Ashling Ryan v The Australian Tourist Restaurants U/T
[2022] FWC 1833
•11 AUGUST 2022
| [2022] FWC 1833 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ashling Ryan
v
The Australian Tourist Restaurants U/T
(U2022/4144)
| COMMISSIONER SCHNEIDER | PERTH, 11 AUGUST 2022 |
Application for an unfair dismissal remedy
On 8 April 2022, Ms Ashling Ryan (the Applicant) lodged an application for an unfair dismissal remedy against The Australian Tourist Restaurants U/T (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).
In the F3 Employer response, the Respondent states “The applicant was casual with irregular hours and with no guarantee of ongoing employment”. The Respondent also objects to the application on the basis that the Applicant was not dismissed.
Section 396 of the Act requires 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. She had worked for the Respondent for a period of more than a year. As the Respondent is not a small business, the statutory minimum employment period applicable is six months.
The Applicant commenced working for the Respondent in September 2019. Initially, the Applicant undertook work as a food and beverage attendant. The Applicant was promoted to a food and beverage attendant supervisor in August 2021.
Briefly stated, I have concluded that the Applicant is a person protected from unfair dismissal. The Applicant has completed a period of employment with the Respondent of at least the minimum employment period as required under the Act. The Applicant is a regular and systematic casual employee with a reasonable expectation of ongoing employment. The reasons for this determination follow.
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 definition 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. …”
Submissions
Respondent
On 20 June 2022, the Respondent filed submissions regarding the minimum employment period issue.
The Respondent submitted that the Applicant had not met the requirements of section 384(2) of the Act for the following reasons:
·The Applicant was engaged on a casual basis.
·The Applicant did not have a contract of employment and there was no guarantee of expectation of on-going set hours of future work.
·The Applicant had irregular hours each fortnight.
·The Applicant had other employment.
·The Applicant’s availability to complete work for the Respondent varied due the Applicant’s other work and university commitments.
·The Applicant had reduced her availability from October 2021 due to her other work and university commitments.
Applicant
On 27 June 2022, the Applicant filed submissions in response to the minimum employment period issue.
The Applicant submitted that she had met the requirements of section 384 (2) of the Act for the following reasons:
·The Applicant was engaged by the Respondent for over two and a half years.
·The Applicant was regularly and systematically engaged to work Wednesday, Thursday, Saturday and Sunday prior to October 2021.
·After October 2021, the Applicant continued to be engaged on a regular and systematic basis and was rostered to work Saturdays and Sundays.
·The Applicant was promoted to being a shift supervisor in August 2021, the Applicant notes that as the Respondent requires at least one supervisor to be on shift at any given time during the café’s operational hours. The Applicant submits that accordingly she was guaranteed shifts each week to make sure there was always a supervisor on duty.
·The Applicant also submitted that, as a regular and systematic casual employee, she was provided with JobKeeper payments in 2020.
Consideration
Section 384(2)(a)(i) – Regular and Systematic Casual
The Commission was provided with payroll data, of the 12 months prior to the Applicant’s employment ending, which revealed the Applicant’s hours and pay each fortnight. This data is shown below.
| Pay Period Ending | Hours |
| 11/04/2021 | 60.17 |
| 25/04/2021 | 51.58 |
| 09/05/2021 | 38.03 |
| 23/05/2021 | 67.73 |
| 06/06/2021 | 66.89 |
| 20/06/2021 | 82.05 |
| 04/07/2021 | 56.88 |
| 18/07/2021 | 65.17 |
| 01/08/2021 | 64.73 |
| 15/08/2021 | 66.00 |
| 29/08/2021 | 86.79 |
| 12/09/2021 | 83.33 |
| 26/09/2021 | 52.40 |
| 10/10/2021 | 87.03 |
| 24/10/2021 | 21.04 |
| 07/11/2021 | 26.00 |
| 21/11/2021 | 34.78 |
| 05/12/2021 | 13.15 |
| 19/12/2021 | 28.75 |
| 02/01/2022 | 19.00 |
| 16/01/2022 | 34.29 |
| 30/01/2022 | 16.50 |
| 13/02/2022 | 37.13 |
| 27/02/2022 | 38.63 |
| 13/03/2022 | 41.66 |
| 27/03/2022 | 01.78 |
During the 12-month period reflected in the payroll data the Applicant worked, on average, 24.79 hours per fortnight. From April until the end of October the Applicant worked on average 31.66 hours per week. From the end of October, when the Applicant’s availability decreased due to her other work commitments and her university commitments, until the Applicant’s employment with the Respondent ended the Applicant worked on average 14.49 hours per week.
The Applicant submitted copies of her personal calendar, which noted the days she was rostered. During the period in October, when the Applicant reduced her hours due to other commitments, the Applicant worked a 17 out of 22 Saturdays and 16 out of 22 Sundays with the Respondent.
The Applicant worked at least every fortnight, although she did work varying hours. The engagement was clearly repetitive in nature. The days of the shifts did themselves reflect a pattern, being that the Applicant was regularly rostered to complete supervisor duties on the weekends. The Respondent submitted that the hours and shifts that could be completed by the Applicant could vary greatly depending on her other commitments. I note that the pattern of shifts and the work completed cannot be relied on in isolation to show the engagement was regular and systematic.[1] However, this factor has been taken into consideration.
