Forster v Saleh Enterprises Pty Ltd & Vancard Pty Ltd: Casual Workers and Unfair Dismissal

In the recent decison of Forster v Saleh Enterprises Pty Ltd & Vancard Pty Ltd T/A Four In Hand Hotel [2013] FWC 5264 (2 August 2013) Deputy President Lawrence considered an unfair dismissal case involving the prestigious Sydney restaurant of Celebrity Chef Colin Fassnidge, of television's My Kitchen Rules fame. As SmartCompany reports the case is "a critical lesson for businesses in how they deal with casual staff".

The case arises "as unions are continuing to push for more rights for casual workers" arguing that casual workers should be able to apply for full-time work and be treated as permanent employees, along with all associated rights. SmartCompany's report observes that "as this Fair Work case shows, it may be happening already".

Background

The applicant worked as a waiter at the Four In Hand from June 2011 until his dismissal on 2 February 2013. The applicant argued that he was unfairly dismissed and that no reasons were given nor was he given an opportunity to respond. The incident leading to the dismissal occurred on the evening of 1 February 2013 and involved a suckling pig prepared for a private function. The dismissal was carried out on Saturday, 2 February 2013, by the manager of the restaurant, although the conflict was with the chef, Colin Fassnidge.

The respondent argued that the applicant was not a person protected from unfair dismissal because his casual employment was not "regular and systematic". The respondent further argued that there was a valid reason for the applicant’s dismissal relating to his capacity and conduct. The events of 1 February were argued to be the culmination of previous difficulties with the applicant resulting in the chef, Mr Fassnidge, making it clear he could no longer work with the applicant. The applicant it was argued was well aware of this on the night of 1 February.

The applicant sought compensation. The Respondent denied that compensation was appropriate but in the alternative, argued that if compensation was to be awarded it could not exceed two weeks pay because the applicant had given notice that he would cease to be available for work for an indefinite period from 18 February 2013.

The Issues

In the Fair Work Commission the case was not so much interested in the incident at hand but rather the status of the applicant's employment as a “casual” worker.

Currently casual employees protection from unfair dismissal is limited to certain circumstances and the applicant argued he was ineligible for dismissal because he qualified under these criteria. The respondent disagreed.

Decision

Even though the applicant was a casual worker, the Fair Work Commission found that because he had showed “regular and systemic employment”, he was protected by unfair dismissal laws. The commission found given the applicant worked an average of 30 hours a week, distributed over three to five days over the previous seven months, he fulfilled the obligations for protection from unfair dismissal.

Outcomes

As Smart Company reports the case is "an important reminder ... [that] the issue isn’t necessarily the amount of hours worked by the casual employee, but whether or not they are consistent". The decision should be particularly noted by employers whose casual employees work "irregular" hours in that:

“Provided that they work the same amount of hours over a set period (six months to a year depending on the size of the business), they are found to be permanent employees and therefore have access to unfair dismissal laws.”

Sources:

• Forster v Saleh Enterprises Pty Ltd & Vancard Pty Ltd T/A Four In Hand Hotel [2013] FWC 5264 (2 August 2013)

• The waiter, the chef and the suckling pig: Celebrity chef Colin Fassnidge at centre of successful unfair dismissal case (SmartComanpy)

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