CASUAL AWARDED 15 YEARS’ ANNUAL LEAVE IN COURT DECISION

In Payroll & Employment by Clyde Mooney

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A recent Federal Circuit Court decision awarding a casual employee 15 years’ annual leave plus severance serves as a warning to employers engaging casual and part-time workers.

A dismissed worker took action against a small construction company after being let go in 2015 from his job as a crushing plant operator.

The company understood it was employing the man as a casual, although no formal employment contract was completed when he was hired, back in 2000.

The Court heard the man worked regular full-time hours for the 15 years, with no suggestion he could decline work or pick and choose hours. The company attested he was paid a 20 per cent casual worker loading, and treated as a casual, although his pay slips did not specify his employment type.

Federal Circuit Judge Tony Young considered whether the worker was indeed casual or permanent, which is based on how workers should be classified under the relevant workplace agreement, as opposed to how the employer has classified them.

Judge Young ruled that the worker should have been permanent, despite the company’s “misapprehension” that he was not, and that the lack of starting agreement meant he was in fact a ‘weekly hire’ to be classified as a permanent employee.

The decision meant the worker is entitled to 15 years’ annual leave at his ordinary rate of pay, and severance pay in lieu of the notice period he did not receive when terminated. There will be a further hearing to decide interest and payments.

Previously rulings have seen the courts convey that if a worker is employed for regular and sustained hours, there is a good likelihood that worker should be classified as permanent, regardless of what it may say on their employment records.

Any businesses that employ workers other than full-time should regularly review employee classifications to ensure their conditions comply with the appropriate workplace agreements, particularly after any significant change to their duties.