Christina Fielding v Stride with Confidence Pty Ltd

[2019] FWC 6982

[2019] FWC 6982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christina Fielding
v
Stride with Confidence Pty Ltd
(U2019/7011)

DEPUTY PRESIDENT BEAUMONT PERTH, 6 NOVEMBER 2019

Application for an unfair dismissal remedy - Jurisdictional Objection - Status as a Small Business Employer.

[1] Stride with Confidence Pty Ltd (Stride) has several retail stores across the Perth metropolitan area. It was uncontroversial that Ms Fielding had worked for Stride as its General Manger for a period of less than 12 months when she was dismissed – she had served about 10 ½ months. Ms Fielding lodged an unfair dismissal application on 26 June 2019, but Stride objected to it on the grounds that she had not satisfied the minimum employment period. To be protected from unfair dismissal this period must be met.

[2] Stride contended it was a small business employer, employing fewer than 15 employees, and therefore the minimum employment period was one year. Ms Fielding disputed that Stride was a small business employer and asserted the minimum employment period was 6 months; 1 a period of service, which Ms Fielding said she had completed immediately before her dismissal. This decision deals with Stride’s objection.

[3] Before providing detailed reasons, I have, in brief, found that Stride was not a small business employer as that term is understood in s 23 of the Fair Work Act 2009 (Cth) (the Act). The minimum period of employment was therefore six months, and based upon the evidence before me, Ms Fielding had served that period. The minimum employment period is a pre-requisite to making an unfair dismissal remedy application, and clearly Ms Fielding has satisfied it. Consequently, Stride’s objection that Ms Fielding has not completed the minimum employment period is hereby dismissed. The application will be programmed for arbitration and the parties advised of the date and time in due course.

Background

[4] Ms Fielding started work for Stride on 30 July 2018, she was notified of her dismissal on 12 June 2019, with it taking effect on that same day.

[5] As General Manager, Ms Fielding stated she worked with each Store Manager to oversee general operations of each store. 2 This, according to Ms Fielding, involved assistance with rostering, marketing, merchandising, sales training, store logistics, people management, and stock ordering, movement and refilling.3 She said that given her role as General Manager, she was familiar with the working hours, days worked, and store location of all of Stride’s employees.4

[6] Ms Fielding stated that as of 12 June 2019, Stride had 17 employees inclusive of herself. 5 Of those, four were full-time, three were part-time and nine were employed on a casual basis.6 Concerning the nine ‘casual’ employees, Ms Fielding provided the following detail:

a) Employee 1 worked at the Carine store every Friday and the Floreat Store every Wednesday and some Saturdays;

b) Employee 2 worked at the Floreat store on Monday, Tuesday and Wednesday, and on Thursday and Saturday, when required;

c) Employee 3 worked at the Applecross store each Monday and the Subiaco store each Wednesday, Friday and Saturday. This same employee worked full time hours at the Applecross store in May, when the Manager was away on leave for four weeks;

d) Employee 4 worked at the Carine store each Thursday and Saturday;

e) Employee 5 worked at the Osbourne Park store most days leading up to the closure of the store. This employee then worked at the Applecross store all through May while a full-time employee was away on leave. During June, the employee worked on a couple of days before proceeding on pre-approved leave;

f) Employee 6 worked at the Applecross store each Monday and Thursday and at the Subiaco store on Sundays with additional shifts during university holidays;

g) Employee 7 worked at the Floreat store each Thursday and Saturday with additional shifts during university holidays;

h) Employee 8 worked at the Subiaco store each Tuesday, Wednesday, Thursday, Friday and Saturday; and

i) Employee 9 worked at the Subiaco store each Monday, Wednesday, Thursday and Saturday. 7

[7] Ms Fielding stated that in some weeks there was a variation of the hours worked by the casual employees due to coverage of rostered days off, annual leave, and sick leave, and also due to other logistical requirements. 8

[8] Mr Simon Chadwick, the owner of Stride, agreed that at the time of Ms Fielding’s dismissal there were 17 employees working within the business across four retail outlets. 9 Similarly, Mr Chadwick stated that five employees were full-time (inclusive of Ms Fielding), three were part-time and nine were employed on a casual basis.10

