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Casual Employee Rights and Employment Contracts

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When is an employee truly a casual employee and how does that effect his or her rights?

Terms of the employer – employee agreement

As an employer, it is essential to be aware of your employee’s rights, and therefore, your corresponding obligations.

The relationship between an employee and employer may be governed by a written employment contract and the employer’s work place policies and/or by terms implied by legislation.

On other occasions, employees may not have written contracts. The terms and conditions of their employment may instead be determined by oral agreements, and agreements or understandings portrayed by conduct.

Employment law – relevant legislation

Either way, the employee – employer relationship will be governed by the relevant legislation, in particular (in Queensland) the Industrial Relations Act 2016 and the Fair Work Act 2009 as well as any awards that may be applicable to a particular role. One of the most important considerations when determining the extent of an employee’s rights is whether he or she is a permanent employee or a casual employee.

The difference between casual and part time employment

A part time employee who is a permanent employee, will have all the rights of a full time permanent employee – unless there are other factors at play which may affect that.

A casual employee however has particularly limited rights, especially when it comes to dismissal, termination, or getting fired. Importantly a casual employee does not have the same unfair dismissal rights as a permanent employee. A casual employee cannot make an Unfair Dismissal Claim to the Fair Work Commission.

What is a casual employee?

Usually an employer will specify that an employment arrangement is intended to be casual in a written contract – if there is one. However this is not necessarily enough to make the employment legally casual.

Should an employee be dismissed, the fact that a contract specified the employment as ‘casual’ will not necessarily determine the legal reality of the employment; and therefore whether a dismissed employee will have the ability to apply to the Fair Work Commission claiming unfair dismissal.

The factors which are taken into account when determining the legal status of an employee are:

• whether the period of service was on a regular and systematic basis; and
• whether, during the period of service, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Considerations which might go towards the factual determinations of each of these points could include:

• the terms of any written or oral agreement and any employment policies
• the details of payslips and how the employee was paid
• the conduct of the employer
• what the employer required of the employee

Aitken Whyte Lawyers can assist you in clarifying the terms of employment by drafting appropriate employment documents. When disputes arise, Aitken Whyte Lawyers can assist in providing advice and advocating for an employer or an employee during any dispute such as a dispute as to the classification of employment. 

Obtaining legal advice before taking any steps which affect an employer/employee relationship is  highly recommended. However when this doesn’t occur for example when dismissal happens in the heat of the moment, Aitken Whyte Lawyers can assist you with any disputes following termination or dismissal.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au