Full Court Clarifies Casuals’ Protection against Dismissal for Exercising Workplace Rights

Two fundamental characteristics of casual employment relationships is the absence of a firm advanced commitment of ongoing employment by the employer, and the performance of work on an ad hoc and engagement-to-engagement basis. Because of these two characteristics, some employers fall into the trap of believing that casual employees can essentially be dismissed at will.

However, in the recent decision Jess v Cooloola Milk1, the Full Bench of the Federal Court of Australia has clarified that the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) extend to casual employees, making it unlawful to dismiss casual employees for exercising their workplace rights.

The Facts

In April 2014, the employee commenced employment as a truck driver for Cooloola Milk Pty Ltd (Cooloola Milk), a dairy farming and delivery service based in rural Queensland.

On 23 December 2018, the employee telephoned the managing director of Cooloola Milk to inquire about working over the Christmas holiday period. The managing director responded by asking the employee to complete three “manure runs” on 24 and 27 December 2018. The employee noted that three loads of manure would take more than twelve hours and accordingly queried if overtime was payable (Inquiry), to which the managing director answered that no overtime would be paid.

On 4 January 2019, the managing director informed the employee that his services were no longer required, and he was given two weeks’ notice of termination.

The employee brought a general protections application against Cooloola Milk on the basis that the decision to dismiss him was made because he made the Inquiry.

The First Instance Decision

The primary judge observed that under casual employment arrangements, the employer is free to end the arrangement whenever the employer wishes to do so. Accordingly, the primary judge noted that the cessation of casual employment could not constitute adverse action and the employee was not protected under the general protections provisions of the FW Act.

The primary judge noted that even if the employee was protected under the general protections provisions, his Inquiry could not be characterised as the exercise of a workplace right as it was “simply his reply to [the managing director’s] request that he perform some extra duties” and not an inquiry in relation to his employment. It was also concluded that even if the employee’s dismissal could be characterised as adverse action, or if the employee could establish that he had exercised a workplace right, the dismissal was because of his lack of efficiency and not because of a prohibited reason.

The primary judge accepted the managing director’s evidence that “the matters about [the Inquiry] did not cross his mind when he decided to dismiss [the employee]” and dismissed the application.

The Appeal

On appeal, the Full Court overturned the decision reached by the primary judge.

First, the Full Court confirmed that the general protections provisions applied to all employees irrespective of the nature of their employment (e.g., casual, fixed term or permanent) – there was nothing in the FW Act that supported the primary judge’s reasoning that the general protections provisions did not apply to casuals.

Further, in respect of whether the employee exercised a “workplace right” when he made his Inquiry, the Full Court indicated that the Inquiry, objectively and reasonably understood, was an inquiry in relation to the payment of overtime – that is, an inquiry in relation to his employment.

Lastly, as to whether the employee’s dismissal was because of the Inquiry, the Full Court observed that the primary judge overlooked substantial and clearly articulated submissions by the employee which indicated a causal relationship between the employee’s dismissal and his Inquiry. For example, the primary judge failed to consider evidence that indicated that the managing director only considered the employee’s efficiency after he made the Inquiry, the managing director’s concession that the employee’s dismissal would “probably not” have occurred if not for the Inquiry and the concern that other employees would ask for more pay if they heard of the employee’s Inquiry.

The Full Court also determined that the primary judge should not have classified the employee as a casual.

Accordingly, the appeal was allowed, and the matter was remitted back to the Federal Circuit and Family Court of Australia for hearing and determination.

The Key Takeaway

Despite the inherently sporadic and unpredictable nature of casual employment, this decision highlights the need for employers to ensure that any adverse action that is taken against a casual employee, is taken for a valid reason only.

It is also important for employers to remember that:

  1. Adverse action not only includes dismissal but any decision which injures the employee in their employment or alters the position of the employee to the employee’s prejudice; and
  2. The general protections provisions of the FW Act cover not only the exercise of workplace rights but also engagement in industrial activities, unlawful discrimination, being temporarily absent from work and more.

Addisons’ employment law team can assist employers in understanding their obligations and protecting their rights with respect to their casual workforce.

1 [2022] FCAFC 75.

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