1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Samuel Andriessen v National Workplace Safety Services Pty Ltd (U2025/20406) COMMISSIONER ROGERS ADELAIDE, 13 MAY 2026 Application to remedy unfair dismissal – jurisdictional objection – minimum employment period – regular casual employee – whether regular and systematic – whether reasonable expectation of continuing employment – jurisdictional objection dismissed – minimum employment period met [1] Mr Andriessen made an application to the Commission to remedy an unfair dismissal under s. 394 of the Fair Work Act 2009 (the Act) on 23 December 2025 as a result of his dismissal on 5 December 2025 from his employment with National Workplace Safety Services Pty Ltd (NWSS). [2] NWSS objected to the application on the basis that Mr Andriessen was a casual employee with no fixed hours or expectation of ongoing shifts and therefore did not meet the minimum employment period under s. 383 of the Act. [3] It is not in dispute between the parties that Mr Andriessen was engaged as a casual employee as defined in s. 15A of the Act. This is reflected in the contract of employment1 and fluctuation in the hours Mr Andriessen worked. [4] Mr Andriessen says that despite being a casual employee and working varied hours, that he was a regular casual employee2 and during his period of service with NWSS he had a reasonable expectation of continuing employment on a regular and systematic basis. [5] There is no dispute between the parties that Mr Andriessen commenced employment as a casual Field Technician with NWSS in around 4 October 2023 and was dismissed on 5 December 2025. [6] The issue for determination is whether Mr Andriessen’s service with NWSS, or part of that service, is subject to the exemption in s. 384 and counts as service such that Mr Andriessen meets the minimum employment period. [7] For the reasons set out below, I find that Mr Andriessen has met the minimum employment period and was protected from unfair dismissal. [2026] FWC 1640 DECISION [2026] FWC 1640 2 [8] A dispute arose during the Determinative Conference as to whether NWSS was a Small Business Employer3 at the time of Mr Andriessen’s dismissal. [9] However, as a result of the findings below it was not necessary to determine that question to resolve the issue relating to the minimum employment period. Mr Andriessen’s service met the minimum employment period of one year, which would be the requirement if NWSS was a Small Business Employer.4 Evidence [10] Mr Corey Golowit gave evidence on behalf of NWSS and provided the payslips and timesheets for Mr Andriessen’s period of employment with NWSS. [11] Mr Andriessen, Ms Amy Zanker and Mr Robert Priest gave evidence on behalf of Mr Andriessen. [12] The evidence was very consistent in respect of the way work was allocated, the notice given of the work allocation, the number of hours Mr Andriessen worked during the period and the length of the employment. Legislation and Case Law [13] For a casual employee to have periods of employment which counts towards the minimum employment period under the Act, the employee must: • Be employed as a regular casual employee and • During their period of employment, had a reasonable expectation of continuing employment on a regular and systematic basis.5 [14] It is the engagement not the days or hours that must be regular and systematic.6 [15] The days on which a casual employee worked, as well as the hours worked, are relevant considerations in determining whether the casual employment was regular and systematic, and also whether the person had a reasonable expectation of ongoing employment.7 [16] For the employment to have been ‘regular’ there should be a repetitive pattern of work.8 The term ‘regular’ is interpreted broadly and an employee’s pattern of work does not need to be ‘frequent, often, uniform or constant’.9 [17] For the engagement to be ‘systematic’, it must be ‘something that could fairly be called a system, method or plan’ in the sense of it being part of a pattern of engagement occurring as a consequence of a business’ reliance on the employee’s services.10 The precise pattern of work does not need to be foreseeable to the employee for it to be considered as ‘systematic’.11 [18] As noted in Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic, for an engagement to be ‘regular and systematic’, ‘there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established’.12 [2026] FWC 1640 3 [19] A clear pattern or roster of hours strongly suggests that an engagement is ‘regular and systematic’.13 Where there is no clear pattern or roster, an engagement may be ‘regular and systematic’ if the employer offered suitable work when available and the employee accepted this work regularly enough.14 [20] In light of the above legislation and case law, I now consider whether Mr Andriessen was a regular casual employee employed on a regular and systematic basis and had a reasonable expectation of ongoing employment. Regular and Systematic Casual [21] It was not in dispute that the timesheets provided to the Commission accurately reflected the hours Mr Andriessen was engaged for and Mr Golowit gave evidence that the records came from NWSS’ payroll system. [22] When Mr Andriessen first commenced with NWSS on around 4 October 2023, he undertook some training and was engaged for little to no hours until 25 October 2023.15 [23] From 25 October 2023 through to the date of dismissal, Mr Andriessen was engaged for shifts by NWSS every week, excluding the weeks where Christmas and New Year public holidays fall. [24] The timesheets demonstrate that while Mr Andriessen’s hours each day fluctuated over the course of his employment with NWSS, the engagement was regular. [25] It was consistent across the evidence of the parties that employees of NWSS were not commonly required to work public holidays,16 so I find it reasonable to remove public holidays from the working days in assessing whether the engagement was regular and systematic.17 [26] During the period starting January 2024 and prior to his dismissal in December 2025, Mr Andriessen worked the following: • 99 out of 101 Mondays; • 100 out of 101 Tuesdays; • 98 out of 101 Wednesdays; • 97 out of 101 Thursdays; and • 93 out of 101 Fridays. [27] The timesheets provided show that Mr Andriessen was engaged for at least 7 days per fortnight from 30 October 2023 until the date of dismissal, except for Christmas periods. [28] Most weeks, however, Mr Andriessen was engaged for 4-5 days per week. [29] Mr Andriessen worked at least 42.75 hours and up to 86.75 hours per fortnight during the two-year engagement, with an average of 67.18 hours worked per fortnight.18 [2026] FWC 1640 4 [30] Based on the above analysis, I find that Mr Andriessen’s employment with NWSS was regular as the engagement was repetitive despite the hours being varied. [31] As identified, there is a pattern of engagement demonstrating that NWSS relied on Mr Andriessen’s engagement on a weekly basis for several days per week throughout the duration of his employment as a casual with them. I find that Mr Andriessen was employed by NWSS on a systematic basis. [32] Accordingly, I find that Mr Andriessen was a ‘regular casual employee’ as he was a casual employee19 who was employed by NWSS on a regular and systematic basis. Reasonable Expectation of Ongoing Employment [33] It is relevant to this consideration that Mr Andriessen was employed with NWSS for a period of two years and that during that period he was offered and also undertook shifts every fortnight. [34] Both Mr Golowit and Mr Andriessen described the allocation of work as being through an electronic calendar linked to employees’ work email address. [35] NWSS schedule jobs into their employees’ calendars as the Clients book the jobs with NWSS. Employees then have the ability to reject a job allocated to them if they don’t want to do it and NWSS finds another employee to allocate it to. The jobs scheduled in the calendar are also subject to the Clients proceeding with the job and do not always proceed. [36] The evidence between the parties diverged regarding how frequently Mr Andriessen knocked back a job and how regularly Clients cancelled jobs. [37] In his evidence, Mr Golowit confirmed that both Mr Andriessen and NWSS’ Clients were able to cancel jobs with ‘zero notice’20 and stated that there were periods where Mr Andriessen ‘…without approval he would schedule himself off for days and weeks at a time, usually notified. I am not suggesting that he didn’t notify us, but it definitely wasn’t an authorised or an agreed to period’.21 [38] Mr Andriessen’s evidence was that there were only one