s.394 - Unfair dismissal

• [1] Richard McLeish was employed at GNM Australia Pty Ltd ("GNM") as a casual news producer from 5 July 2022 until on 29 February 2025 when he was told his employment was ending because GNM "had lost faith" in his ability to work autonomously following an incident where a story was published earlier.

• [2] On 19 March 2025, Mr. McLeish made an application claiming he was unfairly dismissed from his employment with GNM. Mr. McLeish seeks reinstatement and compensation.

• [3] GNM has raised a jurisdictional objection alleging Mr. McLeish's employment did not meet the minimum employment period prescribed by s 383 of the Act. The objection is during his period of service as a casual employee of GNM he was not a "regular casual employee", and he did not "have a reasonable expectation of continuing employment".

• [4] The jurisdictional objection was heard on 29 May and 12 June 2025 by way of Determinative Conference using Microsoft Teams. Mr. Rodgers, an Industrial Officer of MEAA attended for Mr. McLeish. Ms. Gleeson, Partner at Baker & McKenzie attended for GNM.

• [5] For the following reasons I have dismissed the jurisdictional objection of GNM.

• [6] On 4 July 2022, Mr. McLeish was sent a letter of engagement from Ms. Emily Date, the HR Director of GNM, which attached a Terms Sheet which stated that it and the letter of engagement "set out the terms and conditions".[1] Under the heading "Position" it read:

Your employment will be on a casual basis, as a casual employee, initially in the position of casual news producer ("Position"), ...

You will be engaged as and when required by the Company and each shift you are engaged comprises a separate contract of employment ("Engagement"), which ceases automatically at the end of that Engagement. In offering you casual employment, the Company makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work. The Company does not guarantee you a minimum number, or any, hours of work or continuous employment. You should have no expectation of continuing employment with the Company. The Company can elect to offer you work and you can elect to accept or reject that work. Whether you are required to work will be according to the needs of the Company.

• [7] Relevantly Part A of the Term Sheet included the following term 5 headed "Termination":[2]

As a casual employee, your employment terminates at the end of each Engagement on which you are engaged.

The Company or you may terminate your employment by giving the other party notice, where an Engagement has commenced, of the remainder your Engagement or payment by the Company in lieu of the remainder of the Engagement or, if an Engagement has not commenced, without any notice.

The Company may, in its absolute discretion, cease to offer you casual Engagements for any reason.

• [8] On 4 July 2022, Mr. McLeish signed and dated the engagement letter. Above the signature line was this text "I accept employment on the terms and conditions set out in this letter and the accompanying Terms Sheet. I understand that each engagement will constitute a separate contract of employment between us."[3]

• [9] Mr. Stuart McFarlane was the Deputy Production Editor for GNM until February 2025. He caused a witness statement to be filed in this proceeding. Mr. McFarlane shared responsibility for confirming the availability of employees in the production team (which included Mr. McLeish). Mr. McLeish was one of eight casual news producers in the casual pool. He says the following about the rostering for the casual pool.

The production team at the Guardian Australia work in accordance with a monthly roster. .... The editorial administration coordinator or I generally reached out to the casual pool by email to understand their availability to perform shifts when it was known that additional staffing would be required (for example, due to personal leave and/or a temporary secondment to higher duties by permanent staff) or when casual shifts were required to cover other staff absences.

Casual shifts were generally offered between two and five weeks ahead of time. However, they were also offered at shorter notice such as the day before or the day of the shift when an employee called in sick. Employees in the casual pool are able to accept or decline any shifts at their discretion.

Casual employees such as Mr. McLeish could also be engaged on shorter notice, including the day of the shift, to fill in where a permanent employee is unavailable, including due to illness.

Where a production team staff member was unavailable to attend work, they would notify me, the editorial administration coordinator, or the production editor. Either myself or the editorial administration coordinator would then reach out to members of the casual pool (usually by text message or email), to check if they were available to work shifts. Given the nature of these engagements, casual employees would often be given short notice of when the Guardian Australia would request their availability to work a shift, including notifying them on the same day as an available shift. [Mr. McFarlane attached some text messages between him and Mr. McLeish enquiring as to his availability to cover for a permanent staff member who has taken ill]

• [10] Mr. McFarlane attached e-mails to his statement that relate to Mr. McLeish declining four shifts in 2025, three shifts in 2024, and four shifts in 2023. He also attached text messages that relate to Mr. McLeish declining three shifts in 2025, three shifts in 2024 and three shifts in 2023.

