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[2026] FWC 595
General information, not legal advice.
Fair Work Commission
2026-02-25
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - jurisdictional objection - casual employee - minimum employment period met - jurisdictional objections dismissed - application to proceed
[1] Ellen Burgess (Applicant) has applied to the Fair Work Commission (Commission) for an unfair dismissal remedy. The respondent to the application is Very Helpful Chats Pty Ltd (Respondent).
[2] The Respondent initially objected to the application on the basis that the Applicant was not dismissed and that the employer is a small business employer that complied with the Small Business Fair Dismissal Code (Code). The Respondent's initial objection that the Applicant had not been dismissed appeared to be premised on an assumption that casual employees could not be considered to have been dismissed. However, the Respondent refined the nature of its objection and indicated that it objected to the application on the basis that the Applicant had not met the minimum employment period as described in s.383 of the Fair Work Act 2009 (Cth)(Act) and was therefore not a person protected from unfair dismissal pursuant to s.382 of the Act.
[3] This decision deals with that objection. A determinative conference to determine the objection was held on 6 February 2026 and both parties were self-represented. During the determinative conference the Applicant gave evidence on her own behalf. The following people gave evidence for the Respondent:
[4] The parties sought an opportunity to file written closing submissions after the determinative conference which was provided.
[5] For a person to be protected from unfair dismissal they must, among other things, have completed a period of employment with their employer of at least the minimum employment period (s.382(a) of the Act).
[6] Section 383 of the Act provides that the minimum employment period is:
(a) if the employee is not a small business employer - 6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer - one year ending at that time.
[7] Section 23(1) of the Act provides that a national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time. Section 23 goes on to say:
'(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.'
[8] Section 384(1) of the Act provides that an employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee. However s.384(2)(a) of the Act relevantly goes on to state that:
(a) a period of service as a casual employee does not count towards the employee's period of employment unless:
(i) the employment as a casual employee was as a regular casual employee; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis...
[9] Section 12 of the Act provides that a national system employee of a national system employer is a 'regular casual employee' at a particular time if, at that time:
(a) the employee is a casual employee; and
(b) the employee has been employed by the employer on a regular and systematic basis.
[10] The Respondent submitted that the Applicant's period of service does not count toward the minimum employment period because:
[11] In particular the Respondent submitted that:
[12] The Respondent submitted that even if the Applicant's work could be characterised as regular and systematic, which it denied, the Applicant did not have a reasonable expectation of continuing employment on that basis taking into account:
[14] In closing submissions, the Respondent submitted:
[15] In closing submissions, the Applicant submitted:
[16] The Applicant commenced employment with the Respondent in March 2024 in a casual administrative role. On 9 October 2025 the Applicant was dismissed when Ms Stange emailed the Applicant indicating that due to budget adjustments, and because there was no longer a need for three administrative staff each day, the Respondent would be ending her employment.
[19] Ms Griffin also gave evidence that the Applicant had a conversation with another casual administrative employee on 5 February 2025 in which the other employee indicates that she was told that her availability may be flagged by human resources to which the Applicant replied:
But casuals can take leave whenever and the point is they can change their availability at the drop of a hat. It works both ways when you're a casual - you don't have to commit to regular shifts, and they can't force you to. Thats kinda (sic) the point of being casual? So at most they'll call you and be like "hey you don't have enough availability" and you can just be like "well its going to change fairly soon, but I just don't know how yet. I'm trying to avoid having to put out of shifts last minute and leaving the store in the lurch"
[20] The timesheets completed by the Applicant indicate that she worked the following hours between March 2024 and the date of her dismissal:
[22] The evidence establishes that on several occasions the Applicant asked to change the hours she had been rostered to work to:
"[65] It should be noted that it is the "engagement" that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent.
[67] Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.
[68] The term "regular" should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for "frequent" or "often". However, equally, it is not used in the section as a synonym for words such as "uniform" or "constant". Considered in the light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.
[69] Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker's services as an incident of the business by which he or she is engaged..."[53]
[26] The Full Bench went on to cite the reasons of Madgwick J who said:
"[89] It is clear from the examples that a 'regular ... basis' may be constituted by frequent though unpredictable engagements and that a 'systematic basis' need not involve either predictability of engagements or any assurance of work at all.
[90] The respondent's work for the appellant was certainly frequent enough to be termed 'regular' within an acceptable understanding of that term, which may, even in ordinary speech, be used to denote 'frequent'.[54]
[27] The term 'regular' implies a repetitive pattern and does not mean uniform or constant. While the days and hours of work varied, the evidence suggests that the Applicant regularly made herself available for work, was regularly offered work, and that work was offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.
[29] I find that the Applicant was employed by the employer on a regular and systematic basis and was a regular casual employee at the relevant time as defined in s.12 of the Act.
Did, during the period of service as a casual employee, the Applicant have a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis?
