Fiona Austin v Xin Yi Dai Incorporated T/A Melbourne Senior Secondary College

[2015] FWC 5707

[2015] FWC 5707

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fiona Austin
v
Xin Yi Dai Incorporated T/A Melbourne Senior Secondary College
(U2014/9709)

COMMISSIONER CRIBB MELBOURNE, 20 AUGUST 2015

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

[1] Ms Fiona Austin (the Applicant) has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act), in relation to the termination of her employment by Xin Yi Dai Incorporated T/A Melbourne Senior Secondary College (the Respondent, the School, the College).

[2] The application was the subject of conciliation on 12 December 2014 but agreement was not reached. In its Employer Response to Unfair Dismissal Claim (Form F3), the Respondent advised of a jurisdictional objection on the grounds that the Applicant did not meet the minimum employment period on the basis that the employer is a small business employer.

[3] The jurisdictional objection was heard on 12 December 2014, 17 March 2015 and 1 May 2015. The parties then filed written Closing Submissions, on 1 June 2015 (the Applicant) and 3 June 2015 (the Respondent).

[4] With respect to the jurisdictional objection, there were two components - the length of employment (minimum employment period) as there were different periods of employment (in 2010, 2013 and 2014) and secondly, whether or not the employer is a small business employer. It was agreed that the question of whether or not the School is a small business employer would be determined first. The evidence that was led focused primarily on this aspect of the objection.

[5] This decision, therefore, concerns whether or not the employer is a small business employer.

1. Legislation

[6] Section 23(1) of the Fair Work Act 2009 defines a “small business employer” as:

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

[7] Ms Austin provided, in her Opening Submissions, a list of the employees of the School at the time of her dismissal (15 October 2014). Ms Austin contended that there were 16 employees. 1 On the other hand, the School submitted that there were 13 employees at the relevant time.2

[8] There were 13 employees who were common to both Ms Austin’s and the School’s lists. Three employees (Mr Peterson, Mr Yang (Leo) Wang and Ms Romensky) were in dispute as Ms Austin contended that they were employees of the School. However, the School argued that they should not be counted as they were, for different reasons, not employees. 3

[9] Subsequently, in her Closing Submissions, Ms Austin submitted that there were 17 employees at the relevant time. The additional person on the list was Joshua. This contention will be dealt with later in the decision.

2. Submissions

(a) The School

(i) Mr Peterson

[10] In their opening submissions, the School submitted that Mr Peterson had only worked for a discreet period during the September 2014 school holidays. Mr Peterson had provided coaching for students in the lead up to their final exams in November 2014. It was stated that this was one off engagement and that Mr Peterson was only employed by the Respondent for one occasion in 2014. Therefore, it was submitted that, as Mr Peterson was a casual employee who worked irregularly and on a non-systematic basis, he should not be counted on the list of employees. 4 In addition, Mr Peterson had been engaged privately by Ms Wu (Mr Jan Wang’s wife) to tutor her children. This was stated to have been paid for privately, and separately to the School, by Ms Wu.5

[11] It was argued by the School, in its Closing Submissions, that Mr Peterson’s payslip showed clearly that he was not employed on or after 15 October 2014. 6 The School stated that there is no evidence that Mr Peterson worked on or after 15 October 2014 and it was asserted that Mr Peterson did not work after 11 October 2014. The Commission was reminded that Mr Peterson did not remember exactly the last date he tutored. It was contended that the payslip showed that he did not work on the relevant day and it was stated that the payslips were always accurate, true and correct.7 The School argued that Ms Austin has not provided any hard evidence that Mr Peterson had worked for the School on or after 15 October 2014.8

[12] The School also contended that the Department of Education would not agree that Mr Peterson was an employee as the teaching was not done during the normal school hours of 8.00am to 4.00pm. 9

[13] Secondly, it was argued that Mr Peterson did not have a reasonable expectation of continuing employment as he only worked, after hours, between July and October 2014. 10

(ii) Mr Yang (Leo) Wang

[14] The School submitted that Mr Wang is not an employee of the School and so should not be counted in the number of employees. It was indicated that Mr Wang lives with Mr Jan Wang and Ms Wu and is their nephew. It was indicated that Mr Wang does spend time at the School during the day, during breaks in his university studies and that he may help around the office doing various administrative tasks - as would any family member. The Respondent also explained that Mr Wang does have a connection with some of the students who attend the School as they come from the same city in China. It was stated that Mr Wang may informally assist those students with their studies. 11

[15] It was stated that, as Mr Wang is Mr Jan Wang’s nephew, he did not get paid. This was because he is family and also because he was a student and studying. 12

(iii) Ms Romensky

[16] In relation to Ms Romensky, the School submitted that Ms Romensky was neither an employee of the School nor a regular or systematic casual. The Respondent stated that Ms Romensky was only ever engaged at the School as an exam supervisor when the students were sitting their exams. Ms Romensky was said to have been paid and retained by the Victorian Curriculum and Assessment Authority (VCAA) and was not engaged by the School specifically in that the School was paying for her. 13

