A recent decision by the Fair Work Commission concerned a direct mail company that had dimissed a casual employee on the basis that the employee was deemed unsuitable for future employment as a casual employee and was terminated appropriately and in accordance with her status as a casual employee.

The employer submitted, amongst other things, that:

  • the empoyee was a disruptive and insubordinate employee who was difficult to manage, and at the time of her dismissal had one of the lowest call centre results ever recorded by a customer service consultant; and
  • the employee was formally warned on 3 occasions that her behaviour and attitude was not at the required standard or was significantly below the standard, and was advised what was required by her to meet the standard.

As a starting point, the Commission determined that the casual employee was a person protected from unfair dismissal under the Fair Work Act 2009 because:

  • the employer was not a small business employer;
  • the protection is triggered after 6 months for an employer that is not a small business empoyer; and
  • the casual employee had worked for the employer for just under 12 months.

The Commission concluded that the dismissal was:

  • substantively unfair because the reasons for dismissal were not sufficiently serious to justify dismissal; and
  • procedurally unfair and it was apparent that the employer erroneously believed that the employer’s status as a casual employee meant that there was no requirement to afford her procedural fairness.


The full decision by the Fair Work Commission in [2013] FWC 6719 can be found here.

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