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Unfair dismissal claims; claims for reinstatement in NSW

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 96, 24 January 2006

Two recent cases, before the Australian Industrial Relations Commission and the NSW Industrial Relations Commission, considered "regular and systematic" casual employment and the circumstances under which an injured former employee can be reinstated.

Excluding Casual Employees from Unfair Dismissal

Under the Federal Workplace Relations Act 1996, a casual employee who is engaged for a short period is excluded from making an unfair dismissal claim. However, where the casual employee is engaged on a “regular and systematic” basis for a sequence of periods of employment of at least 12 months and has a reasonable expectation of continuing employment, then he or she can bring an unfair dismissal claim. These provisions are not affected by the Federal WorkChoices changes.

The meaning of who is a “regular and systematic” casual employee received recent consideration in a recent decision of the Australian Industrial Relations Commission, Mariam Boules v Nestle Australia Limited.

In this case, Ms Boules was employed by Nestle for about 8 years on a casual basis. Ms Boules would advise Nestle on a weekly basis of her availability and Nestle would advise her whether or not there were any shifts available for her to work.

In August 2005, Nestle decided that Ms Boules should not continue to be on the “casual availability” list. Ms Boules then commenced unfair dismissal proceedings.

The Commission held that a “regular and systematic” casual employee must be employed on a periodic basis in accordance with a formal system. However, Ms Boules’ employment was not periodic because there were a number of occasions where she did not work for several weeks and there was no plan or standard roster which applied to her employment.

Accordingly, Commissioner Mansfield held that Ms Boules’ employment as a casual was not “regular and systematic” and therefore she could not bring an unfair dismissal claim.

HR Tips

• In order to minimise the risks of a casual bringing an unfair dismissal claim, there should be different rosters every week where for each employee, there are changes of hours worked, times worked and the allocation of shifts
• Casual employees should not have the same regular hours of work to avoid classifying them as regular and systematic casuals

The Right of Injured Workers to Reinstatement

In NSW, there is a special regime which allows “injured employees” to seek reinstatement to their previous position where their employment has been terminated because of their entitlement to workers’ compensation. These laws are unique to NSW. Under these provisions, an injured employee may make an application to NSW Commission seeking reinstatement. An injured employee can seek reinstatement where he is fit for work in the same position or can seek re-employment in another position including part time employment or restricted duties.

In a recent decision, Australian Salaried Medical Officers’ Federation v Health Administration Corporation & Ors, the Full Bench of the NSW Commission considered whether an injured employee who settles his workers’ compensation claim for a lump sum may still make an application for reinstatement.

Under NSW workers’ compensation legislation, an employee and employer (usually via their insurer) can reach a lump sum settlement for a particular workplace injury. In making such an agreement, the NSW workers’ compensation legislation provides that the employee is not entitled to any further workers’ compensation payments.

In this case, Professor Morris, an employee of the Central Sydney Area Health Service (CSAHS) made a workers’ compensation claim arising out of a workplace injury. The case was settled under which Professor Morris received a lump sum payment. As a result, his entitlement to workers’ compensation ceased. After the settlement, the CSAHS decided to terminate Mr Morris’ employment. Mr Morris made a claim for reinstatement on the basis of medical evidence showing that he was fit to return to work. The CSAHS did not reinstate Mr Morris because it believed it was not required to do so as he was no longer entitled to any workers’ compensation as a result of the settlement. Mr Morris decided to make a claim to the NSW Commission seeking reinstatement.

The Full Bench of the Commission held that Professor Morris could still bring a claim for reinstatement. It found that just because Professor Morris settled his workers’ compensation claim did not mean that he was prevented from seeking reinstatement.

For NSW employees employed by corporations, the relevant provisions will no longer be available as a result of the Federal WorkChoices changes, from a date to be determined (possible March 2006).

HR Tips

• Be careful in managing and terminating the employment of employees who have or been entitled to receive workers’ compensation even though the case has been settled by way of a lump sum payment.
• In settling any workers’ compensation claim, consider obtaining a broader resolution about the employee’s ongoing employment as part of the agreement.
  

Michael Seck
Senior Associate
Australian Business Lawyers