or two specific instances where he was unavailable to provide services for NWSS.22 [39] I do not consider the contested evidence about the frequency of the job cancellations by Mr Andriessen or the Clients to be a determinative factor in light of all the other evidence before me. [40] It was not in dispute that the calendar was populated for Mr Andriessen for four to six weeks in advance, but that these scheduled jobs may change in that time.23 [41] Mr Andriessen was able to block out time in his diary if he wanted to take leave or be unavailable for specific periods of time.24 [2026] FWC 1640 5 [42] The assessment as to whether Mr Andriessen had a reasonable expectation of continuing employment by NWSS on a regular and systematic basis is an objective one that requires consideration of all relevant circumstances.25 [43] NWSS relied on the employment contract to assert that there was no reasonable expectation of ongoing employment. [44] However, the test in s. 384 of the Act is whether during the employment period Mr Andriessen had a reasonable expectation of ongoing employment, not simply at the commencement of it. [45] I find that based on the length of the employment, the frequency of the engagement, the allocation of duties, the hours worked and the practice of blocking out periods of unavailability when considered collectively show that Mr Andriessen objectively had a reasonable expectation of ongoing employment with NWSS during the period of at least January 2024 to December 2025. Conclusion [46] Having found that Mr Andriessen was a casual employee,26 was a regular casual employee,27 and during the period of January 2024 to the date of dismissal had a reasonable expectation of continuing employment on a regular and systematic basis, I find that Mr Andriessen has completed more than one year of service. [47] Therefore, Mr Andriessen has met the minimum employment period required by s. 382 of the Act and was protected from unfair dismissal. [48] I dismiss the jurisdictional objection raised by NWSS that Mr Andreissen did not meet the minimum employment period. [49] The unfair dismissal application will proceed and further Directions will be issued. COMMISSIONER Appearances: S. Andriessen, Applicant on his own behalf. C. Golowit for the Respondent, National Workplace Safety Services Pty Ltd. [2026] FWC 1640 6 Determinative Conference details: Adelaide (Hybrid) 2026 1 April Printed by authority of the Commonwealth Government Printer <PR799790> 1 Digital Hearing Book (DHB) at pp. 21-25. 2 As defined by s. 12 of the Act. 3 As defined by s. 23 of the Act. 4 s. 383(b) of the Act. 5 s. 384(2)(a)(i)-(ii) of the Act; See also Bronze Hospitality Pty Ltd v Hansson [2019] FWCFB 1099. 6 Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6 (30 March 2006) at [65], [(2006) 149 IR 399]; Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic [2010] FWA 2078 at [66]. 7 Bronze v Hospitality Pty Ltd v Hansson [2019] FWCFB 1099 at [24]. 8 Bell v Aboriginal Legal Service (NSW/ACT) Ltd [2018] FWCFB 6102 at [11]; Yaraka Holdings Pty Ltd v Glijevic[2006] ACTCA 6 (30 March 2006) at [68] [(2006) 149 IR 399]. 9 Bell v Aboriginal Legal Service (NSW/ACT) Ltd [2018] FWCFB 6102 at [11]. 10 Ibid; See also Yaraka Holdings Pty Ltd v Glijevic[2006] ACTCA 6 (30 March 2006) at [91] [(2006) 149 IR 399]. 11 Bell v Aboriginal Legal Service (NSW/ACT) Ltd [2018] FWCFB 6102 at [11]; Yaraka Holdings Pty Ltd v Glijevic [2006] ACTCA 6 (30 March 2006) at [65]–[68] per Crispin and Gray JJ and [89] per Madgwick J. [(2006) 149 IR 399]. 12 [2010] FWA 2078 at [66]. 13 Ibid at [75]. 14 Ibid at [76]. 15 DHB at p. 67. 16 Audio Recording of Determinative Conference at 1:50:30-1:51:27. 17 See also Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic [2010] FWA 2078 at [66];[90]-[91]. 18 Timesheets for 8 Jan 2024-8 Dec 2025. 19 As defined by s. 15A of the Act. 20 Audio Recording of Determinative Conference at 30:15. 21 Audio Recording of Determinative Conference at 19:59-20:12. 22 Audio Recording of Determinative Conference at 25:15-25:27. 23 Audio Recording of Determinative Conference at 29:56-30:17. 24 Audio Recording of Determinative Conference at 1:32:56-1:34:37. 25 Gu v Geraldton Fishermen’s Co-operative Pty Ltd [2022] FWC 1342 at [41]-[42]. 26 As defined in s. 15A of the Act. 27 As defined in s. 12 of the Act.