Erica Noppers v Royal Life Saving Society Inc WA

[2020] FWC 7054

[2020] FWC 7054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Erica Noppers
v
Royal Life Saving Society Inc WA
(U2020/8295)

COMMISSIONER WILLIAMS PERTH, 24 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Ms Erica Noppers (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 16 June 2020. The Respondent is Royal Life Saving Society Inc WA (the Respondent).

[2] The Respondent has raised jurisdictional objections to the Application as follows:

(a) the Applicant has not served the minimum employment period for protection from unfair dismissal;

(b) the termination of the Applicant's employment was not at the initiative of the Respondent; and

(c) the Application has not been made within the 21 days after the dismissal took effect.

[3] At the hearing of this application Ms Noppers gave evidence on her own behalf and evidence for the Respondent was given by Ms Beatrice Page, the Bridgetown Manager of Telephone Fundraising Delivery, Mr Allan Godfrey, Chief Marketing Officer, and Ms Lynette McLoughlin, the Bridgetown Call Centre Manager.

Factual findings

[4] The Respondent is a charitable organisation, serving the community as the largest provider of water safety education in Western Australia. The Respondent is run by its volunteers, members, trainers, employees, and lifesavers.

[5] The Respondent is also a public benevolent institution which means that it has deductible gift recipient status and can ask for donations and provide tax receipts. As part of its fundraising activities, the Respondent employs a number of fundraisers/telemarketers largely based in its Bridgetown Call Centre.

[6] The Applicant commenced her casual employment with the Respondent on 13 February 2018 in the position of Fundraiser. In this role, she undertook telemarketing duties for the Respondent from its Bridgetown Call Centre in Western Australia.

[7] The Applicant's terms and conditions of employment with the Respondent are set out in the letter of engagement dated 21 November 2018 which was signed by Applicant on the same date.

[8] The terms and conditions of employment includes the following provision:

"1. Position

1.1 Your employment will be on a casual basis, as required.

1.2 Each occasion that you work will be a separate contract of employment which ceases at the end of that engagement.

1.3 As a casual employee, there is no guarantee of ongoing or regular work."

[9] The Applicant completed a Tele-marketing Fundraiser Induction Course Confirmation form dated 24 July 2019 (Induction Acknowledgement) which states:

" - My employment is on a casual basis and I receive a 25% casual loading.

- I must advise the manager of my availability to work (on each day and hours) the following week.

…

- As a casual employee I can accept, refuse or seek alternative shifts offered to me.

…

- As a casual employee, I have no guaranteed hours of work, my work hours may be irregular, I don’t get any paid sick or annual leave."

[10] The evidence is that the practice was that casual employees including the Applicant were expected to confirm their availability for working in advance. That information was the basis on which the Respondent then drew up a roster for the following week, taking into account the availability of the various employees and the particular requirements that week of the charities and the fundraising time period required.

[11] The roster was issued weekly usually on a Wednesday. The roster was subject to change if, for example, employees were no longer available or the fund raising requirements of the particular charities changed.

[12] Casual employees are told to call the fund raising centre if they cannot attend a shift. The Applicant however, would often communicate directly with the centre manager Ms Lynn McLoughlin.

[13] The Applicant agrees this was the process, confirming in her evidence that she was asked to provide her availability on a sheet. There were regular changes to shifts and she was able to reject rostered shifts at an hours’ notice. In March 2020 she did that for at least two shifts albeit with more than an hours’ notice. The Applicant had the flexibility to say at any point that she was not working. 1

[14] The Applicant also agreed that there were no consequences if she rang up and said she was not able to work. 2

[15] The Applicant agrees it is not correct to characterise the arrangement as a roster but rather it is an indication of when she and other casual employees were going to work. 3

[16] The Applicant’s evidence was that, over her period of employment, changes to shifts were made due to lack of work. For example, short shifts of only five hours a day were introduced in February and March 2019 due to the Respondent waiting on new contracts of work. In some instances, employees were asked within the last hour or less of work ending to go home because work was not available.

[17] The Applicant says there were extended periods of time with no work available due to the Christmas break from December to January each year. She says at one point the Respondent ceased rostering Saturdays altogether.

[18] The number of days the Applicant worked each week was either four, three or two. The days of the week the Applicant worked included any day Monday to Saturday. The shift length was either, 4 hours, 5 hours, 5.5 hours or 6 hours. There are weeks when the Applicant did not work at all and sometimes for a period of as long as three weeks.

[19] There was no clear pattern, however, the Respondent offered work when it was available at times that the Applicant had generally made herself available. This employment was offered and accepted regularly enough that it could in my view no longer be regarded as occasional or irregular employment. The evidence demonstrates regular and systematic employment even though the work in terms of the days and hours per shift was irregular.

[20] The circumstances I accept objectively amounted to the Applicant having a reasonable expectation of the engagement continuing on a regular and systematic basis.

