McLeish v GNM: When “No Expectation” Isn’t a Force Field

  • December 1, 2025
  • Posted by: Justin Prince
  • Category: Human Resources and Industrial Relations
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Cartoon illustration of a wild-haired, bespectacled “IR Geek” character in a suit, sitting at a cluttered desk piled with rosters, HR paperwork, and a faded “NO EXPECTATION” contract. The character looks alert and frazzled, typing on a laptop labeled “THE IR GEEK.” Behind them, a wall poster reads “CASUALS, ROSTERS AND UNFAIR DISMISSAL,” with a background calendar and roster grid. The image uses a warm, sepia-toned palette.

Justin Prince — Founder and Managing Director at LevelUp
Date: 1 December 2025
Published by Justin @ LevelUp | www.askfrank.com.au

Headlines love the line “casuals have no rights”. The Fair Work Commission has just reminded everyone that’s not how the Fair Work Act 2009 (Cth) works. The law hasn’t changed; the Commission is simply using the data employers generate every day — rosters, patterns and practice.

In Richard McLeish v GNM Australia Pty Ltd (U2025/3311) [2025] FWC 3390, Commissioner Perica had to decide whether a casual news producer at Guardian Australia had completed the minimum employment period for unfair dismissal under sections 382–384 of the Fair Work Act, after lodging an application under section 394.

GNM argued he was just a casual, hired “as and when required” on separate shift contracts with no expectation of ongoing work. The Fair Work Commission looked at the actual pattern of work across more than two and a half years and found a regular casual, with a reasonable expectation of continuing employment on a regular and systematic basis. The jurisdictional objection was dismissed.

You can read the full decision here (official PDF):
Fair Work Commission decision – McLeish v GNM Australia Pty Ltd [2025] FWC 3390
https://www.fwc.gov.au/documents/decisionssigned/pdf/2025fwc3390.pdf

The Facts

Who

  • Applicant: Richard McLeish, casual news producer.
  • Respondent: GNM Australia Pty Ltd (“GNM”), publisher of Guardian Australia.

What

  • Employed by GNM as a casual news producer from 5 July 2022 until 29 February 2025.
  • Told his employment was ending because GNM had “lost faith” in his ability to work autonomously, after a story was published earlier than it should have been.
  • On 19 March 2025, he lodged an unfair dismissal application seeking reinstatement and compensation.

The jurisdictional fight
GNM raised a minimum employment period objection, arguing that during his service as a casual:

  • He was not employed on a regular and systematic basis; and
  • He did not have a reasonable expectation of continuing employment on that basis.

If that were right, his casual service wouldn’t count under section 384(2), and he’d have no unfair dismissal protection.

Where and when

  • Tribunal: Fair Work Commission
  • Member: Commissioner Perica
  • Location: Melbourne
  • Decision date: 12 November 2025

Outcome

  • McLeish was found to be a “regular casual employee”.
  • A substantial period of his casual service counted towards the six-month minimum employment period via section 384(2)(a).
  • He was therefore “a person protected from unfair dismissal” under section 382.
  • GNM’s jurisdictional objection was dismissed, and the unfair dismissal case now proceeds on its merits.

Where It Turned: The Reasoning

The key questions were:

  1. Was McLeish employed on a regular and systematic basis as a casual?
  2. During that time, did he have a reasonable expectation of continuing employment on that basis?

1. The contract yelled “no expectation” — but that wasn’t decisive

His casual letter of engagement and term sheet said, in substance:

  • He would be engaged as and when required.
  • Each shift was a separate contract which ended at the end of the shift.
  • The company made no firm advance commitment to continuing and indefinite work.
  • The company did not guarantee any minimum hours.
  • He “should have no expectation of continuing employment with the company”.
  • The company could simply stop offering shifts.

Textbook casual boilerplate. The Commission treated all of that as relevant, but not determinative. The question under section 384(2) is what actually happened over time — not just what the contract says on day one.

2. The roster told a different story

When the Commission dug into the roster data (including a full-period spreadsheet requested by the Member and turned into tables GNM 1 and GNM 2), it found that:

  • McLeish worked at least one shift in most weeks across the engagement.
  • From July 2022 to around August 2024, he worked roughly 11 shifts per month on average.
  • Over the whole engagement, he averaged about 2.5 shifts per week.

In ordinary language: he was on the roster most weeks for more than two and a half years. Calling that “not regular” would be a stretch.

3. The system behind the shifts

Evidence from GNM managers described:

  • A monthly roster for the production team.
  • Requests for casual availability generally two weeks in advance (sometimes up to five weeks).
  • A roster built taking into account permanent staff absences and the availability of the casual pool.
  • Additional ad hoc shifts to cover unplanned absences (e.g. sick leave).

So yes, some shifts were last-minute. But the dominant pattern was: regular use of a casual pool through a roster, with advance planning for most shifts. That was enough to find a “system, method or plan” behind the engagements — i.e. systematic.

The Commission drew on earlier authorities like Chandler v Bed Bath N’ Table and Yaraka Holdings v Giljevic, which stress that:

  • “Regular” is to be read liberally — it doesn’t mean perfectly uniform.
  • “Systematic” doesn’t require a guarantee of work; it requires a planned, methodical approach in how work is offered.

So what do “regular” and “systematic” actually mean?

For your managers (and frankly a lot of HR), these two words are where eyes glaze over. McLeish gives you usable working definitions you can drop straight into training.

In plain English:

“Regular” means:

  • There’s a repeating pattern over time, not just a couple of one-off shifts.
  • The pattern doesn’t have to be identical – days, start times and hours can move around.
  • It can still be “regular” even if it’s lumpy or uneven (some weeks one shift, some weeks three).

