Anthony Charles Rutherford v The Apprentice and Traineeship Company Inc
[2023] FWC 2757
•20 OCTOBER 2023
| [2023] FWC 2757 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anthony Charles Rutherford
v
The Apprentice And Traineeship Company Inc
(U2022/6614)
| COMMISSIONER SCHNEIDER | PERTH, 20 OCTOBER 2023 |
Application for an unfair dismissal remedy
On 24 June 2022, Mr Anthony Rutherford (the Applicant) lodged an application for an unfair dismissal remedy against The Apprentice and Traineeship Company Inc (the Respondent). The application was lodged in the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent has objected to the application on the basis that the Applicant has not met the minimum employment period, as required by the Act to make such an application.
The Respondent is of the position that, as the Applicant was employed on a casual basis and was not a regular/systematic/ongoing casual employee, his period of service did not count towards the minimum employment period under the Act.
Section 396 of the Act requires that certain matters be determined before the merits of an application. In this matter, the Commission must first determine if the Applicant has served the minimum employment period pursuant to section 383 of the Act. This decision concerns that preliminary issue.
Background
The Applicant was a casual employee of the Respondent. He commenced his casual engagement with the Respondent, on 5 August 2020, as a Trainer/Assessor.
The Applicant was initially engaged to develop and deliver training on Civil Construction and other short courses, as required.
The Applicant’s employment with the Respondent was terminated on 19 May 2022.
Legislative framework
The relevant statutory provisions are sections 382, 383, and 384 of the Act. Those provisions, in part, read:
“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; and …”
“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.”
“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 as a regular casual employee; 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; …”
Section 22 of the Act provides the definitions of ‘service’ and ‘continuous service’:
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 22 (which deals with community service leave); or
(ii) a period of stand down under Part 35, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly. …”
Case Law Framework
The Court in Yaraka Holdings Pty Ltd v Giljevic (Yaraka)[1] provided clarification on the construction of the regular and systematic test. The Court highlighted that it is the engagement in question that must be the subject of scrutiny:
“It should be noted that it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement.” [2]
The Full Bench of the Commission has reinforced this construction of the test in a subsequent decision.[3] The Full Bench stressed that a pattern of hours worked is only one consideration in determining whether the engagement itself is regular and systematic.[4]
Regarding the meaning of regular and systematic, the Court in Yaraka explained:
“The term “regular” should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”.” [5]
“Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan …” [6]
The Court in Yaraka provided the following regarding shift pattern and predictability:
“The concept of engagement on a systematic basis does not require the worker 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 upon the worker’s services as an incident of the business by which he or she is engaged.” [7]
The Court in Yaraka found the engagement in question, in that matter, was regular and systematic. The Court provided the major considerations for its determination:
“In my view there was such a basis apparent here. The system, method or plan involved:
(a) a shared understanding that a substantial part of the respondent’s time was and would be devoted to work for the appellant;
(b) the respondent preferentially making himself available to the appellant whenever possible;
(c) expected and acknowledged loyalty and commitment by the respondent to the appellant’s interests and ventures (the bonus payments are significant here);
(d) that the respondent would personally perform the work desired by the appellant rather than delegate it – such an inference, as indicated above, appears overwhelming;
(e) a shared understanding that the appellant would, in return, furnish the respondent with a substantial amount of work;
(f) an unusually high degree of mutual personal regard, trust and confidence between the parties (frequently deferred payment for services; ability to pledge the appellant’s credit); and
(g) stability of those features over a long period.”[8]
The Commission has relied on the Court’s construction of regular and systematic in Yaraka in several subsequent decisions. In Ponce v DJT Staff Management Services Pty Ltd (Ponce), the Commission expanded on the assessment of whether an employee is regular and systematic and provided the following considerations:
“I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.
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 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.
Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.
