Bell v Aboriginal Legal Service (NSW/ACT) Limited
[2018] FWCFB 6102
•2 OCTOBER 2018
| [2018] FWCFB 6102 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jefferson Bell
v
Aboriginal Legal Service (NSW/ACT) Limited
(C2018/4750)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 2 OCTOBER 2018 |
Appeal against decision PR609945 of Commissioner Saunders at Newcastle on 14 August 2018 in matter number U2018/1810.
[1] Mr Jefferson Bell (Appellant) was employed by Aboriginal Legal Service (NSW/ACT) Limited (Respondent) as a casual employee from 6 February 2017 until 14 February 2018. The Appellant contends that he was unfairly dismissed and he has made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). The Respondent contends that Mr Bell was not protected from unfair dismissal on 14 February 2018 because he had not completed the minimum employment period required by the Act. Commissioner Saunders agreed with the Respondent’s contention. By decision issued on 14 August 2018, 1 the Commissioner concluded that the Appellant was not protected from unfair dismissal on 14 February 2018 because he had not completed a period of employment with the Respondent of at least the minimum employment period.2 Mr Bell’s application was subsequently dismissed.3
[2] By notice of appeal lodged on 29 August 2018, the Appellant seeks to appeal the Commissioner’s decision, for which permission to appeal is required. The grounds of appeal advanced in the notice of appeal may be shortly stated. The Appellant contends that:
• the Commissioner’s conclusion that the Appellant was not protected from unfair dismissal was based on significant errors of fact, though the alleged errors are not particularised in the notice of appeal;
• the Commissioner relied on irrelevant facts, which again are not particularised in the notice of appeal;
• the Commissioner’s decision involved an error of law because the Commissioner misapplied principles relevant to the assessment of the Appellant’s “expectation of ongoing work”;
• the Commissioner misapplied the “tests” in Ponce v DJT Management Services Pty Ltd 4 particularly as to the nature of the reasonable expectation held by a casual employee; and
the Commissioner’s conclusion that the Appellant did not have a reasonable expectation of ongoing employment in the first period discussed in the decision ignores the fact that the Appellant continued employment for a further seven months after the conclusion of the first period. Consequently the Appellant contends that the Commissioner failed to take into account a material consideration.
[3] The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others 5, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.6 Accordingly, the Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[4] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 7 The public interest is not satisfied simply by the identification of error8, or a preference for a different result.9 The public interest may for example be attracted if an appeal raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court or tribunal is required, or where the decision the subject of appeal manifests an injustice, or the result in that decision is counterintuitive or if the legal principles applied in the decision appear disharmonious compared with other recent decisions dealing with similar matters.10
[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 11 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.12
[6] The Commissioner began his consideration of whether the Appellant was protected from unfair dismissal by reference to the relevant statutory provisions and some observations about their operation. These bear repeating.
[7] Not every person who has been dismissed from employment whether unfairly or otherwise is able to bring an application for an unfair dismissal remedy. A person can only bring an application if, relevantly, the person was at the time of his or her dismissal, protected from unfair dismissal. A person is not protected from unfair dismissal unless the requirements in s.382 are met. Section 382 of the Act relevantly provides:
“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 …”
[8] Section 383 of the Act deals with the minimum employment period as follows:
“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.”
[9] Section 384 of the Act deals with an employee’s “period of employment” with an employer at a particular time as follows:
“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.”
[10] It is evident thats.384 does not proceed on the basis that a casual employee’s period of employment starts and ends with each separate contract of employment, as understood in the common law of employment. 13 Periods of casual employment punctuated by gaps between successive contracts may be included in a casual employee’s period of employment, depending on whether the employment was on a regular and systematic basis. It is the employment that must be on a regular and systematic basis, not the hours worked, but a clear pattern or roster of hours is strong evidence of regular and systematic employment.14
[11] The word “regular” should be construed liberally. 15 It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant.16 Employment on a “regular” basis may be constituted by frequent though unpredictable engagements.17 The word “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”.18 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.19
[12] The Act does not define the phrase “reasonable expectation of continuing employment”, nor does it set out any particular matters which should be taken into account in assessing whether a particular employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis during that employee’s period of service as a casual employee. Whether an employee had such an expectation will depend on the particular circumstances.