• Based on his review of the "week, start and finish times" of Mr. McLeish's shifts, there were no set days, start or finish times that he worked. The days and hours varied depending on the needs of GNM.
• Some casual news producers get more work than others because of availability, performance, specific skills or reliability.
• The casual shifts where Mr. McLeish was "primarily engaged" was covering permanent staff's rostered days off, sick leave, annual leave, temporary secondments and long service leave.

• [12] GNM also filed a witness statement from Mr. Patrick Kenneally, who has held a number of positions at the Guardian, including as the Deputy Editor. He explains a casual news producer, (the position held by Mr. McLeish) is responsible for subediting and publishing copy for GNM. A member of the casual pool is expected to have "the same core competencies as the full and part time news producers"

Casual pool advised of reduction in number of shifts in April to September 2024

• [13] He explains the number of casual news producers has reduced over time "due to budgetary constraints and when some production staff who were seconded to other roles to the production desk". Casual news producers were advised in April 2024 to September 2024 that the number of available shifts were reducing. After those dates, the number of casual shifts offered and the number of casuals who were offered shifts reduced.

Description of the reasons why the casual pool was offered shifts

• [14] He went on to describe the reasons casual production employees are offered shifts.:

"Casual news producers are offered work for a variety of reasons including unanticipated or unusual peaks in the news cycle..., coverage for staff absences due to leave or other sickness, special projects or staff being assigned to short term secondments outside of the news production department at the Guardian. Their availability for work is ascertained in different ways, such as phone calls, text messages and e-mail

• [15] He then explains the reasons why permanent news producers may be temporarily unavailable and the process of rostering:

Once the relevant manager understands their permanent employees where abouts for the month, the manager then generally reaches out to the casual pool staff two weeks in advance of the next month's roster in most cases to understand their availability to work specific shifts...This can sometimes be up to five weeks in advance. A roster for the month is then prepared on a number of factors, including the availability of various casual news producers and other permanent staff.

Casual news producers are also requested to fill shifts due to the unplanned personal leave of a permanent news producer. Where this is the case, a production editor or administrative assistant reaches out, often with limited notice such as the day of the shift or the day prior to the shift, to confirm if casual employee is available to fill a specific shift

It is up to the casual news producer as to whether they accept or decline a shift offered to them. It is not uncommon for a casual news producer to decline shifts that are offered to them.

Roster Spread Sheet and the attached tables GNM 1 and GNM 2.

• [16] GNM initially filed a roster spreadsheet for the production team only dealing with the last six months of Mr. McLeish's employment.[6] I requested a similar document covering his whole employment at GNW from August 2022 to February 2025. This was received into evidence as R1. The spreadsheet contained pages which showed the shifts which each worker in the production team (both permanent and casual) worked in any month.

• [17] My Chambers has prepared a summary of this data which I attach to this decision as two tables, GNM 1 and GNM 2. GNM 1 refers to the number of shifts Mr. McLeish worked each month from July 2022 until August 2024. GNM 2 shows the number of shifts he worked each week from September 2024 until the cessation of his employment in February 2025.

Submissions of fact on the number of times Mr. McLeish declined shifts

• [18] In the course of her oral submissions, Ms. Gleeson, the solicitor for GNM made the following submission of fact on the number of shifts Mr. McLeish was offered but declined:

You will see as we go through the roster, towards the beginning there's not much unavailability but that does certainly increase. There is a period between July 2023 and 2024 in excess of 50 days unavailability that I counted[7]...Then is the last six months there was, I believe 26 days of unavailability.[8]

• [19] Mr. Rodgers on behalf of Mr. McLeish did not take issue with the number of days which Ms. Gleeson identified, but did submit that:

It is more accurate to say that it was either gaps or absences in availability serving as leave or at the request of Mr. McLeish as part of providing his availability to the Guardian as part of the ordinary course of them seeking and him confirming is availability.[9]

