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Casual Retail Worker Wins The Right To Make Unfair Dismissal Claim

Casual retail worker wins the right to make unfair dismissal claim

A casual retail worker has won the right to file for unfair dismissal, after an initial ruling was overturned.

A full bench of the Fair Work Commission quashed an earlier decision by deputy president Amanda Man­sini.

Ms Mansini ruled that Anglee Chandler, sales assistant for Bed Bath N Table (BBNT), didn’t have protection from unfair dismissal.

Even though Chandler worked for the retailer for three days a week for eight months.

Casual retail worker met criteria

The Fair Work Act protects casual employees from unfair dismissal if:

  • they have worked for an employer for a minimum of six months, (12 for small businesses)
  • the employment is on a regular and systematic basis,
  • and the employee has a reasonable expectation of continuing regular and systematic employment.

Chandler started at BBNT in Melbourne on June 25, 2018, and finished on February 28 last year.

She worked three to four shifts each week for 32 weeks with no break taken.

Initial ruling relied on company records

Ms Mansini found Chandler worked at least three days each week, and ruled her employment neither regular or systematic.

She relied on company records which showed days, days of the week and duration of Chandler’s shifts varied signficantly.

The deputy president could not identify a regular work pattern.

Therefore, she ruled Chandler was not eligible to make a claim for unfair dismissal.

Appeal finds employment regular and systematic

In contrast, the full bench found Chandler’s employment was regular, because of the frequency of her shifts.

In addition, it found her employment qualified as systematic, because of her employment contract, and because she worked a monthly roster.

Furthermore, Chandler had to indicate in ­advance her availability for work.

Additionally, the full bench found Chandler had a reasonable expectation of continuing employment on a regular and systematic basis.

Her ongoing contract of employment effectively required her to hold herself available to work during “blackout periods”.

Initial ruling relied on ‘a significant error of principle’

The full bench described Ms Man­sini’s initial determination as “attended by a significant error of principle”.

“Proceeding on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude the employment was regular and systematic was not the correct approach.”

The Commission will now hear Chandler’s unfair dismissal claim.


READ THE FULL BENCH DECISION HERE


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Fair Work Claims is a private consultancy and advocacy firm with no affiliation to any government agency, commission or tribunal.

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