If you employ a work­er for a par­tic­u­lar project, can you ter­mi­nate them at the end of that project?

IN BRIEF

Today in the world of Aus­tralian prop­er­ty, con­tin­gent work­ers fit the bill.

Con­tin­gent work­ers are the free­lancers, or inde­pen­dent pro­fes­sion­als and con­sul­tants, or tem­po­rary con­tract work­ers, who pro­vide their ser­vices to an organ­i­sa­tion on a non-per­ma­nent or con­tract basis.

There’s recent­ly been a big increase of fit-outs in res­i­den­tial prop­er­ty across the coun­try. From War­ringah Mall in NSW, to the Pacif­ic Fair Cen­tre in Bris­bane, to Ring­wood’s East­land Shop­ping Cen­tre in Vic­to­ria (to name a few), refur­bish­ments are increas­ing the appetite for con­tin­gent work­ers in every state.

How­ev­er, the fear of ​‘unfair dis­missal’ claims often haunts employ­ers as they weigh up the deci­sion of whether to hire a casu­al worker.

The Facts:

It is impor­tant to remem­ber that unfair dis­missal is not avail­able for every­one. If some­one is tru­ly a ​‘casu­al employ­ee’ (i.e. only works for you spo­rad­i­cal­ly), then they are not enti­tled to access an unfair dis­missal claim. Like­wise, if some­one is under pro­ba­tion (for­mer­ly known as the min­i­mum employ­ment peri­od), you can ter­mi­nate them dur­ing that peri­od with­out any fear of the FWC barg­ing down your doors. For busi­ness­es with less than 15 staff, that peri­od is 12 months and for larg­er busi­ness­es six months.

But what if you hire an employ­ee for a par­tic­u­lar project or task and at the end of that you dis­miss them. Are you allowed to do that?

One of the excep­tions to unfair dis­missal is if a per­son is employed:

“…for a spec­i­fied peri­od of time, for a spec­i­fied task, or for the dura­tion of a spec­i­fied sea­son and the employ­ment has ter­mi­nat­ed the end of the peri­od, on the com­ple­tion of the task or at the end of the sea­son”.

Nom­i­nat­ing a peri­od of time can be tricky because you don’t know exact­ly how long a project is going to run. Instead, engag­ing them until the com­ple­tion of a par­tic­u­lar task can be a bet­ter approach. 

One cen­tral ques­tion that I am often asked is: how do you define a ​“task”? Giv­en a recent deci­sion of the FWC as to what a task is, the mes­sage is that if you want to employ peo­ple for a spec­i­fied task or project, you can. How­ev­er, it is impor­tant that it be clear to all par­ties when that arrange­ment comes to an end. That will be the case by ensur­ing the def­i­n­i­tion of the task is spe­cif­ic, so that there is no uncer­tain­ty as to when it finishes.

In Shop Fit­ting, the projects are often short – so this may not often arise as an option– not­ing that the pro­ba­tion peri­od will gen­er­al­ly be a suf­fi­cient way of avoid­ing unfair dis­missals. How­ev­er, they may not always be an option.

Con­clu­sion:

So, in short, unfair dis­missal does not apply to:

• tru­ly casu­al employ­ees (ie. where they are engaged infrequently);

• employ­ees who have worked for you for less than 6 months (if > 14 staff) and 12 months (if < 15 staff); or

• staff mem­bers engaged on a fixed term or fixed peri­od contract.