[9] However, the parties diverged on whether the casual employees were employed on a regular and systematic basis. Ms Chadwick’s evidence was that five of the casual employees had not worked the full 12 months immediately preceding Ms Fielding’s dismissal. These employees were Employees 3, 4, 5, 6 and 8. 11 With respect to Employee 1, Mr Chadwick stated that while the employee had worked over the 12-month period, the hours of work were approximately 110 hours in May 2019 and 17.5 hours in June 2019.12

Stride’s submissions

[10] Stride submitted that while there had been 17 employees employed at the relevant time, five of the casual employees had been employed for less than 12 months and therefore should not be considered to have been employed on a regular and systematic basis. Continuing with this line of reasoning, Stride submitted that the casual conversion provision in the General Retail Industry Award 2010 (the Award) should be taken as the determinant for the period to be applied for the assessment of what is ‘regular and systematic’. It followed, according to Stride, where a casual employee had been employed for less than 12 months in the relevant period this should be taken as a factual determinant that the test of regular and systematic employment had not been met.

[11] Again, premised on the ‘casual conversion provision’ argument, Stride contended that given recent changes to the business, with a closure of one of the retail outlets, these casual employees could have no expectation of continuing employment so as to justify any change in employment status from casual to permanent (under a conversion clause in the Award). To support this contention, Stride provided examples of two employees, Employee 6 who had worked 68.5 hours at Floreat in May and 53 hours in June, and Employee 5 who had worked 108 hours in May at Applecross and Floreat and only 6 hours in Floreat in June. Similarly, Employee 1 had worked 110 hours across Subiaco and Applecross stores in May and only 17.5 hours in June.

Ms Fielding’s submissions

[12] Ms Fielding did not accept Stride’s contention that several of the nine casual employees were not engaged on a ‘regular and systematic’ basis and should not therefore be included when determining the number of employees employed by Stride. She observed that Stride had attempted to exclude from the total number of employees, employees who should be included in the count.

[13] The Act does not include a definition of ‘regular and systematic’, and therefore whether employment was on a ‘regular and systematic’ basis required an objective determination having regard to the specific facts and circumstances of the matter, 13 said Ms Fielding.

[14] While Stride had relied on the casual conversion clause in support of its contention, Ms Fielding’s view was that the casual conversion clause in a modern award only arises after a specified period and this had no relevance when determining whether an employee was a casual employee employed on a regular and systematic basis for the purpose of s 23 of the Act. Referring to the decision of Ponce v DJT Staff Management Services Pty Ltd t/as Daly's Traffic, 14 (Ponce), it was Ms Fielding’s contention that the factors to consider when determining whether a casual employee has been employed on a ‘regular and systematic basis’ included:

a) hours of work, including:

i. whether the employee is offered work regularly and there is some system to the work which the casual employee could expect be offered, although the hours of work may vary from week-to-week or month-to-month; or

ii. whether the total hours worked by the employee are similar to the total ordinary hours that would be expected of a full-time employee; and

b) pattern and method of work allocation, including:

i. whether the employee works pursuant to a published roster;

ii. whether the employee generally accepts work when it is offered, and the employer reasonably expects that the employee will accept work when offered;

iii. whether the employee is required to notify the employer of intended absences or leave; and

iv. whether the employee works for others.

[15] Ms Fielding concluded that at the termination date of her employment all of Stride’s nine casual employees were offered work regularly and there was a system to the work that was offered, with each of the casual employees regularly working the same days at the same stores.

Legislative Provisions

[16] For a person to be protected from unfair dismissal they must have, among other things, completed a period of employment with their employer which is at least the minimum employment period. 15 The importance of being protected from unfair dismissal is confirmed in ss 390 and 296 of the the Act.

[17] Section 383 of the Act sets out the meaning of the minimum employment period:

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.

[18] The meaning of the term ‘small business employer’ is found in s 23 of the Act:

Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.

[19] Section 12 of the Act defines the term ‘long term casual employee’ and retains the two essential tests which were previously found in the Workplace Relations Act (1996) (Cth) - a sequence of periods of employment of 12 months and a regular and systematic basis 16:

long term casual employee: a national system employee of a national system employer is a long term casual employee at a particular time if, at that time:

(a) the employee is a casual employee; and

(b) the employee has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during aperiod of at least 12 months.

[20] For the purpose of calculating the number of employees of the employer, s 23(1)b) specifies that a casual employee is not be counted unless, at the time, she or he has been employed by the employer on a regular and systematic basis. The precise wording of the section is important to emphasise – ‘(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.’ Section 23(1)(b) makes no reference to a ‘long term casual employee.’