[13] It is also to be observed that the relevant “reasonable expectation” in s.384(2)(a)(ii) is as to continuing employment with the employer on a regular and systematic basis. This plainly suggests that the relevant reasonable expectation is as to continuing casual employment by the employer on a regular and systematic basis. Were it otherwise, the words “on a regular and systematic basis” would be otiose. The connection between “employment as a casual employee” and “on a regular and systematic basis” is established by s.384(2)(a)(i) and that connection seems to us to be maintained in s.384(2)(a)(ii). Section 384(2) is concerned with the circumstances in which a casual employee’s period of service as a casual employee is included in that employee’s period of employment for the purposes of s.383.
[14] The Commissioner accepted that the Appellant’s casual employment with the Respondent was on a regular and systematic basis. 20
[15] Before the Commissioner, the Appellant contended that during his service as a casual employee with the Respondent, he had an expectation of continuing employment on a regular and systematic basis and that he held this expectation throughout each of the following periods of casual service:
(a) 6 February 2017 until 15 March 2017;
(b) from 15 March 2017 until 15 October 2017; and
(c) from 15 October 2017 until 15 January 2018. 21
[16] As to the first period, the Appellant gave evidence and contended that although he believed that his casual employment would continue only until such time as the Respondent recruited someone to fill its vacant solicitor position, he had an expectation of continuing employment on the basis that he believed he had a good chance of “winning” the vacant solicitor position. The position for which recruitment was occurring was for a solicitor to be employed on a full-time basis.
[17] The Commissioner concluded that he was not satisfied the Appellant had a reasonable expectation during the first period of continuing employment with the Respondent on a regular and systematic basis. 22
[18] It is evident from the above that the expectation asserted by the Appellant was connected to the possibility of “winning” a full-time position as a solicitor with the Respondent. Whether such an expectation was reasonable in the circumstances is immaterial because even if it was, that expectation concerned the possibility of securing full-time employment with the Respondent and not continuing his casual employment with the Respondent on a regular and systematic basis. As is evident from the Commissioner’s decision the Appellant was aware that his casual employment during this period would be on a week by week basis until the solicitor position was filled. 23
[19] No arguable case of appealable error is evident from the grounds of appeal or from the Commissioner’s reasons for decision concerning the first period of casual service.
[20] Turning to the second period, during the proceedings before the Commissioner the Appellant contended that he had a reasonable expectation of ongoing employment as “he was aware all employment was frozen with the new CEO and no one knew what was happening due to a restructure”. 24
[21] The Commissioner accepted this contention based on the evidence and concluded that the Appellant had a reasonable expectation of continuing employment with the Respondent on a regular and systematic basis during that period. 25 It is not suggested that the Commissioner erred in this conclusion.
[22] As to the third period, the Appellant contended before the Commissioner that:
• he initially had an expectation of ongoing employment because he was hopeful that he would “win” the second recruitment process. This recruitment process was also for full-time employment; 26 and
• after he learned in early December 2017 that he had not been selected to fill one of the two vacant solicitor positions as part of the second recruitment process, he continued to have an expectation of ongoing employment because he was aware of considerable turbulence at the office and knew the senior solicitor’s position was untenable. The senior solicitor was suspended early February 2018 and never returned to work. For this reason the Appellant believed that he would be very useful to support the new solicitors during this turbulent time. 27
[23] As to the first dot point above, it is plain that such expectation as existed, reasonable or otherwise, was not concerned with continuing casual employment on a regular systematic basis but rather was concerned with being appointed to one of two vacant ongoing solicitor positions with the Respondent. Although the Commissioner dealt with the reasonableness of this asserted expectation at [34] – [37] and again at [42 (c)] it was not necessary for him to do so because for reasons earlier explained, during that period of casual service where there was a possibility that the Appellant might be a successful candidate for one of the two vacant positions, the Appellant could not be said to have had a reasonable expectation of continuing casual employment with the Respondent on a regular and systematic basis by reason of that possibility, or even a likelihood, that he might be appointed to one of the two permanent vacant positions. Thus even if the Commissioner was wrong in his conclusion, such error if it exists, is not material to the assessment of whether during that period the Appellant had a reasonable expectation of continuing employment as a casual employee with the Respondent on a regular and systematic basis. In any event the Commissioner was responding to the case as put by the Appellant. That is, the Appellant was pointing to his expectation as to the recruitment in the vacant positions rather than focusing on whether as a casual employee he had during that period a reasonable expectation of continuing casual employment with the Respondent on a regular and systematic basis. It follows that no arguable case of appealable error in this regard is disclosed.