[17] Further, the Respondent contended that Ms Romensky was not employed on a regular or systematic basis as she was only engaged when exams were taking place. It was submitted that Ms Romensky had not been engaged as a receptionist until November 2014 and that Ms Romensky’s engagement ended on 4 December 2014. It was indicated that Ms Romensky did work from November until 4 December 2014 due to the requirement for someone to man the desk. 14

[18] It was stated that Ms Romensky was not an employee of the School on 15 October 2014 and that Ms Romensky does not believe herself to have been an employee at that particular time. 15 Further, it was contended that Ms Romensky had not been paid at that particular time nor before that particular time. The respondent stated that Ms Romensky worked for the School as an exam supervisor from 29 October 2014. It was also stated that Ms Romensky did “present” herself before 15 October 2014 but it was stated that there is no hard evidence that she “worked” before or on that particular time. It was argued that Ms Romensky did not admit that she worked before 15 October 2014 although she did “engage in other non-exam related activities” and that she “provided ideas for the College advertisement”. However, it was submitted that all of these activities and ideas were not “paid for work”.16 The School indicated that Ms Romensky did begin to work for the School after 15 October 2014. However, it was submitted that this was irrelevant as Ms Romensky had not worked prior to 15 October 2014.17

[19] With respect to Ms Romensky’s work as an exam supervisor, the Respondent argued that the VCAA guide which states that “Principals should appoint VCE exam supervisors subject to the conditions set out by the VCAA and under employment procedures established by the school council or school board.” was not proof of employment by the College of Ms Romensky. This was because the supervisors were paid by the VCAA and not directly by the School. 18 It was submitted by the School that there was no employment agreement between Ms Romensky and the School. Rather, there was a statutory declaration which the VCAA, and not the School, required exam supervisors to complete.19 Further, it was stated that, all that the School provides for the VCE exams, were the rooms at the College.20

(iv) Joshua

[20] The College submitted that Joshua was not employed as at 15 October 2014. 21

(b) Ms Austin

(i) Mr Peterson

[21] It was submitted by Ms Austin that Mr Peterson was employed by the School on a regular and continuous basis. Ms Austin stated that Mr Peterson worked on Wednesdays, Thursdays and Saturdays tutoring all of the year 11’s and year 12’s in maths and that he had also worked during the September school holidays. 22 It was argued that Mr Peterson worked regularly and systematically from 28 July 2014 through to the date of dismissal (15 October 2014) and most likely beyond that.23

[22] Ms Austin contended that Mr Peterson was an unreliable witness as he could not remember his employment in October/November 2014 and he kept changing the dates he worked. 24

(ii) Mr Yang (Leo) Wang

[23] In relation to Mr Leo Wang, Ms Austin said that he was at the school every day and that, in the afternoon, he would take over from Mr Jan Wang’s wife, Ms Wu, as a student welfare - style person. It was argued that Mr Wang also took a regular Chinese class. 25 Ms Austin stated that, during his evidence, Mr Wang had admitted that he was not honest and that it had been established that Mr Wang was not telling the truth in relation to the days he attended the internship.26 That Mr Wang had admitted doing volunteer work for the School was also highlighted.27

[24] Ms Austin stated that, due to a combination of a lack of employment records and inaccurate payroll data, it was difficult to prove that Mr Leo Wang was in paid employment with the School. 28

(iii) Ms Romensky

[25] With respect to Ms Romensky, it was contended that, on the first day of Term 4, Ms Romensky was introduced as the new receptionist. Prior the time that Ms Romensky commenced as receptionist, it was recalled by Ms Austin that the role had been shared between Mr Jan Wang, Ms Wu and Mr Leo Wang since about May 2014. Ms Austin stated that Ms Romensky worked three days a week - Monday, Tuesday and Wednesday. 29

[26] Ms Austin submitted that Ms Romensky’s evidence showed that she was an employee at the time of dismissal. This was on the basis that, in 2014, as an exam supervisor, she had started work before the day of the first exam. 30 In addition, it was stated that Ms Romensky had said that she had received a cheque from the School for her work as an exam supervisor. It was recalled that Ms Romensky had said that she had probably said she was a receptionist, that she sat at the receptionist desk and answered the phone when it rang. Further, Ms Romensky’s evidence was said to have been that, prior to 15 October 2014, she had been trained in the use of the new multifunction printers and the telephone at the receptionist’s desk and had provided ideas for the College’s advertisements. Finally, Ms Austin argued that Ms Romensky had reluctantly admitted that she had been employed by the College in December 2014 as a receptionist.31

(iv) Mr Jan Wang

[27] It was submitted by Ms Austin that Mr Wang had demonstrated that he had engaged in practices that made it difficult to establish who was employed by the College and the nature of their employment. 32 Mr Wang’s evidence was said to include that Ms Romensky was employed at the College from 6 October 2014 as an exam supervisor and as a receptionist after 15 October 2014.33

(v) Other matters

[28] Ms Austin also contended that Joshua’s job was being done by Mr Yang (Leo) Wang on the basis that his evidence was that he had been in the classroom supervising and conversing with the students but not teaching them. 34

