Catherine Dawe v Optimum Recruitment Group (Vic) Pty Ltd T/A Optimum Recruitment

[2017] FWC 1256

[2017] FWC 1256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Catherine Dawe
v
Optimum Recruitment Group (Vic) Pty Ltd T/A Optimum Recruitment
(U2016/13495)

COMMISSIONER CRIBB MELBOURNE, 3 MARCH 2017

Application for relief from unfair dismissal - jurisdiction - small business employer - minimum employment period.

[1] Ms Catherine Dawe (the Applicant) has made an application, under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The remedy is sought in relation to Ms Dawe’s dismissal by Optimum Recruitment Group (Vic) Pty Ltd T/A Optimum Recruitment (Optimum, Optimum Recruitment, the Respondent) on 25 October 2016.

[2] Optimum lodged a jurisdictional objection on 22 November 2016 on the grounds that Optimum Recruitment is a small business employer as defined in section 23 of the Act. 1 It was therefore contended that, as Ms Dawe’s length of service with Optimum was 8 months and 4 days, Ms Dawe had not completed the minimum employment period in accordance with section 382(a) of the Act. Therefore, Optimum argued that Ms Dawe’s application should be dismissed.2

[3] A determinative conference was held on Friday 13 January 2017. Ms Kavanagh, Managing Director, represented the Respondent whilst Mr G Dircks, Consultant, represented the Applicant.

[4] Optimum Recruitment is a recruitment agency which provides permanent and temporary recruitment. 3 It was Ms Kavanagh’s evidence that the majority of Optimum’s work was permanent recruitment but that, over the previous nine months, the number of temps (temporaries) had increased due to the company taking on a project for one of its clients.4

[5] Ms Kavanagh’s evidence was that, as at 25 October 2016, Optimum employed six on going, permanent employees. 5 Whilst the company also had 23 temporary (casual) staff (temps) working at host employers, it was submitted that these employees should be excluded when determining whether the company has less than 15 employees.6 This was on the basis that once a temporary assignment was completed with the host employer, the temp did not have continued employment.7 It was explained that the host employer determined the length of the assignment which could be cut short (on four hours’ notice by the host employer) or extended at any time. As the temp’s contract provided for this, it was contended that this meant that the temporary staff were not employed on a regular and systematic basis with either the host employer or Optimum Recruitment. Ms Kavanagh stated that temps regularly withdrew from assignments without notice and were not legally required to give notice.8

[6] On the other hand, it was submitted on behalf of Ms Dawe, that the 23 temporary employees should be counted in determining whether or not Optimum Recruitment is a small business employer. This was on the basis that section 23(2)(a) of the Act stated that all employees employed by the employer at the relevant time are to be counted. The only exception was said to be casual employees who have not been employed on a regular and systematic basis. The Applicant argued that there was no evidence that any of the 23 temporaries were casual employees.

[7] Rather, it was contended that, on the face of it, the temporary employees were fixed term employees who were not excluded by the Act. Therefore, Mr Dircks argued that Optimum Recruitment was not a small business employer as the 23 employees (being fixed term employees) were to be counted. 9

[8] Therefore, the threshold issue to be decided by the Commission is whether or not the 23 temporary employees are to be counted in determining whether Optimum Recruitment employed fewer than 15 employees at the time of Ms Dawe’s dismissal. Optimum Recruitment argued that the company had 6 employees as at 25 October 2016 whilst the Applicant contended that the company had in effect 29 employees when the 23 temporary employees were included.

Independent Contractors?

[9] It was not argued by the Respondent that the 23 employees were contractors. Neither did the Applicant, although, out of prudence, Mr Dircks made submissions to the effect that these employees were not contractors. Although it may be said that the Temporary Employment Agreement was an attempt at an Odco 10 type arrangement, there is no evidence before me that the 23 employees were carrying out their own businesses. It was submitted by the Respondent that these employees were casual employees. There is insufficient evidence before the Commission which would satisfy the indicia set out in Abdalla v Viewdaze Pty Ltd t/as Malta Travel11 that these 23 employees are independent contractors. Therefore, I am not of the view, and the Respondent has not tried to persuade me, that these employees are independent contractors. Rather, both parties have submitted that the 23 persons are employees of Optimum Recruitment, albeit, the parties differ as to whether they are casual employees (but not regular or systematic) or fixed term employees.

