If your dismissal is not a “genuine redundancy” then you will be eligible to make a claim.
You are able to make an unfair dismissal claim as a casual employee so long as you are able to demonstrate that you:
- were employed on a “regular and systematic basis”, and
- had a “reasonable expectation” of continuing employment.
Interestingly, the Fair Work Act does not define these concepts. Your employment will, however, be considered both regular and systematic if you are offered work regularly, and generally accept that work when it is offered. It is especially relevant to note that the Commission has also confirmed that the hours and days that a person works is not a relevant consideration. As a result, this means that your employment can be regular and systematic even where the times and days that you work are irregular.
Similarly, once you have attained 6 months’ service with the same employer on a regular and systematic basis, then there is an assumption that it would be reasonable for you to expect continuity of the employment relationship.
Click here to read more about unfair dismissal eligibility for casual employees.
Can I Resign and Then Make an Unfair Dismissal Claim ?
In some cases, if you have resigned you may still be eligible to make an unfair dismissal claim. This is commonly known as a “constructive dismissal”. A constructive dismissal occurs when the conduct of an employer causes an employee to resign. Such conduct typically includes:
- threatening to dismiss an employee if they do not resign;
- failing to adequately respond to issues, such as a bullying or harassment claim;
- refusing to pay an employee their proper entitlements; and
- making significant changes to an employee’s employment contract without their agreement;
If you resign under any of these circumstances it is likely that the Commission will determine that the resignation was not voluntary and as a result, that your employer’s conduct was an effective dismissal. Because, constructive dismissal cases are notoriously difficult to establish we recommend contacting us before resigning.
I Have Been Dismissed for Discriminatory Reasons. What Should I Do ?
It is against the law for your employer to terminate your employment because of your race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Similarly, it is also against that law for your employer to dismiss you because of a temporary absence or illness or because you have exercised a workplace right. If your employer has dismissed you as a result of one or more of these reasons then you are likely to have an adverse action claim.