Think: “you’re on the roster most weeks”, not “you always work 9–5 on Tuesdays and Thursdays”.

“Systematic” means:

  • There is a system, method or plan for how the person is engaged – it’s not just random phone calls when someone remembers your name.
  • You don’t need guaranteed hours or a locked-in pattern for it to be systematic.
  • It’s enough that the employer is consistently using you as part of how the business runs – for example, through a roster that regularly relies on a pool of casuals to cover ordinary absences and workload.

In this case, the Commission basically treated:

A standing casual pool + monthly rosters + ongoing reliance over a long period

as a clear example of employment that was both regular and systematic, even though individual shifts sometimes moved around or were picked up at short notice.

That’s the definition you want on your slides.

4. Declining shifts and falling hours didn’t save GNM

GNM pointed out that:

  • Between July 2023 and July 2024, McLeish had over 50 days of unavailability.
  • In the last six months, he had around 26 days of unavailability.
  • Shifts reduced in 2024 because of budget constraints and staffing changes.

The Commission accepted those facts but looked at the bigger picture: over more than two and a half years, the overall pattern was still weekly work via a roster. Occasional unavailability and some decline in shifts didn’t break the regular and systematic character of the engagement.

5. Reasonable expectation of continuing employment

On expectation, the Commission found:

  • McLeish did form an expectation that he would continue to be offered shifts on a regular basis.
  • That expectation was reasonable, because:
    • He had been engaged that way for most of his tenure.
    • Casuals were routinely rostered to fill regular operational needs.
    • At the time of termination, he was already rostered for future shifts.

Critically, the Commission accepted that this reasonable expectation existed for a substantial part of the engagement (once the pattern had emerged). That period counted towards his minimum employment period.

IR Geek Analysis: What Actually Matters

This isn’t new law. It’s old law with rosters, spreadsheets and Teams hearings.

Three big takeaways for employers:

  1. You can’t contract out of patterns.
    You can write “no expectation of continuing employment” and “as and when required” all you like. If you roster someone nearly every week for years, the Fair Work Commission will treat that as regular and systematic casual employment.
  2. Rosters are evidence, not admin.
    The Commission leaned heavily on GNM’s own roster data. If you don’t know what your casual patterns look like over 12–24 months, you’re flying blind on unfair dismissal risk.
  3. “We only cover leave and peaks” won’t cut it if that’s constant.
    Covering leave, peaks and absences is standard. Doing that week in, week out, with the same people, is a pattern — and the law will treat it like one.

Layer this on top of the Closing Loopholes casual changes, and the message is pretty blunt: if you want permanent flexibility, you need permanent controls.

What Employers Should Do Now (Checklist)

Treat this as your Monday-morning checklist:

  • Run a 12–24 month casual roster report
    • Shifts per week and per month, for each casual.
    • Flag people averaging weekly work over long periods.
  • Build an “unfair dismissal risk” view for casuals
    • Identify casuals whose counted service (if treated as regular and systematic) would exceed the six-month threshold.
  • Align practice with your story
    • If you genuinely want ad hoc casuals, stop rostering them like core staff.
    • If you need them every week, factor in unfair dismissal risk or move to permanent part-time.
  • Train roster and line managers
    • Explain that shift allocation and availability practices can determine whether someone gets unfair dismissal protection.
    • Stamp out informal promises like “we’ll get you on every week” that contradict the contract.
  • Set a trigger before you “quietly drop” a casual
    • Before you simply stop rostering someone who’s been around a while, run a quick check on patterns, length of service and any expectation you may have created.
  • Track offers and declines
    • Record offer/decline data properly — but don’t kid yourself that a handful of declines cancels two years of regular work.
  • Link this to casual conversion and your Closing Loopholes response
    • Use McLeish as a prompt to refresh your casual engagement and conversion policy, making sure it lines up with your actual rostering behaviour.
  • Don’t do this
    • Don’t assume that a “no expectation of continuing employment” clause will carry a jurisdictional objection after years of weekly shifts. That’s basically the argument that just failed.

Valid Grounds vs Not Good Enough

Arguments that might work (if the data backs them):

  • Engagement is genuinely sporadic, with long gaps and no discernible pattern.
  • Overall engagement is short and a regular pattern has never developed.
  • Work is tied to isolated events or projects, not BAU coverage.

Arguments that are unlikely to fly after McLeish:

  • “The contract says there’s no expectation of continuing employment.”
  • “We just covered leave and spikes, so it was ad hoc.”
  • “Days and times varied, so there was no pattern.”
  • “He sometimes declined shifts.”

Those were effectively GNM’s arguments — and they all lost to two-plus years of roster data.

Templates & Controls to Wire In

A few practical artefacts to build:

  • Casual engagement / pattern report
    • Automated HRIS or spreadsheet output showing shifts per fortnight and months of service, with risk flags.
  • Minimum employment period checker for casuals
    • One-page checklist to complete before running any minimum-employment objection involving a casual.
  • Casual status and conversion policy
    • Plain-English guidance on: what “regular and systematic” looks like, when to consider conversion, and who signs off on long-term casual use.
  • Roster and availability script
    • Standard wording for availability emails/texts that doesn’t over-promise ongoing work.
  • Casual “off-ramp” process
    • A short procedure to follow before ceasing to roster a long-term casual, including a quick risk and pattern check.

Final Word from the IR Geek

If you roster a “casual” nearly every week for a couple of years, the Fair Work Commission is probably going to treat them as having unfair dismissal protection — no matter how aggressively your contract denies it. This isn’t new law; it’s the same law backed by your own rostering data. If you want casual flexibility, use casuals casually. If you want them every week, accept the risk or change their status. You can’t defend what you don’t measure.

References

This article provides general information, not legal advice.