We have previously advised of the dangers of terminating a casual employee without due process.
The Federal Court has confirmed that section 340(1) of the Fair Work Act applies to a casual employee.
This provides the general protection that:
a person, “must not take adverse action against another person … because the other person … has … exercised a workplace right”.
In this instance, the employee inquired on 23 December 2018 as to whether he would be paid overtime for working additional hours over the Christmas period.
He was then terminated shortly after by the employer on 4 January 2019 “because of a lack of efficiency”.
The question for the Judge here was whether the termination of the employee was connected to his earlier inquiry.
In the general protections’ jurisdiction, the onus falls on the employer to demonstrate that the inquiry played no part in the termination.
In this case, the Court found that there was a close relationship between the time the employee had made the overtime enquiry and the time the employer decided to contemplate his efficiency within the business which led to his termination.
This is a lesson for all employers to ensure that they:
- have a valid reason for termination; and
- afford all employees a fair process prior to termination,
General protection claims are costly for employers and, unlike unfair dismissal claims, have no damages cap.
If you have are planning to terminate a casual employee please contact the BetterHR Advice Team so that we can assist you in doing this lawfully.