[21] I am satisfied that the Applicant knew she had to tell Ms McLoughlin the dates that she was available for work so that she could be potentially rostered for work. 4

[22] I am satisfied that the obligation, unsurprisingly, was on the casual employees individually to keep in touch with the Respondent. In the Applicant’s case the evidence is that she had the phone number of Ms McLoughlin, the Centre Manager, and Ms Page, the Manager of Telephone Fundraising Delivery. 5

[23] In late February or early March 2020 Ms McLoughlin and the Applicant had a discussion. The Applicant had been studying to become a counsellor. Her evidence was that she was in the very early stages of starting a business of her own. She says Ms McLoughlin asked her if she was intending to leave because of this and the Applicant told her that she need not worry because she did not expect her business to take off quickly.

[24] On 20 March 2020 the Applicant became involved in a significant family crisis. By 24 March 2020 the magnitude of this problem became apparent and so she rang the Respondent and advised she would not be available for work on the 26 and 27 March 2020 as rostered.

[25] On 26 March 2020 the Applicant and Ms McLoughlin exchanged text messages.

[26] I note the timing of these messages coincided with the Australian Government’s and the West Australian Government’s initial responses to the COVID-19 Pandemic.

[27] First, the Applicant advised that she was currently caring for a member of her family. She explained she didn’t know how long for. She asked what was happening with work and whether the Respondent was closing.

[28] Ms McLoughlin replied that the Respondent was still running but she was unsure how long for. She explained what protections they were making for staff in the workplace. She said to the Applicant that if she cannot do counselling then she should come back and work some hours and that the Respondent was trying to keep everyone working so they could be paid. She said the Applicant should let her know if she needed some hours and Ms McLoughlin would do her best.

[29] The Applicant replied saying she cannot do any work at the moment. She said she would come back to work when she is able to and thanked Ms McLoughlin “for keeping my job for me”.

[30] Ms McLoughlin replied with a heart emoji.

[31] The Applicant’s evidence was that after visiting her general practitioner on 27th of March 2020 she was told COVID-19 was fatal to her grandson. She was concerned about returning to work and chose to isolate herself at home as much as possible.

[32] In mid-April she became aware the Respondent was completing the JobKeeper process and other staff had received JobKeeper forms.

[33] During this time, the Applicant says she was under a great deal of pressure due to medical visits, dealing with the Department of Child Protection and also police action involving her grandson.

[34] During May the Applicant says she heard employees of the Respondent were in receipt of JobKeeper payments and wondered why she had not been contacted. She checked with the ATO as to her eligibility.

[35] The Applicant’s evidence is that she had to attend a court hearing in Perth in mid-May that consumed all of her time.

[36] The Respondent’s evidence, which I accept, is that the Respondent registered for JobKeeper at the end of April 2020. There were approximately 13 casuals who had been working regular hours and days at the call centre and, in the Respondent’s view, were eligible for JobKeeper payments.

[37] The last day the Applicant had worked was 12 March 2020.

[38] At the time the Respondent registered for JobKeeper the Applicant had not worked for over six weeks and had not contacted the Respondent at all.

[39] On 18 May 2020 the Applicant and two other casual employees were removed from the Respondent’s casual pool as they had not worked for the Respondent for over two months.

[40] The Respondent would usually remove casual employees from that pool if they had not worked for the Respondent for a period of four weeks. It was only because of what was going on at this time regarding daily changes to restrictions about who needed to isolate for COVID-19 that the Respondent left these employees, who had not been working, in the casual pool for eight weeks.

[41] The evidence is that removing a casual from the pool, usually after four weeks, is an administrative task. Ms McLoughlin given her discussion and the lack of communication from the Applicant did not believe she was intending to return to work. She had not received any contact from the Applicant after her text messages on 26 March 2020.

[42] The next contact between the Applicant and the Respondent of any description was on 27 May 2020 when she sent a text message and then an email to Ms McLoughlin.

[43] Both the text message and the email were limited to requesting the Respondent provide her with a Jobkeeper form.

[44] The Applicant’s email relevantly read:

“ I am struggling financially and was wondering if you posted my Jobkeeper form to my post office box? I have to date not received the form to initiate payment.

Can you please email the form to me as soon as possible. Thank you.”

The following day 28 May 2020 Ms McLoughlin replied as follows:

“I received your text and email.

Unfortunately we currently don’t have the capacity to employ you.

I hope all is well.”

One hour later the Applicant responded as follows:

“Hi Lyn

I need to clarify to you, as previously discussed you were keeping my job open as I was unable to fill work available on the roster. This does not preclude me from jobkeeper entitlement and payments. I have been advised by the Australian Taxation Office under QC62128 I have been entitled and continue to be entitled to these payments.

I understand from your email that now that I have requested my nomination and payment, which the Australian Taxation Department has advised me is government money not my employers money. You have terminated my employment. This is somewhat perplexing and disappointing as I have been a diligent worker for the company for over 2 years.

Can I please ask that you email the forms to me for payment to me of the government supported Jobkeeper monies.

