her behavior and attitude was not at the required standard, and was advised what was required by her to meet the standard;
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GP Network had reviewed a number of casual positions in the past year that has resulted in a reduction of the overall workforce from 45 to 36; and
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Ms Axmann was deemed unsuitable for future employment as a casual employee and was terminated appropriately and in accordance with her status as a casual employee.
GP Network had been under the impression that casual employees were treated differently to permanent employees under the Fair Work Act. The business thought that a casual employee with less than 12 months’ service did not have a remedy for unfair dismissal and could be dismissed based on the employer’s whim.
However, the Fair Work Commission confirmed that this is not the case. Under the Fair Work Act, casual employees are protected from unfair dismissal if they have been engaged on a regular and systematic basis with the employer for at least 6 months (or 12 months in a small business, i.e a business with 14 or fewer employees) and would have had a reasonable expectation of ongoing employment on that basis if not for the dismissal.
The Fair Work Commission found that because Ms Axmann worked on average 16.8 hours per week, she had been employed on a ‘regular and systematic basis’ and would have had a reasonable expectation that those hours would have continued, if not for the dismissal. The dismissal was found to be unfair because the performance problems alleged against Ms Axmann were not significant enough to warrant dismissal.
By Charles Power, Editor-in-Chief, Employment Law practical Handbook, © Portner Press, 2013