If the hours worked over a lengthy period are similar to or exceed that of full-time ordinary hours then this would also be strong evidence that work is being performed when offered and that work is being offered when available at the time parties know this is practical. Hence this would also be evidence of regular and systematic employment.” [9]
Regarding the reasonable expectation of continuing employment, Jackson J in Bronze Hospitality Pty Ltd v Hansson (No 2) (Bronze) noted the following in relation to forming an expectation:
“If the employee’s expectation was based, not on anything the employer said, but solely on her own observation of the regularity of her work shifts, it would be wrong to look back and say that, as it turned out, there was a reasonable expectation from the very beginning. An expectation could not be reasonable until the time at which the pattern necessary to make it so has emerged.”[10]
In relation to the reasonableness of an expectation, Jackson J stated:
“If that expectation has been formed, it is necessary to assess whether it is a reasonable one. It is true that the word ‘reasonable’ is generally used in the law to import an objective standard: Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at [33] (Lord Hoffmann). But the FWA does not limit the matters that may be taken into account in determining whether the expectation is reasonable.” [11]
Submissions - Evidence
Respondent
The Respondent has filed submissions and evidence in support of the objection. The Respondent submits that the Applicant had not met the requirements of section 384(2) of the Act for the following reasons.
The Respondent submits that, from the period of July 2021 until the Applicant’s termination, on 19 May 2022, the Applicant worked less than 10 hours for 30% of the weeks in question.
The Respondent submits, for 32% of the weeks in question, the Applicant worked more than 35 hours per week. The Respondent submits that, on average, the Applicant worked 23 hours per week.
The Respondent submits that the Applicant’s hours increased and decreased to meet the operational requirements of the Respondent. The Respondent outlined that the Applicant’s knowledge and skillset meant that he was involved in several projects, including:
· Delivery of two short course training modules.
· Adaptation and setting up of training materials.
The Respondent submits that this work was additional to the Applicant’s primary duties. The Applicant’s primary duties mainly consisted of Verification of Competence (VOC) and apprenticeship training.
The Respondent submits that, whilst required to complete additional tasks in addition to his project work, the Applicant’s work of VOC and apprenticeship training required no more than 10 hours of his time per week.
The Respondent outlines that clause 2.2 of the Applicant’s employment contract, as quoted below, supports a finding that the Applicant was aware and had agreed there was no guarantee of ongoing employment with the Respondent:
“This casual employment arrangement may be terminated by either party at any time by providing 24 hours’ notice”.
Applicant
On 23 January 2023, the Applicant filed submissions in response to the objection. The Applicant submits that he had met the minimum employment period for the following reasons.
The Applicant was engaged by the Respondent for approximately 95 weeks (22 months) in total.
The Applicant provided copies of his banking records, which were colour coded to indicate the following:
· Red – Expense claim reimbursement from the Respondent to the Applicant.
· Yellow – weeks in which the Applicant worked 38 hours (or more), this occurred 49 weeks out of 22 months.
· Green – weeks in which the Applicant worked less than 38 hours; the Applicant submits this occurred on 23 occasions.
The Applicant submits that his payroll records show he was engaged on a regular and systematic basis. The Applicant submits that there were never any discussions held that supported the Respondent’s position that certain tasks were “project work” and this would impact his on-going employment if the projects he was working on ceased.
The Applicant submits that, in the weeks prior to his termination, he had a discussion with the Respondent about a revised contract.
Consideration
Section 384(2)(a)(i) – Regular and Systematic
I have reviewed and considered the payroll data provided by the Applicant. From the payroll data provided by the Applicant, it appears that the nature of the relationship between the parties changed over the time the Applicant was employed but remained repetitive and consistent for the majority of his engagement.
I have reviewed the banking information provided by the Applicant and note the following:
· In the Applicant’s first 26 weeks of employment, there are 9 weeks in which the Applicant did not perform any work for the Respondent and, accordingly, was not paid.
· I have also reviewed the 17 weeks in which the Applicant was paid and find that he was paid, on average, a net weekly salary of $834.38 per week.
· The figures outlined above significantly differ to those pertaining to the Applicant’s final 26 weeks of employment.
· In the six months prior to his termination (excluding the final pay period), the Applicant was paid 23 out of the 26 weeks in question.
· The only weeks the Applicant was not paid were over the Christmas holiday period of 2021 into early 2022. Given the nature of the Respondent’s business, it is reasonable to conclude that there was no work for the Applicant during that period.
