Findley v Diamond Protection Pty Ltd

[2016] FWC 551

[2016] FWC 551

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Joshua Findley
v
Diamond Protection Pty Ltd T/A Diamond Protection
(U2015/12391)
COMMISSIONER RYAN	MELBOURNE, 1 FEBRUARY 2016

Application for relief from unfair dismissal - minimum employment period served.

[1]        The Applicant filed an application for an unfair dismissal remedy with the Fair Work

Commission on 21 October 2015. The Applicant alleged that he had been terminated at the

initiative of the employer on or about 19 October 2015.

[2]        The Respondent denied that the Applicant had been dismissed and further objected to

the application on the grounds that Applicant’s employment period did not meet the minimum

employment period.

[3]        The application was listed for a hearing on 16 December 2015 in relation to the

jurisdictional challenge that the Applicant had not been employed for the minimum

employment period.

The relevant legislation

[4]        The relevant provisions of the Act for the purposes of the present matter are as

follows:

“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;

[2016] FWC 551

(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.

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.

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; …”

[5]        As s.384 refers to the period of continuous service with the employer it is necessary to

have regard to the definition of continuous service in s.22 of the Act:

“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;

[2016] FWC 551

(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 under Part 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.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different

kinds of periods for the purposes of different provisions of this Act (other than

provisions to which subsection (4) applies). If they do so, subsection (3) applies

accordingly.

[6]        The proper approach to the application of s.384(2) was considered by a Full Bench in

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Shortland v The Smiths Snackfood Co Ltd as follows:

“[10] As a matter of the common law of employment, and in the absence of an

agreement to the contrary, each occasion that a casual employee works is viewed as a

separate engagement pursuant to a separate contract of employment. Casual

employees may be engaged from week to week, day to day, shift to shift, hour to hour

or for any other agreed short period. 4 In this sense no casual employee has a

continuous period of employment beyond any single engagement. Moreover, it is

common for a casual employee to transition between a period in which their

engagements with a particular employer are intermittent and a period in which their

engagements are regular and systematic and vice versa. It is against that background

that s.384 must be construed.

[11]      The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the

basis that a casual employee’s period of employment for the purposes of the unfair

dismissal remedy starts and ends with each engagement as understood in the common

law of employment.

[12]      Moreover, it is more than tolerably clear that s.384 is concerned with how an

employee’s period of employment is calculated for the purposes of s.382(a). Section

384(2) draws a distinction between a period of service and a period of employment. It

also draws a distinction between a period of continuous service and a period of

service: a period of continuous service can be made up of a series of periods of

service, some of which count towards the period of continuous service (ie. where the

conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one

[2016] FWC 551

of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of

s.384(2) that an employee may have series of contiguous periods of service with an

employer that may count towards a single period of employment with that employer.

Any given period of service in such a contiguous series of periods of service will

count towards the employee’s period of employment only if the requirements in

s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining

which periods of service in such a contiguous series count toward the employee’s

period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of

engagements with an employer is broken only when the employer or the employee

make it clear to the other party, by words or actions that there will be no further

engagements. The gaps between individual engagements in a sequence of

engagements should not be seen as interrupting the employee’s period of continuous

employment within the meaning of s.384. In particular, a period of continuous service

within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an

absence due to illness or injury.”

[7]        In cases such as the present, where both the Applicant and the Respondent have

referred to the Applicant being employed as a casual, it is important that s.384(2)(a) be

considered only in relation to any period of service by the Applicant where the Applicant was

in fact a casual employee.

