Can casual employees claim unfair dismissal in Australia

Many small businesses treat casual workers as the flexible part of the workforce: no guaranteed hours, no paid leave, and a belief that ending the arrangement is as simple as taking them off the roster. The law does not see it that way. Under the Fair Work Act 2009 (Cth) (the Act), a casual employee can be protected against unfair dismissal in exactly the same way as a full-time employee, provided the way they actually worked meets a few tests.

The gap between the "casual" label on a contract and the reality of the roster is where most disputes begin. If a casual has been working regular, predictable shifts for long enough to form an expectation of ongoing work, taking them off the roster without process can be treated as a dismissal, and the Fair Work Commission (FWC) can order reinstatement or compensation. This article walks through how the unfair dismissal scheme actually operates for casuals: who is involved, what triggers protection, how the FWC assesses a claim, and where employers most often get caught out.

Who's involved when a casual's engagement ends

Three players matter once a casual's engagement is in dispute:

• The employee: the casual worker brings the claim. They must file an application with the FWC within a strict deadline and carry the burden of showing the dismissal was unfair.
• The employer: your business responds to the claim, and can defend it on two fronts: jurisdictional objections (the person was not eligible to bring the claim at all) and the merits (there was a valid reason and a fair process).
• The Fair Work Commission: the national workplace tribunal that hears unfair dismissal applications, runs a compulsory conciliation to try to settle the matter, and can arbitrate and make binding orders if it does not settle. The Fair Work Ombudsman is a separate body that enforces minimum entitlements such as pay, but does not handle unfair dismissal claims.

The legal backdrop is Part 3-2 of the Fair Work Act 2009 (Cth), which sets out who is protected from unfair dismissal and how claims work. The current law also reflects a decade of High Court attention to casual work. In WorkPac Pty Ltd v Rossato (2021) HCA 23, the High Court held that a worker employed under a contract labelled "casual" was not in fact a casual employee, because the real arrangement carried a firm commitment to continuing work. Parliament responded by codifying a statutory definition of casual employment in s 15A of the Act, which now governs how the label is tested.

Step one: is the person a casual employee at law?

Before unfair dismissal questions even arise, the first question is whether the worker is legally a casual at all. Section 15A of the Fair Work Act 2009 (Cth) says an employee is a casual only if:

• No firm advance commitment: the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work according to an agreed pattern of work; and
• Casual loading: the employee is entitled to a casual loading or specific casual rate of pay under an award, agreement or their contract.

The Act is explicit that this is assessed "on the basis of the real substance, practical reality and true nature of the employment relationship", not on what the contract calls it. That means a contract headed "Casual Employment Agreement" is not enough by itself. If your business has rostered the worker in advance for months, relied on them to fill the same shifts every week, and communicated an ongoing expectation of work, a tribunal can conclude there was a firm advance commitment, and the worker was never truly casual at law.

The practical consequence is significant. If the worker is not a casual employee at law, their service counts in full toward unfair dismissal eligibility, and they may hold entitlements such as annual leave that the casual loading was meant to compensate for. This is exactly what happened in WorkPac Pty Ltd v Skene (2018) HCA 22, where a worker labelled casual who worked a regular seven-day fortnight roster was held entitled to paid leave. The lesson for employers is to check how the engagement actually operates, not just what the paperwork says.

Step two: was there a dismissal?

Protection from unfair dismissal only arises if the person was "dismissed". Under s 386 of the Act, that happens when:

• Termination on the employer's initiative: the employer ends the employment, or does something that effectively brings it to an end; or
• Forced resignation: the employee resigns, but was forced to do so by the employer's conduct, which is sometimes called constructive dismissal.

The trap for casual employers is that stopping shifts can amount to a dismissal even though no formal termination letter is ever sent. If a casual has been engaged on a regular and systematic basis, and the employer simply stops rostering them, the FWC can treat the employment as terminated on the employer's initiative. The practical effect matters more than the label attached to the decision.

That said, not every casual who stops receiving shifts has been dismissed. Where the engagement is genuinely ad hoc, with no pattern and no expectation of further work, the relationship may simply lapse without a dismissal occurring. The distinction turns on the regularity of the work and the expectations the employer created through rosters and communications.

Step three: does the casual's service count toward the minimum period?

To be protected from unfair dismissal, an employee must have completed the minimum employment period set out in s 383 of the Act:

• 6 months: if the employer is not a small business employer; or
• 12 months: if the employer is a small business employer.

A small business employer is one that employs fewer than 15 employees at the relevant time, counting casuals who are employed on a regular and systematic basis, and treating associated entities as one employer under s 23 of the Act.

The minimum period is where casual service gets complicated. Under s 384, a period of service as a casual employee only counts toward the minimum employment period if:

• Regular and systematic: the casual was employed as a "regular casual employee", meaning they worked on a regular and systematic basis; and
• Reasonable expectation: during that service, the casual had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

The "reasonable expectation" test is assessed objectively, from the circumstances a reasonable person would infer. Advance rosters issued on a rolling basis, consistent shift patterns week after week, and communications such as "see you next week" all point toward a reasonable expectation of ongoing work. A casual who worked a handful of irregular shifts over six months will not meet the test; one who worked every Friday and Saturday night for a year, with shifts confirmed weeks in advance, almost certainly will.

There is also a coverage requirement. The employee must be covered by a modern award or enterprise agreement, or earn less than the high income threshold, which is adjusted each year. Casuals under an award will almost always be covered.

Step four: was the dismissal harsh, unjust or unreasonable?

