The Fair Work Commission has overturned a tribunal ruling stopping a Bed Bath N’ Table employee from pursuing an unfair dismissal claim in a win for casual workers.
A commission full bench on Thursday quashed a decision by deputy president Amanda Mansini that the casual sales assistant did not have protection from unfair dismissal, even though she had worked three days a week for eight months for the retailer.
Under the Fair Work Act, a casual employee is protected from unfair dismissal if they have worked for a non-small business employer for a minimum of six months, the employment is on a regular and systematic basis and the employee has a reasonable expectation of continuing regular and systematic employment.
The employee started at BBNT in Melbourne on June 25, 2018, and finished on February 28 last year, having worked three to four shifts each week for 32 weeks with no break taken.
Ms Mansini said while the employee worked at least three days each week, her employment was not regular and systematic. She said company records showed the number of days the employee worked each week, the days of the week she worked and the duration of her shift on each occasion varied significantly such that no pattern was able to be identified.
The full bench found her employment was regular, given the frequency of the shifts, and systematic, given she was employed under a written contract and subject to a monthly roster system where she had to indicate in advance her availability for work.
It said the employee had a reasonable expectation of continuing employment on a regular and systematic basis, given her ongoing contract of employment, which established a legal framework for the allocation of work in a particular position and effectively required her to hold herself available to work during “blackout periods”.
The worker also had the reasonable expectation due to the advance monthly roster system and the frequency and amount of work she was allocated over the course of her employment.
The full bench said Ms Mansini’s determination as to whether the worker’s casual employment was regular and systematic was “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, it said.
Upholding the worker’s appeal, the full bench said her unfair dismissal claim would be heard by the commission.