• [20] Mr. McLeish filed a statement which stated the following:

• He performed work for GNM on a regular basis each week between 5 July 2022 and the termination of his employment "except for times during which I communicated to the GNM that I wished to take a period of leave for holidays or rest, or on occasions where I was unwell."
• "To the best of his knowledge" there were casual shifts rostered most days, with varying start and finish times, which reflected the arrangements of the permanent employees. During these shifts he would perform the same tasks as a permanent employee.
• GNM operated on a monthly roster and generally would make enquiries about my availability to work two weeks in advance of the commencement of that months' roster.
• On occasion, additional shifts would be offered on an ad hoc basis via phone call and text message.
• His understanding was these shifts were to cover unplanned absences such as sick leave.
• "At no point in his engagement" with GNM was there "any suggestion that this process would change."
• The majority of shifts he performed for GNM were those planned in advance as opposed to the ad-hoc shifts offered and accepted by phone call or text message.
• In addition to enquiries made via email, he had conversations with Stuart McFarlane and his predecessor in the task of roster organisation Kate Waldegrave, as to his preferred shifts.
• His "pattern of engagement" with GNM was consistent to the extent that it dictated the scheduling of my personal life and freelance work.
• At the time of his termination, he "had been engaged for further shifts"

• [21] GNM considers Mr. McLeish was not a regular casual employee, he did not work on a regular and systematic basis, and he could not have had a reasonable expectation of continuing employment on that basis.[9]

• [22] The terms of his employment contract included terms that: his employment terminated at the end of each engagement, he was not entitled to paid leave or termination entitlements, he was engaged as and when required, each engagement comprises a separate contract, and GNM could elect to offer work and Mr. McLeish was free to reject it. In addition, the contract did not refer to specific hours of work or periods in which Mr. McLeish was required to be available.

Ad hoc nature of the shifts and the manner in which they were offered

• [23] GNM made the following arguments against the shifts offered being considered "systematic":

• They were offered on an ad hoc basis when permanent employees were not able to work due to personal leave, annual long service leave, rostered days off or secondments.
• GNM made inquiries with Mr. McLeish as to his availability, often on little notice of a day or less to fill in these absences.
• Mr. McLeish declined to take up shifts that were offered to him.
• Mr. McLeish had inconsistent days of work and start and finish times".
• Where Mr. McLeish was asked in advance for his availability for specific shifts, he was not canvassed generally as to his overall availability for the monthly roster. Casual news editor employees were generally asked two weeks in advance for the specific availability of shifts.

Reasonable expectation of continuing employment

• [24] GNM lays out the test for reasonable expectation as follows:

• Determining whether an employee had a reasonable expectation of ongoing employment on a regular and systematic basis requires consideration to be given as to whether the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis, and if so, whether the expectation is a reasonable one. What the employer tells the employee at the commencement of the employment is relevant to this question.
• A finding that at a particular point in time Mr. McLeish had a reasonable expectation of continuing employment on a regular and systematic basis is not enough. The expectation must subsist for a period, and it is that period that is capable of being counted towards the period of employment. An expectation cannot be reasonable until the time the pattern necessary to make it so has emerged.

• It is not uncommon in journalism that a casual pool is utilised to cover leave for permanent staff on an ad hoc basis and the pool of casuals has reduced with less shifts offered from April 2024 to September 2024
• Mr. McLeish executed a written contract which expressly stated, "You should have no expectation of continuing employment with the Company". Mr. McLeish was on notice that continuing employment should not be expected.
• Shifts were offered to him on an ad hoc and not systematic basis because they were to cover leave absences which were either unplanned or if planned where to cover annual leave absences without predictability.