[8]        Whether an employee is or is not a casual employee is a question of fact. The name

given by the parties to a relationship is not determinative of the actual nature of the

relationship. The true legal relationship is to be determined from a full consideration of the

2

circumstances of the relationship. In Cetin v Ripon Pty Ltd T/A Parkview Hotel (Cetin v

Rippon), a Full Bench of the Australian Industrial Relations Commission (AIRC) determined

the following:

“[57] In Australian domestic law the words ‘casual employee’ have no settled

meaning. The true nature of any employment relationship depends on the facts of each

case. As Starke J said in Doyle v Sydney Steel Co. Ltd:

‘The description “casual worker” is not one of precision: it is a colloquial

expression, and where, upon all the facts, there is a reasonably debatable

question whether the work is casual or regular, the question is one of fact…’

and

[59]      In our view all the facts and circumstances bearing upon the nature of the

engagement should be considered in determining the true character of the

employment. Consistent with the approach of Moore J in Blue Line Cruises, the

informality, uncertainty and irregularity of an engagement supports a conclusion that

the employment has the characteristic of being casual. Conversely regular and

systematic engagements with a reasonable expectation of continuing employment are

usually not characteristic of casual employment.

and

[61] In the matter before us the parties characterised Ms Cetin’s employment as

casual and her employment was classified as casual under the Award. But in our view
[2016] FWC 551

it would be wrong in principle to treat the character ascribed by an award to particular

employment, and adopted by the parties, as conclusively determining the character of

the employment for the purpose of regulation 30B(1)(d). Nor is the fact that Ms Cetin

was paid a casual loading in lieu of sick leave, annual leave and public holidays

determinative of whether or not she was a casual employee for the purpose of

regulation 30B(1)(d). Each of these incidents is a consequence of the characterisation

chosen by the parties. Rather than being conclusive, each of these matters are simply

factors to be taken into account in determining the true character of the employment.

As Lee J observed in Gurran v Tarbook Pty Ltd:

‘If parties to an employment contract have attempted in the terms of their

contract to describe their relationship in a manner that does not accord with the

facts, the relationship established by the facts will prevail.’

[62]      Similarly as counsel in Re Porter put it: the parties cannot create something which has

every feature of a rooster, but call it a duck and insist that everybody else recognise it as a

duck.” [citations removed]

[9]        A similar sentiment was expressed by Barker J in Williams v MacMahon Mining

3

Services Pty Ltd (Williams v MacMahon):

“38. To the extent that the parties by the Contract described their relationship as

employer and “casual employee” it is well understood that the descriptions supplied by

such an instrument will not override the true legal relationship that arises from a full

consideration of the circumstances: Personnel Contracting Pty Ltd t/as Tricord

Personnel v The Construction, Forestry, Mining and Energy Union of Workers [2004]

WASCA 312; (2004) 141 IR 31 (Tricord) (Industrial Appeal Court of Western

Australia) at [24]-[25] per Steytler J .”

[10]      The test for determining whether an employee is a casual or not has been expressed in

language remarkably similar in effect to that in s.384(2)(a)(i) and (ii). The discussion by

Barker J in Williams v MacMahon at 31 – 36 is apposite:

31.        The parties accept that the WR Act does not define the expression “casual

employee” and so the expression should be given its ordinary common law meaning.

In this regard, the parties generally accept – leaving aside for the moment what Moore

J had to say in Reed – that the terms are imprecise in their meaning, as the Federal

Magistrate noted: see Doyle v Sydney Steel Co Ltd [1936] HCA 66; (1936) 56 CLR

545 (Doyle) at 551, per Starke J and 555, per Dixon J.

32.        It is worth noting that in Doyle, at 555, Dixon J observed that wharf labouring

(remembering that this was 1936) was typical casual work. Even so, his Honour added

that unfortunately what is casual work is “ill defined”. His Honour observed:

Indeed it is scarcely too much to say that it seems open to a tribunal of fact to treat

most forms of intermittent or irregular work as casual. Where the employment

involves a contract of service lasting some weeks followed by a long interval of

idleness and then another such contract of service and so on, more difficulty arises, if

the view is taken that the employee is a casual worker.

It should also be recalled that the observations of Dixon J and Starke J to which

reference is often made were in the context of a decision about the computation of

[2016] FWC 551

weekly earnings under workers’ compensation legislation and their comments about

the expression “casual worker” arose in that context.

