The Fair Work Commission has again confirmed that the day to day reality of a working relationship will outweigh any contract terms describing a worker as a casual.
Fair Work Commission case Richard McLeish v GNM Australia Pty Ltd [2025] FWC 3390 (12 November 2025) involved a long term casual producer with Guardian Australia.
The Commission allowed an unfair dismissal claim to proceed after finding that the worker had been engaged on a regular and systematic basis despite a contract stating that there was no expectation of ongoing work.
This case is a timely signal to employers who rely heavily on casual labour, particularly where casuals are used for ongoing or predictable work patterns.
Background to the Application
The employee had worked with The Guardian for close to three years as a casual producer. His engagement ended in February 2025 after the organisation formed a view that it had lost confidence in his ability to work independently following an issue with a published article.
He lodged an unfair dismissal application seeking reinstatement and compensation. The company raised a jurisdictional objection, arguing that he was not a regular casual employee under the Fair Work Act and therefore did not meet the minimum employment period required to access unfair dismissal protections.
The employer relied on several points, including:
- the casual contract stated there was no expectation of ongoing employment
- shifts were offered to backfill absences
- hours fluctuated from week to week
- the employee had declined many offers of shifts
- the pattern of work had reduced over time
How the Fair Work Commission Viewed the Evidence
The Commissioner dismissed the jurisdictional objection and found that the producer had been engaged on a regular and systematic basis. The decision reinforces the principle that practical reality carries more weight than labels in a contract.
A Consistent Working Pattern
The evidence showed:
- the employee worked at least one (1) shift in most weeks
- he averaged around 2.5 shifts per week over a period of nearly two years
- many of his shifts were allocated a fortnight ahead, suggesting a planned roster rather than ad hoc call ins
- on the day he was advised that his engagement had ended, he already had further upcoming shifts confirmed
The Commission noted that it would stretch the ordinary meaning of “regular” to suggest he did not have a consistent pattern of work.
Declining Shifts Did Not Change the Overall Picture
Although the employee had turned down a significant number of shifts across the engagement period, this did not disrupt the regularity of his work. The Commission confirmed that declined shifts, on their own, do not remove the systematic nature of an arrangement where the broader pattern shows ongoing consistency.
Contract Clauses Are Not Determinative
The employer placed heavy reliance on the contract clause stating there was no expectation of ongoing employment. The Commissioner noted that clauses of this nature cannot displace the practical reality of the engagement. Where the actual pattern shows ongoing and predictable work, that pattern will prevail.
Outcome
The Commission found that:
- the employee was a regular casual employee
- he held a reasonable expectation of continuing employment on a regular and systematic basis
- his unfair dismissal claim could proceed to a full hearing
This decision means the employer will now need to defend the substantive unfair dismissal claim.
5 Key Lessons for Employers
1. Casual Contracts Are Only One Part of the Equation
A clause stating that casuals have no expectation of ongoing work is important, but it will not protect an employer if the reality of the engagement tells a different story. Regular and predictable shifts over a long period may bring a worker within unfair dismissal rights.
2. Rostering Patterns Create Legal Risk
If a casual is routinely rostered:
- weekly or close to weekly
- well in advance
- for long periods of time
the FWC is likely to find that the engagement is regular and systematic.
Employers should actively review rostering data to ensure it matches the intended employment relationship.
3. Declined Shifts Still Leave Room for Regularity
Even where a worker turns down offers of work, the overall pattern can still demonstrate regular engagement. Employers should be cautious about assuming that occasional declines reduce the risk.
4. Expectation of Ongoing Work Can Arise Informally
A reasonable expectation can build from:
- consistent rostering practices
- predictable scheduling
- reliance on the worker to cover known resourcing needs
- informal assurances or long term functional arrangements
5. Performance Management Still Applies to Casuals
If a casual worker is relied upon frequently, performance concerns should still be managed fairly. Procedural fairness and clear documentation remain essential, even if the engagement is labelled as casual.
Going Forward
This decision underscores the FWC’s practical, evidence driven approach to determining whether a casual is engaged on a regular and systematic basis. Employers should not rely solely on contractual wording. Instead, they should examine how casuals are used within the business and whether that use aligns with the intended relationship.
Where casuals are rostered for extended periods or predictably allocated shifts, the risk of them falling within unfair dismissal protections rises significantly.
Our Employment Lawyers at South Geldard Lawyers have essential expertise in advising Employers on casual employment and casual engagements.
Feel free to reach out on 07 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation free consultation.