[30] The Applicant's initial 'Offer of Employment' dated 29 February 2024 and signed by the Applicant on 7 March 2024 indicates that the Applicant was employed as a casual employee to work 20 hours per week. However, the Applicant's subsequent Employment Agreement dated 24 April 2024, and which appears to have been signed by the Applicant on 10 May 2024 and the Respondent on 5 June 2024:
[31] As noted above, it is not in contention that the Applicant is a casual employee. The Respondent pointed out that pursuant to s.15A(2) of the Act an employee is a casual employee of an employer only if "the employment relationship is characterised by an absence of a firm and advance commitment to continuing and indefinite work". As noted above, it appears that the Respondent is attempting to say, in a nuanced way, that if an employee meets the definition of a casual employee under s.15A(2) they cannot have a reasonable expectation of continuing employment by their employer on a regular and systematic basis. However, the "absence of a firm and advance commitment to continuing and indefinite work" is different to the consideration of whether an employee has a reasonable expectation of continuing employment by their employer on a regular and systematic basis.
[32] The Applicant's last shift appears to have been 15 September 2025 after which the Applicant took time off due to her father's health, with the Applicant indicating he had cancer. While Ms Stange told the Applicant on 22 September 2025 that no shifts would be available in October, Ms Stange had also told the Applicant that she remained employed. The communication on 22 September 2025 was atypical because up until this point the Applicant had been asked about her availability, rostered on to work shifts on days she indicated she was available and had been provided with work for 71 out of 78 weeks. The work was provided with a sufficient level of regularity that the Applicant had a reasonable expectation that the work would continue to be offered to her at times she indicated she was available. While the Applicant was not rostered to work seven weeks out of 78, across six discrete periods, I accept that these periods were generally driven by the Applicant's availability. Given the Applicant was employed for a period of over 18 months these periods of absence are unremarkable. I find that during her period of service as a casual employee, the Applicant had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis.
Had the Applicant completed a period of employment of at least the minimum employment period?
'[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee's period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.
[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee's period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee's period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee's period of employment with the employer for the purposes of s.382(a).
[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee's period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of 'leave' or an absence due to illness or injury'.
[34] There were seven weeks out of 78 in which the Applicant did not work at all, across six discrete periods. As noted above I accept that these periods were generally driven by the Applicant's availability and as the Applicant had been employed for a period of over 18 months these periods of absence are unremarkable. In addition, the Applicant did not work between 15 September 2025 and the date of her dismissal on 9 October 2025, during which time she took time off due to her father's ill health. While Ms Stange told her on 22 September 2025 that no shifts would be available in October, prior to this, there were no words or actions during the period of service to suggest there would be no further engagements, and which would have broken the Applicant's continuous service. In any case, it is clear from the language of s.384(2) that an employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment with that employer.
[35] It is unclear as to whether the minimum employment period the Applicant needs to have completed is six months or 12 months ending at the relevant time. This is because there is a dispute about whether the Respondent is a small business employer. However regardless, I find based on the evidence that the Applicant had, at the relevant time, completed a period of employment of at least 12 months. As such, I find that the Applicant has completed a period of employment of at least the minimum employment period.
[36] The jurisdictional objection is dismissed. This outcome does not have any bearing on the merits of the application.
[37] The matter will now be programmed to further deal with the question of whether the Respondent is a small business and, if so, whether the Code has been complied with and the balance of considerations under the Act that are relevant to the application. The matter will also be listed for a member assisted conciliation by a member of the Commission.
[4] Respondent's Form F3 - Employer response to unfair dismissal application, response to q. 2.2, Respondent's email to the Commission dated 24 November 2025.
[5] Respondent's Submissions at [7] - [8].
[7] Respondent's Form F3 - Employer response to unfair dismissal application, responses to q. 2.2 and q. 2.3.
[9] Respondent's Form F3 - Employer response to unfair dismissal application, responses to q. 2.2 and q. 2.3.
[10] Respondent's Submissions at [21].
[11] Respondent's Submissions at [22].
[12] Respondent's Submissions at [23].
[13] Respondent's Submissions at [25].
[14] Respondent's Submissions at [25].
[15] Respondent's Submissions at [26].
[16] Respondent's Submissions at [27].
[17] Respondent's Closing Submissions at [3].
[18]Respondent's Closing Submissions at [10] - [12]..
[25] Stange Statement at [11] , [15] and [18].
[27] Stange Statement at [19], Appendix D.
[30] Stange Statement at [12], [24].
[34] Griffin Statement at [10] - [11].
[39] Griffin Statement at [18], [20].
[40] Griffin Statement at [19], [21].
[45] Respondent's Closing Submissions at [3].
[46] 'Evidence of irregular and ad hoc hours' attached to Respondent's Form F3 - Employer response to unfair dismissal application; Griffin Statement, Annexure D.
[47] 'Evidence of irregular and ad hoc hours' attached to Respondent's Form F3 - Employer response to unfair dismissal application; Griffin Statement, Annexure D.
[48] Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic [2010] FWC 2078 at [75].
[49] [2010] FWA 2078 at [70].
[50] [2006] ACTCA 6 at [65].
[53] [2020] FWCFB 306 at [11].
[54] [2020] FWCFB 306 at [12].
[55] [2020] FWCFB 306 citing [2006] ACTCA 6 at [91] per Madgwick J.
[56] Respondent's Form F3 - Employer response to unfair dismissal application, response to q. 3.2.
Printed by authority of the Commonwealth Government Printer
Ms Ellen Burgess
Very Helpful Chats Pty Ltd [2026] FWC 595