[21] Several cases have considered that phrase ‘regular and systematic basis.’ In Yaraka Holdings Pty Lt v Giljevic (Yakara Holdings) Crispin P and Gray J of the Court of Appeal of the Australian Capital Territory observed that ‘it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement.’ 17 While Yakara Holdings was a decision that addressed particular workers’ compensation legislation, the judgment elucidates the meaning of the phrase ‘regular and systematic basis’. Madgwick J noted that a ‘regular… basis’ may be constituted by frequent though unpredictable engagements, and that a ‘systematic basis’ did not have to involve predictability concerning those engagements or an assurance of work.18 With regard to ‘systematic basis’ he said that if regularity were to refer to frequency, it implied something more than regularity. The basis of engagement, said Madgwick J, had to exhibit something that could fairly be called a system, method or plan.19

[22] In the decision of Ponce, 20 Commissioner Roe stated that ‘it is the employment which must be on a regular and systematic basis.’21 This did not in turn mean that the hours or days of work must be regular and systematic.22 The Commissioner continued that authorities have established that employment or engagement can be regular and systematic even if it is seasonal,23 or where the times and dates of work are quite irregular or are not rostered,24 or where there are breaks due to school holidays or other needs of the employee.25

[23] Referring to the decision in Summerton v Jabiru Golf, 26 the Commissioner observed that in that case the hours worked varied from 3 to 39 in a week, but it did not stop Senior Deputy President Duncan finding that the employment was regular and systematic.

[24] The Commissioner expressed that to confirm employment as ‘regular and systematic,’ there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. It was observed by the Commissioner that it was not necessary to establish that shifts, and start and finish times were regular or rostered to establish that the employment was on a regular and systematic basis. 27

[25] The approach of Commissioner Roe has been adopted in subsequent decisions, but tempered at times with a modicum of caution:

[o]ne must not treat the summary of Roe C as a substitute for the language of the statute: the ultimate question always remains whether the employment was ‘regular and systematic’ within the meaning of section 384(2) and care must be taken not to invert the test to one which asks the question of whether the employment was ‘occasional or irregular’.

[26] A further observation arising from the decision in Ponce, was that just because a worker was engaged as a casual and was a casual employee for the purposes of an award, did not mean that the worker was a casual for the purposes of the unfair dismissal jurisdiction.

Consideration

[27] As noted, Stride centred its argument on the contention that the period in which to assess whether a casual employee was employed on a regular and systematic basis was the 12-month period worked prior to the relevant time (termination date). If it was the case that the employee had been engaged for less than 12 months in that period, Stride advanced that this should be taken as a factual determinant that the test of regular and systematic employment had not been met. Stride premised its view on the notion that casual conversion under the Award became available after 12 months and therefore in effect it made sense that 12 months should be taken to be the requisite period for such assessment under Part 3-2. While Stride made mention that there were authorities to support this view, I was not directed to any.

[28] I have noted that s 23(2)(b) of the Act stipulates that ‘a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.’ I have emphasised the term ‘casual employee’ in italics, as the section makes no reference to there being a requirement that ‘regular and systematic’ can only be found where an employee has worked for at least 12 months. The Act has distinguished between a ‘casual employee’ and a ‘long term casual employee’; the latter having been defined in section 12 of the Act as a casual employee who has been employed on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months. However, s 23(2)(b) sets no such requirement regarding a timeframe.

[29] While I find no merit in Stride’s argument concerning the ‘12-month requirement,’ Stride was in any event hampered by a paucity of evidence in this respect. Contracts of employment were said to be oral. When asked in cross examination to confirm commencement dates for at least five of the casual employees, Mr Chadwick was unable to provide such dates. At times he vacillated between periods where a resignation was said to have occurred regarding a casual employee, only then to refer to that same employee then being rehired at an unknown date – it was most dizzying to follow. Mr Chadwick did concede that Employee’s 5 and 6 had been with Stride for a number of years. My observations do not seek to impugn Mr Chadwick’s credibility, but rather reflect on the lack of preparatory work undertaken by Stride to support the gravamen of its argument.