[29] In addition, it was stated that the timetable provided to the Commission on 10 May 2015 by Mr Wang and the timetable provided to the Commission, on 1 May 2015, by Ms Austin were both labelled as version 3.5. Secondly, the timetable provided by Mr Wang was said to not be the timetable in existence at the time of her dismissal. This was because her (Ms Austin’s) name was absent from the timetable and Ms Pauline Hao’s name was no longer listed as HAO. Rather, “Pauline” was written on the timetable against a class she was not taking and “Pauline” was said to be the format reserved for new teaching staff. It was submitted by Ms Austin that Mr Wang had altered the timetable to suit the story he was presenting to the Commission. 35

[30] In conclusion, Ms Austin argued that Mr Peterson and Ms Romensky constitute employees Number 14 and Number 15. Further, it was submitted that there was a 16th employee who was taking the Year 11 Chinese language class. 36 Therefore, the College is not a small-business employer as it had 15 or more employees at the time of dismissal.37 As indicated in paragraph [9], Ms Austin included Joshua as employee number 17 in her Closing Submissions.

3. The Evidence

[31] Mr Peterson, Mr Jan Wang, Ms Romensky and Mr Yang (Leo) Wang each gave oral evidence in addition to providing witness statements (except for Mr Jan Wang). As well, the School provided a payroll Pay History and other payment details (a PAYG Payment Summary for the year ending 30 June 2015) for Mr Peterson.

[32] The payroll Pay History provided for Mr Peterson, from 1 July 2014 - 30 June 2015, showed that Mr Peterson worked in the periods ending 28 July 2014; 11 August 2014; 25 August 2014; 8 September 2014; 22 September 2014; 27 September 2014; 6 October 2014 and 10 October 2014. 38 It was the Commission’s view, during the hearing, that Mr Peterson’s pay history showed that he worked regularly and systematically between 28 July 2014 and 10 October 2014.39

[33] For Ms Romensky, there was no payroll pay history provided but evidence of Ms Romensky’s exam supervision sessions together with a letter from the VCAA, dated 14 November 2014, regarding payment of exam supervisors. The letter stated, amongst other things, that supervisors are to be paid directly by the School. The letter also set out details of the grant to the School to cover the costs of the supervision of the 2014 VCE written examinations. A VCAA Supervisor Employment Summary form, dated 19 November 2014, was also produced which showed that Ms Romensky supervised exams during the period 15 October 2014 - 19 November 2014.

(a) Mr Peterson

[34] Mr Peterson provided a witness statement 40 and his oral evidence was that:

• He had been asked by Mr Jan Wang to teach Year 11 and Year 12 students when there were enough students for him to do that. Mr Wang would call when he was to come in. 41



• He tutored the Year 12 students on Wednesday and Thursday nights but he could not really remember. 42 Mr Peterson then agreed with his witness statement which stated that he tutored on Wednesday and Thursday afternoons.43



• The regular tutoring finished at the end of the September school holidays. 44



• Before the holidays, he thought that the work was finished. It was a bonus that he was asked to come and work during the school holidays. 45



• Following the school holidays, he came to the School and was paid for it on 10 October 2014. 46



• He had then come into the School once more - in the following week after 10 October 2014. It could have been Monday, 13 October 2014 or Tuesday, 14 October 2014 but he really could not recall. 47



• He came in for one last time to have dinner with the students and to say goodbye. He taught a class before the dinner and was paid for the class, in cash, at the end of the class. 48



• He had made a mistake in his witness statement when he said that he had run an extra tutorial or two during November for the Year 11 students. 49 He must have meant October 2014 because he did not run any tutorials during Term 4.50

(b) Mr Jan Wang

[35] Mr Wang gave oral evidence in relation to the evidence given by Mr Peterson about when Mr Peterson worked and when he was paid. Mr Wang also gave evidence in relation to the evidence that Ms Romensky was yet to give.

[36] In relation to Mr Peterson’s evidence, Mr Wang’s evidence was that:

• He did not know that Mr Peterson had worked an extra day after the start of Term 4 which commenced on 13 or 14 October 2014. He was surprised to hear Mr Peterson say that he had worked then. 51



• He did not think this was accurate as Mr Peterson would not have coached the students during Term 4 as they were preparing for their final exams. 52



• The dates recorded on the Pay History do not reflect the actual date the employee was paid. He agreed that payment was made after the class. 53



• Mr Peterson had said that he had taught a class before dinner/saying goodbye because otherwise, he would not have been paid. 54

[37] Ahead of Ms Romensky’s evidence, it was Mr Wang’s evidence that:

• Ms Romensky is the current receptionist at the School. She commenced after she had finished her supervisor’s job ie. after December 2014. 55



• Ms Romensky would like to sit at reception but that did not mean that she was an employee. When she was sitting there, from 6 October 2014, Ms Romensky was preparing for the supervisor’s job. 56



• The previous receptionist had been made redundant and so the School was unable to employ anybody else prior to 19 October 2014. He had therefore purposely avoided employing Ms Romensky. 57 During this six month period, the work of the receptionist had been done by himself and other employees who shared the answering of the phone calls.58