· For a two-week period, in mid-January 2022 to the late-January 2022, the Applicant worked reduced hours. In the Applicant’s final 16 weeks of employment with the Respondent, the Applicant averaged a net income of $1,478.89 per week.
The banking records, provided by the Applicant, reflect that the nature of the employment relationship shifted from that of an insecure and irregular casual arrangement, when the Applicant commenced employment, to an arrangement in which the Applicant was working on a regular and systematic basis with the Respondent.
Upon review of the materials provided, it appears that the Applicant’s engagement, from early 2021 until his termination, was consistent and repetitive. Ignoring a 6-week period of absence in June and July of 2021, for which neither party has submitted was an excluded period or a break in service, the Applicant was consistently engaged to work, mostly, substantial hours each week.
I am satisfied that, from early 2021, the evidence above supports a finding that the Applicant’s engagement became regular and systematic. It is clear that this evidence weighs in favour of a finding that the Applicant was engaged on a regular and systematic basis for, clearly more than, the 6-month period prior to his termination.
On assessment of the materials before me, it is clear that the Applicant’s engagement involved a pattern of substantial hours with minimal breaks in-between. There is no evidence before the Commission that would negate the conclusion that there is a clear pattern of regularity in the engagement. Nevertheless, it is clear that the Respondent offered (rostered) work, when it was available (being fairly frequently), and that the Applicant consistently accepted this work.
It appears the Applicant made himself preferentially available to the Respondent, a conclusion drawn from the significant hours worked by the Applicant during his engagement.
I am not satisfied that the slight variation in weekly hours would lead to a conclusion that the engagement was not regular and systematic, noting that it is the engagement itself, not the hours worked, that must be regular and systematic.
It is clear that the Respondent relied upon the Applicant, noting that he was allocated work due to his specialist skills and expertise, and the engagement arose a result of this reliance.
The Respondent submitted that, each week, the Applicant was rostered to complete his core duties and was allocated additional work within projects, according to his skills and the Respondent’s needs. This method of selecting the work to be allocated to the Applicant was a consistent feature of the engagement. The nature of the Applicant’s duties meant that, even in the absence of the additional tasks, he was consistently relied upon to discharge his training duties. These duties are central to the Applicant’s engagement and, owing to the structured nature of such training courses, underpin the regular and systematic character of the Applicant’s engagement.
For the reasons above, I am satisfied that the Applicant’s engagement was regular and systematic during the large majority of his service with the Respondent for the purposes of the Act.
Section 384(2)(b)(ii) – Reasonable Expectation of Continuing Employment
The Applicant submits that he understood his engagement was casual and, during his employment with the Respondent, he completed work as it was available and based on the requirements of the Respondent.
The Applicant submits that there was never any discussion in relation to the scope of work he completed being “project work” and how that could impact the ongoing nature of his engagement. The Applicant also submits that there had been discussions with the Respondent regarding a new contract in the weeks leading up to his termination.
The Respondent submits that the Applicant was required to complete two very specific project scopes of work and that these scopes of work had been completed prior to his employment ending.
The evidence in support of the assertions made by both the Applicant and the Respondent, in relation to the ongoing nature of the Applicant’s engagement, is limited. Neither party has provided any notable evidence in support of their position on the reasonable expectation of ongoing employment.
The Respondent submits that, based on the below, contractual wording the Applicant could not have held a reasonable expectation of on-going employment.
“This casual employment arrangement may be terminated by either party at any time by providing 24 hours’ notice”.
The nature of the Applicant’s engagement with the Respondent, noting my findings above, weighs strongly in favour of a finding that an expectation was formed.
For the duration of his employment, the Applicant was consistently engaged to complete his tasks and relied upon to complete his role due to his knowledge, seniority, and skills within his field. These attributes were valuable and essential to the role he held; he was not simply another pair of hands to call in when desired.
There is nothing before me to suggest that the Applicant, over the course of his engagement, would not have formed an expectation of ongoing employment.
