s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - minimum employment period - casual employee - regular and systematic employment - jurisdictional objection dismissed - application to proceed

• [1] Ms Shelian Stewart (Ms Stewart) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act), alleging she has been unfairly dismissed from her employment with Danny Met Sally Pty Ltd (Respondent) (Application).

• [2] In the Application, Ms Stewart alleges her employment with the Respondent commenced on 25 January 2024 and that she was dismissed on 13 February 2025.

• [3] The Respondent objects to the Application on the basis that Ms Stewart was a casual employee for part of her employment and that part does not count towards Ms Stewart's period of employment as she was not a regular casual employee as defined in clause 12 of the FW Act.

• [4] To be protected from unfair dismissal, a person must have completed a period of employment with their employer of at least the minimum employment period.[1] Further, whether a person is protected from unfair dismissal is a matter that must be determined prior to any consideration of the merits of an application for an unfair dismissal remedy.[2]

• [5] The matter was heard before me by video using Microsoft Teams on 27 May 2025. Ms Stewart was self-represented. The Respondent was represented by its Director of Talent and Coordination, Mr C. Garrett.

• [6] For the reasons that follow, I have determined that Ms Stewart has completed a period of employment of at least the minimum employment period and the Application will proceed.

• [7] Section 394(1) of the FW Act provides as follows:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

• [8] Section 396 of the FW Act provides as follows:

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

• [9] Section 382 of the Act provides as follows:

A person is protected from unfair dismissal at a time if, at that time:

(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

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

• [10] The meaning of "period of employment" is set out at s.384 of the FW Act 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; and

• [11] The meaning of "minimum employment period" is set out at s.383 of the FW Act as follows:

(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.

• [12] The meanings of "service" and "continuous service" are set out in s.22 of the FW Act as follows:

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2 - 2 (which deals with community service leave); or

(ii) a period of stand down under Part 3 - 5, under an enterprise agreement that applies to the employee, or under the employee's contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee's continuous service with his or her national system employer, but does not count towards the length of the employee's continuous service.

• [13] The Respondent is a national disability support provider and employs approximately 600 employees.

• [14] On 25 January 2024, Ms Stewart commenced employment with the Respondent as a casual employee in the role of Team Leader.

• [15] On 22 April 2024, Ms Stewart and Respondent entered into a written casual employment contract which relevantly stated:

a. you are employed as a casual employee and that this offer of casual employment does not involve any representation of continuing work or regular and systematic engagement.

b. the number of hours of work that the Company may offer you each week and the days and times for the performance of work may vary, due to the irregular nature of casual employment (regardless of rostering arrangements).

c. if your name appears on a roster, it will be purely for administrative purposes and does not in any way represent regular or systematic employment or engagement.

d. you are not obliged to accept any work offered to you. However, you must use your best endeavours to accept work as and when the Company offers it to you and wherever possible give the Company at least 3 working days' notice of your unavailability.[3]

• [16] Ms Stewart was part of a team of approximately 7-10 disability support workers who provide care for a participant in the National Disability Insurance Scheme (NDIS) based on the Central West region of New South Wales. The care is provided 24 hours per day, 7 days per week. In addition to providing disability support services, Ms Stewart was responsible for preparing the roster for the team. The rostering task was in addition to any hours Ms Stewart was rostered to provide care and support to the NDIS participant.

• [17] Ms Stewart tendered payslips issued to her by the Respondent.[4] It was not in dispute that those payslips accurately record the number of hours worked by Ms Stewart in each pay period. The hours worked in each pay period[5] is set out in the table annexed to this decision and marked Annexure A.

• [18] It was common ground that the days and times worked by Ms Stewart were responsive to the needs of the NDIS participant and that the only times Ms Stewart was not required to work was when the NDIS participant returned to her family home or was incarcerated. In relation to the latter, it was common ground that the NDIS participant was incarcerated over the period of July to September. During that period, Ms Stewart undertook some casual work for the Respondent in Sydney. However, there were three pay periods (those ending11 August, 8 September, and 22 September 2024) where there was no work available. There was no dispute between the parties that Ms Stewart remained an employee throughout these pay periods despite not being offered any work.

• [19] On 22 October 2024, Ms Stewart accepted an offer of employment on a full-time basis in the role of National Rostering Officer and Team Leader. Ms Stewart commenced in this role on the 28 October 2024.[6]

• [20] On 13 February 2025, Ms Stewart was notified of her dismissal in a meeting conducted over Microsoft Teams.

• [21] The Respondent submitted that Ms Stewart's period of service as a casual employee was not regular and systematic. In support of this submission, the Respondent submitted that the casual employment was irregular and was subject to variations in the day or days of the week worked, the hours worked each day, and the daily starting and finishing times. The Respondent also pointed to the gaps in the casual employment in the period from July to September.

• [22] In reply Ms Stewart cited the decision in Rebecca Purcell v Aspen Living Villages t/a Darwin FreeSpirit Resort[7] and submitted that it is not necessary to show a fixed or predictable schedule of engagement, although broad patterns may be relevant, and that a casual employee's engagements require something more than frequency to be systematic but need not be predictable or contain any actual assurance of work at all.

• [23] Ms Stewart submitted 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.

• [24] In relation to her working arrangements, Ms Stewart submitted that she worked a consistent pattern of hours and duties each week, that being Monday to Friday and 36-38 hours per week, giving rise to a sufficient degree of regularity and that her role was systematically required by the Respondent.

• [25] The issue to determine is whether Ms Stewart has completed a period of employment of at least the minimum employment period.

• [26] There was no dispute that the Respondent employed 15 or more employees at the relevant time. Therefore, Ms Stewart must have completed a period of employment of at least 6 months to meet the minimum employment period.

