TERMINATION OF EMPLOYMENT – performance – casual employee – ss.383, 394 Fair Work Act 2009 – applicant employed as heavy duty fitter in Darwin – first engaged as a casual employee on 11 August 2015 and became a full-time permanent employee of the company on 9 November 2015 – advised of need for him to be available for periodic work at the Old Pirate Mine, 1600km from Darwin – respondent submitted applicant failed to follow fatigue management requirements by driving long distances without breaks or sufficient breaks – submitted applicant drove entire distance to Darwin in single day – no evidence of disciplinary action or warning – respondent further submitted that applicant agreed to be available at mine, refused and failed to live up to his side of agreement – further submitted that applicant put respondent in difficult position by failing to go as did not have another person to go to site – both parties agreed that on 2 March 2016 applicant was approached with a firm request to go to the Old Pirate Mine site and applicant refused – also agreed that applicant then handed letter of dismissal – Commission considered whether applicant served minimum employment period – whether employed on regular and systemic basis and whether had reasonable expectation of continuing employment – in assessing whether employment on regular and systemic basis, Commission looks for employment to have been on regular and systemic basis, not hours worked – clear pattern or roster of hours may be strong evidence – while term ‘regular’ implies repetitive pattern, does not mean frequent, often, uniform, or constant’ [Yaraka Holdings] – Commission found applicant employed on casual basis but letter of offer anticipated that after successful trial period would be offered permanent position – found at no stage continuous service broken and applicant completed minimum employment period – Commission unable to find that refusal to attend site amounted to valid reason for dismissal – found applicant was dismissed and dismissal was unfair – ordered compensation of $15,162, less taxation, and $1,440 to be paid to his superannuation. Malsen v Titan Plant Hire P/L
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