The Respondent submits that the Applicant’s availability was impacted by other commitments including other work and her studies. The Applicant confirmed that, at times, she would reduce her availability to work for the Respondent. The Applicant would then complete work on the days she had free to do so. It is clear that the Respondent would offer the Applicant work when it was known she would be available, and that the Applicant would accept and complete those shifts she was available for.[2] No evidence was advanced to show the Applicant was unreliable to a degree that would lend to a finding that the engagement was not regular and systematic.
I do not find the Applicant’s temporary reduction in hours to accommodate her university exams, or more generally the varying hours each week, impacted her employment to the extent that the engagement could be considered irregular. On the contrary, it is clear that the Applicant could expect to receive shifts, in excess of 10 hours, each fortnight from the Respondent regardless of any limited availability. This consistent and repetitive rostering, and overall engagement itself, lasted over two years.
The Applicant submitted that a supervisor is needed for each shift and that the Applicant was regularly relied on to supervise the weekend shifts. The Respondent therefore would roster the Applicant due to her status as a supervisor and the necessity to have a supervisor on shift. There is a clear system in which the roster must be designed to ensure a supervisor is on each shift. The engagement occurred as a consequence of the Respondent’s reliance on the Applicant’s services as a worker, specifically as a supervisor.[3]
Based on the payroll data, along with the materials provided by the parties, I have determined that the engagement was on a regular and systematic basis and therefore the Applicant meets the requirements of section 384(2)(a)(i) of the Act.
Section 384(2)(b)(ii) – Reasonable Expectation of Continuing Employment
There was no contract of employment in place between the Applicant and the Respondent. It was agreed between the parties that the Applicant commenced employment on 17 August 2019. Between August 2019 and March 2022, the Applicant remained employed by the Respondent.
At no stage in the two years and six months of the employment relationship did the parties formalise the arrangement by way of a contract of employment. Further, neither party submitted any evidence that they sought to formalise the arrangement by way of a contract of employment. I note that neither party was able to produce a contract or offer of employment. The Respondent did not prioritise defining the relationship as non-ongoing in any written agreement. The Respondent also did not prioritise implementing a more stable ongoing relationship by way of a written agreement. I therefore find this neutral in my consideration.
The consistent weekly rostering of the Applicant, willingness to adapt to her reduced availability, increase in rostering after her exams, promotion to supervisor, continued reliance on her services as a supervisor, and her tenure at the business, all would have led the Applicant to form an expectation of ongoing engagement.
In August 2021, the Applicant was promoted from a Grade 2 to a Grade 3 under the relevant Modern Award and was required to perform supervisor duties. I find that that Applicant’s performance would have been to a standard whereby the Respondent was satisfied to promote her to a supervisory position. The promotion of the Applicant favours a finding of a reasonable expectation of continuing employment.
The Applicant submitted that the Respondent required at least one supervisor to be on shift at any time. The Respondent did not counter this submission from the Applicant. I find that the promotion would have strengthened, and supported the reasonableness of, the Applicant’s expectation of ongoing engagement.
As discussed previously, the Applicant had reduced availability from October 2021 until her employment ended with the Respondent in March 2022. However, despite the Applicant’s reduced availability, the Respondent continued to roster her for shifts, accommodating her revised availability, which she would then work. I find that the Respondent’s continued engagement of the Applicant despite her change in availability, and the subsequent increase in hours after her external commitments eased, favours a finding of a reasonable expectation of continuing employment.
The Respondent relies on the Applicant’s casual status as evidence that there was no ongoing relationship. Being a casual staff member, in itself, clearly does not preclude a finding of a reasonable expectation of ongoing engagement.[4]
There is nothing before the Commission to suggest that the Respondent ever indicated to the Applicant that her engagement was not ongoing. The continued offering of shifts, the constant rostering of work, the apparent satisfaction with her work resulting in her promotion, her tenure at the restaurant, and the openness to being flexible around her study all point to an ongoing relationship. Accordingly, there is nothing before the Commission to suggest that the expectation the Applicant formed was unreasonable.
On the material before the Commission, I find that the Applicant met the requirements of section 384(2)(a)(ii) of the Act.
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 was on a regular and systematic basis, the Applicant held an expectation of continuing employment on that basis, and that expectation was reasonable.
Accordingly, the Applicant’s period of service as a casual employee satisfies the minimum employment period under the Act. The Applicant is therefore a person protected from unfair dismissal. The jurisdictional issue is dismissed. The matter will now progress to a hearing on the merits of the application.
COMMISSIONER
Appearances:
A Ryan, Applicant.
W Missingham for the Respondent.
Hearing details:
2022.
Perth (by video):
June 30
Final written submissions:
Respondent, 4 July 2022.
Applicant, 5 July 2022.
[1] [2020] FWCFB 306, at [11].
[2] [2010] FWA 2078, at [76].
[3] (2006) 149 IR 339, at 69.
[4] [2020] FWCFB 306, at [15].
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