• [26] Mr. McLeish argues that he was a regular casual who worked on a regular and systematic basis, and he had a reasonable exception of continuing employment on that basis.[10]

• He was contacted two weeks in advance of the commencement of the monthly roster to ascertain his availability. This practice was consistent throughout his engagement. It was reasonable for Mr. McLeish to consider that work would continue to be offered in the way that GNM had previously done.
• GNM rostered casual news producers every week for the entirety of his engagement. There was no suggestion from GNM at any point that it would discontinue this practice.
• GNM utilised the casual pool to cover permanent staff's rostered days off, annual leave, temporary secondments, long service leave and sick leave absences by way of offering additional shifts to Mr. McLeish by way of text message or phone call.
• It was reasonable to expect that this need on the part of GNM to cover these absences would continue and that it would continue to utilise its casual news producers for this purpose.
• Prior to GNM's decision to terminate his employment, he was rostered for a further 3 shifts in the upcoming month.
• He structured matters in his personal life and his freelance work with regard to the consistency of his engagement with the Respondent.
• ""It is clear from the conduct of the parties there was a reasonable expectation there would be ongoing employment".

• The terms of the contract are only one factor in a determination of the reasonable expectation of further employment.
• He had performed work for GNM with the same process and pattern for ascertaining his availability and confirming his rostered shifts for the month for the entirety of his engagement with the GNM.
• There was no indication from GNM that this practice would cease to continue in the manner in which it had progressed up to the point of termination.
• The casual news producers pool covered permanent staff's rostered days off, annual leave, temporary secondments, long service leave and sick leave absences.
• It was reasonable for him to consider that this need to cover both planned and unplanned absences would continue.
• The performance (rather than the text) of the contract, the manner in which GNM utilised its casual news producers and the sum of the dealings between him and GNM over the course of 3 years gave rise to a reasonably held expectation that there would be continuing employment on a regular and systematic basis.

• [27] Section 390(1) of the Act provides that the Commission may order a remedy if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

• [28] One of threshold issues for whether a person is protected from unfair dismissal is whether they have completed a minimum period of employment. Section 382 of the Act provides that a person is protected from unfair dismissal, if, at that time (emphasis added):

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

Meaning of minimum employment period and period of employment

• [29] Section 383 provides a definition of minimum employment period:

(a) if the employer 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;

(b) if the employer is a small business employer - one year ending at that time.

• [30] Period of employment is defined in s 384 as follows:

(1) 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.

(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; ...

• [31] 'Regular casual employee' is defined in s 12:

regular casual employee: a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:

(b) the employee has been employed by the employer on a regular and systematic basis.

• [32] The essence of the question before me is whether Mr. McLeish was a regular casual employee, whether during his period of employment as a casual he was engaged on a regular and systematic basis and whether he had a reasonable expectation of continuing service on that basis.

CASE LAW ON REGULAR AND SYSTEMATIC AND REASONABLE EXPECTATION OF CONTINUING EMPLOYMENT ON THAT BASIS

• [33] The principal Full Bench authority on the meaning of these phrases is the decision of Vice President Hatcher (as he then was), and Commissioners Cambridge and Booth in Angele Chander and Bed Bath N Table Pty Ltd[11] (the emphasis is in the decision and footnoted case references are excluded) where the Full Bench found in paragraphs [11] to [14]:

[11] In her application of s 384(2)(a) to the facts of the case, the Deputy President proceeded 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 that the employment was regular and systematic. We do not consider this to be the correct approach. In Yaraka Holdings Pty Ltd v Giljevic, the Court of Appeal of the ACT gave consideration to the proper construction of s 11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as workers for the purpose of that Act casual workers if their "engagement, under the contract or similar contracts, has been on a regular and systematic basis" taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work. Crispin P and Gray J observed that the concept of employment on a regular and systematic basis was drawn from the Workplace Relations Act 1996, and went on to say (emphasis added):

"[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."

[12] Similarly, Madgwick J said (emphasis added):

"[89] ... 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'.

[91] Engagement under contracts on a 'systematic basis' implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of 'systematic' in the Macquarie Dictionary, revised 3rd edn, 2001)."

[13] The reasoning in Yaraka Holdings has been applied to the concept of casual employment on a regular and systematic basis in the FW Act. In WorkPac Pty Ltd v Skene, the Federal Court Full Court favoured (without needing to finally adopt) the view that the construction in Yaraka Holdings should be applied to the definition of "long term casual employee" in s 12 of the FW Act (which includes a requirement that the employee has been employed "on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months"). The Commission in its own decisions has consistently applied Yaraka Holdings to s 284(2)(a), including in the Full Bench decisions in Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell and Bronze Hospitality Pty Ltd v Janell Hansson as well as in numerous first instance decisions.