[24] Turning then to the second dot point, the Commissioner dealt with that contention in his decision as follows:
“[37] I accept Mr Bell’s evidence that in early December 2017, he was informed by the ALS that he not been successful in the second recruitment process.
[38] Mr Bell gave evidence that despite knowing that he had been unsuccessful as part of the second recruitment process, he held an expectation of continuing employment because he was aware of “serious issues in the office”, “felt that Mark Savic would no longer be with us by early February” and “thought that it would be sensible to keep me on, to help the new people”. Mr Bell gave further evidence that he “expressed this in email to Nadine [Miles] in early February”. This evidence is to be contrasted withMr Bell’s email to Ms Miles sent on 2 February 2018, in which Mr Bell asked Ms Miles to “reconsider the decision communicated to me formally in your letter of 30.1.2018” and keep him “on the books as a casual but with no hours.” In this email, Mr Bell did not express to Ms Miles that he believed he should remain employed by the ALS so as to assist the newly recruited solicitors in the ALS Grafton Office.
[39] The following evidence also casts doubt on Mr Bell’s contention that he continued to hold an expectation of continuing employment even after he was informed in early December 2017 that he was unsuccessful in the second recruitment process:
[40]
• in an email sent to Ms Miles on 30 January 2018, in reply to her email attaching his notice of termination, Mr Bell stated:
“This is fine. I expected for some time that I would be let go when the new people start…”
• in his email to Ms Miles dated 2 February 2018, Mr Bell stated as follows:
“My point is I don’t want my dismissal (which I believe would have happened anyway) linked in my mind or anyone else’s mind to my reporting in December or to my standing up for …”
• in his witness statement Mr Bell referred to being informed in early December 2017 that he had been unsuccessful in the second recruitment process and stated:
“I was given no information regards my paralegal position but felt that there was a good chance I would be let go when the new people started.”
[41] In response Mr Bell’s email dated 2 February 2018, Ms Miles sent an email to Mr Bell on 6 February 2018, in which she stated the following (in part):
“As you are aware, ALS undertook a recruit round for our Grafton/Coffs Harbour practice late last year. We will shortly commence 2 new solicitors at Grafton and it is for this reason alone that we are not in a position to continue our arrangement”. (emphasis added)”” 28 [Endnotes omitted]
[25] At [42 (c)] of the decision the Commissioner concluded:
“...By early December 2017, Mr Bell was aware that he had not been successful for the role of solicitor. From that point on, I do not accept the various reasons put forward by Mr Bell to substantiate the belief he says he held of continuing employment. In that regard, I refer to the matters set out in paragraphs [37] and [38] above. While there was the prospect that ALS could have asked Mr Bell to stay on for some time “to help the new people” or undertake some other work, that was nothing more than a possibility and there was no act or omission on the part of the ALS which could have given Mr Bell a reasonable expectation of continuing employment on a regular and systematic basis from early December 2017.”
[26] There is nothing in the notice of appeal and little in the outline of submissions on the question of permission to appeal suggesting that the Commissioner’s analysis above was erroneous. At its highest, the Appellant contends that “Commissioner Saunders denies that Mr Bell expressed a hope to help the new lawyers. Mr Bell clearly did as can be seen in the evidence at P 79 of the Appeal book (point 6). This is an error of fact”. 29
[27] We are not persuaded that an arguable case of appealable error in this regard has been established. On a fair reading of [38] of the Commissioner’s decision, the Commissioner made no finding that Mr Bell did not express hope to help new lawyers. The Commissioner noted that he had but contrasted that expression to other evidence for the purposes of weighing whether the expressed expectation was a reasonable one.
