Althea Zinn v Pickwick Group Pty Ltd

[2016] FWC 7639

[2016] FWC 7639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Althea Zinn
v
Pickwick Group Pty Ltd
(U2016/3267)

COMMISSIONER JOHNS SYDNEY, 9 NOVEMBER 2016

Application for relief from unfair dismissal – jurisdictional point – casual employee – minimum employment period – whether regular and systematic – reasonable expectation of continuing employment.

Introduction

[1] On 5 July 2016 Althea Zinn (applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of her dismissal by Pickwick Group Pty Ltd (respondent/employer/Pickwick).
[2] On 18 July 2016 the respondent filed a response to the unfair dismissal application. It raised two jurisdictional objections to the Commission hearing and determining the matter, as follows:

a) the applicant’s employment did not meet the minimum employment period (MEP) under section 382 of the FW Act (MEP Objection); and

b) the applicant was employed for a specific task and she was terminated at the end of that task and, therefore not dismissed under section 386(a)(ii) of the FW Act (Not Dismissed Objection).

[3] Conciliation was attempted, but the matter remained unresolved. Consequently the matter was listed for hearing on 14 October 2016.
[4] At the hearing:

a) the applicant appeared for herself;
b) Ms Lucy Saunders from the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union appeared as a solicitor assisting the Commission as part of the Commission’s pro bono solicitor’s scheme; and
c) Ms Rachael Murdoch, National Human Resources Manager, appeared for the respondent.

[5] Before determining whether the dismissal of the applicant was harsh, unjust or unreasonable, I must determine the jurisdictional objections. The MEP Objection must be determined first. Only if the applicant satisfies the MEP, will it be necessary to determine whether the applicant was dismissed.
[6] The applicant filed a witness statement (Exhibit A1) and gave evidence at the hearing. Ms Murdoch gave evidence on behalf of the respondent and relied upon the respondent’s submissions previously filed (Exhibit R1).

Background

[7] The following facts were either expressly agreed or are not in contention:

a) Pickwick conducts a business which provides facility services such as cleaning, security and height access services;

b) Pickwick is not a small business employer within the meaning of section 23 of the FW Act. The consequence of this is that the MEP is 6 months (s.383(a) of the FW Act);

c) On 4 December 2015 the applicant commenced her employment as a cleaner with the respondent as a casual employee;

d) From 4 December 2015 to 14 March 2016 the applicant worked consistently;

e) From 15 March 2016 to 28 April 2016 the applicant was not engaged to work, but remained “on the books”; 1

f) On 29 April 2016 the respondent re-engaged the applicant for what was referred to as the “SP3 project”;

g) On 19 May 2016 the applicant’s employment was terminated;

h) On 25 May 2016 the applicant was reinstated;

i) Between 25 May 2016 and 17 June 2016 the applicant continued to be engaged;

j) On 17 June 2016 the applicant’s employment was again terminated.

Legislative requirement

[8] Section 382 provides as follows:

382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; …

[9] Section 383 of the Act provides the meaning of minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[10] Section 384 defines the meaning of a period of employment:

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; …

[11] Recently, in Nehemiah Kamanda v House with No Steps [2016] FWC 767, Commissioner Saunders correctly and usefully articulated the relevant legal principles relating to the period of service for a casual employee as follows:

[4] It is the employment that must be on a regular and systematic basis, not the hours worked. 2 However, a clear pattern or roster of hours is strong evidence of regular and systematic employment.3

[5] The absence of any contractual requirement for the employee to work at set times or of any assumption that the employee be present on a daily, weekly or monthly basis unless told otherwise does not preclude a finding that the employee’s engagements were regular and systematic. 4

[6] The term “regular” should be construed liberally. 5 It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant.6 Employment on a “regular” basis may be constituted by frequent though unpredictable engagements.7

[7] The term “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”. 8 The concept of engagement on a “systematic” basis does not require the employee to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance on the employee’s services as an incident of the business by which he or she is engaged.9

[8] In Ponce, Commissioner Roe stated (at [76]):

“In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and the employee, then evidence of regular and systematic employment can be established where:

● The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and

● Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.”

[9] I agree with the approach taken by Commissioner Roe in Ponce, subject to the following caveat identified by Vice President Lawler in Burke v Marist Brothers St Joseph’s College t/a St Joseph’s College (at [18]): 10

“That caveat is that one must not treat the summary of Roe C as a substitute for the language of the statute: the ultimate question always remains whether the employment was ‘regular and systematic’ within the meaning of section 384(2)(a) and care must be taken not to invert the test to one which asks the question whether the employment was ‘occasional or irregular’.”

