Casual Hours and Associated Entities: Fair Work Commission Confirms Employees Can Still Meet the Minimum Employment Period

Many workers are told they cannot claim unfair dismissal because they “haven’t been there long enough.” This case shows why that is not always true.

Mr McCosker worked across different venues run under the same corporate structure. He started out as a casual but later became a full-time Training Manager. When he was made redundant, the employer argued he was ineligible to bring an unfair dismissal claim because he hadn’t met the minimum employment period. The Commission disagreed.

The employer first said it was a small business with fewer than 15 staff. But when the Commission looked closer, it found that the venues were linked through a common corporate trustee and controlling director. That meant they were “associated entities” and their staff numbers had to be counted together. Once combined, the business had more than 15 employees. That meant the six-month minimum service period applied instead of twelve months.

The second objection was that Mr McCosker only had about three months of permanent work. The employer tried to exclude his earlier casual hours, claiming they were irregular and not part of ongoing service. The Commission instead looked at payslips and timesheets, not just rosters. These records showed a steady pattern of work and a reasonable expectation of ongoing employment. Even though his shifts weren’t identical week to week, the overall picture was of regular and systematic casual service. Because of that, his casual period counted towards the minimum employment period.

The case is important for employees. It shows that casual service can be included if it was regular and systematic, even if the hours varied. It also shows that if you worked across different companies under the same control, their staff numbers can be added together. This can move an employer out of the “small business” category and reduce the qualifying period. The Commission also confirmed that what really matters is the work actually performed, not just what was shown on rosters.

For employees, the lessons are clear. Keep your payslips and timesheets, as they can prove the true pattern of your work. Don’t assume you are ineligible just because your employer says so. And if you moved from casual into a permanent role, your earlier service may help you cross the threshold to bring a claim.

This decision means Mr McCosker’s unfair dismissal case will now be heard on its merits. For others in similar situations, it is a reminder that the door to the Commission may be open even when an employer insists it is closed.