[30] However, helpfully Mr Chadwick produced Payroll Summaries for the period July 2018 until June 2019. In the absence of any documentary or other evidence led by Ms Fielding to contradict these business records, I consider my reliance upon them is not misplaced and I consider them accurate. Past decisions of this Commission have considered that payroll data is generally a very useful prima facie indicator of who was an employee of an enterprise at a particular time. 28

[31] For the period of July 2018, seven of the nine employees were included in the Payroll Summary, and all received payment for hours worked. These employees were Employees 1, 2, 4, 5, 6, 7, and 9.

[32] In August 2018, a further casual employee was included in the Payroll Summary – namely Employee 3 (the seven from the month before had again been paid for hours worked). In September 2018, the same eight that worked in August 2018 had worked and were paid again. Come October 2018, Employee 4 was not shown to have received any pay, but Employees 1, 2, 5, 6, 7 and 9 had. In November 2018, Employee 8 appears to have commenced having received a payment that month in addition to Employees 1, 2, 3, 5, 6, 7, 8 and 9. During December 2018, all nine casual employees received payment during the period. The Payroll Summaries for February, March, April, May and June 2019 again showed that during those periods all nine casual employees received payment during each period.

[33] Mr Chadwick was compelled to provide the timesheets for the period of 1 May 2019 until on or around 12 June 2019. While neither party provided a comprehensive analysis of those time sheets – I conducted one. The timesheets showed for the period a regularity of shifts across at least seven of the nine casual employees. This arguably extended to all nine employees but given the lack of clarity concerning the names of one or two of the employees, a conservative approach was adopted.

[34] Having considered the evidence of the Payroll Summaries, the abovementioned timesheets and Ms Fielding’s evidence – particularly that concerning the organisation and publishing of shifts, and the requirement to apply for leave, in addition to the evidence of Mr Chadwick, I have found that at least seven of the nine casual employees worked on a regular and systematic basis. I am inclined to find that all nine employees did but note my adoption of a conservative approach. Therefore, seven employees are included in the headcount for the purpose of establishing whether the Stride was a small business employer at the relevant time.

[35] It follows that at the relevant time Stride had in its employment fifteen employees and therefore did not have fewer than that number. I conclude that Stride was not a ‘small business employer’ as that term is understood by reference to s 23 of the Act.

DEPUTY PRESIDENT

Appearances:

R Kelly of Hall & Wilcox for the applicant.

R Jones of Ron Jones Consulting for the respondent.

Hearing details:

2019.

Perth (by telephone);

October 29.

Printed by authority of the Commonwealth Government Printer

<PR713168>

 1   Fair Work Act 2009 (Cth) s 383.

 2   Witness Statement of Christina Fielding (Fielding Statement) at [3].

 3 Fielding Statement at [3].

 4 Fielding Statement at [4].

 5 Fielding Statement at [6].

 6 Fielding Statement at [8].

 7 Fielding Statement at [8].

 8 Fielding Statement at [9].

 9   Witness Statement of Simon Chadwick (Chadwick Statement) at [4].

 10 Chadwick Statement at [6].

 11 Chadwick Statement at [9].

 12 Chadwick Statement at [10].

 13   Grives v Aura Sports Pty Ltd[2012] FWA 5552 at [23].

 14   [2010] FWA 2078 (‘Ponce’).

 15   Fair Work Act 2009 (Cth) s 382.

 16   Ponce v DJT Staff Management Services Pty Ltd t/as Daly's Traffic[2010] FWA 2078 at [56].

 17   Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339, at [65].

 18  Ibid at [89] and [91].

 19   Cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd ed, 2001.

 20   Ponce.

 21   Ponce at [66].

 22   Ponce at[66].

 23   Stokes v Westernport Cool Stores Pty Ltd [1998] 44 AILR at [3]-[921]; Grey v Ardmona Foods[2000] AIRC 338, T0994.

 24   See Heggie v Minda Incorporated [2006] SAIRComm 9; Summerton v Jabiru Golf Inc [2001] AIRC, PR904938, 6 June 2001, per Duncan SDP.

 25   See Willems v Susan Gunn t/a Eureka Coaches [2001] AIRC,PR909967, 3 October 2001.

 26   Summerton v Jabiru Golf Club Inc [2001] AIRC, PR904938, 6 June 2001.

 27 Ibid [87].

 28   Lahoud v OX Metal Fabrication[2011] FWA 6226 at [6]-[11]; Hughes v Captiv8 Pty Ltd[2012] FWA 2167 at [14].