Employers now have a new issue that has come to the forefront that’s to do with a case concerning casual employment, and it has the potential to significantly change the way that employers look at casual employment.

Before we actually look at this issue, it’s important to understand what is meant by casual employment and the reasons why we have casual employment.

Casual employment is there to help businesses employ people on an ad hoc basis. So it shouldn’t be regular hours or regular days. The idea is that there is no commitment to ongoing work.

The reality is that many people are working in full-time roles with consistent hours and consistent days in an ongoing basis. These casual employees are  actually filling permanent roles.

This idea of having a casual employee was not to have the long-term commitment. In other words, the employee doesn’t have this expectation of ongoing employment, which also meant that the employee didn’t have a recourse to unfair dismissal and some other entitlements.

And employers then hired people on that basis, on the presumption that the employer had certain protections and that they could terminate the employment at any time and relatively more easily than that of a permanent employee.

But the law has caught up with this type of conduct over time and that has basically resulted in the situation we now have. In a recent case the court agreed that, despite the fact that there’s a casual employee agreement in place, if you look at the nature of the relationship, the way he was rostered and used in the business, the employee is entitled to be a permanent employee, and those protections, which the employer thought he had, did not exist. So that has caused problems, from a legal perspective.

Download the Casual Employee Contract

Philip van den Heever is Frank Law’s Business Development Manager and Special Counsel of the Corporate and Commercial Advisory division. He has over 18 years of commercial litigation and employment law experience in both South Africa and Australia. His deep understanding of corporate and employment law allows him to wisely direct his clients to succeed in their business development.


Paul Cripps provides operational and strategic HR solutions in collaboration with business leaders and key stakeholders. He helps businesses to align the activity of their workforce to the business strategy to improve performance and profitability. Paul is a licensed member of the HR Coach Network – the largest independent HR Coaching Network in Australia. His HR corporate career has spanned over 20 years (in Australia and the UK) for QBE Insurance, GE, Allianz, Willis Towers Watson and BNY Mellon.


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