Ekaterini (Kathy) Tider v Manchester Collection
[2018] FWC 3984
•5 JULY 2018
| [2018] FWC 3984 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ekaterini (Kathy) Tider
v
Manchester Collection
(U2018/940)
| Commissioner McKinnon | MELBOURNE, 5 JULY 2018 |
Application for an unfair dismissal remedy – jurisdictional objection – casual employee – whether dismissed.
Introduction
Ekaterini Tider worked at Manchester Collection as a casual Retail Assistant from 14 December 2016 until 4 August 2017. On 1 February 2018, she applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).
The Act requires that an application for unfair dismissal remedy be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows.[1]
There is a dispute about whether Ms Tider was dismissed, and if so, when. Manchester Collection says there was no dismissal and that her employment ended on 4 August 2017. Ms Tider says she was dismissed on 11 January 2018 when an Employment Separation Certificate was prepared for her.
Manchester Collection also says Ms Tider had not completed the minimum period of employment for the purposes of section 382 of the Act, because she was not employed on a regular or systematic basis and did not have a reasonable expectation of ongoing employment.
On 14 June 2018, I heard the jurisdictional objections. Ms Tider was not represented and gave evidence on her own behalf. Manchester Collection called three witnesses: Mirat Sabedinovska (Owner), Cengiz Sabedinovski (Manager) and Maria Lelo (Team Leader).
This decision deals with Ms Tider’s eligibility to apply for an unfair dismissal remedy.
Relevant law
A remedy for unfair dismissal is only available if the Commission is satisfied that an employee has been dismissed.[2] Under the Act, a person has been dismissed if their employment has been terminated on the employer’s initiative, or if they have resigned because of conduct of the employer.[3]
In City of Sydney RSL & Community Club Limited v Balgowan[4] a Full Bench of this Commission said, at [24]:
“The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment. There are some, albeit rare, cases where a casual employee has been found to have been engaged under a single continuing contract of employment, but the accepted orthodoxy of casual employment is the notion that each engagement is under a separate contract rather than a continuing contract of employment. True it is that service rendered under a series of separate casual employment contracts may be regarded as continuous in respect of statutory entitlements such as long service leave, certain entitlements prescribed under the National Employment Standards and accident compensation legislation, and as is evident from the above for the purposes of assessing whether a particular employee had been engaged for the minimum employment period for the purposes of making an unfair dismissal remedy application under the Act. But such recognition of casual service does not alter the fundamental contractual character of regular casual employment as a series of engagements, each under a separate contract of employment.”
The Full Bench adopted the following observation of Gooley DP in Andrew Kim v. ORC International Pty Ltd[5]:
“At common law a casual employee’s contract of employment ceases at the end of each engagement.”
Background
The evidence reveals the following in relation to Ms Tider's working arrangements with Manchester Collection:
1. In December 2016, Ms Tider worked 14 shifts (7 x 4 hour shifts, 3 x 5 hour shifts and 4 x 6 hour shifts) over 25 days;
2. In January 2017, Ms Tider worked 13 shifts (10 x 4 hour shifts, 1 x 4.5 hour shift, 1 x 5 hour shift and 1 x 10 hour shift) over 27 days, and was unavailable for 1 shift;
3. In February 2017, Ms Tider worked 12 shifts over 25 days (9 x 4 hour shifts, 2 x 5 hour shifts and 1 x 5.5 hour shift), and was unavailable for 4 shifts;
4. In March 2017, Ms Tider worked 10 shifts (4 x 4 hour shifts, 5 x 5 hour shifts and 1 x 3.5 hour shift) over 29 days;
5. In April 2017, Ms Tider worked 10 shifts (5 x 4 hour shifts, 3 x 5 hour shifts, 1 x 5.5 hour shift and 1 x 6 hour shift) over 26 days and was unavailable for one rostered shift;
6. In May 2017, Ms Tider worked 10 shifts (4 x 4 hour shifts, 2 x 5 hour shifts, 1 x 5.5 hour shift, 1 x 6 hour shift and 2 x 9 hour shifts) over 22 days;
7. In June 2017, Ms Tider worked 8 shifts (1 x 4 hour shift, 1 x 4.5 hour shift, 3 x 5 hour shifts, 2 x 6 hour shifts and 1 x 8 hour shift) over 29 days;
8. In July 2017, Ms Tider worked 3 shifts (1 x 4 hour shift, 1 x 5 hour shift and 1 x 8.5 hour shift) over 23 days and was not available for two rostered shifts;
9. In August 2017, Ms Tider worked one shift of 5 hours and was unavailable for two shifts offered on 2 August 2017 and 11 August 2017.
From approximately late May / June 2017, Manchester Collection says Ms Tider acquired an interest in her partner’s charcoal chicken shop which reduced her availability for work.[6] Ms Tider agrees that she worked at the chicken shop and while she initially denied any interest in it, she confirmed in evidence it helped with the “groceries” for her and her partner.[7]
On 8 September 2017, Ms Tider made inquiries about whether she was still on the roster and gave her availability for work.
On 16 October 2017, Ms Tider was offered a shift but was unavailable.
On 11 November 2017, Ms Tider left a voice message inquiring about whether she was still required for work.
In early December 2017 Ms Tider became aware she was not invited to the store Christmas party and made inquiries of her Team Leader about her position.
On 18 December 2017, Ms Tider wrote to Manchester Collection indicating her “presumption that I am no longer needed which is fine and I understand” and requesting an Employment Separation Certificate. She received no reply and sent a follow up email on 30 December 2017.
On 11 January 2018, Ms Tider received an Employment Separation Certificate citing the reason for separation as “was called in for multiple occasions however was not available”.
Consideration
I am satisfied on the evidence, and having regard to the working patterns of Ms Tider, that her employment was truly casual in nature. It varied each day, week and month, as did the length of shifts worked and the reasons for them (such as to cover for staff leave or shortages).
Ms Tider could, and did, choose whether to accept or refuse work on each occasion for which she was rostered. The work pattern of Ms Tider from June to August 2017 is consistent with the evidence of Ms Lelo, her Team Leader, that her availability became limited around that time. I find that Ms Tider’s involvement in the charcoal chicken reduced her availability for work, which ultimately led to the decline in shifts.
Having regard to the observations of the Full Bench in City of Sydney RSL & Community Club Limited v Balgowan, Ms Tider’s employment came to an end at the end of her last shift on 4 August 2017. It was not terminated at the initiative of Manchester Collection.
I find that Ms Tider was not dismissed. It is thus not necessary to consider whether she completed the minimum employment period.
The application is dismissed.
COMMISSIONER
Appearances:
E. Tider on her own behalf
C. Sabedinovski for Manchester Collection
Hearing details:
2018.
Melbourne:
June 14.
<PR608751>
[1] Fair Work Act 2009 (Cth), s 385-6; s 394(2)
[2] Fair Work Act 2009 (Cth), s 385(a)
[3] Fair Work Act 2009 (Cth), s 386
[4] [2018] FWCFB 5
[5] [2016] FWC 1029
[6] Exhibit 8, Witness Statement of Maria Collette Lelo
[7] Audio recording of hearing on 14 June 2018
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