33. Nonetheless, the concept of a casual worker being involved in work which is

discontinuous – intermittent or irregular – remains relevant and helpful in

understanding the concept today. In Reed, Moore J, at IR 425, by reference to those

and other well known authorities, observed:

A characteristic of engagement on a casual basis is, in my opinion, that the employer

can elect to offer employment on a particular day or days and when offered, the

employee can elect to work. Another characteristic is that there is no certainty about

the period over which employment of this type will be offered. It is the informality,

uncertainty and irregularity of the engagement that gives it the characteristic of being

casual.

34.  I do not consider that these observations by Moore J should be read other than

as general observations concerning the concept of casual employment. Certainly, they

were not, in my view, intended to be observations about employment on a casual basis

under any particularly statutory or regulatory regime. They are a helpful commentary

on what the early authorities, such as Doyle, have to say on the topic of what casual

employment is under the general law today.

35.  This in my view is confirmed by what the Full Federal Court said in Hamzy v

Tricon International Restaurants [2001] FCA 1589; (2001) 115 FCR 78 (Hamzy), at

[38]; namely, that “casual employee” embraces “an employee who works only on

demand by the employer” and that “the essence of casualness is the absence of a firm

advance commitment as to the duration of the employee’s employment or the days (or

hours) the employee will work”.

36.  Similarly, the Western Australian Industrial Appeals Court in Melrose Farm

Pty Ltd t/as Miles Away Tours v Milward [2008] WASCA 175; (2008) 175 IR 455 (Le

Miere J with Steytler and Pullin JJ agreeing) whilst acknowledging there is no

definitive test, adopted this approach, that “the essence of casual employment is the

absence of a firm advance commitment as to the duration of the employee’s

employment or the days (or hours) the employee will work”.”

4

[11] In Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic, (Ponce v DJT

Staff) Roe C considered the operation of s.384 in light of the different approach adopted as

between the Workplace Relations Act and the Fair Work Act:

“[55] Australia has many workers engaged as casuals for the purposes of awards

who in other jurisdictions and for the purposes of the international conventions are not

temporary workers or workers engaged on a casual basis for a short period of time. So

many of the authorities focused on whether a worker was in fact a casual or not for the

purposes of unfair dismissal jurisdiction rather than on whether the casual met the

hurdles established for casuals in the WR Act to achieve jurisdiction. The fact that the

employment was regular and systematic and that there was a reasonable expectation of

continuing employment was one of the factors used to determine that a worker was not

in fact a casual employee for the purposes of unfair dismissal jurisdiction. The Full

Bench in Cetin and Ripon said:

[2016] FWC 551

‘In our view all the facts and circumstances bearing upon the nature of the

engagement should be considered in determining the true character of the

employment. Consistent with the approach of Moore J in Blue Line Cruises,

the informality, uncertainty and irregularity of an engagement supports a

conclusion that the employment has the characteristic of being casual.

Conversely regular and systematic engagements with a reasonable expectation

of continuing employment are usually not characteristic of casual

employment.’

[56]      This is no longer likely to be the main focus of contention under the Fair Work

Act given that casuals are not excluded and are not subject to differential minimum

engagement periods. Under the Fair Work Act an employee can be a casual and can

have the same access to the jurisdiction as a full-time or part-time employee. There is

no need to prove that the worker is NOT a casual.”

[12]      It is correct to say that to access the unfair dismissal jurisdiction an employee does not

have to prove that the employee is not a casual. However, having said that, the question as to

whether the employee making an unfair dismissal claim is or is not a casual may be very

relevant to consideration of matters under s.387 and in relation to remedy.

[13]      At the point of considering the application of s.383 and 384 the same outcome will be

achieved by either a determination that an applicant is a casual employee who was employed

on a regular and systematic basis and that the applicant as a casual employee had a reasonable

expectation of continuing employment on a regular and systematic basis, or by a

determination that the applicant was not a casual employee. However, the Commission should

always only proceed on the basis of properly exercising the jurisdiction under the Act.

[14]      Section 384(2)(a) is only concerned with periods in which the applicant is employed

as a casual and therefore it is necessary to ensure that periods in which the employment of the

applicant was not as a casual are not considered. Establishing when the applicant is a casual

and when the applicant is not a casual is still a necessary function for the Commission to

undertake.

