Casual employment is a great way to supplement your pool of permanent employees. Some businesses more so than others have a heavy reliance on casuals and when the pressure is on “regular” casuals become something other than just “casual”.
Prior to the current legislation, things seemed relatively simple when it came to “dealing” with the rights of casuals however things have changed. The following points are important to note when employing casuals;
- Under the Fair Work Act 2009 (Cth), long term casuals have rights to claim unfair dismissal; formerly, they did not have this right or if they did, they needed substantial arguments to do so.
- Long term in the case of a casual is determined as more than 6 months service on a regular and systematic basis
- When it comes to managing poor performance or behavioural issues, casuals should be treated the same as permanent employees (full time or part time). The Government have issued guidelines on Fair Dismissal for Small Business. You can download a copy here http://www.deewr.gov.au/WorkplaceRelations/Documents/PDF/WRfactsheet_09.pdf
- If you intend to reduce the hours of a casual make sure that it is connected to a genuine business reason such as peaks and troughs of trading. Suddenly reducing the hours of a long term casual can lead to a claim of unfair dismissal. In this case evidence would be required to show genuine reasons for reducing the hours.
- If an employee, casual or permanent states or threatens to exercise their workplace rights against your business (complaint, workcover claim etc), care needs to be exercised when responding due to a newly created ability for employees to make a claim of “Adverse Action”.
A recent situation saw a Manager terminate a casual employee for insubordination however; the timing happened to coincide with a time just after the employee had suffered a minor injury. The employee was terminated and immediately asked for an injury claim form. The risk and concern is that the employee could argue “adverse action” due to the injury. This is particularly relevant and important because the employee was not given “reason” for the termination and therefore left to form their own conclusions.
Adverse action replaces “unlawful termination” as the right of an employee and prospective employee to make a claim connected to a workplace right. Adverse action claims can be made by both casual and permanent employees. It occurs when action is taken by an employer against an employee if the employer:
- dismisses the employee; or
- injures the employee in his or her employment; or
- alters the position of the employee to the employee’s prejudice; or
- discriminates against the employee
In the example provided, a termination that follows an injury and where the employee exercises their right to access workcover through a claim could give rise to a complaint of Adverse Action.
By Shirley Farrell, HR Management Services