[14] By treating the degree of regularity in the pattern of hours worked by Ms Chandler as disclosed by Annexure A as the only or decisive consideration in the application of s 384(2)(a)(i) (rather than merely as one of a number of relevant considerations in the analysis), we consider that the Deputy President misconstrued the provision. This erroneous approach resulted in the Deputy President failing to take into account a number of matters which pointed to a different conclusion, including Ms Chandler's contract of employment and the rostering system adopted by BBNT."

• [34] It follows from Chandler and Yaraka (which the Full Bench quotes approvingly):

• The term 'regular' must be construed liberally. It implies some form of repetitive pattern rather than being used as a synonym for "frequent" or "often". It can be constituted by frequent though unpredictable engagements.
• "Regular and systematic" takes into account the contractual terms, the working relationship and all associated circumstances, the period of periods of engagement, the frequency of work, the number of hours worked, and the normal arrangements for someone engaged to perform that type of work.
• "Systematic basis" need not involve either predictability of engagements or any assurance of work at all. It implies something more than regularity. The basis of engagement must exhibit something that can fairly be called a system, method or plan.

• [35] I will now apply the analysis of the factors in Chandler to the facts in this case.

• [36] The contract of employment contains the following terms:

• Mr. McLeish was engaged on a separate contract of employment each shift which ceased automatically at the end of the engagement.
• GNM made no firm advance commitment to continuing and indefinite work according to an agreed pattern.
• GNM did not guarantee minimum hours or any hours or work or continuous employment. There "should be" no expectation of continuing employment.
• GNM could elect to offer him work and he could elect to refuse it.

• [37] For the purposes of s 384, contract is not 'King'. It is but one factor to be considered in the assessment of regular casual, reasonable expectation and regular and systematic in s 384(2).

• [38] As part of the casual pool, Mr. McLeish was requested to work in two ways:

• Where permanent staff took unplanned sick or carers leave (for example), he was requested to fill in on short notice "often on a day or less".
• He was also asked two weeks in advance for his availability for specific shifts where permanent staff took planned leave.

• [39] Mr. McLeish in his witness statement stated: "the majority of his shifts...were those planned in advance as opposed to ad hoc shifts accepted by phone call or text message."[12]

• [40] Given he was engaged to fill in for unavailable permanent production staff, Mr. McLeish did not work a particular pattern of days, or shifts (and therefore start and finishing times) over the course of his employment. For example, in August 2024, he worked shifts that commenced at 7:00 AM, 9:00 AM, 11:00 AM, and 1:00 PM.

• [41] According to the analysis in GNM 1, for the months July 2022 to August 2024 he worked an average of 11 shifts a month. According to the analysis in GNM 2 from September 2024 until February 2025 he worked an average of 2 shifts a week or 9 a month. The number of shifts he completed dropped off in the last six months of his employment. Over the period of his employment from July 2022 to February 2025, he worked an average of 2.5 shifts per week.

• [42] It was not contested that, consistent with his contract of employment, Mr. McLeish declined work for 50 days between July 2023 and July 2024 and 26 days in his last six months of employment.

Decline in the number of shifts from April 2024 to September 2024

• [43] The evidence of Mr. Kenneally confirms casual news producers were advised that the number of shifts available to them would reduce over the period from April 2024 to September 2024. After that date the number of shifts offered to casual pool did reduce.

• [44] Mr. McLeish was employed for a period of 2 years and eight months. Over that period, he worked at least one shift most weeks, reaching an average of 2.5 shifts per week. It would defy the English language to deny that was not engagement on a "regular basis". Was it systematic?

• [45] In order for his engagement to be regarded as systematic, something more than frequency is required: "a system, method or plan". I also note Madgwick J's analysis that it need not involve either predictability of engagements or any assurance of work at all.

• [46] GNM points to the following facts as arguments against the engagement being of a systematic nature: the contract; the fact the engagements were of an "ad hoc" nature because they were based on unpredictable unavailability of permanent staff, the drop off in shifts over time, the lack of a pattern of hours and days worked and his frequent declining of shifts.

