Bryah Rann v Gramar Pty Ltd T/A Valley View Nursing Home

[2016] FWC 2754

[2016] FWC 2754

FAIR WORK COMMISSION

DECISION

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

Bryah Rann
v
Gramar Pty Ltd T/A Valley View Nursing Home
(U2015/17051)

DEPUTY PRESIDENT BARTEL ADELAIDE, 3 MAY 2016

Application for relief from unfair dismissal - Jurisdictional objection – Minimum period of employment.

Background

[1] By letter dated 3 December 2015, Ms Bryah Rann 1 (the applicant) was advised by Valley View Nursing Home (the employer or the respondent) that it did not have any casual work for her into the future and that her employment has ceased effective 3 December 2015. The last shift worked by the applicant was on 25 November 2015. She subsequently filed an application for an unfair dismissal remedy within the statutory 21-day time frame.

[2] The employer has raised a jurisdictional objection and this is the matter dealt with in this decision. The Objection is expressed in the following terms: 2

“Ms Dimasi was employed as a casual employee with no fixed regular hours of work.
It is evident from Ms Dimasi’s irregular work patterns that she indeed treats the position as a casual one.
Gramar Nominees is of the view that Ms Dimasi (sic) unfair dismissal claim should not be heard as her employment was of a casual nature.”

The statutory context

[3] Unfair dismissal is dealt with in Part 3-2 of the Fair Work Act 2009 (the Act). The scheme of this Part of the Act does not include or exclude casual employees from the unfair dismissal jurisdiction on the basis of their engagement (as casual employees). Rather, access to the jurisdiction is predicated on a number of conditions being met, which relevantly, for present purposes, includes a requirement that the employee has “… completed a period of employment … of at least the minimum employment period”. 3

[4] In this case the employer is not a small business employer and the minimum employment period is 6 months. 4 Accordingly, the applicant must have a “period of employment” of 6 months.

[5] Section 384 deals with the “period of employment” and provides that:

“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) … (not relevant)”

[6] The correct application of this section was considered by a Full Bench of Fair Work Australia in Shortland v The Smiths Snackfood Co Ltd (Shortland)  5. In the first instance, the period of continuous service is identified as required by s.384(1) and in accordance with the definition in s.22 of the Act (see below). Any periods of service which do not meet the requirements of s.384(2)(a) of the Act do not count toward continuous service and must be deducted. If the resultant amount is less than the minimum employment period, then the jurisdictional prerequisite has not been met and the application must be dismissed.

[7] Continuous service is defined in s.22 of the Act as follows:

“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 2-2 (which deals with community service leave); or

(ii) a period of stand down underPart 3-5, 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.

(3) 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.

…

(8) …”

The facts of Rann’s employment

[8] Ms Rann commenced employment in December 2010. She was absent from the workplace for the birth of her child between June and November 2015 (the 2015 absence). There were a number of intermittent absences for rostered shifts due to sickness or other reason during the course of her employment but no other extended absences.   

[9] In relation to the 2015 absence, Ms Rann advised the employer of her impending absence and completed a “Casual Staff Non Availability Form” for the employer indicating the commencement date of the absence as 10 June 2015. She also provided various medical certificates to the employer confirming her pregnancy; expected delivery date; fitness for work until the commencement of the absence; and her fitness to return to work on 28 October 2015. 6 As it turned out, Ms Rann took some extra weeks off work to get married and returned to work in the last week in November 2015.

[10] In accordance with the meaning of continuous service in s.22 of the Act, as set out above, I find that the 2015 absence did not break the continuity of service, but that this period does not count toward the length of the applicant’s continuous service.

[11] There is no dispute that Ms Rann was engaged as a casual employee throughout her employment. Mr Bennett, the respondent’s Chief Executive Officer, stated that the employer had a pool of casuals for backfilling absences of permanent staff and to meet workload demands. Mr Bennett stated that he was keen to avoid the requirement to use agency staff.

[12] Rosters were generally posted two weeks in advance. The shifts for the permanent workers did not generally change over the roster periods, but casual employees were rostered for shifts on the basis of need and in accordance with their respective availability. In this regard, casual employees would complete an “availability advice” for each roster period indicating the days and shifts for which they were available. 7

[13] In the event that a casual employee became aware in advance of a rostered shift that they would be unable to work, advice would be provided to the employer and the casual may be requested to find a replacement casual to fill their shift.

[14] Mr Bennett provided two types of payroll data for the applicant for the period July 2014 up to the commencement of the 2015 absence. 8 This data comprises the shifts rostered for the applicant and the hours she actually worked. If the applicant had time off for illness or other reason after the roster was published then the two sets of data diverge.