[28] We deal with one final matter, which though not raised in the grounds of appeal, is set out in the Appellant’s outline of submissions. In essence the Appellant contends that he was prevented from cross-examining Ms Miles on the question whether there was a policy that “unadmitted” lawyers could not “win” a position with the Respondent. The relevant exchange during the Appellant’s cross examination of Ms Miles in the transcript is as follows:
“MR BELL: In point 16 you put there that the applicant did not win the selection process. You put there also that the applicant could not meet the requirements of the role and had not been admitted to practise and did not have a practising certificate at this time. I understood it was the case, Ms Miles, that when people applying for junior roles often they may not have their - often they may not be admitted or have their practising certificate at the point of application. Would you say that would be true? As a general principle my understanding of recruitment processes around the ALS is that an essential criteria for a solicitor's role is the eligibility for admission.
Mm-hm? The eligibility for admission which then would - well - sorry - actually if I can just - what I'm trying to say is that someone is eligible to receive a practising certificate. By that they have to be admitted at the time. A person can be admitted and eligible for a practising certificate as opposed to holding a practising certificate at the time of applying for a job at the ALS.
Okay. So you're saying that part of the reason I was not qualified was because I hadn't been admitted and therefore wasn't eligible for a practising certificate at that point? That's my understanding of the process that occurred.
Okay, but in the December process one of the solicitors that's got the job he hadn't been admitted either but he was still awarded the job.
MR WOODBURY: Commissioner, again, I object here. I'm not exactly sure what point this goes to in terms of the jurisdictional point.
MR BELL: Just in terms of that I might have been eligible to get the position at that point, given that other solicitors were awarded before admission.
THE COMMISSIONER: How is that relevant to anything I need to decide today?
MR BELL: Probably slightly in terms of the process - but I'll move on. Okay. Thanks, Ms Miles, I don't have any further questions. Thank you.” 30
[29] The Appellant’s submission is simply not supported by the transcript. All that occurred was that the Respondent objected to a question on relevance grounds, the Commissioner asked the Appellant how the question was relevant to anything that he needed to decide, and the Appellant did not seek to justify the question on relevance grounds, did not press the question and moved on. The Appellant was not prevented from cross-examining, he simply failed or did not wish to justify the question on relevance grounds. Instead he moved on. That was his choice. No arguable case of appealable error is made out by the Appellant’s submission.
[30] As we have mentioned, the decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so.
[31] On the material before us, and for the reasons stated, we are not persuaded that the matters set out in the grounds of appeal or in the Appellant’s submissions, raise an arguable case of appealable error or otherwise engage the public interest. We are not persuaded that the appeal raises issues of importance or general application, or that there is a need for Full Bench guidance on the operation of s.384(2) of the Act. Therefore, we do not consider the grant of permission to be in the public interest.
[32] Permission to appeal is therefore refused.
DEPUTY PRESIDENT
Appearances:
Mr J Bell on his own behalf.
Mr S Woodbury on behalf of the Respondent.
Hearing details:
2018.
Melbourne, and Sydney (by video):
September 25.
1 [2018] FWC 4782.
2 Ibid at [43].
3 Ibid at [44].
4 [2010] FWA 2078.
5 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78.
6 Ibid at [43].
7 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
9 Ibid at at [26]-[27]; see also Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
10 See GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
11 Wan v AIRC (2001) 116 FCR 481 at [30].
12 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
13 Shortland v Smiths Snackfood Co Ltd[2010] FWAFB 5709 at [11].
14 Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 399 at [65].
15 Ibid at [68].
16 Ibid.
17 Ibid at [89].
18 Ibid at [91].
19 Ibid at [69].
20 [2018] FWC 4782 at [15] – [19].
21 Appeal Book 48 – 49 at [6] – [9]: see also [2018] FWC 4782 at [20].
22 [2018] FWC 4782 at [42 (a)].
23 Ibid.
24 Appeal Book 48 – 49 at [8].
25 [2018] FWC 4782 at [42 (b)].
26 Appeal Book 49 at [9].
27 Ibid.
28 [2018] FWC 4782 at [38] – [41].
29 Appellant's Outline of Submissions 4 at (2)(d).
30 Transcript of Proceedings, 16 July 2018, PN97-PN104; Appeal Book at 22.
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