Casual or fixed term employees?

[10] Optimum Recruitment contended that the 23 employees were casual employees but that they were not regular and systematic casuals and so were not to be counted. 12 This was on the basis that temps did not have to give notice if they did not want to continue with an assignment - they just did not turn up. Ms Kavanagh explained that one of the temps left to go overseas to visit a sick relative and another had their wisdom teeth out and did not return to work.13

[11] Ms Kavanagh also argued that these employees were not fixed term employees as at any time, their assignments could be terminated by the host employer. 14 Further, Optimum argued that there were no fixed contracts and that none of the temps was guaranteed an assignment. It was stated that, if the temps were on fixed contracts, they would be employed by the host employer as an employee of the host employer and Optimum would get paid a fee. Ms Kavanagh explained that, at any point, the temp knows that their assignment could finish tomorrow. This is on the basis that Optimum makes sure that people are available with the expectation that the assignment will continue but there is no guarantee that it will.15

[12] On the other hand, Mr Dircks submitted that the employees in question were fixed term employees or were employees employed for a maximum term. 16 It was stated that there was nothing in the Temporary Employment Agreement which referred to being a casual. The Applicant submitted that the Commission could not be satisfied that any of these employees was engaged as a casual. It was argued that the pattern of employment was an initial engagement followed by extensions which amounted to fixed term employment.17 It was contended that it was a situation of - the contract will go to 1 December unless we change our mind and dismiss you.18 The Applicant argued that there was a system to the employment because it is for a fixed term contract.19

[13] In relation to the list of temporary placements, 20 Mr Dircks argued that this document showed that the temps could expect a substantial period of engagement followed by extensions and so therefore they could not be regarded as casual employees. Further, it was contended that the Respondent had not discharged the onus to prove its case on the basis that the evidence before the Commission was totally inadequate. The Applicant contended that there would need to be a very close examination of the employment circumstances of each of the employees before one could make a finding as to whether the employees were engaged on a regular and systematic basis.21 In addition, it was argued that on the evidence, there was no way that the Commission could find that there was not an employment relationship between any one of the 23 employees and the Respondent, simply on the basis that there is insufficient evidence.22

[14] Having carefully considered all of the material before me, it is my view that the 23 temporary employees, employed by Optimum Recruitment, are casual employees and not fixed term employees. The only contract between the 23 temporary employees and Optimum is the Temporary Employment Agreement. The Agreement does not provide any details of the assignment and it does not specify that the contract is for a specified period of time. Neither does the Agreement contain commencement and completion dates for the contract. The Agreement does record, however, the date it was made. In essence, the Agreement does not appear to provide for any of the features which ordinarily signify that a contract is for a specified period.

[15] On the other hand, the Agreement describes itself as a Temporary Employment Agreement and does not use the word “casual”. Rather, it uses the term “Temporary”. The pattern of employment of the 23 temporary employees appears to have been on the basis that the host employer can end the assignment with four hours’ notice and equally, the temp can decide that they do not wish to continue with the assignment - without the requirement to give any notice at all. It was Ms Kavanagh’s evidence that the duration of the initial assignment can be unilaterally changed by the host employer by either extending it or by ending it early. Once on an assignment, there is variability in terms of its ultimate duration. This pattern is akin to that of a casual employee whether employed on a daily hire basis or for a longer period of time. As well, there seems to be no guarantee that, at the end of one assignment, there will be another placement for the temporary employee. This is a similar situation for a casual employee. For all of these reasons, I find that the 23 temporary employees are casual employees.

Employed on a regular and systematic basis

[16] Therefore, the next question to be answered is whether any or all of the 23 employees have been employed “on a regular and systematic basis”. If any are found to have been so employed, they will be counted for the purpose of the number of employees employed by Optimum Recruitment at the relevant time.