• He had not invited Ms Romensky to the staff meeting on 6 October 2014 and had only found out on the day that she attended the meeting. 59



• Staff (except for Mr Peterson) are paid fortnightly by EFT with the payments staggered across the two Mondays of each pay cycle. 60

(c) Ms Romensky

[38] Ms Romensky provided a witness statement 61 and gave oral evidence. Ms Romensky’s evidence was as follows:

• She has worked as an assistant VCE exam supervisor for about three - four years in the middle of the year and the end of the year. 62



• In her supervisor’s role, she would normally only come in on the day of the exam. However, in October 2014, it was different as there was no longer anyone at the School who could do all of the preparatory work. The Chief Supervisor had asked her to come in so that they could coordinate. 63



• On 29 October 2014, she had helped put out the place cards. 64



• She had attended the Term 4 staff meeting of her own volition to discuss the arrangements regarding the forthcoming exams later in the month. However, this hadn’t happened as there were more important teaching matters discussed. She had discussed the arrangements later and then she and the Chief Supervisor coordinated it. 65



• She thought she had received a call from the Chief Supervisor about finding out about the required preparations for the exams as the other teacher was not going to be there. She had rung the School and asked when was a good time to come in. Mr Wang had said that the first (opportunity) was 6 October 2014 and so she had thought that it was going to be discussed amongst the teachers. 66



• Prior to the commencement of the exams, she and the Chief Supervisor went to the School of their own volition at random. 67



• She did exam supervision work from 29 October 2014 onwards. 68



• She was only ever paid for her exam supervision work - by cheque from the School. 69 It was Ms Romensky’s understanding that the payments (from the VCAA) were passed through the School.70



• To her knowledge, she had never been employed by the School. 71



• Prior to the first exam, she had produced lists and timetables for her benefit. The School had its list. She had not done any work for the School. 72 This was part of her exam supervision role.73



• When she came into the School, she did not say that she was an exam supervisor as the exams did not start until October. There was an empty desk out there and she sat there and probably said that she was a receptionist rather than saying that she was a retiree. 74

• It was confirmed that she asked Ms Austin to help her with the telephone on the reception desk. 75



• She does voluntary work for the Probus Club and really likes the idea of spending time with young people. She said that she did not do any work for the College in the period prior to the exams starting. She does not type, file or open the mail. She indicated that she sat there and chatted to the students. If the phone rings and she is there, she would answer it. She comes and goes as she pleases. 76 She stated that the phone does not ring much.77



• It was possible that she was “informally” employed as a receptionist in December 2014 and that she sat at the desk out the front on the eighth floor where the offices are. The receptionist is on the sixth floor. 78



• When she was at the School prior to the exams, she undertook exam related duties. After the exams, she was “informally” employed. She did not recall whether Mr Wang gave her a small amount of cash that she thought was a Christmas present. It was finally stated that she was paid for the work she did in December 2014. 79



• Prior to the commencement of exams on 29 October 2014, Ms Romensky agreed that she had spoken with Ms Austin about something. She confirmed that she said that she had to spread out all of this paper which she did in the classroom on level 6. She stated that she had prepared all this work on the computer at the reception desk on level 8. 80



• She disagreed with Ms Austin’s view that it was she who showed Ms Austin the advertisement for the School in an MX newspaper and that she had then asked Ms Austin about other marketing options for the School. 81

(d) Mr Yang (Leo) Wang

[39] Mr Leo Wang is Mr Jan Wang’s nephew and he gave oral evidence and provided a witness statement. 82 Mr Wang’s evidence was as follows:

• His uncle asked him to look after the Year 11 international students as there was no teacher for the class due to the teacher having some emergencies. He maybe talked with those students because they all spoke Chinese and sometimes they asked him questions. Sometimes they would just do their studies and he would sit there and watch them, to take care of them. He could not remember how long he did this for because it was not regular. He did not teach the students. 83



• When he got free time from working at the developer’s company, he would go to the School. His uncle would then ask him to look after the class. His uncle did not know that he was coming. 84



• He did not know whether he was replacing Joshua teaching the Year 11 Chinese language class. 85



• He finished his undergraduate degree at Melbourne University at the end of 2013. In 2014, he worked at a developer’s company on an internship three days a week (until the end of September 2014) and he went to university on the other two days to study. 86



• He thought that he was working as an intern on Mondays, Tuesdays and Wednesdays or Mondays, Wednesdays and Thursdays but he could not remember exactly. 87



• He confirmed that, on Wednesday, 28 May 2014, he went on an excursion with Ms Austin and her economic students. He went on the excursion as he happened to be free that day and so went to the School. The students had asked him if he would like to go with them (because he had a good relationship with them). 88



• He disagreed that Ms Austin had asked him to come along as Ms Wu was unable to attend. 89



• He then recalled that he went to the classroom and Ms Austin was talking to the students. He had decided to go with Ms Austin and then he asked her questions about the excursion. 90



• In 2014, he had also been studying for his ILTS test. 91



• He confirmed that, on his Facebook page, he stated that he worked at New Generation College. It was not a lie but an exaggeration. 92



• He confirmed that he sent an e-mail on 25 May 2014, on behalf of Mr Wang (his uncle) to “dear all colleagues” about new School e-mails. 93 He stated that he had set up School e-mails for all of the staff.94 He had also created student report templates.95 That was all he had done for the School.96



• He did voluntary work at the School because he is a member of the family and this was his contribution to the family. 97 His parents in China had supported him financially.98



• He had not been paid by his uncle for his voluntary work. 99

4. Considerations

[40] As set out in paragraph [6] above, a small-business employer is defined as an employer who employed fewer than 15 employees at a particular date. In this case, the particular date is 15 October 2014 (the date of Ms Austin’s dismissal).

