Richard McLeish v GNM Australia Pty Ltd [2025] FWC 3390 (12 November 2025)

A recent Fair Work Commission (FWC) decision serves as an important reminder for employers: a casual contract stating “no expectation of ongoing employment” will not, on its own, prevent a finding that a worker was engaged on a regular and systematic basis.

In this case, a casual producer who worked for Guardian Australia for nearly three years successfully overcame a jurisdictional objection, allowing his unfair dismissal application to proceed. The decision highlights the practical reality test the FWC applies when assessing whether a casual employee is a “regular casual employee” under the Fair Work Act 2009 (Cth).

Below is a breakdown of the case and key takeaways for employers.

Background: Dismissal After “Loss of Faith”

The producer had worked with The Guardian for approximately 32 months on a casual basis. In February 2025, the company ended his engagement, citing a “loss of faith” in his capacity to work autonomously following an issue related to a published article.

He lodged an unfair dismissal application seeking reinstatement and compensation.

The Guardian objected, arguing he was not a “regular casual employee” and therefore not protected from unfair dismissal because:

• he did not meet the minimum employment period under s383
• his contract expressly said he had no expectation of ongoing employment
• shifts were offered on an ad hoc basis
• his hours varied, often unpredictably
• he declined numerous shifts
• the frequency of his engagements reduced over time

FWC’s View: Substance Over Contract Labels

Commissioner Perica rejected the employer’s jurisdictional objection, finding that the producer was engaged on a regular and systematic basis despite the wording of his contract and the variable nature of his shifts.

1. A Pattern of Engagement Emerged Over Time

Although the employer argued that shifts were offered only to backfill permanent employees’ planned and unplanned absences, the evidence showed:

• he worked at least one shift most weeks
• he averaged 2.5 shifts per week for nearly two years
• most shifts were scheduled a fortnight in advance, not purely reactive or last-minute
• he had already agreed to further shifts on the day he was dismissed

The Commissioner noted that it would “defy the English language” to suggest the worker was not engaged regularly.

2. Declining Shifts Did Not Break Regularity

Importantly, the producer had declined significant numbers of shifts—50 days in one 12-month period, and 26 days in his final six months.
However, the Commission held that declined shifts are not fatal to establishing regular and systematic employment, particularly when the broader period of engagement shows consistency.

3. Contract Terms Do Not Override Actual Work Patterns

The FWC reiterated a key principle:

“Given the manner in which the individual engagements were actually worked, the contract terms do not defeat the systematic basis of the engagements.”

This is consistent with prior authority—the reality of the working arrangement is what matters most.

Outcome

The Commission found:

• the producer was a regular casual employee
• he held a reasonable expectation of ongoing employment on a regular and systematic basis
• he was therefore eligible to pursue his unfair dismissal claim

The matter will now proceed to a substantive hearing.

Key Learnings for Employers

This decision reinforces several important lessons for employers—particularly those who rely on casual labour in the media, hospitality, healthcare, retail and similar industries.

1. Contract Clauses Alone Will Not Protect You

You can—and should—include wording that casuals have no expectation of ongoing employment.

But if the actual pattern of engagement shows regularity, predictable scheduling, or ongoing reliance on that worker:

👉 They may still be a “regular casual” entitled to unfair dismissal protection.

2. Rostering Practices Matter

If a casual is:

• rostered consistently
• offered shifts well in advance
• working weekly or near-weekly over extended periods

…it will strongly support a finding of regular and systematic engagement.

Employers should regularly review rostering data to ensure it aligns with the intended employment relationship.

3. Declining Shifts ≠ Irregular Employment

Even if a casual frequently declines work, the overall pattern may still be considered systematic.

Employers should not rely on declined shifts to assume the individual will fall outside unfair dismissal protections.

4. Casuals Can Still Have a “Reasonable Expectation” of Ongoing Work

This can arise from:

• consistent offers of work
• ongoing rostering patterns
• verbal assurances or established scheduling practices
• reliance on the worker to cover anticipated staffing needs

If there is any regularity, the FWC may find that a reasonable expectation exists.

5. Review How You Manage Performance Concerns With Casuals

Even if you believe a worker is purely casual:

• performance issues should be managed fairly
• procedural fairness should be provided before termination
• decisions must be documented

Assuming a casual cannot claim unfair dismissal may expose you to unnecessary risk.

Final Thoughts

This case is another example of the FWC’s practical approach to determining “regular and systematic” casual employment. Contracts matter—but the day-to-day reality matters more.

Employers should not assume that labelling an engagement “casual” will prevent an unfair dismissal claim. Where casuals are relied upon over long periods, the risk of being found to be a regular casual employee increases significantly.

If you are unsure whether your casual arrangements are at risk—or if you need support with performance management, termination decisions or casual workforce audits—I can assist.