Angelina Crowe v Success Venture Parramatta Unit Trust T/A ParkRoyal Parramatta

[2012] FWA 9382

[2012] FWA 9382

FAIR WORK AUSTRALIA

DECISION

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

Angelina Crowe
v
Success Venture Parramatta Unit Trust T/A ParkRoyal Parramatta
(U2012/7768)

COMMISSIONER BULL SYDNEY, 12 NOVEMBER 2012

Jurisdiction – casual employment on a regular and systematic basis, out of time application.

[1] In this matter, Ms Angelina Crowe (the Applicant) claims that her employment with Pan Pacific Hotels Group T/A ParkRoyal Parramatta (the Respondent) was terminated unfairly on 26 April 2012.

[2] The Respondent opposes the application and advises that the employer’s correct name is Success Venture Parramatta Unit Trust T/A ParkRoyal Parramatta. Pursuant to s.586 of the Fair Work Act 2009 (the Act) the application is amended to the extent that the true legal employer of the Applicant is correctly identified.

[3] The Respondent has raised two jurisdictional points to defeat the claim. Firstly, that the application is outside the 14 day time limit for filing unfair dismissal applications and further that during the Applicant’s last six months of employment - January 2011 to July 2011, she did not work on a regular and systematic basis as a casual employee.

[4] The Applicant was employed as a casual Housekeeping Food and Beverage Attendant with the Respondent in April 2006, and alleges she was terminated unfairly on 26 April 2012.

[5] The Applicant submits that her employment was terminated on 26 April 2012, when she became aware that she was no longer employed by the Respondent. As such, the application was filed within the 14 day time limit on 3 May 2012. The Respondent submits that the Applicant’s employment officially ceased on 19 July 2011, and the application is out of time.

[6] This application involves two issues for resolution:

i. Is the Applicant’s casual employment status an impediment to the unfair dismissal application?

ii. When was the Applicant’s employment terminated and was the application filed out of time?

Applicant’s evidence and submissions

[7] Ms Crowe provided a statement and gave evidence before the Tribunal. Ms Crowe deposed that her last shift with the Respondent was on 3 July 2011. Since that date Ms Crowe stated she had been in regular contact with various staff of the Respondent, enquiring about future work.

[8] Ms Crowe’s evidence was that she had never advised any of the Respondents representatives that she was not available for rostered shifts at any time.

[9] Ms Crowe stated that on 23 March 2012, during a phone conversation with Ms Nadia Dambrosi, the Respondent’s Restaurant, Bars and Event Manager, she was asked to resign.

[10] On the 26 April 2012, Ms Crowe stated, that while speaking by telephone to Mr David Donald, the Respondent’s General Manager at the ParkRoyal Parramatta, she was advised that she was no longer employed by the Respondent and in order to obtain employment with the Respondent she would need to reapply for work.

[11] Ms Crowe argues that it was only during this telephone call that she was advised for the first time of her termination of employment with the Respondent. Prior to this date, Ms Crowe had assumed she was still employed with the Respondent and had never been issued with a termination certificate. To support this argument, Ms Crowe stated she had not been given an online or face-to-face exit interview. She still retained her locker key and had property in her locker and had not been asked to return her name tag.

Respondent’s evidence and submissions

[12] The Respondent’s case was presented by the General Manager of the ParkRoyal Parramatta, Mr David Donald. Mr Donald and the Respondent’s Banquet and Events Manager, Mr Hans Joachim, gave evidence at the hearing.

Evidence of Mr Donald

[13] Mr Hans Donald confirmed that the Applicant had initially been employed by the Respondent as a casual employee since 26 April 2006, and her last shift was on 3 July 2011. There were extensive renovations to the ParkRoyal hotel which commenced in April 2010, resulting in limited shifts being worked during this period. All major works during this renovation period were completed in January 2011. Mr Donald told the Tribunal that Ms Crowe’s name was removed from the payroll system in July 2011.

[14] Mr Donald stated that it was not the Respondent’s practice to issue termination certificates to its casual employees. He further stated that the Applicant’s name remained on the roster as an old roster template was being used.

[15] Mr Donald told the Tribunal that the Respondent had no reason other than a lack of available shifts to re-employ the Applicant. Mr Donald stated that due to the Applicant’s employment ceasing in July 2011, she would need to reapply for a position, and her application for work would be considered alongside any other applications and her previous experience with the Respondent would be a factor in her favour.