If the casual clears the eligibility hurdles, the FWC then asks whether the dismissal was unfair. Under s 385 of the Act, a dismissal is unfair if it was harsh, unjust or unreasonable, having regard to whether there was a valid reason, whether the person was notified of that reason and given an opportunity to respond, and whether the employer followed a fair process. Two further exclusions apply:

• Genuine redundancy: a dismissal is not unfair if the role was genuinely redundant, meaning the employer no longer required the job to be performed by anyone, the employer consulted as required, and it was not reasonable to redeploy the person. A genuine drop in demand for casual shifts can support redundancy, but the consultation and redeployment steps still need to be met.
• Small Business Fair Dismissal Code: a small business employer that complies with the Small Business Fair Dismissal Code has a complete defence to an unfair dismissal claim. The Code requires the employer to give a valid reason for dismissal, warn the employee about conduct or performance issues before dismissing them (unless the matter is serious misconduct), and give the employee a chance to respond. Keeping records of each step is essential to showing compliance.

For a casual, the merits question often comes down to why the shifts stopped. If it was performance or conduct, the employer should have raised concerns, given feedback and a chance to respond, and documented the process. If it was operational, the reasons should be real, recorded, and communicated. Dismissing a casual for a reason that is discriminatory, retaliatory, or connected to a workplace right carries exposure beyond unfair dismissal, as discussed below.

Step five: the claim, the timeframes and the outcomes

The process begins with the employee filing an application with the FWC. Under s 394 of the Act, the application must be made within 21 days of the dismissal taking effect. The FWC can extend that period only in exceptional circumstances, so a casual who has missed the window will struggle to be heard.

Once an application is filed, the employer must respond, and the FWC usually convenes a conciliation conference, generally by telephone, to explore settlement. Most unfair dismissal matters resolve at this stage, either by agreement or with the application being withdrawn. If the matter proceeds to arbitration, the FWC hears evidence and can order:

• Reinstatement: the employee is given their job back, with continuity of service; or
• Compensation: where reinstatement is not appropriate, the FWC can order payment in lieu, capped at the lesser of 26 weeks of the employee's remuneration and half the high income threshold under s 392 of the Act.

For a casual, compensation is calculated by reference to the shifts they would likely have worked, which is why the regularity of the roster is so central to the whole dispute.

Where the rules bite: edge cases and common traps

Some of the costliest mistakes happen outside the unfair dismissal claim itself.

Rostering out in silence

Quietly removing a regular casual from the roster is the most common error. If the effect is that the employment has ended, it will be treated as a dismissal, and the employer will have no records, no reason given, and no process to point to. Communicate the decision, give a reason, and confirm it in writing.

Casual conversion requests

Since 2024, the National Employment Standards give eligible casuals an employee choice about conversion. A casual who has worked for 6 months (12 months for a small business) can notify the employer that they no longer meet the definition of a casual, and the employer must respond and give reasons for any refusal. Section 66L of the Act makes it unlawful to terminate, reduce hours or change a pattern of work to avoid conversion obligations, and exercising these rights is itself a workplace right that attracts general protections.

General protections claims with no service requirement

Unlike unfair dismissal, a general protections claim under Part 3-1 of the Act can be brought by a casual from their first day of work. There is no minimum employment period. If the decision to stop offering shifts was motivated by a workplace right the casual exercised, such as asking about pay or taking leave, or by a protected attribute, the claim is assessed as adverse action and carries different, potentially higher, penalties. General protections applications also have their own 21-day filing window.

Notice and redundancy pay

Casuals are excluded from the National Employment Standards provisions on notice of termination and redundancy pay under s 123 of the Act, because the casual loading is taken to compensate for those entitlements. But all other obligations still apply: outstanding wages, penalty rates, superannuation, and any applicable long service leave entitlements must be paid promptly. An award or enterprise agreement may also set out minimum engagement periods or notice requirements for cancelling rostered shifts.

Records as the first line of defence

In every scenario above, the employer's records decide the outcome. Rosters, emails confirming shifts, meeting notes, warnings and the reasons for the decision all become evidence if a claim is made. The business that documented a genuine reason and a fair process is in a far stronger position than the one that simply stopped calling.

When a lawyer is worth it

A lawyer's value sits at three points in this process. Before the decision, a short review of the casual's actual work pattern can tell you whether they are at risk of meeting the eligibility tests, and what process you should follow to end the engagement safely. When a claim is filed, a lawyer can prepare the jurisdictional objection (for example, that the casual service was not regular and systematic, or the minimum period was not met) and draft the response to the merits. At conciliation, an experienced practitioner can negotiate a settlement that resolves the claim with a deed of release, which is often cheaper than defending an arbitration.

Engaging a lawyer early tends to be far less expensive than the alternatives. The cost of advice at the planning stage is a fraction of a compensation order, a reinstatement, or a general protections penalty, and it is the point where the outcome is most within your control.

The label versus the roster

Every claim in this area turns on one confrontation: what the contract says versus what the roster shows. The Fair Work Act tells employers that the "real substance, practical reality and true nature" of the working relationship decides whether someone is a casual, whether their service counts, and whether stopping their shifts was a dismissal. If the worker has been a permanent part of the operation in everything but name, the label will not protect you.

Before you take a casual off the roster, answer three questions: has their work been regular and systematic, did they have a reasonable expectation of continuing work, and have you completed the minimum employment period? If the answer to any of them is uncertain, the safest step is to get the engagement reviewed before you act. A focused conversation with an employment lawyer about the actual roster, rather than the contract, will usually tell you within a short consultation whether you face a claim and how to manage the exit properly.