[41] Further, under section 23(2)(b) of the Act, a casual employee is not counted unless that person had been employed on a regular and systematic basis:

“(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.”

[42] It was undisputed between the parties that there were 13 employees as at 15 October 2014. What was not agreed was whether Mr Peterson, Ms Romensky and Mr Yang (Leo) Wang were also employees at the relevant time. In her Closing Submissions, Ms Austin did not pursue the proposition that Mr Yang (Leo) Wang was an employee of the School at the date of her dismissal. This was on the basis that Mr Jan Wang’s lack of employment records and inaccurate pay records made it very difficult to prove that Mr Yang (Leo) Wang was employed by the School. 100

[43] However, Ms Austin submitted that there was an employee taking the Year 11 Chinese language class which meant that there were 16 employees as at 15 October 2014. Ms Austin also added Joshua as employee number 17.

[44] I will deal with each of these in turn.

(a) Mr Peterson

[45] The Pay History provided by the School for Mr Peterson, showed that Mr Peterson worked during each pay period from 28 July 2014 until 10 October 2014. Mr Peterson’s evidence was that he tutored Year 12 students on Wednesday and Thursday afternoons and also Year 11 students. He had also tutored during the September 2014 school holidays. After 10 October 2014, Mr Peterson stated that he had come back to the School to say goodbye to the Year 12 students and had tutored a further Year 12 class and then had a goodbye dinner with them. Mr Peterson’s witness statement indicated that he had also returned to the School in November 2014 to run an extra tutorial or two for the Year 11 students. 101 During his oral evidence, he explained that he had made a mistake and that he had done the Year 11 tutoring in October 2014 and not November 2014.102

[46] In determining whether or not Mr Peterson is counted as an employee as at 15 October 2014 (the particular time), a number of aspects need to be addressed. Firstly, was Mr Peterson employed as a casual employee of the School on 15 October 2014? Secondly, during his employment, was Mr Peterson employed on a regular and systematic basis?

[47] In relation to the first question, the evidence before me shows that Mr Peterson was employed by the School from 28 July 2014. What is contested is whether Mr Peterson worked after 10 October 2014 (the last record on his Pay History). To answer this question requires consideration of when, after 10 October 2014, Mr Peterson came to the School for the last tutorial/goodbye dinner for the Year 12 students. Secondly, determination of when Mr Peterson gave one or two tutorials for the Year 11 students is also necessary.

[48] On the basis of the evidence before me, I find that Mr Peterson was a casual employee of the School on 15 October 2015. This is on the basis that it is most probable that the ‘goodbye’ class and dinner was on either Wednesday 15 October 2014 or Thursday 16 October 2014, rather than on the suggested Monday 13 October or Tuesday 14 October 2014. Mr Peterson’s evidence was that he tutored the Year 12 students on Wednesday and Thursday afternoons. It would seem unlikely that the final class would be on a different day to one of the days that the classes were regularly held.

[49] With respect to whether Mr Peterson provided one or two extra classes for the Year 11 students, I do not accept his verbal evidence that those classes took place in October rather than in November 2014. The relevant paragraph in Mr Peterson’s witness statement is clear in that it states that the Year 12 tutoring ceased but that there were one or two classes for the Year 11’s in November. This is in contrast to Mr Peterson’s oral evidence where he was evasive and seemed to continually suffer from a poor memory. As indicated during the hearing on a number of occasions, having had the opportunity to observe Mr Peterson and hear him give his evidence, I found Mr Peterson to be an unreliable witness. 103

[50] Therefore, I find that it is most probable that Mr Peterson gave the final (goodbye) tutorial to the Year 12 students on either 15 or 16 October 2014 and that he gave one or two tutorials to the Year 11 students in November 2014.

[51] The second issue concerns whether Mr Peterson was employed on a regular and systematic basis. The view was expressed during the hearing, based on the Pay History, that Mr Peterson was employed on a regular and systematic basis from 28 July 2014. 104 This question has been dealt with previously by the Fair Work Commission and also by the Court of Appeal in the Australian Capital Territory.