Evidence of Mr Joachim

[16] Mr Hans Joachim, the Banquet and Events Manager, provided a witness statement and gave evidence.

[17] Mr Joachim stated that the Applicant Ms Crowe, had told him in May 2011, that she was in the process of opening her own business with her partner, a take away restaurant in Windsor and would no longer be available for shifts between Monday and Friday. Ms Crowe had also enquired about purchasing old kitchen equipment from the Respondent. Ms Crowe was listed on the roster as not available Monday to Friday by the notation ‘N/A’ against her name.

[18] Mr Joachim’s evidence was that Ms Crowe subsequently advised in July 2011 that she had secured permanent employment on weekends with the Smithfield RSL. As a result of this advice, Ms Crowe as a casual employee with the Respondent was no longer considered available for work and her employment ceased.

[19] Mr Joachim states that in a phone conversation in July 2011, he told Ms Crowe they would hire casual employees to replace her shifts and that Ms Crowe agreed with her removal from the roster.

[20] In April/May 2012, Mr Joachim was contacted by Ms Crowe by telephone, wherein he advised Ms Crowe that there were no employment opportunities due to the business being quiet, and that shifts were not being offered to existing casuals.

Respondent’s submissions

[21] The Respondent submits that the Applicant’s employment was terminated by her removal from the roster on 19 July 2011. Mr Donald states that this occurred following a discussion between Ms Crowe and Ms Dambrosi, the Respondent’s, Restaurant, Bars and Events Manager, on 14 July 2011 (see Ex R1 Statement of Mr Donald at para.16).

[22] The Respondent submits that following the advice from Ms Crowe in July 2011, they received no further contact from her until March 2012, when Ms Crowe requested to be rostered again for shifts as she was no longer employed at the Smithfield RSL and available for work due to her own business venture not proceeding.

[23] In March 2012, Ms Crowe contacted Ms Dambrosi, and stated that she was no longer tied to her business venture and was available to be rostered for shifts.

[24] Ms Dambrosi provided a witness statement dated 12 September 2012, but was not called as a witness, the Respondent informed the Tribunal that she was on annual leave in Queensland.

[25] The Respondent’s position is that following the Applicant’s termination in July 2011, no further contact was received until eight months later, in March 2012. At this time, the Applicant advised the Respondent that her employment at the RSL had ceased and her business venture had been delayed.

[26] The Respondent submits that the application is out of time, having been filed outside the 14 day statutory period allowed for making unfair dismissal claims in the Tribunal and further, that as a casual employee, Ms Crowe has not worked regularly and systematically for six months prior to her termination.

Is the Applicant’s casual employment status an impediment to the unfair dismissal application?

[27] As described above, the Applicant was employed on a casual basis and last worked a rostered shift for the Respondent on 3 July 2011. The Fair Work Act 2009 (the Act) provides employees protection from unfair dismissal subject to certain limitations, one limitation being that the employee has worked for a minimum employment period (s.382).

[28] Section 382 of the FW Act refers to the employee having “completed a period of employment” of at least the “minimum employment period”. At s.383 of the Act, the minimum employment period (where the employer is not a small business employer) is defined as 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

[29] In the case of a casual employee, a period of service as a casual does not count towards the employee’s period of employment unless:

384(2)

(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;...

(My underline)

[30] The Respondent submits that the Applicant was not employed on a regular and systematic basis during her last six months of employment. The Respondent’s written response contained in the Form 3 at paragraph 8 states:

‘There is no regularity of shifts between 1st January 2011 and 3rd July 2011. Total earnings for this period equal $6,912. Following advice from the AHA, this period of service is not considered to be regular and systematic.’

[31] A similar assertion is repeated in Mr Donald’s witness statement (Ex R1 at para 14).

[32] No evidence of what shifts the Applicant worked was provided to the Tribunal by the Respondent. Reference to advice received from the Australian Hotels Association (AHA) is not evidence before the Tribunal.

[33] In the Full Bench decision of Shortland v The Smiths Snackfood Co Ltd (FWAFB 5709 [2010]), the Full Bench held that s.384 of the Act must be construed against the background that it is common for casual employees to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa.

[34] In the Full Court decision of Yaraka Holdings Pty Ltd v Giljevic (ACTCA 6 [2006]), Crispin P and Gray J stated at paragraph 14 that when having regard to the words “regular and systematic”, as found in s.11 of the Workers Compensation Act 1951 (ACT):

‘it is the engagement which must be regular and systematic not the hours of work pursuant to such engagement.’(para 64)

[35] As stated in the Full Bench decision of Wayne Shortland v The Smiths Snackfood Co Ltd  1 at paragraph 11:

‘The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.’

