Let’s tackle an often sensitive and tricky issue – terminating a casual employee. It’s the sort of conversation that no HR or management professional wants to have unless it’s absolutely crucial. Despite our aversion, it’s an inescapable reality of the business world. Sometimes, a team member’s misconduct, subpar performance, or company’s fiscal constraints demand tough decisions.

But, before you move towards such a decision, it’s important to know your legal obligations, respect the dignity of the employee, and most importantly, avoid landing your business in a legal soup. Here’s a guide that’s going to help you navigate through the tough waters of casual employee termination, shedding light on the key considerations and procedures involved.

The Flexibility of Casual Employment

Casual employment, by nature, lacks the firm promise of regular work. This arrangement offers employers the freedom to allocate work as per their needs. Under the Fair Work Ombudsman’s (FWO) guidelines, casual employees can be let go without notice. Similarly, they can leave without serving any notice.

However, always review the employment contract and relevant industrial instruments like modern awards, as they may provide specific details about the employment status and termination process.

The Casual Employee Conundrum: A Shift in Legal Landscape

The recent Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth) has reshaped the dynamics of casual employment. These changes, which amend the regulations around fixed-term contracts and the casual conversion pathway within the National Employment Standards, aim to reduce the tendency to hire gig or long-term casual employees.

In this evolving legal landscape, it becomes even more critical for employers to be clear about their obligations to avoid penalties from the FWO.

Who’s a Casual Employee?

Simply put, casual employees are team members who understand that there’s no commitment to regular work or a fixed work pattern. They work irregular hours, adjusting their schedules to meet the employer’s needs.

However, under the new casual conversion laws, these employees need to be offered the chance to switch to full-time or part-time permanent employment if they’ve been with the company for more than 12 months, given they meet further eligibility criteria.

The Legal Minefield: Unfair Dismissal and General Protections Claims

An unfair dismissal occurs when an employee is terminated harshly, unjustly, or unreasonably. While casual employees typically can’t lodge unfair dismissal claims, exceptions exist for those who work regularly, have a reasonable expectation of continued employment, and have been with the employer for a certain period.

Moreover, even if a worker is a casual employee, they might still be eligible to file other types of claims under the Fair Work Act, such as general protections claims, if they believe that adverse action has been taken against them for exercising a workplace right.

Treading Carefully: Things to Ponder Before Termination

If you’re unsure about a team member’s employment status, err on the side of caution and treat them as a permanent employee. Here are some critical factors to consider:

1. Valid Reason for Termination: Is the termination grounded in justifiable reasons related to the employee’s performance or conduct?
2. Fair Disciplinary Process: Have you communicated the reason for termination to the employee and given them a chance to respond?
3. Notice Period: Are you obliged to provide a notice period or payment in lieu of notice as per the FW Act or the employment contract?
4. Redundancy: Is redundancy applicable in your case?

The Anatomy of a Termination Meeting

Termination meetings are never easy. But with thoughtful preparation, you can make it respectful and transparent. Here’s a quick checklist:

• Allow the employee to have a support person present
• Provide at least 24 hours’ notice before the meeting
• Empower managers to communicate the termination professionally
• Keep the conversation focused, sharing the decision and reason promptly