[52] In terms of whether the employment was regular and systematic, Commissioner Roe, in Corey Ponce v DJT Staff Management Services Pty Ltd 105 (Ponce), discussed the situation where there is not a clear pattern or roster of hours and days worked. It was his view that 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.” 106

[53] In the Court of Appeal decision in Yaraka Holdings Pty Ltd v Giljevic  107 (Yaraka), it was noted by Their Honours (Crispin P and Gray J) that:

“...it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement.”

and later:

“The term “regular” should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”.” 108

[54] The Judges then found that:

“The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged.” 109

[55] In the same case, in a separate judgement, Madgwick J found:

“It is clear from the examples that a ‘regular…basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all. 110

[56] I adopt the Court of Appeal’s and Commissioner Roe’s approach. In this case, the evidence shows that Mr Peterson worked largely on the basis of frequent engagements which, given the nature of Mr Peterson’s role as a tutor, were regular, predictable and planned - at least from the students’ perspective. Further, as the mathematics tutor for the Year 11 and 12 students, the pattern of his engagement reflected the needs of the students. It would seem that the School relied on Mr Peterson to provide that tutoring to those particular students. There was no evidence before me that there was another mathematics tutor employed by the School who tutored the Year 11 and 12 students.

[57] Therefore, I find that Mr Peterson was a casual employee of the School who was engaged on a regular and systematic basis. Mr Peterson becomes employee Number 14 of the School.

(b) Ms Romensky

[58] Ms Romensky’s evidence was only a little less vague and prevaricating than Mr Peterson’s. However, it was possible to ascertain the following facts from Ms Romensky’s evidence. Some of these were freely given whilst others were finally admitted:

• Ms Romensky gave evidence that she worked as an assistant exam supervisor for the VCE written exams from 29 October 2014 until 19 November 2014. She stated that she received a cheque from the School as payment for this work. In turn, the School payment from the VCAA to cover the costs of supervision of the exams.



• Ms Romensky eventually admitted that she was employed as a receptionist by the School in December 2014 and was paid for this work.



• Ms Romensky stated that she attended the staff meeting on 6 October 2014 (of her own volition). During the period from 6 October 2014 until the commencement of the exams (on 29 October 2014), Ms Romensky said that she sat at the receptionist’s desk on the 8^th floor and had told the students that she was the receptionist. Ms Romensky’s evidence was that she had answered the phone whilst sitting at the desk and had chatted to the students.



• Ms Romensky said that the work she had been doing whilst at the School during this period was only exam preparation work and also some voluntary work. She denied that she had done any work for the School. Ms Romensky acknowledged that she had asked Ms Austin to help her with the telephone on the receptionist’s desk. She agreed that she had participated in a discussion with Ms Austin about advertising and other possible marketing options for the School. Ms Romensky confirmed that she had spread out a lot of documentation in a big classroom on level 6. Ms Romensky had prepared the documentation on the computer on the receptionist’s desk on level 8.

[59] It is clear that Ms Romensky worked as a receptionist for the School (and was paid) in December 2014. It is also clear that, between 29 October 2014 and 19 November 2014, Ms Romensky worked as an assistant exam supervisor. Mr Romensky was paid by cheque for this work and the School was given a grant, by VCAA, to cover the cost of the supervision.

[60] The question then is what was Ms Romensky doing in the period from 6 October 2014 (when she attended the staff meeting) and 29 October 2014 (when the VCE written exams commenced)? It is accepted that, during that time, Ms Romensky was involved in preparation for the exams and that she undertook some of her voluntary work. However, was Ms Romensky also doing some work for the School? On fine balance, it is probable that Ms Romensky did undertake School duties during that time. It was Ms Romensky’s evidence that she sat at the receptionist’s desk and had described herself to the students as a receptionist. She had answered the phone and had also talked to the students. At one stage, Ms Romensky prepared a lot of documentation on the computer at the receptionist’s desk and had spread it out in a big classroom on level 6. She had then discussed it with Ms Austin. Therefore, I find that, during that period, it is probable that Ms Romensky did some tasks for the School as well as preparation for the VCE exams (as well as her voluntary work).

[61] However, the arrangement that was in place between Ms Romensky and Mr Wang, during this period, appears to be quite a loose and informal one. Ms Romensky’s evidence was that she came and went as she pleased and that she did not file or open the mail. 111 Rather, she sat there and chatted to the students and answered the phone when it rang. Ms Romensky summed it up by saying that she liked to chat to the students and that:

“I do other volunteer stuff that I enjoy otherwise I’m sitting home watching Judge Judy at 3 o’clock.” 112

[62] There are no pay records for any of the work that Ms Romensky has undertaken for the School. The lack of proper and accurate employee and pay records is unacceptable and it has not assisted the Commission in fulfilling its role in relation to this application. Whilst Ms Romensky, in the end, stated that she had been paid for the work in December 2014, it was not part of her evidence that she had been paid for the School related tasks that she had done between 6 October 2014 and 29 October 2014. The nature of the relationship between the School and Ms Romensky, during this period, seems to not have been one of employer/employee. It was a much more informal arrangement with Ms Romensky actually coming and going as she pleased. There is also no evidence (either on the basis of Ms Romensky’s evidence or appropriate documentation from the School) that Ms Romensky was paid by the School during this period.

[63] Therefore, I am unable to find that Ms Romensky was employed by the School, as a casual employee, on 15 October 2014. If I am wrong about this and Ms Romensky was paid by the School, there is no evidence before me that the work that Ms Romensky performed between 6 October 2014 and 29 October 2014, satisfies the definition of ‘regular and systematic’ as set out in paragraphs [52] - [55] above.