[15]      The Respondent contended that the Applicant had met the minimum employment

period and in its outline of submissions of 4 December 2015 described the employment of the

Applicant as follows:

“Regular and Systematic Employment

16.        The Applicant:

a. Underwent training between 26 February 2015 and 18 March 2015;

b. Worked 4 days per week on varying days of the week between 10 March

2015 and 29 March 2015; and

c. Worked two Friday shifts and three Saturday shifts between 3 April 2015

and 18 April 2015.

17.           The periods of employment referred to in paragraph 16 were not regular or

systematic:
[2016] FWC 551

a. There had been no clear pattern of work; and

b. The focus during this period was to progress the Applicant’s training and

allow him to gain practical experience on the job.

18.        Between 25 April 2015 and 4 October 2015, the Applicant had settled into a

clear regular pattern of working 2 days per week on weekends (with the exception of

missing the week commencing 17 August 2015). This period, which spans 5 months

and 10 days, may be regarded as regular and systematic employment.”

[16]      In final written submission filed by the Respondent on 23 December 2015 the

following contentions were made:

“1. It is submitted that:

a. The Applicant, Mr Findley, worked regular and systematic Saturday and Sunday

shifts from 25 April 2015 to 4 October 2015 (5 months 10 days).

b. Mr Findley’s casual employment between 26 February 2015 and 25 April 2015 was

not regular or systematic.

i. Mr Lovemore had rostered Mr Findley those shifts because another full time

employee of the Respondent was unable to work during that period due to

personal reasons1 and Mr Findley would have benefited from the opportunity

to gain experience from having more shifts as he was new to the job.

ii. If Mr Findley had refused any or all of those shifts, Mr Lovemore would

have rostered other employees who were trained in the DRS to work those

shifts.”

[17]      The concession made by the Respondent that “the Applicant, Mr Findley, worked

regular and systematic Saturday and Sunday shifts from 25 April 2015 to 4 October 2015 (5

months 10 days)” is appropriate. I note that whilst the termination of employment occurred on

or about the 19 October 2015 the Applicant was stood down from employment on 4 October

2015 due to an incident occurring at work and although the Applicant did not perform any

work for the Respondent after 4 October 2015 the period between 4 October and 19 October

forms part of the period of service of the Applicant.

[18]      The Respondent’s main contention is that any work performed by the Applicant

between the start date of employment, 26 February 2015 and prior to 25 April 2015 was not

part of employment on a regular and systematic basis.

[19]      The pattern of work performed by the Applicant for the Respondent between

26 February 2015 and 23 April 2015 is set out as follows:

[2016] FWC 551

Mon	Tues	Wed	Thurs	Fri	Sat	Sun
23/2	24/2	25/2	26/2	27/2	28/2	1/3
5pm-1am	1am-9am	1am-9am
Training	Training	Training
2/3	3/3	4/3	5/3	6/3	7/3	8/3
1am-9am	1am-9am	9pm-5am	1am-9am
Training	Training	Training	Training
9/3	10/3	11/3	12/3	13/3	14/3	15/3
1am-9am	1am-9am	1am-9am	1am-9am
LaTrobe	LaTrobe	LaTrobe	LaTrobe
16/3	17/3	18/3	19/3	20/3	21/3	22/3
1am-9am	1am-9am	1am-9am	1am-9am	1am-9am
LaTrobe	LaTrobe	2pm-5pm	LaTrobe	LaTrobe
Training
23/3	24/3	25/3	26/3	27/3	28/3	29/3
1am-9am	1am-9am	1am-9am	5pm-1am	5pm-1am
LaTrobe	LaTrobe	LaTrobe	LaTrobe	LaTrobe
30/3	31/3	¼	2/4	3/4	4/4	5/4
5pm-1am	5pm-1am
LaTrobe	LaTrobe
6/4	7/4	8/4	9/4	10/4	11/4	12/4
5pm-1am	5pm-1am
LaTrobe	LaTrobe
13/4	14/4	15/4	16/4	17/4	18/4	19/4
1am-9am
LaTrobe
20/4	21/4	22/4	23/4	24/4	25/4	26/4
5pm-1am	5pm-1am
LaTrobe	LaTrobe

[20]      There is no single pattern of working hours in the period between 26 February 2015

and 23 April 2015. It is clear that there is period of training followed by a period of regular

shifts before moving into the pattern of work which continued after 25 April 2015.

