Garry Bayley v Temples (WA) Pty Ltd T/A Temples WA

[2016] FWC 2727

[2016] FWC 2727

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garry Bayley
v
Temples (WA) Pty Ltd T/A Temples WA
(U2015/17192)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 6 MAY 2016

Application for relief from unfair dismissal – jurisdiction – casual employee – engaged on a regular or systematic basis.

[1] On 30 December 2015 Mr Bayley lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), with respect to the termination of his employment with Temples (WA) Pty Ltd (Temples).

[2] This application was the subject of a determinative conference on 2 May 2016. At this conference Mr Bayley represented himself and Temples was represented by Mr Rodgers, of counsel.

[3] The background to the application is that Mr Bayley worked for Temples as a relief truck driver on work associated with a contract which Temples had with the Perth Metropolitan Waste Water Treatment Plants. He was engaged as a casual employee under the terms of the Temples (WA) Pty Ltd Transport Workers Certified Agreement (Bulkfeeds & Biosolids) 2014. Mr Bayley commenced employment in December 2013 and was dismissed in December 2015.

[4] The information provided to me indicated that the Temples’ work under that contract concluded on 5 April 2016.

[5] The parties differ over the regularity of Mr Bayley’s employment and the extent to which his casual employment status means that he is a person protected from unfair dismissal. The reasons for the termination of Mr Bayley’s employment are also disputed.

Jurisdictional Issues

[6] The hearing on 2 May 2016 specifically dealt with the Temples’ objection to the application, made on the basis that Mr Bayley was a casual employee who was not a person protected from unfair dismissal. Before summarising the evidence in this matter, I have briefly set out the legislative issues in this respect. Section 396 of the FW Act requires that I reach conclusions about specified initial issues before addressing the merits of the application.

[7] Whilst there may be other issues of an initial nature this decision deals with whether Mr Bayley had completed the minimum employment period so as to be a person protected from unfair dismissal.

[8] Section 382 states:

“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.”

[9] The minimum employment period is defined in ss.383 and 384 in the following terms:

“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; 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.”

[10] The parties both agree that Temples was not a small business at the time of the termination of Mr Bayley’s employment. Consequently, as a casual employee, Mr Bayley had to have completed a minimum of six months employment. The approach to the assessment of casual employment was set out by a Full Bench in Wayne v The Smiths Snackfood Co Ltd 1 in the following terms:

“[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 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).”

[11] I have considered Mr Bayley’s employment standing on this basis.

The Evidence

[12] Whilst I have taken all of the material before me into account, I have briefly summarised the witness evidence in the following terms.

[13] Mr Bayley’s evidence went to the arrangement under which he worked. He stated:

“7. Every second week I am available to work Thursday morning through to Monday afternoon

8. Temples employed me on these days

9. This gave Temples the ability to give permanent drivers adequate fatigue breaks and personal days off

10. As I became known to the other drivers they frequently asked me to cover a shift for them so they could ask the Transport Manager for a personal day off

11. I always communicated with the Transport Manager my availability for upcoming shifts, copies of emails attached and marked A through to H

12. On a weekly basis I often sent a text message to the transport Manager advising my availability for the forthcoming week

13. I always informed the Transport Manager well in advance of any proposed holidays and other time away from work that I required

14. The Transport Manager occasionally requested I work additional days, Tuesday or a Wednesday, in order to accommodate other drivers having holidays, personal days and other operational requirements

15. On occasions the Transport Manager would ask me to work on the Saturday he knew my boys were in my care.”

[14] Furthermore, Mr Bayley stated:

“20. In the two years I was employed by Temples I averaged In excess of 30 hours per week, on occasions in excess of 60 hours, as I was working regular and systematic hours

21. During the two years I have been employed by Temples I have averaged $1,400.00 per week, on rare occasions up to $3,100.00

22. I always had the knowledge that there would be regular and ongoing work for me.”

[15] Mr Bayley also detailed the nature of the work he undertook and the extent to which there was a reduction in the work being offered to him in the weeks before he was advised of the termination of his employment.

[16] Mr Bayley advised that, on 16 December 2015 he was called in to the Temples’ office and advised of the termination of his employment.

[17] Ms Rumble is the Payroll Administration Officer for Temples. Her evidence was that Mr Bayley was paid and engaged as a casual employee. Ms Rumble provided a summary of the hours worked by Mr Bayley on a daily basis over the two years of his employment. This showed that Mr Bayley generally worked between 11 and 70 hours each week with alternate weeks being shorter working weeks. It indicated that Mr Bayley did not work for three weeks in January 2015.

[18] Mr Patchett was Mr Bayley’s manager. His evidence went to the manner in which he rostered Mr Bayley to work so as to provide relief arrangements for other drivers. Mr Patchett’s evidence went to the contract under which Temples worked and, specifically, to a one year extension of that contract until April 2016.

[19] There was no dispute that, apart from 3 weeks in January 2015 when Mr Bayley took leave, he worked each week over the period of his employment. His working hours varied between 11 and 70 per week and reflected the extent to which he was required and available to undertake relief driving duties. Mr Bayley had keys to various Temples or Perth Metropolitan Waste Water Treatment Plant facilities. He also had passes for entry into some of those facilities.

[20] I have concluded that Mr Bayley’s working hours were determined so as to suit his availability and the requirements of Temples. Nevertheless those working hours were of a magnitude and frequency that Mr Bayley was a regular and systematic casual. The weekly nature of his work, the extent to which it generally started at the same time and involved similar functions and occurred for similar reasons all mitigate in favour of Mr Bayley being regarded as a casual employee who was engaged on a regular and systematic basis. I do not consider that the fact that those working hours varied or that they were at the direction of Temples, or that he was employed on a casual basis, detract from his standing as a regular and systematically engaged casual.

[21] Consequently, I am satisfied that Mr Bayley was a person who was protected from unfair dismissal in that the total of the time he was engaged on a regular and systematic basis exceeded the requisite minimum employment period.

[22] It may be that a second preliminary issue goes to whether the termination of Mr Bayley’s employment was a case of genuine redundancy. Section 385 establishes that a case of genuine redundancy cannot then be regarded as an unfair dismissal. A genuine redundancy is defined in s.389 of the FW Act in the following terms:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[23] The genuine redundancy issue has not yet been addressed by the parties. In the event that the application is not resolved by agreement between the parties I will address this issue in a hearing which will also consider the merits of the application in the event which I may need to then determine. I have suggested to the parties that they should give active consideration of settlement possibilities and have referred them to the Full Bench decision in Harvey v UES (Int’l) Pty Ltd 2 which may provide guidance in this respect.

[24] Directions relative to the future proceedings in this matter will be issued.

Conclusion

[25] The Temples objection to the application, made on the basis that Mr Bailey was not a person protected from unfair dismissal because he was a casual employee, is dismissed. An Order [PR579769] to this effect will be issued. The application will be listed for further hearing.

Appearances:

G Bailey on his own behalf.

G Rodgers of counselrepresenting the respondent.

Hearing details:

2016.

Perth:

May 2.

 1   [2010] FWAFB 5709

 2   [2012] FWAFB 5241

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