[64] Accordingly, Ms Romensky will not be counted as an employee for the purposes of this matter. The number of employees remains at 14.

(c) Mr Yang (Leo) Wang

[65] It was Ms Austin’s Closing Submission that, due to Mr Jan Wang’s lack of employment records and inaccurate payroll data, it was difficult to prove that Mr Leo Wang was in paid employment at the School.

[66] The Commission has already expressed a view about the lack of proper records at the School. As the accuracy of what payroll records there are is highly questionable, no definitive conclusion about whether Mr Wang was in paid employment at the College, can be drawn from the absence of any pay records for Mr Wang. Therefore, the Commission is unable to make a finding about whether or not Mr Wang was an employee of the school on 15 October 2014. Mr Wang is unable to be considered for the purposes of the jurisdictional objection.

[67] The number of employees, therefore, remains at 14 employees.

(d) Joshua/16^th employee taking the Year 11 Chinese language class

[68] In Ms Austin’s Closing Submissions, Ms Austin stated that she believed that Joshua’s job was being done by Mr Yang (Leo) Wang. 113 Ms Austin questioned the copy of the timetable that had been provided to the Commission by Mr Jan Wang. She stated that Ms Hao, whose name was against the Year 11 Chinese class on the timetable, was not taking this class when Ms Austin was employed at the College. In addition, Ms Austin explained that ‘Pauline’ was the format reserved for new teaching staff.114

[69] Joshua was not called as a witness. Joshua’s name does not appear on Ms Austin’s list of 16 employees (first list) in her Opening Submissions. 115 When the parties agreed that there were three employees (of the 16 employees on Ms Austin’s first list) on Ms Austin’s list that were disputed by the Respondent, Joshua was obviously not one of those. Joshua first appears on any list of employees in Ms Austin’s Closing Submissions (second list), where he has been added as employee Number 17, without any explanation. Ms Pauline Hao is on both of Ms Austin’s lists and so therefore, is one of the 13 agreed employees. There is no mention on either list of an employee named ‘Pauline’.

[70] It is understood that Ms Austin believes that Mr Yang (Leo) Wang taught Joshua’s class and Ms Austin has highlighted Mr Wang’s evidence that he went into this classroom and talked with these students. In addition, it is Ms Austin’s contention that Ms Hao was not teaching the Year 11 Chinese class at the time she was dismissed and that ‘Pauline’ is in the format that denotes new teaching staff.

[71] There is no evidence before the Commission in relation to ‘Pauline’ or Ms Pauline Hao. The only material relating to Joshua concerns whether or not Mr Yang (Leo) Wang was taking Joshua’s class. As indicated earlier, Joshua was not on the first list provided by Ms Austin, which the parties worked off to determine which employees were not agreed to be on the list. Therefore, the Commission is not in a position to make any findings about Joshua or who was teaching the Year 11 Chinese class.

[72] Therefore, the number of employees remains at 14.

5. Conclusions

[73] A ‘small business employer’ is defined in section 23(1) of the Act as an employer who employs fewer than 15 employees. As I have found that, at the particular time (15 October 2014), the employer employed 14 employees, I therefore determine that the School is a ‘small business employer’ as defined by the Act. Accordingly, the Respondent’s jurisdictional objection, in relation to it being a small business employer, is upheld.

Minimum employment period

[74] The Respondent’s second jurisdictional objection was that Ms Austin did not meet the minimum employment period. Under section 383(b) of the Act, the minimum employment period for an employee of a small business employer is one year. It was common ground that Ms Austin had three periods of employment with the School. It was agreed between the parties that the first period of employment in 2010 was not relevant to the present application. It was agreed that the third period was on a permanent part-time basis and that it commenced on 29 January 2014 and ended with Ms Austin’s dismissal on 15 October 2014, and that it should be counted in determining whether Ms Austin met the minimum employment period requirements.

[75] There was no agreement about the preceding (second) period of employment - in relation to the date of commencement in August 2013 and the basis of the employment - casual or part time. There is insufficient material before the Commission to determine the exact starting date in August 2013 and to determine whether the employment was casual or part time.

[76] Therefore, a further hearing, in relation to this jurisdictional objection, will be necessary. Directions will be issued, in due course, regarding the filing of submissions and witness statements on these two points only. A hearing date will also be set.

Appearances:

Ms Fiona Austin representing herself

Mr Jan Wang for the Respondent

Hearing details:

2014.

Melbourne:

December 12.

2015.

Melbourne:

March 17;

May 1.