[21]      The approach contended for by the Respondent is for the Commission to look at this

period of service separately from the period from 25 April 2015.

[22]      When looked at in isolation from the period from 25 April 2015 this earlier period

with its lack of a single pattern of hours of work may give the impression that employment in

this earlier period was not on a regular and systematic basis.

[23]      However, when this earlier period of service is considered in the context of the period

from 25 April 2015 then a different picture emerges. Firstly, the period of training shifts is

clearly defined. Secondly, immediately after the training shifts the Applicant commences a set

of shifts over 3 weeks where the same hours are worked each shift. Thirdly the Applicant

commences working shifts with the same hours of work as he works from 25 April 2015.
[2016] FWC 551

[24]      When the entirety of the period of employment of the Applicant is considered what

emerges is not a picture of irregularity or uncertainty but is in fact a picture of regular and

systematic employment.

[25]      The fact of training shifts between 26 February 2015 and 6 March 2015 and the set of

night shifts between 10 March 2015 and 25 March 2015 before the Applicant commenced his

first weekend shift on 28 March 2015 is not inconsistent with a finding that the Applicant was

employed on a regular and systematic basis. What is clearly established by the evidence in

this matter is that a continuing relationship had been established between the Applicant and

the Respondent and that relationship was not one which was uncertain or irregular. The

observation of Roe C noted in Ponce v DJT Staff at [76] is apposite:

“[76] In situations where there is not a clear pattern or roster of hours and days

worked or a clear agreed arrangement between the employer and employee, then

evidence of regular and systematic employment can be established where:

	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.”

[26]      In the present matter the evidence together with the concession made by the

Respondent is more than sufficient for the Commission to find that the employment of the

Applicant for the entire period of his employment with the Respondent was on a regular and

systematic basis.

[27] The Applicant contends that he had a reasonable expectation of continuing

employment on a regular and systematic basis. The Respondent contends that the Applicant

could not have had a reasonable expectation of continuing employment on a regular and

systematic basis.

[28]      The context in which the employment relationship was created and continued is

relevant.

[29]      On 21 January 2015 the Applicant applied for an advertised position of Full Time

Night Manager with the Respondent but was unsuccessful. The Respondent sought and was

granted permission from LaTrobe University to create a casual position in the Department of

Residential Services as a backup to the full time staff employed by the Respondent at La

Trobe University. The casual position was offered to the Applicant. Mr Lovemore for the

Respondent described his conversation with Applicant as follows:

“8.	In a return interview, I told Joshua that:
(a)	he was not successful for the full time position because his availabilities did

not allow him to work full time hours;

(b) I had spoken with La Trobe University about creating a casual position to

assist with back filling of site rosters from time to time;

(c) rosters for the DRS ran over seven days (7 afternoon and 7 night shifts). 12 of

the 14 shifts were generally covered by permanent employees and only one or two

shifts were possibly available for casual employees; and

[2016] FWC 551

(d) Diamond Protection would like to offer him a casual role to fill in those shifts

5

at the DRS which are currently not being covered by permanent employees.”

[30]      The Applicant describes the same conversation differently:

“5. Mr Lovemore informed me that there was another candidate (James Kay) more

suitable for the full-time position, however Ms Burge and Mr Campbell were

impressed after my interview and decided to hire me on a casual basis.

6. Mr Lovemore said that the person who got the full-time position chose to work

Monday to Friday, therefore I would be able to work Saturday and Sunday 1700-0100.

7. Mr Lovemore told me that I would get at least two shifts per week, and have the

opportunity to pick up more shifts to cover leave.

