Casual employees face a number of difficulties if their employment is terminated.

First among these is a requirement under section 382(a) of the Fair Work Act 2009 (Cth) (FW Act) which provides that they must have completed ‘a period of employment with the employer of at least the minimum employment period’. Section 384 of the FW Act further provides that a casual’s period of service will not count towards the period of employment unless the casual employee was a regular employee, with a ‘reasonable expectation of continuing employment on a regular and systematic basis’.

Such a requirement is antithetical to the notion of casual employment, which is now defined in the FW Act as being characterised by an absence of a firm commitment to continuing and definite work.

In addition, casuals face a further common difficulty in making an unfair or other dismissal dispute, in proving that they have, in fact, been dismissed.

‘You’re just off the roster for a bit’

Because of the nature of casual work, it is common for the termination of a casual employee to be ambiguous. Some employers will communicate clearly to a casual employee that they are no longer needed. However, many employers give non-committal remarks to a casual about their next shift.

So how does a casual employee in such a situation comply with the strict 21-day deadline for dismissal disputes at the Fair Work Commission (FWC)?

What does the law say?

Section 386(1) of the FW Act provides a starting point. It provides that:

A person has been dismissed if:

(a)   the person’s employment with his or her employer has been terminated on the employer‘s initiative; or

  (b)   the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

The FWC has indicated that determining whether and when a casual employee has been dismissed is a factual determination and will involve a close examination of the employer’s conduct and communications.

In Wayne Shotland v The Smiths Snackfood Co Pty Ltd [2010] FWAFB 5709, the full bench of the FWC stated that:

‘Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee makes it clear to the other party, by words or actions that there will be no further engagements.’

In Yuri Humeniuk v Sculpture by the Sea Incorporated [2025] FWCFB 212, the Commission stated that:

‘Whether there has been a termination of the employment relationship must be assessed objectively based on whether a reasonable person in the position of the parties would have understood that the employment relationship was terminated.’

However, such a determination is not necessarily straightforward, particularly in labour hire arrangements or informal rostering arrangements.

Example cases

The ambiguity around a casual employee’s termination was considered in Benjamin Symons v Eden Ritchie Recruitment Pty Ltd & Queensland Corrective Services [2025] FWC 3734, in which Commissioner Crawford ultimately found the casual employee Applicant had not been dismissed despite being sent home from the host, because there was no clear indication from the labour hire agency (employer) that the employee’s employment was over.

In Carla Trewin v S Choudhuri & A Shee t/as Ella Bache Sale [2023] FWC 1928, the Applicant was found not to have been dismissed even though she had been taken off the roster and removed from the payroll system for an anticipated ‘quiet period.’

However, in Dupinder Kaur v Adecco Industrial Australia [2025] FWC 3646, the casual employee Applicant was found to have been dismissed where the employer told the employee that their ‘shifts would be put on hold’ and then took no further action to continue the employment relationship.

In Ian Birchley v Downer EDI Mining Pty Ltd [2019] FWC 6336, the reduction in the Applicant’s long-established and rostered hours, and being offered shifts as required instead of being on the roster, was found to have fundamentally altered the basis upon which he had been employed and amounted to a dismissal.

Act quickly

The above cases show that determining whether a casual employee has been dismissed is largely a factual determination. It is important to seek professional or legal advice early. Casuals, like everyone else, are subject to the FWC’s strict 21-day deadline in relation to dismissal disputes. There is no guarantee the FWC will grant a casual applicant extra time to lodge their application simply because there was some ambiguity over their dismissal date.