[17] The evidence before the Commission in relation to whether the 23 casual employees were employed on a regular and systematic basis are the two exhibits which set out the temporary placements as at 25 October 2016 23 and the evidence of Ms Kavanagh. It was argued by Ms Kavanagh that the temps could not be said to have been employed on a regular and systematic basis because the terms of the contract for a temporary employee is that the assignment can cease at any point. Secondly, it was stated that, once a temporary assignment is completed with the host employer, the temp does not have continued employment.24

[18] Taking into account the guidance provided by the decision in Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic, 25 in relation to the concept of “employed on a regular and systematic basis”, the two documents which set out the temporary placements, as at 25 October 2016, have been considered. These documents show the length of each of the assignments to date and the number of extensions where applicable. It is assumed, as there is no evidence in this regard, that the work performed on the assignments was consistent, on either a full-time or part-time basis. It would seem that a number of the employees on the list meet the requirements for “employed by the employer on a regular and systematic basis”. This is on the grounds that the work was consistent and that either, the assignment was undertaken over a number of months or that there have been extensions to the initial assignment which have resulted in the assignment continuing past its initial length for a number of months. In my view, both of these factors would indicate regular and systematic employment of a casual employee.

[19] The job titles of the casual employees who meet the requirements for “employed by the employer on a regular and systematic basis” are as follows:

• Meter Activation Coordinator - commenced in March 2016 on an initial 3 - 6 month assignment which had been extended approximately four times.



• Interval Data Measurement and Billing Officer - commenced in April 2016 on a 9 month assignment.



• Billing Officer - commenced on 18 April 2016 on an initial 8 month assignment with one extension.



• Entry Schedulers (North Sydney) x 2 - both commenced in April 2016 on initial three months assignments. The assignments have been extended approximately twice.



• Billing Officer - commenced on 29 April 2016 in an initial 6 month assignment with a review for extension until December 2016.



• Retail Support Officer - commenced in May 2016 for initial 6 month assignment with review for extension until December 2016.



• Billing Officer - commenced on 16 May 2016 with review in October 2016 for extension until December 2016.



• Customer Service Consultant - commenced in June 2016 on a 6 month assignment.



• EA/Receptionist - commenced in July 2016 on initial 3 month assignment which has had about 3 extensions.



• Electricity Billing Analyst - commenced in July 2016 on a 6 month assignment. Assignment cut short one month early.

[20] Therefore, including the 6 employees identified by the Respondent, together with the 11 regular and systematic casual employees listed above, the total number of employees employed by Optimum Recruitment at 25 October 2016 was 17 employees. Accordingly, I find that Optimum Recruitment was not a small business employer at the time of Ms Dawe’s dismissal. At the time of her dismissal, Ms Dawe had been employed by the Respondent for approximately eight months. Therefore, Ms Dawe meets the requirements in relation to the minimum period of employment.

[21] The Respondent’s jurisdictional objection is dismissed. An Order 26 to this effect will be issued separately. The application will be referred for conciliation.

Appearances:

G Dircks of Just Relationsfor the Applicant

J Kavanagh from the Respondent

Hearing details:

2017.

Melbourne:

January 13.

 1   Exhibit R1 at paragraphs 4 - 5 and Exhibit R5 at paragraph 1

 2   Ibid at paragraphs 3 and 9 - 14 and ibid at paragraphs 9 - 10

 3   Transcript PN 240

 4   Ibid PN 242 - 244 and Exhibit R5 at paragraph 5

 5   Ibid PN 203 - 231, Exhibit R1 at paragraph 5 and Exhibit R5 at paragraph 2

 6   Exhibit R1 at paragraph 5 and Exhibit R5 at paragraph 6

 7   Ibid at paragraph 5 and ibid at paragraph 7

 8   Ibid at paragraph 5 and ibid at paragraphs 7 - 8

 9   Exhibit A1 at paragraphs 6 - 12

 10 Accident Compensation Commission v Odco Pty Ltd (1990) 34 IR 297

 11   PR927971

 12   Transcript PN 259 - 266

 13   Ibid PN 294 and 493

 14   Ibid PN 397 - 401

 15   Ibid PN 492

 16   Ibid PN 268

 17   Ibid PN 307 and 392 - 396 and Exhibit R3

 18   Ibid PN 482

 19   Ibid PN 487

 20   Exhibit R3

 21   Transcript PN 483 - 487

 22   Ibid PN 488

 23   Exhibit R3 and Exhibit R4

 24   Exhibit R1 at paragraph 5 and Exhibit R5 at paragraph 7

 25   [2010] FWA 2078

 26   PR590704

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