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Excerpt from this article first published in Human Resources Magazine, Issue 138 - 2 October 2007
Mr Vidler commenced employment with Brisbane City Council on 7 November 2005 as a casual function hall attendant. His employment was terminated on 24 November 2006 after he had been suspended with pay since 2 June 2006. Mr Vidler argued that he was entitled to bring a claim for unfair dismissal as a casual employee engaged on a regular and systematic basis for a sequence of periods of at least 12 months. The Council sought to dismiss the claim on the basis that Mr Vidler was a casual engaged for a short period and not, on a regular and systematic basis because he was only “engaged” to work for a sequence of periods of employment for a period of less than 12 months between 7/11/05 and 2/6/06.
The Council contended that Mr Vidler had not been “engaged” for 12 months since he had not actually carried out work, been busy or occupied in his employment since 2 June 2007 despite the fact he received remuneration from 2 June until his termination. That is, the Council argued that for Mr Vidler to be “engaged” there must be some actual work performed by him.
Mr Vidler argued that “engaged” meant “employed” or “occupied” or “busy” and therefore as he was “employed” he was thereby “engaged” through out his period of employment. The Commission disagreed and found “engaged” within the meaning of the Act is used to mean “involved in work, or actually carrying out work” and “is directly related to the act of performing work for the employer” accordingly as Mr Vidler not been engaged in actually carrying out work since June 2006, he was unable to establish that he had been engaged for a period of 12 months.
The Council also contended that Mr Vidler was not engaged on a regular and systematic basis because his hours of work varied during the early period of his employment and were not therefore ‘regular and systematic’. The Commission agreed and dismissed Mr Vidler’s application for want of jurisdiction.
Employers should ensure they comply with their record keeping obligations under the Workplace Relations Act as such compliance may assist them to provide evidence concerning whether a casual has been engaged on a regular and systematic basis.
Beth-Marie Kitchener
Lawyer