• [27] Ms Stewart was employed in two different capacities over the period from 25 January 2024 to 13 February 2025. There can be no doubt that the period of full-time employment from 28 October 2024 to 13 February 2025 counts towards the minimum employment period. That period was 3 months and 16 days.

• [28] The issue in contention is whether the period of service as a casual employee (or any part of it) was as a regular casual employee and whether during that period of service Ms Stewart had a reasonable expectation of continuing employment on a regular and systematic basis.

• [29] The term 'regular casual employee' is defined in s.12 of the FW Act as follows:

"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.

• [30] The phrase 'regular and systematic basis' is not defined in the FW Act. In Chandler v Bed Bath N' Table Pty Ltd[8] (Chandler), a Full Bench of the Commission set out the correct approach to determining whether casual employment is regular and systematic as follows:

[11] It is apparent on the face of the decision that the Deputy President's determination as to whether Ms Chandler's casual employment was regular and systematic was attended by a significant error of principle. 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.

• [31] In Bronze Hospitality Pty Ltd v Hansson (No 2)[9] (Bronze Hospitality), a matter concerning an application for judicial review of a decision of a Full Bench of Fair Work Commission[10], the Federal Court held that:

37. Section 384(2)(a)(i) calls for an evaluation of whether the employment as a casual employee was on a regular and systematic basis. So it is the relationship of employment that must be characterised, one way or the other. It is true that the basis of the relationship can change over time, so it is necessary to determine when it became employment on a regular and systematic basis. But if, looking back after the end of the relationship (as is of course inevitable in an unfair dismissal case) the evidence as a whole supports a characterisation of its basis as regular and systematic from the beginning, it does not matter that looking forward from the beginning, one would not have yet seen all that evidence. The basis of the employment was, in fact, regular and systematic from the start, even if sufficient evidence of that fact did not accumulate until later.

• [32] In relation to s.384(2)(a)(ii), the Federal Court held[11]:

1. ...The ordinary meaning of the words of s 384(2)(a)(ii) requires that the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis. If that expectation has been formed, it is necessary to assess whether it is a reasonable one. It is true that the word 'reasonable' is generally used in the law to import an objective standard: Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at [33] (Lord Hoffmann). But the FWA does not limit the matters that may be taken into account in determining whether the expectation is reasonable. Certainly, the shorter the period of employment, generally the harder it will be for the employee to establish that he or she reasonably relied on a pattern of work, if that is the basis of his or her reasonable expectation. But the reasonableness of the expectation depends on all the circumstances, and there is no minimum period in the legislation that makes a week and half insufficient in every case.

1. What the employer tells the employee must be relevant. Counsel for Bronze accepted this. If the employee in fact has the necessary expectation, and if what the employer said at the beginning of the employment was sufficient to make the expectation reasonable, and nothing in the circumstances indicated that what the employer said was unreliable, implausible or was otherwise to be disbelieved, then the criterion may be satisfied from that time. If nothing happens subsequently to show that the expectation will not be fulfilled, then it may subsist, as a reasonable expectation, throughout the entire period of service as a casual employee. There is nothing in the legislation which indicates that the employee's expectation cannot be reasonable until a pattern of regular and systematic employment, such as regular shifts, has in fact emerged.

• [33] Having regard to the above authorities and the evidence before me, it is my view that Ms Stewart's period of service as a casual employee was on a regular and systematic basis. It is abundantly clear from the hours worked each week that the Respondent's engagement of Ms Stewart was regular. Notwithstanding the acknowledgements in the casual employment contract, Ms Stewart was engaged to work every week between January and October except for those weeks where the NDIS participant returned to her family home or was incarcerated.

• [34] I am also satisfied that the employment was systematic as the engagements exhibited a plan in that Ms Stewart was part of team engaged to provide care to the NDIS participant 24 hours per day, 7 days week, and that plan was implemented through a roster prepared by Ms Stewart.

• [35] I do not accept the Respondent's submission that the engagements were irregular because they did not occur on the same days and times each week. As the Full Bench in Chandler made clear, that is not the correct approach to assessing whether a casual employee has been employed on a regular and systematic basis.

• [36] I am also satisfied that during her period of service as a casual employee, Ms Stewart had a reasonable expectation of continuing employment on a regular and systematic basis by the Respondent. Ms Stewart was the Team Leader responsible for coordinating the team and preparing and circulating the roster. That was a task to be undertaken each week in which care and support was to be provided to the NDIS participant, regardless of whether Ms Stewart was rostered to provide any direct care and support to the NDIS participant.

• [37] I am satisfied that Ms Stewart's period of service as a casual employee was as a regular casual employee and that during the period of service as a casual employee, Ms Stewart had a reasonable expectation of continuing employment on a regular and systematic basis.

• [38] Accordingly, Ms Stewart's period of service as a casual employee will count towards her period of employment. Ms Stewarts period of continuous service is 12.5 months.

• [39] Ms Stewart has therefore met the minimum employment period of 6 months as provided by s.383 of the FW Act.

• [40] In accordance with s.382 of the FW Act, Ms Stewart is a person protected from unfair dismissal. The Respondent's jurisdictional objection is dismissed. I order accordingly.

• [41] The matter will be further programmed for consideration of the merits of the Application.

Annexure A - Applicant's hours worked by pay period

[5] The Respondent moved from a weekly pay period to a fortnightly pay period on 1 July 2024.

[6] Exhibit 1 (Hearing Book pp.150-177).

[7] [2020] FWC 3098.

[8] [2020] FWCFB 306.

[9] [2019] FCA 1680.

[10] Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 1099.

[11] Bronze Hospitality at [40], [43].

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