[15] There is no dispute that the days and times of the applicant’s shifts varied from roster to roster within the availability she advised the employer. The payroll data indicates the following:

Fortnight ending No. of rostered shifts No. of hours worked

7/7/14 5 31.5

21/7/14 7 44.5

4/8/14 7 35.5

18/8/14 7 50.5

1/9/14 5 28

15/9/14 8 49.5

29/9/14 8 53

13/10/14 7 48

27/10/14 4 25.5

10/11/14 6 42.75

24/11/14 6 35

8/12/14 5 33.5

22/12/14 6 22

5/1/15 6 31

20/1/15 8 38.5

3/2/15 9 38

17/2/15 8 44

2/3/15 6 16.25

17/3/15 6 28

31/3/15 7 36.25

14/4/15 6 34.5

28/4/15 6 26.5

12/5/15 9 46*

26/5/15 12 25.75**

7/6/15 2 16.5

*based on rostered hours – no actual hours provided
** It is unclear if this figure reflects all hours worked in this period

[16] As the data indicates, the most common roster pattern for the applicant was five to seven shifts per fortnight. The fortnights commencing 26/5/15 and 7/6/15 are not typical as the applicant was initially transferred to less physically demanding work and then no work was offered in the final week before the 2015 absence. I understand from Mr Bennett’s evidence that this was due to some concern on the employer’s part about allocating shifts to the applicant in the latter stages of her pregnancy. 9

[17] Ms Rann stated that the pattern of rostered shifts between 2010 and 2014 was generally similar to the 2014 to 2015 period set out above. There was a period of some months in 2013 where she was working a higher number of shifts on night duty – Ms Rann was seeking to increase her income and there was less competition from other staff for night shift hours. 10

[18] A week or so before her return to work after the 2015 absence, the applicant advised the employer that she was seeking shorter shifts in the first few weeks of her return while she weaned her baby and that she would then revert to her usual availability. 11 No issues were raised by the employer at that time.

[19] Both parties provided the roster for the fortnight commencing 25 November 2015 when the applicant returned to work after the 2015 absence. 12 The applicant was rostered for four shifts: 24 and 25 November 2015 and 1 and 4 December 2015. She worked the first two shifts but was unable to attend on 1 December. She was advised not to attend her shift on 4 December and subsequently received the termination letter.

Was the engagement regular and systematic?

[20] The concept of “regular and systematic” engagement or employment of casual employees has been considered in a number of decisions in different statutory contexts. As a starting point, s.384(2)(a)(i) of the Act requires that it is the “employment” that is regular and systematic, not the hours worked pursuant to each engagement. It was held in Yaraka Holdings Pty Ltd v Giljevic (Yaraka) 13 that:

“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”.”

[21] In a separate judgement in Yaraka, Madgwick J stated:

“It is clear from the examples that “regular … basis” may be constituted by frequent though unpredictable engagements and that a “systematic basis” need not involve either predictability of engagements or any assurance of work at all.

The respondent’s work for the appellant was certainly frequent enough to be termed “regular” within an acceptable understanding of that term …

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 …”

[22] Finally, I note the approach of Commissioner Roe, in Ponce v DJT Staff Management Services Pty Ltd where the Commissioner, after considering relevant case law, identified two features of the pattern of hours which were evidence of regular and systematic employment:

“ 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.” 14

Conclusion

[23] Both of these features are present in the applicant’s employment. There was a system in place whereby the applicant advised her availability for the next roster period and she was offered fortnightly shifts within that availability. This system continued over a period of continuous service in excess of four years.

[24] It was expected that the applicant would return to work after the birth of her child and she did so under the same system that had operated prior to the 2015 absence.

[25] I find that the applicant’s employment with the employer was regular and systematic and she had a reasonable expectation of on-going employment on this basis.

[26] I therefore determine that the applicant has served the minimum employment period and the respondent’s jurisdictional objection is dismissed. No other jurisdictional issues have been raised and I am satisfied that the applicant is a person protected from unfair dismissal. A directions conference will be advised to the parties to progress the substantive application.

DEPUTY PRESIDENT

Appearances:

Ms B Rann in person

Mr M Bennett for the respondent

Hearing details:

2016:

Adelaide;

20 April.

 1   Nee Dimasi.

 2   Form F4 Objection to Application for Unfair Dismissal Remedy, filed 15 March 2016.

 3   Section 382(a) of the Act.

 4   Section 383 of the Act.

 5   [2010] FWAFB 5709 at [4] to [18].

 6   Ex R4.

 7   Ex R6.

 8   Ex R5.

 9   At PN 546 – 557.

 10   At PN 782 – 791.

 11   At PN 607, 617.

 12   Part of Ex R5.

 13 (2006) 149 IR 339 at 355, per Crispin P and Gray J.

 14   [2010] FWA 2078 at [76].

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