[12] In considering the evidence in the present matter, I adopt the orthodox approach outlined above by the very learned Commissioner.
Calculating the applicant’s period of employment
[13] In summary, the total period can be broken up as follows:

a) 4 December 2015 – 14 March 2016 (14 weeks, 3 days) (First Period);

b) 15 March 2016 – 28 April 2016 (6 weeks, 2 days) (First Break Period);

c) 29 April 2016 – 19 May 2016 (2 weeks, 6 days) (Second Period);

d) 20 May 2016 – 24 May 2016 (4 days) (Second Break Period); and

e) 25 May 2016 – 17 June 2016 (3 weeks, 2 days) (Third Period).

[14] The total period from 4 December 2015 is 28 weeks, i.e. 2 weeks in excess of the MEP.
[15] However, the date from which the applicant must have served at least 26 weeks in order to satisfy the MEP is 17 June 2016. It is necessary to work back from that date.
[16] Obviously, the Third Period is insufficient for the applicant to satisfy the MEP.
[17] If the Second Period and Third Period are treated as a consecutive period (i.e. 29 April 2016 – 17 June 2016), then the applicant was employed for 7 weeks, again, still not enough to satisfy the MEP.
[18] Consequently, in order to the satisfy the MEP:

a) first, the Second Period and the Third Period must be held to be consecutive (including the Second Break Period); and then
b) the First Break Period must be held not to have broken the applicant’s continuity of service between the:

i. the combined Second Period, Second Break Period and Third Period (7 weeks); and
ii. the combined First Break Period and First Period (21 weeks).

Did the Second Break Period break continuity of service between the Second Period and Third Period (such that they can be treated as a consecutive period)?
[19] To treat the Second Period and Third Period as a consecutive period requires treating the Second Break Period as not involving a break in the applicant’s continuity of service.
[20] The evidence about what happened on 19 May and 25 May was that:

a) On 19 May 2016 a meeting was conducted by Delia Cooper, the client services manager, Vera (a senior employee) and the applicant; 11

b) The client services manager believed the applicant had intentional falsified her timesheets; 12

c) At the end of the 19 May meeting the applicant says:

I was told to hand back my security card.  I was told that I would be docked over an hour in wages.  I was told that I'm no longer required and I should leave.” 13

d) On 24 May 2016 the applicant met with a representative of the respondent. The termination was converted into a first-and-final warning. The applicant was reinstated into her employment and recommenced work on 25 May 2016.

[21] Because the respondent made a decision to reinstate the applicant, properly understood, that means that the Second Break Period did not break the continuity of employment between the Second Period and the Third Period.
[22] I am satisfied, based on the evidence (in particular Exhibit R3 and Exhibit R5), that during the combined Second Period, Second Period Break and Third Period the applicant worked on a regular and systematic basis and had a reasonable expectation of continuing employment by the respondent on a regular and systematic basis. That is not enough to have the applicant satisfy the MEP, but it gets her part of the way there.
Did the First Break Period break continuity of service between the First Period and the combined Second/Third Periods (such that the whole period can be treated as a consecutive period)?
[23] In order for the First Period and First Break Period to count towards to the applicant’s employment period as a casual employee, both limbs of section 384(2)(a) must be satisfied. That is, the applicant must have worked on a regular and systematic basis and had a reasonable expectation of continuing employment by the respondent on a regular and systematic basis. The period of the First Break Period is not fatal to the applicant’s case if, during that period she continued to have a reasonable expectation of continuing employment on a regular and systematic basis.
[24] In Tilbrook v Willall Industries Pty Ltd 14a casual employee was employed over a total period of 32 months, which included an 11 week period in which the casual did not make himself available for work. It was held that the 11 week period interrupted or concluded continuous service. However, the casual employment since that period, although there were some weeks in which no work is performed, was held to be regular and systematic and gave rise to a reasonable expectation of continuing employment. This was sufficient to meet the statutory requirement for continuous service.
[25] As stated above I am satisfied, based on the evidence (in particular Exhibit R3 and Exhibit R5), that during the combined Second Period, Second Period Break and Third Period the applicant worked on a regular and systematic basis and had a reasonable expectation of continuing employment by the respondent on a regular and systematic basis.
[26] I am also satisfied (again based on Exhibit R3 and Exhibit R5) that in the First Period the applicant worked on a regular and systematic basis and had a reasonable expectation of continuing employment by the respondent on a regular and systematic basis.
[27] Therefore, the issue to be decided in this matter is whether the First Break Period interrupted or concluded continuous service.

