Ending a seasonal contract on the agreed date is treated very differently from dismissing a permanent employee. Under the Fair Work Act, the notice and redundancy pay rules do not apply to employees employed for a specified period, task or season, or to casuals, and a person who has not completed the minimum employment period cannot claim unfair dismissal. This article sets out those rules for a peak crew, and the exceptions that catch employers out.
Three ways a seasonal engagement ends
A seasonal engagement ends in one of three ways, and each is treated differently under the Act.
- Contracted end. A contract for a specified period, task or season reaches its date, or the task or season finishes.
- Casual release. A casual crew is released as the peak winds down and no more shifts are offered.
- Early end. A fixed period, task or season engagement stops before the contracted date, or before the work has run out.
Which one you are dealing with depends on how each person was engaged, so check the contract and the roster records before the last shift. The choice between fixed term, casual and labour hire is made before the peak and is covered in a separate article.
When notice and redundancy pay do not apply
The notice and redundancy pay rules are in Division 11 of the Act. Section 123, headed "Limits on scope of this Division", lists the employees they do not cover.
Fixed period, task or season
Section 123(1)(a) excludes "an employee employed for a specified period of time, for a specified task, or for the duration of a specified season". A peak crew engaged on a contract that names the period, task or season sits in this group. Section 123(1)(b) also excludes employees dismissed for serious misconduct.
The exclusion has a limit. Section 123(2) says it does not prevent the Division applying "if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division". In plain words, the exclusion is for work that is genuinely limited, not a way around the rules. A fixed term contract that breaks the two year limits can also lose its end-date term (section 333G), which brings these rules into play.
Casual employees
Section 123(1)(c) excludes "a casual employee". A true casual released when the peak winds down is outside the notice and redundancy rules for that reason alone. The label is not the test, though: whether someone is a casual depends on the real substance of the working relationship under section 15A. A returning casual may also ask to become full-time or part-time, which the article on casual conversion for seasonal workers covers.
What is owed to the worker on the last day is a separate question. Check the applicable award or take advice.
The minimum employment period for unfair dismissal
A person is protected from unfair dismissal only if they have completed the minimum employment period and either a modern award or enterprise agreement covers them, or they earn less than the high income threshold (section 382). Check the current threshold with the Fair Work Ombudsman before you rely on it.
Section 383 sets the minimum employment period at 6 months, or one year if the employer is a small business employer, counted up to the earlier of the time notice of dismissal is given and the moment just before the dismissal. Under section 23, a small business employer employs fewer than 15 employees at that time. A casual counts towards that number only if they are a regular casual, and associated entities count as one employer.
Ending on the contracted date is also not a dismissal under these rules. Section 386(2)(a) says a person has not been dismissed if they were employed "for a specified period of time, for a specified task, or for the duration of a specified season" and the employment "has terminated at the end of the period, on completion of the task, or at the end of the season". Section 386(3) removes that protection where a substantial purpose of using such a contract was to avoid the employer's obligations under the unfair dismissal rules.
How a casual's service is counted
Section 384(2)(a) counts service as a casual only if the employment was as a regular casual employee and, during that service, the person had a reasonable expectation of continuing employment on a regular and systematic basis. A casual who worked a few irregular shifts in a peak may never reach the minimum period. One who has worked the same roster every season, expecting to be called back, needs a closer look.
How service is counted across the gap between two seasons is not set out in these sections. Take advice for a returning worker who is close to 6 months or one year.
Ending early is a different matter
Everything above assumes the engagement ends as the contract says. The section 386 protection applies where employment ends "at the end of the period, on completion of the task, or at the end of the season". Ending a fixed period, task or season engagement before that point sits outside those words, and the risk is separate from the ones in this article. Take advice before you do it, and before you tell a crew member the work is finishing early.
A close-out checklist for the last shift
- Confirm the engagement type. Fixed period, task, season or casual, taken from the contract and the roster, not from what the crew call themselves.
- Confirm the end. The date has arrived, the task is complete or the season has finished, as the contract says. If the work ended early or the date moved, stop and take advice.
- Check service. Note each start date, and for casuals whether the pattern of shifts was regular, so you can see who is near 6 months or one year.
- Check what is owed. Final pay, leave and anything an award adds. Look at the applicable award or take advice.
- Keep records. The contract, the roster history, the message that confirmed the end date and the reason the engagement finished.
- Close the relationship well. The post on running a good exit process covers the exit experience for the worker. If you want people back, see bringing seasonal workers back, and for those you want to keep, moving seasonal staff to permanent roles.
Related Resources
- Fair Work Act
- Running a good exit process
- Bringing seasonal workers back
- Moving seasonal staff to permanent roles
- Casual conversion for seasonal workers
- Labour hire in Melbourne
Frequently Asked Questions
Do I have to give notice to a casual employee at the end of a peak?
Not under the Act: the notice of termination rules do not apply to a casual employee (section 123(1)(c)), or to an employee employed for a specified period, task or season (section 123(1)(a)). That second exclusion does not apply if a substantial reason for using the arrangement was to avoid the rules (section 123(2)). Check the contract and the applicable award for any notice term of their own.
Do seasonal workers get redundancy pay?
Not under the Act's redundancy pay rules if they are casual or employed for a specified period, task or season, because section 123(1) says that Division does not apply to them. The exception for fixed period, task or season engagements is where a substantial reason for using the arrangement was to avoid the Division (section 123(2)). For anything an award or agreement adds, check the applicable award or take advice.
Can a seasonal worker claim unfair dismissal?
Only if they have been dismissed, have completed the minimum employment period of 6 months (one year for a small business employer) and meet the coverage test in section 382. A person whose fixed period, task or season ends on its contracted end has not been dismissed (section 386(2)(a), subject to section 386(3)). A casual's service counts only if they were a regular casual with a reasonable expectation of regular and systematic work (section 384(2)).
What if I end a fixed term contract before its end date?
Take advice before you do it. Ending a fixed term early is a different matter from letting it run to its agreed end date, and the rules in this article are about the second case. Keep a written record of your reasons.
What should I record when a seasonal engagement finishes?
Keep the contract or engagement terms, the start and end dates, the roster history, the message that confirmed the end date and the reason the engagement ended. For casuals, keep the pattern of shifts worked, because it bears on whether their service counts under section 384(2). Note anyone close to 6 months or one year of service.
End the engagement the way the contract promised
Check how each person was engaged before the last shift, and end the engagement on the terms the contract sets. Take advice if you want to end it sooner, and keep the contract, roster and end-date records on file. Chandler Personnel runs Chandler Services for labour hire in Melbourne and Chandler Recruitment for permanent roles. When you plan the next peak, you can request seasonal staff and set the engagement terms from the start.
