Terminating a Casual Employee | Advice for Australian Employers

Author: Megan Adams, Progressive Legal

As an employer, we’re sure you use casual employees from time to time in your business. Sometimes terminating a casual employee becomes a decision you have to make.

On this page, we’ll cover everything you need to know about terminating a casual employee, best practice to terminate a casual employee, and the main areas of risk for an employer when terminating a casual employee. Let’s get into it. 

What do you need to know about terminating a casual employee? 

Casual employees are employed on an irregular basis. A decent employment contract will tell casual employees that their employment agreement is terminated at the end of each shift and they are re-hired at the beginning of the next shift.  

For an employee to be a casual employee, the contract must state that the employee is engaged casually. The employee is also paid casual loading on top of their base hourly rate. This loading includes payment for entitlements they would otherwise receive (i.e. leave loading and public holidays). 

The hallmark of casual employee engagement is that the casual employee is not guaranteed ongoing work.  

The Fair Work Act (2009) Cth (“the Act”) states that casual employees do not have a statutory notice period. This means that an employer or a casual employee can terminate the employment agreement on the spot. However, you should always check an employee’s contract or the award that covers the employee to see if either of those documents provides for a notice period. 

What is the best practice to terminate a casual employee? 

If you need to terminate a casual employee, it is best practice to show that you have followed principles of procedural fairness.

For instance, if there is a problem with the employees performance then you need to show that you have addressed this with the employee and given them an opportunity to improve. If you have a problem with specific conduct of the employee, you should be able to show that you gave them an opportunity to answer allegations put to them. 

It is best practice to record the termination in writing, as you may need to produce the records under the Act. If you need guidance in terms of producing these records, please enquire below to speak with our professional team. 

What are the main areas of risk when terminating a casual employee? 

One thing that employers need to be cautious of if they regularly engage a casual employee, that employee may accrue permanent employment entitlements. This can happen if for instance you have casual employee who regularly works regular shifts for 6 months (or 12 months if you are a small employer).

In such a circumstance the employee may be able to say that they had a reasonable expectation of ongoing work and therefore accrued entitlements.  

While casual employees cannot typically claim unfair dismissal remedies, a casual employee who has worked regularly in these circumstances would be able to pursue unfair dismissal remedies. 

Casual employees are all entitled to general protections coverage. This means that an employee cannot be terminated for exercising their workplace rights and they can lodge a claim for general protections if they are if the employer has taken adverse action against him for having exercise to workplace right.

The Key Takeaway – Expert Advice From Our Team

It is best practice to go through the standard termination of employment steps with a casual employee that you would go through any other employee for instance: 

• offering a support person;  
• giving the employee at least 24 hours notice (although may not always be practical);  
• giving the giving the employee an opportunity to respond if it is a disciplinary matter; and 
• keeping records of the steps you took to preserve procedural fairness. 

Terminating casual employees can be more difficult than many employers anticipate. Reach out to us if you require any advice in relation to terminating casual employees, make an enquiry below or contact our office at 1800 820 083 to speak to our experienced employment lawyers. 

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