Brenton McMasters v Topdrill Mineral & Water Exploration

[2019] FWC 397

[2019] FWC 397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brenton McMasters
v
Topdrill Mineral & Water Exploration
(U2018/12323)

COMMISSIONER WILLIAMS PERTH, 24 JANUARY 2019

Termination of employment - jurisdiction.

[1] This matter involves an application made by Mr Brenton McMasters (Mr McMasters or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Topdrill Mineral & Water Exploration (Topdrill or the Respondent).

[2] The form F3−Employer’s response to unfair dismissal application (form F3) lodged by Topdrill stated that at the time the Applicant was dismissed Topdrill had approximately 64 employees. The response objected to the application on the grounds that the Applicant had not met the minimum employment period as required by section 382 of the Act.

[3] Section 383 of the Act provides that because the Respondent is not a small business employer that minimum employment period is six months. The objection was grounded on a submission that the Applicant was a casual employee whose period of employment was less than six months because his employment was broken by a number of periods when he did not work and the employment was not on a regular and systematic basis.

[4] Topdrill advised that they wished for their jurisdictional objection to be dealt with prior to a conciliation conference. Consequently the Commission wrote to the Applicant highlighting the Respondent’s jurisdictional objection with the detailed information they had provided in their form F3, setting out section 384 of the Act and inviting the Applicant to provide any witness statements or submissions in response to that objection.

[5] Mr McMasters in response has provided an email explaining his view of the jurisdictional objection accompanied by a spreadsheet which details the days he worked and the days he did not work between the week ending 29 April 2018 and the week ending 25 November 2018, a pay slip with a payment date of 9 May 2018, another payslip with the payment date of 26 November 2018 and a copy of his offer of employment which he signed on 9 November 2018, which the Applicant refers to as his contract.

[6] Topdrill in reply have provided a written submission which points out there is no dispute about the documents the Applicant has provided as they are documents from Topdrill itself.

Factual findings

[7] There is no dispute between the parties as to the facts of this matter but rather a dispute as to whether or not these facts mean that the Applicant has or has not met the minimum employment period provided for in section 382 and 383 of the Act.

[8] The materials from the parties show that the Applicant commenced employment with Topdrill on Monday, 23 April 2018. His last day worked was Friday, 23 November 2018.

[9] Relevantly for the purposes of considering whether the Applicant’s employment was on a regular and systematic basis the weeks and number of days he worked is set out in a table below:

Week Ending	Number of days worked
29 April 2018	4
6 May 2018	7
13 May 2018	7
20 May 2018	6
27 May 2018	7
3 June 2018	1
10 June 2018	0
17 June 2018	5
24 June 2018	6
1 July 2018	7
8 July 2018	7
15 July 2018	4
22 July 2018	0
29 July 2018	0
5 August 2018	0
12 August 2018	7
19 August 2018	4
26 August 2018	0
2 September 2018	7
9 September 2018	7
16 September 2018	7
23 September 2018	7
30 September 2018	1
7 October 2018	0
14 October 2018	6
21 October 2018	7
28 October 2018	7
4 November 2018	4
11 November 2018	0
18 November 2018	4
25 November 2018	4

[10] The document referred to as the Applicant’s contract is an ‘Offer of Employment’ from Topdrill to the Applicant dated 9 October 2018. The fourth introductory paragraph reads as follows,

“Topdrill operates as a drilling contractor in the mining industry. The industry is subject to cyclic work, booms and busts, high levels of exploration funding followed by low or no exploration activities, client agreements and is impacted on by client demands. Therefore, work availability may vary, fluctuate and end abruptly without notice; this would be normal and ordinary circumstances for Topdrill.”

[11] Subclause 1.8 of clause 1−Position and Duties Details provides that,

“1.8 The position offered is Casual - this status applies to employees whose hours are not guaranteed and may be altered to meet the demands of the business as required.”

[12] Clause 3.2 Roster–Cycle Provisions is not prescriptive but rather says that employees may be offered work on a range of different basis.

[13] Clause 18−Contract Details says the status was “Casual”. This clause also specifies calculations for ordinary time hours assessment on cycle work and refers to a 4 and 2 roster, and a 2 and 1 roster and also says that additional hours are considered reasonable and overtime.

[14] The Remuneration section at the end of the contract specifies a base rate “per hour” and “per shift day” and refers to a “Potential daily total” amount.

[15] The Applicant had signed the contract on 9 November 2018 expressly acknowledging he had read and understood it.

[16] I am satisfied that the Applicant was a casual employee.

The legislation

[17] Section 382 of the Act provides that a person is protected from unfair dismissal, at a particular time, if (amongst other things) at that time they had completed a period of employment of at least the minimum employment period. This section is set out below.

“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

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[18] Next section 383 of the Act provides that if an employer is not a small business the minimum employment period is six months. This section is set out below.

“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.”

[19] Finally section 384 of the Act provides that a period of service as a casual employee does not count towards the employee’s period of employment unless the employment was on a regular and systematic basis and the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis. This section is set out below.

“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; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

Was the Applicant’s employment on a regular and systematic basis?

[20] In the recent decision in Bell v Aboriginal Legal Service (NSW/ACT) Limited 1 the Full Bench considered the operation of section 384 as follows,

“[10] It is evident that s.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. 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.

[11] The word “regular” should be construed liberally. It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant. Employment on a “regular” basis may be constituted by frequent though unpredictable engagements. The word “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”. 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.

[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.” (References omitted)

[21] In this instance there was no clear pattern or roster of hours worked by Mr McMasters that would indicate regular and systematic employment. The pattern of work was not repetitive. The periods worked were of varying durations and were mixed with periods not worked that were also of varying duration. Mr McMasters’ casual employment was not on a regular and systematic basis.

[22] Consequently I find that Mr McMasters’ service as a casual employee does not count towards his period of employment and consequently he has not completed the required minimum employment period which is a prerequisite to making this application.

[23] Mr McMasters was not a person protected from unfair dismissal as provided for in section 382 of the Act and consequently this application will now be dismissed. An order [PR704081] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 5 January 2019.

Respondent, 18 January 2019.

Printed by authority of the Commonwealth Government Printer

<PR704080>

 1   [2018] FWCFB 6102.