Protecting Casual Workers

Have Casuals? Discrimination and Unlawful Dismissal DO Apply

There are huge benefits to employers in having a workforce of casual employees. There’s no need to worry about leave entitlements, work hours can be changed at short notice, and it’s easy to shed or add staff depending on the needs of the business. Indeed, casualisation has revolutionised the modern workforce in many ways. But a serious issue arises when employers treat casual workers as expendable, for example if a casual worker’s employment is terminated for discriminatory reasons.

Discrimination in employment

Discrimination in the workplace occurs when an employee or potential employee is treated unfavourably on the basis of:

• Race
• Colour
• Gender
• Sexual preference
• Age
• Physical or mental disability
• Marital status
• Family or carer’s responsibilities
• Pregnancy
• Religion
• Political opinion 
• National extraction or social origin

The Fair Work Act prohibits employers from taking adverse action against employees for discriminatory reasons. Adverse action can include termination of employment, altering an employee’s position to their detriment or refusing to employ a prospective employee. Termination of employment for discriminatory reasons is known as unlawful dismissal. Significantly, the Act does not distinguish between large or small employers.

Any employer, regardless of how big or small, is prohibited from engaging in discriminatory conduct. Additionally, the Act prohibits discrimination against any employee or prospective employee.That means that employers cannot discriminate against casual employees.

Casual employment conditions

If a casual employee’s employment is terminated for discriminatory reasons, they can take action for unlawful dismissal under the Fair Work Act, provided that they have:

• Worked for the employer on a regular and systematic basis.
• A reasonable expectation of continuing employment.
• Been employed for a minimum of six or 12 months (depending on the size of the organisation). 

For example, an employee who for 14 months worked regular days and hours for a store suddenly had her hours cut by 50 per cent. When she asked why, she was told by management that it was felt that someone younger would bring in more sales.

In this case, the employer may have thought to rely on the employee’s casual employment status to make a tough decision. But in reality, the employer discriminated against the employee on the basis of her age. The employee could make a complaint to the Fair Work Ombudsman to have her hours restored. If the employee felt compelled to resign because the severe reduction in her hours had made her position untenable, she may make a claim of unlawful dismissal in the Fair Work Commission. She may argue that she was constructively dismissed – that she had no other option but to resign – and rely on the regularity and length of her employment to meet the jurisdictional requirements of the commission.

Even if the employee doesn’t meet the commission’s jurisdictional requirements, she may choose to take action elsewhere, for example under state anti-discrimination or equal opportunity legislation (legislation varies from state to state), or make a complaint to the Australian Human Rights Commission under the Australian Human Rights Commission Act and the Age Discrimination Act.

The implications for employers

It is important for employers to realise that despite the highly flexible nature of casual employment, casual employees can still exercise their rights under state or federal legislation, even if they have no jurisdiction to bring an action under the Fair Work Act. And if a casual employee is out of work due to an act of discrimination, there may be nothing to stop them from making a complaint. A complaint of discrimination by an employee (or former employee) will impact on an employer. Valuable time will be spent investigating the complaint, and legal expertise may be required to defend the complaint – a costly undertaking. Workplace practices and procedures may also need to be reviewed in light of the allegations. Steering clear of discrimination is a far more cost-effective way to operate a business, and employers should send a strong message to all staff that discrimination is not to be tolerated.