A canteen assistant who claimed unfair dismissal lost her case after the Commission found she was employed as a casual worker whose employment ended in accordance with her casual contract, meaning there was no dismissal.
The worker argued she was offered “permanent work shifts” on Fridays during school terms and was never told she was casual until she saw it on her payslip.
However, the employer provided evidence that she operates school canteens employing only casual staff, told the worker at the interview her pay rate included casual loading, and never offered permanent employment.
Background of the case
On 21 February 2024, the worker contacted the employer via Messenger, stating she was looking for work.
At the time, there was no position advertised. However, the employer agreed to meet with the worker because she was wanting someone who could help cover some shifts. On 23 February 2024, the employer interviewed the worker for a casual canteen assistant position.
The worker stated that during the interview, the employer said her permanent work shifts would be on Fridays of each school term to fill the gap in the weekly roster after someone else had resigned.
The employer also mentioned the opportunity to cover shifts for other staff when needed and scope for additional permanent shifts if they became available. The employer did not mention she was being employed on a casual basis. The only mention about the award was $30 an hour and superannuation.
The employer stated that during the interview, she explained to the worker the nature of the role and told the worker what her rate of pay would be and that this rate included the casual loading under the relevant award.
At no time during the interview or at any time afterwards did she offer the worker a permanent position.
No written employment contract
The worker started work on 27 February 2024. The employer was absent from the site on this day as she was receiving medical treatment. However, the worker was treated and trained in the same way as every other staff member.
Between 27 February 2024 and 19 April 2024, the worker worked a variety of shifts on a variety of days, covering shifts as required.
The worker stated that during her employment, she worked a consistent work pattern of Fridays of each week, except for the Good Friday public holiday and school holiday Fridays.
She worked all shifts allocated to her, including permanent shifts on Fridays, shifts to cover other staff members on multiple occasions when asked, and a catering shift early in her employment.
She did not receive a written employment contract or position description. She discovered she was a casual employee when she saw it written on her payslip.
The employer stated the worker was part of the Canteen Chat 2024 Messenger group, where all staff could swap shifts, add shifts to cover others, and state when they were unavailable for work, as is the nature of casual employment.
Worker’s casual status and irregular hours
The worker received her first pay on 6 March 2024 and was emailed her payslip, which listed her pay rate and that she was a casual. At no time did the worker question her casual status or indicate she thought she was actually a permanent employee.
The employer’s payroll records showed the worker was paid a casual loading in her weekly pay as per the award, she did not work a consistent work pattern, and she was not paid for any day she did not work as per the conditions of a casual employee.
There were three weeks during which the worker did not work. Two of these weeks were during school holidays, and the other week was when the worker was not required.
In these three weeks, the worker was not paid any holiday pay, as this was included in her hourly rate as a casual employee. The payslips indicated the worker’s position as Casual Canteen Staff with a pay rate of $30 per hour plus superannuation paid in addition.
The worker worked varying hours each week: 15 hours, 9.5 hours, 5.5 hours, 5.75 hours, then three weeks with no hours worked, then 16.25 hours in the final week before her employment ended on 19 April 2024.
The employer stated she has operated school canteens since July 2021 and has employed a total of 22 staff. All staff have been employed as casuals under the same award and written employment contracts as each other.
She has never employed anyone in any capacity other than as a casual due to the nature of her business. She has never suggested verbally or in writing that the worker was employed other than as a casual. She never made a firm advance commitment as to the duration of the worker’s employment or the days or hours the worker would work.
At the directions hearing, the employer explained the reasons why she did not issue the worker with a written employment contract.
During the time this was all happening, she was actually not there the day the worker started because she was undergoing medical treatment.
Unfortunately, there were a whole number of things that occurred the day and week the worker started, where she said she would get paperwork through.
She also had her laptop stolen from her car. So, as well as health concerns and treatment concerns, she was also dealing with the fact that her laptop was gone.
The Commission found there was no evidence the employer raised any topics at the interview that could suggest the worker’s employment was to be ongoing, such as an entitlement to annual leave or personal leave.
On the contrary, the employer expressly discussed the nature of the canteen assistant position with the worker at the interview, including the variability in her work.
The Commission found this variability akin to the irregularity, uncertainty, discontinuity, intermittency or unpredictability, indicating a lack of a firm advance commitment to ongoing work.
The Commission considered it more likely that had the employer used the word permanent, it was a reference to the worker regularly working a Friday shift as opposed to the worker being employed on a permanent basis to work each Friday.
However, the Commission noted the High Court has found that a firm advance commitment to ongoing work does not exist even with a work roster set a year in advance to work regular full-time hours according to a fixed pattern of work.
In circumstances where the employer’s business was the operation of school canteens and for the duration of this business, she has only employed canteen assistants on a casual basis, the surrounding circumstances, the parties’ conduct and business efficacy would infer or imply into the oral contract that the employer was offering to employ the worker on a casual basis.
Commission’s decision
The Commission accepted that the employer’s personal circumstances at the time the worker commenced employment led to the employer’s oversight in issuing the worker a written employment contract.
The Commission accepted that had the employer issued the worker a written employment contract, it would have been identical to the contracts issued to her other staff and stated the worker’s employment status as casual.
The standard written employment contract issued to all other staff members stated employment would be on a casual basis as required, each occasion of work would be a separate contract of employment which ceases at the end of that engagement, as a casual employee there is no guarantee of ongoing or regular work, and pay would be at the rate of $30.00 per hour including the applicable casual loading.
The Commission found the terms of the worker’s employment provided for her to be paid $30 per hour plus superannuation, and this rate included the casual loading the worker was entitled to receive as a casual employee.
The Commission found the worker was employed as a casual employee under the industrial award despite her dispute that the employer did not inform her of her casual status before she was engaged as required by the award.
The Commission found the nature of casual employment under the award is such that there is no scope to view the worker’s casual employment as ongoing or continuous employment.
The Commission found the worker was employed as a casual employee and her employment ended in accordance with her casual employment.
Therefore, the Commission lacks jurisdiction over the worker’s unfair dismissal application. The application was dismissed.