And at paragraph 13:

‘The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384.’

[36] The test is whether during a period of at least six months prior to the Applicant’s dismissal Ms Crowe was employed on a regular and systematic basis as a casual employee and had a reasonable expectation of continuing employment with the employer (see Ponce v DJT Staff Management 2).

[37] As accepted by the Respondent, the Applicant was first employed by the Respondent in April 2006 (the ParkRoyal was then known as the Crown Plaza Hotel). Section 384 of the Act requires an examination of the basis of Ms Crowe’s casual employment since commencing employment with the Respondent, in order to ascertain whether a period of six months regular and systematic work was undertaken, not just the Applicant’s last six months of employment.

[38] As stated above, no evidence of what shifts the Applicant worked, for any period of her employment with the Respondent, was provided to the Tribunal. As the jurisdictional argument to defeat the Applicant’s claim is raised by the Respondent, they bear at least an evidentiary onus to demonstrate there is substance to their argument.

[39] On what was presented to the Tribunal in this matter, I cannot be satisfied to the requisite degree, that the Applicant has not completed a period of six months regular and systematic work as a casual within the totality of her employment with the Respondent since 2006. This is notwithstanding on the Applicant’s argument she had not been rostered to work for eight months prior to her termination.

[40] A determination as to whether the Applicant, during her employment as a casual, had a reasonable expectation of continuing employment on a regular and systematic basis is not required in view of my finding below on the date the termination of employment took effect.

When was the Applicant’s employment terminated?

[41] The Tribunal was not provided with a copy of the Applicant’s employment contract (assuming one existed). However, there is no dispute that Ms Crowe was employed by the Respondent as a Casual Housekeeping and Food Beverage Attendant. Ms Crowe’s last shift with the Respondent was on 3 July 2011. Some nine months later, a claim of unfair termination has been filed by the Applicant.

[42] It is noted, that on the roster copies provided by the Applicant to the Tribunal, it is recorded that between Monday and Friday, the Applicant is not available to be rostered for work by the use of the letters “N/A” against her name. This notation is consistent with the Applicant having advised the Respondent that she was not available for work during week days, due to pursuing her own business venture. While the roster copies provided to the Tribunal (Ex A1) indicates that Ms Crowe is still available to be rostered on weekends, the Respondent states that this was due to an oversight and Ms Crowe’s name should have been removed from the roster.

[43] The Applicant was last rostered to work for the Respondent in July 2011.

[44] I find it passing strange for the Applicant to not contact the Respondent until eight months later, in March 2012, to enquire about further work, if the Applicant truly believed that she was still employed by the Respondent for the preceding eight months, and had simply not been provided with any rostered shifts.

[45] The position is more consistent with the evidence of Mr Joachim, being that the Applicant advised Mr Joachim in July 2011, that she was no longer available for any rostered shifts and was then told she would be removed from the roster, which she accepted.

[46] Without precisely identifying the day the termination took effect, where an employer no longer provides shifts to a casual employee (in this case eight months, before the employee queries her status), it is a reasonable assumption that the employee’s employment has come to an end.

[47] I find that the Applicant’s employment as a casual ceased in July 2011, when she was removed from the payroll, following her advice to the Respondent that she was no longer available to work weekends, in addition to already having advised the Respondent she was not available to work on week days.

[48] Normally a termination of employment would not take effect before it was communicated to the employee. 3 In this case, I find the termination was a result of a mutually agreed outcome arising from the discussions between the Applicant and the Respondent’s representatives in July 2011, which resulted in the Respondent no longer allocating rostered shifts to Ms Crowe.

[49] The application must be dismissed, as it is out of time, and while it was not argued by the Applicant that “exceptional circumstances” do exist, warranting the Tribunal to extend the time to file her application, on the evidence presented I would not have been able to reach this conclusion.

[50] Accordingly the application is dismissed.

COMMISSIONER

Appearances:

A Crowe on her own behalf.

D Donald for the Respondent.

Hearing details:

2012.

Sydney:

21 September.

 1   2010 FWAFB 5709

 2   Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic (U2009/5902)

 3   A.N. Makenja v Baptist Community Services (U2012/5783)

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