8. Mr Lovemore said that after my training, he needs me to work full-time hours as Mr

6

Kay had to work out his notice period at his previous company. Hesitantly, I agreed.”

[31]      Mr Lovemore described the ongoing nature of the Applicant’s employment as follows:

“11. After commencing employment with Diamond Protection, Joshua was reminded on

numerous occasions that

(a) there was no guarantee of regular shifts; and

(b) Other salaried full time and part time employees at Diamond Protection had

the first opportunity to pick up his weekend shifts if they wanted it.”

12. Diamond Protection had accommodated Joshua by giving him regular weekend

shifts wherever possible. This involved other casual security employees forfeiting their

weekend DRS shifts to work in other areas of LaTrobe University.

13. The casual shift arrangement was perfected suited to match Joshua’s personal

7

circumstances.”

[32]      There was no evidence that any other employee forfeited a shift in DRS in order to

enable the Applicant to work.

[33]      Rather the evidence supports that there was a mutual arrangement in place where the

Respondent offered work in DRS on weekends to the Applicant. This arrangement clearly

would have continued but for the incident which occurred on 4 October 2015.

[34]      It is relevant that the Applicant was employed in a position which was created

immediately before his employment commenced and in circumstances where the Respondent

wanted to offer the Applicant the newly created position. It is also relevant that the

Respondent has conceded that the Applicant’s employment at least from 25 April was regular

and systematic with the Applicant being employed in the DRS on weekend nights.
[2016] FWC 551

[35]      Whilst I accept that the Respondent had the potential to offer the weekend night shifts

in DRS to other employees, the evidence of Mr Lovemore was that that had not occurred and

that the weekend night shifts were offered to the Applicant.

[36]      The totality of the evidence in this matter leads to the conclusion that the Applicant

did have a reasonable expectation of continuing employment by the Respondent on a regular

and systematic basis.

[37]      If the Applicant was in fact a casual employee then the period of service of the

Applicant as a casual does count towards the Applicant’s period of employment as both the

elements of s.384(2)(a)(i) and (ii) have been satisfied.

[38]      In the circumstances of the present matter it would appear that the Respondent and the

Applicant have created something which has every feature of a rooster, but call it a duck and

insist that everybody else recognise it as a duck. As the Full Bench in Cetin v Ripon said:

“Conversely regular and systematic engagements with a reasonable expectation of

continuing employment are usually not characteristic of casual employment.”

[39]      Not only was the Applicant’s employment with the Respondent on a regular and

systematic basis and in circumstances where the Applicant had a reasonable expectation of

continuing employment on a regular and systematic basis but more importantly when La

Trobe University required that the Applicant be removed from the DRS the response from the

Applicant was to allocate shifts to the Applicant in the library at La Trobe University. The

offer of continuing work with the Respondent after the incident on 4 October 2015is

supportive of a finding that the Applicant was not engaged on a casual basis but was in fact a

permanent employee.

[40]      If the Applicant was a permanent employee of the Respondent then there is nothing in

the employment history of the Applicant which could or would give rise to a consideration of

the applicability of s.384(2)(a).

[41]      In all of the circumstances of the present matter the Applicant’s period of employment

is from 26 February 2015 to on or about 19 October 2015 and no later than 22 October 2015.

As the Respondent is not a small business then the minimum employment period for the

purpose of s.382(a) is a period of six months.

[42]      The period of employment of the Applicant for the purpose of s.384 is greater than 6

months. Therefore the Applicant has completed a period of employment with the Respondent

of at least the minimum employment period of six months.

[2016] FWC 551

[43]      The application in this matter will be returned to the unfair dismissals panel head for

further allocation.

COMMISSIONER

Appearances:

J. Findley on his own behalf.

C. Ni for Diamond Protection Pty Ltd.

Hearing details:

2015.

Melbourne:

December 16.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR576491>

1

[2010] FWAFB 5709/

2

PR938639.

3

[2010] FCA 1321 at 38.

4

[2010] FWA 2078.

5

Exhibit R1.

6

Exhibit A1.

7

Exhibit R1.