Bottle shop worker wins unfair dismissal case after Fair Work rules he wasn’t a casual employee

A former Sydney bottle shop worker has been awarded $7000 in compensation, after the Fair Work Commission ruled he was unfairly dismissed for not cleaning up a broken sign.

While his employer argued James McKinnon was a casual employee and therefore was able to be sacked without warning, Fair Work found McKinnon had worked for The Crest Hotel in Sylvania, New South Wales, on a regular and systematic basis and could reasonably expect to work the same each week. He was therefore covered by unfair dismissal protections.

McKinnon, a full-time student, started working at The Crest Hotel in August 2012 but was fired in February last year after being unable to clean up a broken sign in the bottle shop area.

Hotel owner Nick Balagiannis asked McKinnon to clean up the area during his Saturday shift and while McKinnon and another work dismantled the broken sign, he was unable to dispose of the sign because the bins were full and they were short-staffed.

McKinnon was asked to clean up the area again on Sunday, but as he was the only bottle shop attendant rostered on that day, he was unable to leave the counter unattended and therefore did not complete the task. The sign was eventually cleaned up towards the end of the shift once another worker arrived.

But McKinnon was called into work “for a quick meeting” on the Monday and the licensee and bottle shop manager told him the hotel’s owner wanted him dismissed because he had not followed up on orders to clean up the broken sign.

The Crest Hotel argued before the Fair Work Commission that McKinnon was a casual employee and therefore was not covered by the unfair dismissal protections of the Fair Work Act. It also argued McKinnon failed to follow a clear and reasonable request but did offer to reinstate him as a casual and pay a settlement fee of $500.

But McKinnon gave evidence that he regularly worked four shifts in the bottle shop and provided three weeks of payslips to show he earned an average of $710 a week. McKinnon argued he was not given an opportunity to respond to his dismissal and other employees who did not follow the same instruction to clean up the area were not dismissed.

The Fair Work Commission sided with McKinnon and ordered The Crest Hotel to pay him $7000 for compensation for lost earnings for the two months in which he was able to find another job.

Employment lawyer Peter Vitale told SmartCompany the case touches on a “difficult” aspect of Australian employment law as there is no specific definition of what causal employment is.

Vitale says under the common law, a casual employer relationship is one where the employment is irregular and each engagement between the employer and the employee is a “separate contract of employment”.

But the Fair Work Act does provide unfair dismissal protection for long-term casual workers who have a responsible expectation of continued employment.

Vitale says in this case, the commission needed to determine if McKinnon was protected under this provision and once it had found he was, it then proceeded to consider the usual factors that come into play in an unfair dismissal case, including whether there was a valid reason for the dismissal and if the employer followed a fair process.

“Some employers who have casuals who work regular part-time or full-time hours and have done so for a long time, need to be aware, whether designated as casual or not, they may have rights for unfair dismissal claims or even long service leave,” says Vitale.

SmartCompany contacted The Crest Hotel but did not receive a response prior to publication.