A recent case that found that a casuals employment can simply end whenever the employer wants it to and therefore termination of employment cannot be considered adverse action has been overturned on appeal. The overturning makes it clear that there are circumstances where termination of a casuals employment can amount to adverse action.
The original case hinged around a claim from a casual driver that the business had taken adverse action taken against him when it terminated his employment.
In handing down the original determination, the Judge noted that “under casual employment arrangements, there is an ability for an employer or and employee to simply end the employment arrangement whenever either wishes to do so. In this respect, cessation of casual employment is not adverse action”.
On appeal, the finding was that the initial Judge was incorrect in his conclusion and have overturned the initial ruling, thereby confirming that it is possible for the termination of a casual employee to result in adverse action.
Learnings for all businesses
“This case highlights that while it is true that casual employees have no guaranteed hours and no firm advance commitment to ongoing employment that does not mean that they can be terminated ‘at will’. There must still be a valid reason for termination or adverse action may be the result”, explains ACAPMA’s Elisha Radwanowski.
“In most cases casual employees are hired to meet shifting customer and business needs and as those needs change the casual employees are no longer required, leading to termination of employment. However, termination that is due to a protected ground, such as union membership or asserting a workplace right is the definition of adverse action and applies to all employees, including casuals”, concludes Elisha.
Here to help
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general information for you to consider and do not constitute advice. You should seek further advice on your situation by contacting your legal advisor. ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au, it is free for members. ACAPMA Membership delivers this and more benefits, see https://acapma.com.au/membership/ for more information.
Elisha Radwanowski BCom (HRM&IR)
ACAPMA
Published with permission from ACAPMA.
Source: https://acapmag.com.au/2022/05/casual-employment-is-not-at-will/.