• [47] GNM had a system for the allocation of work to the casual pool that was either allocated through a roster two weeks in advance or alternatively on an as needs basis, often on less than a day's notice to fill in for unplanned absences. Any roster can be regarded as a system for allocating work. If that is all that was required for engagement to be systematic, every casual on a roster would be employed on a systematic basis.

• [48] What is required by s 384(2) is something more. In this case, that something derives from the fact that the system by which work was allocated to Mr. McLeish in fact delivered a pattern of engagement that involved weekly shifts over the course of years. I accept his evidence that the "majority of the shifts he performed were those planned in advance as opposed to the ad hoc shifts". The fact the majority of his shifts were set two weeks in advance support the systematic nature of his engagements.

• [49] The fact there were no predictable hours, or that the engagement for the unplanned absences was not predictable, or that the frequency of shifts diminished over time, does not displace the systematic nature of the engagements. As Madgwick J makes clear in Yaraka, engagement on a systematic basis may not involve predictable engagements or any assurance of work at all.

• [50] Given the manner in which the individual engagements were actually worked, the contract terms do not defeat the systematic basis of the engagements. The length of time over which that system delivered shifts to Mr. McLeish must be a relevant factor in determining its systematic nature. On balance given the length of the period of engagements, I do not consider the evidence that he declined work during the period as fatal to a finding of a systematic basis of engagement.

• [51] I therefore find Mr. McLeish meets the definition of a regular casual employee under ss 12 and 384(2)(a)(i) as an employee employed by the employer on a regular and systematic basis.

REASONABLE EXPECTATION OF EMPLOYMENT BY THE EMPLOYER ON A REGULAR AND SYSTEMATIC BASIS.

• [52] I accept the submissions of GNM as to the tools of analysis I should use to consider this question:

• Determining whether an employee had a reasonable expectation of ongoing employment on a regular and systematic basis requires consideration to be given as to whether the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis, and if so, whether the expectation is a reasonable one. What the employer tells the employee at the commencement of the employment is relevant to this question.
• The finding that at a particular point in time Mr. McLeish had a reasonable expectation of continuing employment on a regular and systematic basis, is not enough, The expectation must subsist for a period, and it is that period that is capable of being counted towards the period of employment. An expectation cannot be reasonable until the time the pattern necessary to make it so has emerged.

• [53] Mr. McLeish entered into a contract of employment which did not require GNM to provide him any work and made no firm advance commitment to continuing employment.

• [54] Despite these terms, from the start of his engagement on 5 July 2022 until the end of it on 22 February 2025, he worked consistently and frequently for GNM. On the day of the termination of his employment he had already agreed to provide further shifts for GNM.

• [55] Mr. McLeish worked under a roster system and also was requested to work ad hoc shifts to cover unplanned absences for two years and seven months. Over that period, he almost always worked on a weekly basis. It was therefore reasonable that he had an expectation of further employment which he could have reasonably held from the time he began to receive regular shifts which, on my estimation, would have occurred after his first two months of employment. Past performance of the contract over the course of years created a subjective reasonable expectation that in the future that work would continue.

• [56] For the reasons I have already articulated, I consider that he worked on a regular and systematic basis. I also consider he had a reasonable expectation of continuing employment on a regular and systematic basis.

• Mr. McLeish's period of service as a casual count towards his period of employment because he was a regular casual employee, and during almost all of the approximately two years and seven months he was employed by GNM he had a reasonable expectation of continuing employment by GNM on a regular and systematic basis as required by s 384(2).
• Mr. McLeish is therefore a person protected from unfair dismissal under s 382 because he has completed the minimum employment period required by s 383.

• [58] It follows GNM's jurisdictional objection is dismissed. The application will proceed and the directions will be issued in due course.

Mr. Rodgers of the MEAA on behalf of the Applicant

Ms. Gleeson of Baker & Mackenzie on behalf of the Respondent

Number of shifts per month from 1 July 2024 to 1 August 2024

Number of shifts per week in the last six months of employment

[11] [2020] FWCFB 306.

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