I note the parties’ competing positions regarding the distinction between the types of work allocated to the Applicant and the impending conclusion of the additional/project work. On assessment of the circumstances in this matter and the material before me, I am inclined to believe that the Applicant was not informed of these factors in any great detail or in such a way that could lead him to the same understanding as the Respondent.
Although the Applicant could likely recognise the distinction between the types of tasks he performed, there is no evidence before the Commission to satisfy a conclusion that the Applicant was aware of a distinction in his core and additional tasks in the way the Respondent has framed them. The Applicant had been allocated substantial hours for the majority of his engagement. Accordingly, one would be reasonable to assume that the work allocated to him is his work and not distinct, additional, and finite tasks bestowed upon him. There is no notable evidence to support a finding that the Applicant was aware of an imminent and drastic change in the nature of his engagement. Without such understanding, there would be no reason for the Applicant to conclude that his engagement would undergo a change. If the Applicant did hold such understanding, noting that he was consistently allocated a varying degree of a range of “additional” tasks throughout his engagement, it would be logical for the Applicant to expect the allocation of new additional tasks or a temporary reduction in such tasks. There is also little evidence to suggest that the Respondent, even in a vague manner, indicated that the Applicant’s engagement was facing a radical change.
In the event that I have erred, regarding the Applicant’s knowledge of looming reduction in hours, I am not satisfied that such a change would make the Applicant’s expectation unreasonable nor render his engagement no longer regular and systematic. The Respondent appears to rely on the fact that the Applicant’s core training duties only encompassed a small amount of his work to support the position that, in the absence of the project work, the nature of the Applicant’s engagement would cease to be regular and systematic. However, as I have noted previously, the Applicant was relied upon, due to his experience and knowledge, to complete his regular core training duties. These duties are the foundation of his engagement and, owing to the structured form apprenticeship training, give rise to the regular and systematic nature of the Applicant’s engagement. Accordingly, I would find that, even in the absence of the additional work, although clearly a reduction in hours would occur, the Applicant’s core duties would maintain the regular and systematic nature of his engagement.
Following assessment of the, although limited, information provided by the parties, I am satisfied that the Respondent did not give the Applicant any prior warning that his engagement would shortly undergo any notable change after the end of any project work that the Applicant was completing or that the Applicant would have been aware of such circumstances in a manner that would make his expectation unreasonable.
I do not find that the clause in the Applicant’s employment contract, in the context of this matter, excludes a finding, based on the significant evidence before the Commission supporting a reasonable expectation, that the Applicant held a reasonable expectation of ongoing engagement on a regular systematic basis.
The nature of the Applicant’s engagement, coupled with the Respondent’s ongoing reliance on the Applicant, supports the finding that the Applicant held a reasonable expectation of ongoing engagement as specified in the Act.
In summary, I am satisfied that the Applicant had formed an expectation, the expectation was a reasonable one, the expectation was one of ongoing employment, and that the ongoing employment would remain regular and systematic.
Conclusion
Based on the evidence submitted, I am satisfied that the Applicant met the requirements of sections 384(2)(a)(i) and 384(2)(a)(ii) of the Act. The Applicant’s engagement, for more than 6 prior to his termination, was on a regular and systematic basis, the Applicant held an expectation of continuing employment on that basis, and that expectation was reasonable. The Applicant’s service therefore counts towards the calculation of the minimum employment period under the Act.
Accordingly, the Applicant satisfies the minimum employment period under the Act. The Applicant is therefore a person protected from unfair dismissal. The jurisdictional objection is dismissed. The matter will now progress to a hearing on the merits of the application.
COMMISSIONER
[1] (2006) 149 IR 339 (‘Yaraka’).
[2] Ibid, at [65].
[3] [2020] FWCFB 306, at [11].
[4] Ibid, at [14].
[5] Yaraka (n 1), at [68].
[6] Ibid, at [91].
[7] Ibid, at [69].
[8] Ibid, at [92].
[9] [2010] FWA 2078, at [75] - [78] (‘Ponce’).
[10] (2019) 290 IR 344, at [39].
[11] Ibid, at [40].
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