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Access to unfair dismissal based on pattern of work, not consistent work pattern

09 March 2020
In a decision clarifying 'continuous service', the Fair Work Commission (FWC) full bench has overturned Deputy President Mansini's decision to reject an unfair dismissal claim based on work irregularities. 
An employee's access to unfair dismissal is enlivened once they have completed the minimum 6 month period of employment (or one year in the case of a small business). But for a casual, worked days do not count toward this period unless they were employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis. 

Upon review of the sales assistant's timesheets in this case, Deputy President Mansini observed that the variation in number of days worked each week, the days of the week worked and the duration of each shift lacked the consistency required by the Fair Work Act. 

However, the full bench rejected the necessity of finding such a high degree of consistency in the work pattern, having noted that it was merely 'one of a number of relevant considerations'.  The full bench instead assessed the sales assistant's employment by taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work.

The full bench consequently characterised the sales assistant's employment as regular on the basis that she was employed every week until the termination of her employment, and in 30 of those weeks she was employed for 3 or 4 shifts in the week. 

More relevantly, the full bench concluded that the sales assistant's employment was systematic (i.e. arranged pursuant to an identifiable system) for two main reasons. Firstly, the employment was covered by a single ongoing contract for a particular position in the employer's operational structure in accordance with a pre-established and ongoing framework of legal obligations. Secondly, the employment was the subject of a monthly roster system requiring the sales assistant to submit her availability in advance and subsequently work in accordance with the roster that had been created. 

Based on these reasons, the full bench also concluded that the sales assistant had a reasonable expectation of continuing employment on a regular and systematic basis.  The unfair dismissal application has been referred back to a commission member for determination.  

Chandler v Bed Bath N' Table Pty Ltd [2020] FWCFB 306 (23 January 2020) 

We would like to acknowledge the contribiton of Lachlan Thomas to this article. 

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