Applicant’s evidence about the First Break Period

[28] The applicant gave evidence to the following effect:

a) She never refused work; 15
b) She did not work in the First Break Period because there was a change in her work patterns; 16
c) The respondent made no contact with her during the First Break Period; 17
d) At the start of the First Break Period on 15 March 2016 the applicant did not have an expectation that she would be doing any more work for the respondent; 18
e) On or around 15 March 2016 the applicant did not want to work for the respondent under certain work conditions which she considered were not of a safe working environment. 19

Respondent’s evidence about the First Break Period

[29] Ms Murdoch’s evidence was to the effect that:

a) The applicant was employed to cover the shifts of permanent employees who were on annual leave;
b) The applicant was not given work during the First Break Period because there were no significant periods of annual leave for her to cover; 20
c) The applicant was engaged in two distinct engagements, the first being from the commencement of her employment until 14 March 2016, and the second engagement was from 29 April 2016 to the conclusion of project work in June; 21
d) The applicant remained on the employer’s books during the First Break Period; 22
e) The respondent only re-engaged the applicant on 29 April 2016 because she had previously been inducted and for the single purpose of completing the work on the SP3 Project. 23

Consideration

[30] It is agreed that the applicant was employed on a casual basis. During her employment the applicant worked two significant periods. In both the First Period and the combined Second/Third Periods, the applicant worked systematic hours. Between the commencement of her employment and 15 March 2016, the applicant worked every day from 6:00am until 2:00pm. 24 Between 29 April 2016 and the cessation of her employment the applicant worked from 4:00pm until 8:00pm on all weekdays.25 It is clear that the applicant was happy to accept work at any given opportunity.

The Commission, as presently constituted, is satisfied that between the period of 4 December 2016 and 15 March 2016, the applicant’s employment as a casual employee was on a regular and systematic basis.

The First Break Period was a 7 week break in the applicant’s employment with Pickwick. However, a casual employee may be subject to long breaks in their engagements and still satisfy the definition of regular and systematic, in circumstances where they held an expectation that they would continue employment with the employer during the break in their engagement.

As mentioned previously, for the applicant to satisfy the MEP, the Commission must be satisfied that the applicant did in fact hold a reasonable expectation of continuing employment with Pickwick during the First Break Period.

The most relevant and reliable evidence which goes to the applicant’s expectations during this period was given in the process of her examination as a witness during the hearing. The applicant conceded that on 15 March 2016 she did not have an expectation to be engaged by the respondent past this date. 26 Further the applicant conceded that her supervisor had advised her that she was “no longer required” and she would be contacted when she was required.

[31] The applicant further conceded that on 15 March 2016 she told the respondent that she would “not be coming back” 27, which further confirms the applicant had no expectation of returning to work for the respondent. Because the applicant did not have an expectation of continuing work, the applicant sought other employment with another agency during the First Break Period.28

It is clear from the evidence that, as at 15 March 2016, the applicant had no expectation that she would be re-engaged. It is irrelevant that her name stayed “on the books” of the respondent. Consequently, the evidence supports a finding that the First Break Period interrupted or concluded continuous service. As the respondent correctly submitted there were two separate periods of engagement.

In light of the evidence outlined above, the Commission, as presently constituted, is not satisfied that in the First Break Period, the applicant had a reasonable expectation of continuing her employment with the respondent within the meaning of section 384(2)(ii). As a result, this period cannot count towards her employment period.

Therefore the applicant does not satisfy the MEP and is not a person protected from unfair dismissal under the FW Act.

Consequently, it is not necessary for the Commission to determine the Not Dismissed Objection.

The applicant’s unfair dismissal application is dismissed and an order to that effect will be issued with this decision.

COMMISSIONER

Appearances:

A Zinn, applicant

L Saunders, AMWU pro-bono solicitor for the applicant

R Murdoch, for the respondent

Hearing details:

Sydney

14 October,

2016

 1   Transcript PN 236.

 2   Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 399 (Yaraka) at [65]; cited in Ponce v DJT Staff Management Services Pty Ltd t/a Daly’s Traffic[2010] FWA 2078 (Ponce)

 3   Ibid.

 4   Yakara at [67]

 5   Yaraka at [68]

 6   Yaraka at [68]; cited in Grives v Aura Sports Pty Ltd[2012] FWA 5552 at [32]

 7   Yaraka at [89]

 8   Yaraka at [68]

 9   Yaraka at [69]

 10   [2015] FWC 7324

 11   Transcript PN 71

 12   Transcript PN 73 - 79

 13   Ibid

 14   [2011] FWA 6300.

 15   Transcript PN 70

 16   Transcript PN 64

 17   Transcript PN 125

 18   Transcript PN 126

 19   Transcript PN 307

 20   Transcript PN 228, 230, 235

 21   Transcript PN 328

 22   Transcript PN 236

 23   Transcript PN 329

 24   Transcript PN 62

 25   Transcript PN 68

 26   Transcript PN 126

 27   Transcript PN 111

 28   Transcript PN 121

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