An unfair dismissal case involving one of Sydney’s most prestigious restaurants and a celebrity chef is a critical lesson for businesses in how they deal with casual staff, experts have warned.
The warning also comes as unions are continuing to push for more rights for casual workers, arguing they should be able to apply for full-time work and be treated as permanent employees, along with all associated rights.
But as this Fair Work case shows, it may be happening already.
Celebrity chef Colin Fassnidge, known for appearing on the popular show My Kitchen Rules along with heading up the prestigious Four in Hand Hotel in Sydney, is at the centre of an unfair dismissal case.
A waiter at the hotel, Terry Forster, was dismissed after an incident involving a “suckling pig prepared for a private function”. Although the dismissal was conducted by the manager, the conflict was with Fassnidge.
The Four in Hand Hotel was contacted this morning, but no reply was available prior to publication.
The Fair Work Commission case wasn’t much interested in the incident at hand – but rather the details surrounding Forster’s employment as a “casual” worker.
Casual employees are protected from unfair dismissal, but only under certain circumstances. Forster argued he was ineligible for dismissal because he qualified under these criteria – the hotel disagreed.
Even though Forster was a casual worker, the Fair Work Commission found because he had showed “regular and systemic employment”, he was protected by unfair dismissal laws.
This is an important reminder case, experts say. Nicholas Duggal from TressCox Lawyers tells SmartCompany the issue isn’t necessarily the amount of hours worked by the casual employee, but whether or not they are consistent.
“This sounds some alarm bells for employers, in particular for employers of employees who work irregular hours,” he says.
“Provided that they work the same amount of hours over a set period, they are found to be permanent employees and therefore have access to unfair dismissal laws.”
That “set period” changes based on whether you’re a large or small business. For large businesses, the time period is six months. For small businesses, it’s one year.
The commission found given Forster had worked an average of 30 hours a week, distributed over three to five days, during the previous seven months, he fulfilled the obligations for protection from unfair dismissal.
Duggal says it’s important for employers to realise there is no set amount of hours – if the employee had worked 10 hours, he says, it’s not necessarily more likely the commission would have dismissed the case.
“There’s no hard and fast amount of hours,” he says. “They need to demonstrate the work being done was regular and systemic.”
Industrial relations expert and lawyer Peter Vitale says the case acts as a warning – “you’ve got to examine each situation very carefully”.