they have served the minimum employment period, and
the casual employment has been on a regular and systematic basis, and
they had a reasonable expectation of continuing employment.
We examine each of these requirements below.
Minimum Employment Period
A casual employee must demonstrate that they have served a “minimum employment period”. For employees in a small business, the minimum employment period is 12 months. For all other employees the minimum period of employment is 6 months. A small business has less than 15 employees.
Regular and Systematic Basis
A casual employee must demonstrate that their employment was “regular and systematic” to make an unfair dismissal claim. Interestingly, “regular and systematic” is not defined in the legislation. The Fair Work Commission has identified the criteria it will consider when determining whether casual employment is regular and systematic.
If a casual employee is offered work regularly, and the employee generally accepts that work when it is offered it will generally be regarded as “regular and systematic”. This interpretation was summarised by the Commission as follows:
“evidence of regular and systematic employment can be established where the employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available and work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.”
The Fair Work Commission has also confirmed that “regular and systematic” does not refer to the hours and days that a person works. This means for example that casual employment can be regular and systematic even if it is seasonal, or where the times and days of work are irregular, or where there are breaks due to particular needs of the casual employee.
Reasonable Expectation of Continuing Employment
Finally, a casual employee must be able to demonstrate that they had a reasonable expectation of continuing employment. The Fair Work Act does not define the term ‘reasonable expectation of continuing employment’, this will depend on the particular circumstances.
Generally speaking, once a casual employee attains 6 months’ service with the same employer on a regular and systematic basis, then there is an assumption that it would be reasonable to expect continuity of the employment relationship.