Regards

Erica Noppers”

[45] The next day 29 May 2020 Mr Godfrey for the Respondent replied to the Applicant as follows.

“Dear Erica,

I have received your email from Lyn Mcloughlin and wanted to advise the steps RLSSWA Is taking:

Confirming your casual employment arrangement.

Re-assessing your work pattern compliance with the JobKeeper rules past and future.

Seeking advice on your eligibility to meet the regular and systemic rules, specifically the fact that you have not worked for us for over 10 weeks.

Confirming that your employment status ended as at the completion of your last shift as per letter of engagement (1.2).

Reviewing whether it was done so appropriately, and the existence of any offers and acceptance of any subsequent work.

Please see attached a copy of your letter of engagement and the Induction training you completed,

I confirm as per Lyn's email 28th May 2020, that we do not have the capacity or the prospect to offer you any further casual work.

I will be in touch when I when I have completed my review and given the current situation, please ensure that all communication is via email with me.

Best Regards”

[46] The Applicant says she was dismissed by the employer on 29 May 2020. 6

[47] The Applicant says that at no point did the Respondent request the Applicant return her key to the centre or her uniform or complete an exit survey. The Applicant was also still able to access the Respondent’s online pay system.

[48] The Respondent’s evidence however, which I accept, is that the key is for a locker and the Respondent doesn’t always get them back from staff, in fact they rarely do. The uniforms are never asked to be returned and the Respondent does not recycle these. The Respondent has never had an exit survey. The Applicant will always continue to be able to access the online pay system but that is limited to their personal pay advices. 7

The legislation

[49] Section 382 prescribes when a person is protected from unfair dismissal and so entitled to make an application for an unfair dismissal remedy. One of those prerequisites is that an employee has 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.”

[50] Section 383 prescribes what the minimum employment period is. 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.”

[51] Section 384 prescribes, amongst other things, when casual employment counts towards a period of employment. 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.

[52] Section 386 prescribes when a person has been dismissed. This section is set out below:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

Consideration

Has the minimum employment period been served?

[53] Having considered the facts regarding the employment, I am satisfied that the Applicant’s employment as a casual employee was on a regular and systematic basis, notwithstanding the pattern of days and hours worked not being regular and systematic. Secondly, I am also satisfied that during the period of service as a casual employee the Applicant had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[54] Consequently, I am satisfied that the Applicant’s casual employment did count towards her period of employment and, given the length of employment, that she has completed the minimum employment period of six months required by section 382(a) of the Act to be a person protected from unfair dismissal.

[55] Consequently, I reject the first of the Respondent’s jurisdictional objections.

Was the termination on the initiative of the employer?

[56] The Applicant last worked on 12 March 2020.

[57] Her terms of engagement expressly state that each occasion she worked was a separate contract of employment that ceased at the end of the engagement. Accordingly, the Applicant’s employment contract ended by virtue of this term at the end of the last shift that she worked on 12 March 2020.

[58] After she had told Ms McLoughlin on 26 March 2020 via text messages that she was unable to work for personal reasons there was no contact at all from the Applicant for eight and a half weeks.

[59] Since 12 March 2020, the Applicant has not offered herself for work by advising the Respondent of her future availability.

[60] When she did next contact the Respondent, on 27 May 2020, she did not do so to advise of her availability for future shifts so she might be placed on the roster, but rather, she only contacted the Respondent to ask for a Jobkeeper form so that, in her words, payment for Jobkeeper could be initiated.

[61] The Respondent’s reply to her request for a Jobkeeper form, that it did not have the capacity or the prospect to offer her work, was not a termination of the employment relationship. This reply is entirely consistent with the terms of engagement that expressly state there is no guarantee of ongoing or regular work. The Respondent was not under any obligation to offer her work.

[62] The Applicant’s employment relationship was not terminated by either Ms McLoughlin’s nor Mr Godfrey’s emails to her on the 28th and 29th of May respectively.

[63] My decision is that Ms Noppers’ employment relationship with the Respondent was not terminated on the Respondent’s initiative.

[64] Consequently, I uphold the Respondent’s objection that there was no dismissal within the meaning of section 386 of the Act.

The application has not been made within 21 days after the dismissal took effect

[65] Given the decision above, that the Applicant was not dismissed, the objection that her application was made out of time has no application.

Conclusion

[66] Having decided that Ms Noppers was not dismissed by the Respondent, this application must be dismissed and an order to that effect will now be issued.

Appearances:

E Noppers, Applicant
E Hartley of HWL Ebsworth Lawyers for the Respondent

Hearing details:

2020.
Perth:
September 20.

Printed by authority of the Commonwealth Government Printer

<PR725841>

 1   Transcript at PN 288 – 293.

 2   Ibid., PN 295.

 3   Ibid., PN 294.

 4   Exhibit R3 at paragraph 17.

 5   Transcript at PN 77 and PN 109.

 6   Exhibit A1 at paragraphs 3-4.

 7   Transcript at PN 139.