Final written submissions:

Applicant, 1 June 2015

Respondent, 3 June 2015

 1   Exhibit A1 at paragraph 10, Transcript PN 37 and 52 and Applicant’s Closing Submissions, dated 1 June 2015, at paragraphs 3 and 15

 2   Transcript PN 52 and Respondent’s Closing Submissions, dated 2 June 2015, at pages 3 - 10

 3   Ibid PN 52 - 53 and ibid at page 10

 4   Ibid PN 56 - 63 and ibid at page 3

 5   Ibid PN 56

 6   Respondent’s Closing Submissions, dated 2 June 2015, at page 3

 7   Ibid at pages 3 - 4

 8   Ibid at page 4

 9   Ibid at page 3

 10   Ibid

 11   Transcript PN 67 - 68

 12   Respondent’s Closing Submissions, dated 2 June 2015, at page 9

 13   Transcript PN 70 - 71

 14   Ibid PN 72 - 73

 15   Respondent’s Closing Submissions, dated 2 June 2015, at page 5

 16   Ibid at page 6

 17   Ibid

 18   Ibid at pages 6 and 8

 19   Ibid

 20   Ibid at pages 7 - 8

 21   Ibid at page 9

 22   Transcript PN 77 - 79

 23   Applicant’s Closing Submissions, dated 1 June 2015, at paragraph 10

 24   Ibid

 25   Transcript PN 80

 26   Applicant’s Closing Submissions, dated 1 June 2015, at paragraph 13

 27   Ibid

 28   Ibid

 29   Transcript PN 81

 30   Applicant’s Closing Submissions, dated 1 June 2015, at paragraph 12

 31   Ibid

 32   Ibid at paragraph 11

 33   Ibid

 34   Ibid at page 6

 35   Ibid at paragraph 14

 36   Ibid at paragraph 15

 37   Ibid at paragraph 16

 38   Pay History provided by Mr Wang on 26 January 2015

 39   Transcript PN 308

 40   Exhibit R1

 41   Transcript PN 361 - 363

 42   Ibid PN 369

 43   Ibid PN 371 and Exhibit R1 at paragraph 4

 44   Ibid PN 377 - 378

 45   Ibid PN 381

 46   Ibid PN 383

 47   Ibid PN 385 – 387, 391 – 393, 396 - 397 and 399

 48   Ibid PN 385, 389 – 390, 394, 396, 401 – 404, 412 - 413 and 436 - 437

 49   Ibid PN 41 - 42 and Exhibit R1 at paragraph 6

 50   Ibid PN 422

 51   Ibid PN 511, 513 and 517

 52   Ibid PN 511 - 512 and 521

 53   Ibid PN 514

 54   Ibid PN 523 - 526

 55   Ibid PN 538 - 541

 56   Ibid PN 543 – 546, 574, 578 and 612 - 618

 57   Ibid PN 574 and 578

 58   Ibid PN 575

 59   Ibid PN 586 - 592

 60   Ibid PN 625 - 631 and 648 - 663

 61   Exhibit R2

 62   Transcript PN 744 - 749

 63   Ibid PN 750 and 754

 64   Ibid PN 755 - 756

 65   Ibid PN 766 - 767

 66   Ibid PN 768 - 770

 67   Ibid PN 782 - 785

 68   Ibid PN 787

 69   Ibid PN 81 – 831, 835 - 839 and 846

 70   Ibid PN 840

 71   Ibid PN 834

 72   Ibid PN 930 - 931

 73   Ibid PN 948 - 951

 74   Ibid PN 953

 75   Ibid PN 954

 76   Ibid PN 955 - 956 and 962

 77   Ibid PN 958 - 961

 78   Ibid PN 970 - 976

 79   Ibid PN 991 - 997

 80   Ibid PN 1053 - 1059

 81   Ibid PN 1045 - 1059

 82   Exhibit R3

 83   Ibid at paragraph 3 and Transcript PN 1291 - 1296 and 1301 - 1302

 84   Ibid PN 1298 - 1299

 85   Ibid PN 1291 and 1303 - 1305

 86   Ibid PN 1149 - 1153 and 1164 and Exhibit R3 at paragraphs 1 and 3

 87   Ibid PN 1162 - 1164

 88   Ibid PN 1174 - 1178

 89   Ibid PN 1179

 90   Ibid PN 1180

 91   Ibid PN 1148 and Exhibit R3 at paragraph 2

 92   Ibid PN 1221 and 1235 and 1238

 93   Ibid PN 1245 - 1246

 94   Ibid PN 1248

 95   Ibid PN 1250 - 1251

 96   Ibid PN 1252

 97   Ibid PN 1253 - 1257 and Exhibit R3 at paragraph 1

 98   Ibid PN 1258 - 1259

 99   Ibid PN 1282 - 1283 and Exhibit R3 at paragraph 1

 100   Applicant’s Closing Submissions, dated 1 June 2015, at paragraph 13

 101   Exhibit R3 at paragraph 6

 102   Transcript PN 41 - 42

 103   Ibid PN 423, 474 and 476

 104   Ibid PN 273 and 478

 105   [2010] FWA 2078

 106   ibid at [76]

 107 [2006] ACTCA 6

 108   Ibid at [68]

 109   Ibid at [69]

 110   Ibid at [89]

 111   Transcript PN 955 - 956 and 962

 112   Ibid PN 958 and 962

 113   Applicant’s Closing Submissions, dated 1 June 2015, at paragraph 14

 114   Ibid

 115   Exhibit A1 at paragraph 10

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