Can casual employees apply for unfair dismissal?
Asked by: Dortha Pagac | Last update: January 28, 2026Score: 4.7/5 (63 votes)
Yes, casual employees can apply for unfair dismissal in Australia, but they must meet specific criteria, primarily proving they worked on a "regular and systematic basis" with a reasonable expectation of ongoing employment, meeting minimum service periods (6 months for most, 12 for small businesses), and lodging the claim quickly (within 21 days). The focus is on the reality of the work pattern, not just the contract, meaning consistent rosters and recurring shifts can qualify them for unfair dismissal protection, even if designated as "casual".
Can you be unfairly dismissed as a casual?
Casual employees are usually not able to make unfair dismissal applications. However, if you are a casual employee who works regular hours, you may still be able to apply. A casual employee is different to a permanent employee. Permanent employees can work either full time or part time.
Who is not eligible for unfair dismissal?
Some employees aren't eligible to apply for unfair dismissal. This includes: employees employed for a specific period of time, project or for a particular season, if their employment finishes at the end of the specified period of time, task or season.
On what grounds can you claim unfair dismissal?
Situations when your dismissal is likely to be unfair include if you:
- asked for flexible working.
- refused to give up your working time rights - for example, to take rest breaks.
- resigned and gave the correct notice period.
- joined a trade union.
- took part in legal industrial action that lasted 12 weeks or less.
Are casuals entitled to notice of termination?
Casuals don't get most types of paid leave, notice of termination or redundancy pay, even if they work regularly for a long time.
When ending casual employment becomes a dismissal
Do I need to give 2 weeks notice if I'm casual?
Yes – in most cases, a casual can resign and leave without giving notice under Australian law, unless a contract or relevant instrument requires it. There's usually no legal penalty for doing so.
How long before a casual employee becomes permanent?
A casual can provide written notice to their employer to change to permanent (full-time or part-time) employment under the employee choice pathway if they: have been employed for at least 6 months (12 months if employed by a small business) believe they no longer meet the requirements of the casual employee definition.
Is it hard to prove unfair dismissal?
It is often difficult to successfully bring a claim for constrictive dismissal because of the various hurdles that an employee has to overcome at tribunal. However, where an employee does succeed, they then receive the same level of compensation as they would have received for a claim for unfair dismissal.
What are 5 automatically unfair dismissals?
Automatically unfair reasons for dismissal
family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants. acting as an employee representative. acting as a trade union representative. acting as an occupational pension scheme trustee.
What is the difference between unfair dismissal and unfair termination?
Unfair dismissal claims arise when employees believe their termination was harsh, unjust or unreasonable. Whereas unlawful termination claims arise where an employee believes they were terminated for a protected reason.
What are 5 fair reasons for dismissal?
The five fair reasons for dismissal under UK employment law are Conduct, Capability/Qualifications, Redundancy, Breach of a Statutory Duty/Restriction, and Some Other Substantial Reason (SOSR), each requiring a fair process, like investigation, warnings, and consultation, to avoid unfair dismissal claims. These reasons cover employee behavior, inability to do the job (skill/health), role elimination, legal constraints, and other significant business needs.
What evidence do I need for an unfair dismissal claim?
Gather records detailing any discrimination or retaliation you face. This may include emails, memos, or witness accounts. Additionally, collect evidence demonstrating a pattern of unfair treatment. It will showcase consistent behavior that supports your claim.
What's the average payout for unfair dismissal?
Average tribunal awards
In 2021/2022, the mean award for an unfair dismissal case was £13,541, with the highest award reaching £165,000. Discrimination cases naturally garnered higher awards, with the mean award for a disability discrimination case standing at £26,172 and the highest award at £225,893.
Do casuals need a reason to be fired?
While the Fair Work Act does not require employers to provide a reason for terminating a casual employee, it is best practice to do so. Providing a reason helps demonstrate that the termination was not arbitrary and can support the employer's case if the termination is challenged.
What's the most you can get for wrongful termination?
Lawyers are often asked: “What's the average settlement for wrongful termination?” Many wrongful termination settlement amounts fall in the range of $5,000 to $80,000, though some payouts can reach into the millions.
What not to say when firing an employee?
When firing someone, avoid saying "I'm sorry," "This is hard for me," "We're going in a different direction," or comparing them to others; instead, be direct but respectful, focusing on business reasons, documenting prior warnings, and clearly stating the decision, as phrases that sound apologetic or vague can create confusion and legal risk. Never make it a surprise for performance issues, don't make personal attacks, and avoid false hope or promises of future employment.
Who is eligible for unfair dismissal?
To be eligible to apply for unfair dismissal, you must: have worked for that employer for at least 6 months, or 12 months if you worked for a small business. be covered by the national workplace relations system. be covered by an award or enterprise agreement or earn less than the high income threshold.
When can you claim unfair dismissal?
Qualifying period to claim unfair dismissal
You must have worked for your employer for a minimum period before you qualify for the right to claim unfair dismissal at a tribunal. If you're classed as an employee and started your job: on or after 6 April 2012 - the qualifying period is normally 2 years.
What is the burden of proof in unfair dismissal?
In wrongful termination cases, the burden of proof typically falls on the employee, meaning it's up to the terminated worker to prove that their dismissal was not just unfair, but actually unlawful.
What are the chances of winning an unfair dismissal?
20% of claims are settled via The Advisory, Conciliation and Arbitration Service, commonly known as ACAS. 14% of claims are determined by the Employment Tribunal. Of those, half were won by the claimant and half by the respondent (in 2013-14). 8% of people have their claim 'struck out'.
What to do when you are being pushed out of your job?
Stay employed, take legal advice early, and do not resign without a clear plan. There are usually options available to you, whether you want to negotiate an exit or stay and improve your situation. If you feel like you are being pushed out at work, please get in touch with us.
What constitutes unfair dismissal from work?
Under section 103A of the Employment Relations Act 2000, an employer must have a 'substantively justifiable' reason for dismissal. If your employer gave no clear or valid reason, or the reason doesn't stack up, you may have been unfairly dismissed.
Do casual staff get a pay out after 10 years?
The Long Service Leave Act 1955 (LSL Act) entitles full-time, part-time and casual workers in NSW to 2 months paid long service leave on completion of 10 years continuous service and one month of paid leave for each additional 5 years' service.
Can I get fired for calling in sick two days in a row?
It is illegal for a California employer to terminate your employment if you use sick leave that you have accrued and are entitled to use. Because California is an at-will employment state, an employer can fire an employee who provided a doctor's note as long as they can prove the employee was not fired for being sick.