Casual paralegal fights dismissal

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Casual paralegal fights dismissal

A casual paralegal claims he was unfairly dismissed because he had a reasonable expectation of ongoing employment.

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A casual paralegal claims he was unfairly dismissed because he had a reasonable expectation of ongoing employment.

Facts and background


Jefferson Bell was employed by the Aboriginal Legal Service (ALS) from February 2017 until February 2018, when he claims he was unfairly dismissed.

Mr Bell’s letter of engagement included an expressed term that he would have no guaranteed ongoing or regular work. It also stated Mr Bell’s employment would be three days a week on a week by week basis until a solicitor position at Grafton was filled.

Mr Bell’s pay advice slips reveal he worked the three days a week agreed to in the letter of engagement with the exception of a brief period between December and January.

During his employment, Mr Bell was aware of two recruitment processes for vacant solicitor positions in the ALS Grafton office.

Mr Bell claims he was encouraged to apply for the solicitor position. On 30 March 2017 Mr Bell attended an interview for the role.

On the 29 May 2017, the new CEO of ALS announced a recruitment freeze which continued until mid-June. Mr Bell became aware of the freeze in May, however he did not know it had ended until October when it was announced that two new solicitors were being recruited.

In early December Mr Bell was informed that he had been unsuccessful in acquiring the solicitor role.

On January 30 2018 Mr Bell was informed that his casual employment as a paralegal would cease and two weeks later his employment was terminated.

The law


According to s382, to be protected from unfair dismissal an employee must complete the minimum employment period which, according s383, is six months (if the employer is not a small business employer).

According to s384, for a casual employee to have satisfied this minimum period, the employment must be on a regular and systematic basis. The employee must also have had a reasonable expectation of ongoing employment. 

Issue


It needed to be determined if, during the six months leading up to his dismissal, Mr Bell had a reasonable expectation of continuous employment beyond February 2018.

Arguments


Mr Bell argued he had reasonable grounds to believe he would stay in his employment until the solicitor position was filled as this was written in his statement of engagement. He argued that, during the restructuring period, he had a reasonable expectation of ongoing employment as he believed recruitment was still frozen. Once the solicitor position was filled, he argued he still had good reason to believe his services would be required to help integrate the new staff.

ALS contended that Mr Bell was not protected from unfair dismissal because, during the six months leading up to his termination, there was no reason for him to continuously believe he would be employed beyond February 2018.

Considerations


By consulting previous decisions, the court was able to establish that for “reasonable expectation of continuing employment” to apply, expectation had to be shown to exist during the entire six-month period of service, not only at the point of termination.

Using evidence from the statement of engagement and Mr Bell’s pay advice slips, the court concluded that Mr Bell’s casual employment was regular and systematic: there was an agreement he would work three days, there was a clear pattern of days worked by Mr Bell and the regular engagement of Mr Bell was due to the company’s ongoing reliance on his services.

The statement of engagement also stated his services would be needed until the company had recruited a solicitor. It was decided that between February and May there was no reason for Mr Bell to expect ongoing employment as Mr Bell knew the company was in the process of recruiting for the solicitor position he himself had applied for.

During the period from the end of May until the end of October it was decided that it was reasonable for Mr Bell to expect ongoing employment as he believed there was still a recruitment freeze and therefore believed the solicitor role could not be filled.

However, the court reasoned that once he was aware the company was hiring again, there was no reason for him to continue to believe he had ongoing employment.

While there were times within the six months that Mr Bell could reasonably expect ongoing employment, this was not the case for the entire six months. 

Decision


The court decided Mr Bell could not reasonably have expected ongoing employment across the entire six-month period leading up to his termination. His application for unfair dismissal was unsuccessful.  

The bottom line: Casual employees can apply for an unfair dismissal remedy if their employment is regular and systematic and they had reasonable grounds to believe they would have ongoing employment during the six months leading up to their termination.

Read the judgment

 
Jefferson Bell v Aboriginal Legal Service
 
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