Gina Lemke v Centre for Neurodiversity Pty Ltd

[2023] FWC 3152

[2023] FWC 3152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gina Lemke
v

Centre for Neurodiversity Pty Ltd

(U2023/5257)

COMMISSIONER P RYAN SYDNEY, 29 NOVEMBER 2023

Application for an unfair dismissal remedy – jurisdictional objection – whether the Applicant has completed the minimum employment period – jurisdictional objection upheld - application dismissed.

Introduction

1. Ms Gina Lemke (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act), alleging she has been unfairly dismissed from her employment with the Centre for Neurodiversity Pty Ltd (Respondent) (Application).

1. In the Application, the Applicant alleges her employment with the Respondent commenced on 29 June 2021 and that she was dismissed on 2 June 2023.

1. The Respondent objected to the Application on the basis that the Applicant was a “sporadic” casual employee and had not completed a period of employment of at least the minimum employment period.

1. To be protected from unfair dismissal, a person must have completed a period of employment with their employer of at least the minimum employment period.[1] Further, whether a person is protected from unfair dismissal is a matter that must be determined prior to any consideration of the merits of an application for an unfair dismissal remedy.[2]

1. The matter was listed for hearing of the Respondent’s jurisdictional objection on 28 September 2023. The Applicant was self-represented. The Respondent was represented by its director, Mr Philip Oakes.

1. While neither party filed any witness statements, the following documents were admitted into evidence:

·     Letter from the Respondent to Applicant titled “Cessation of Employment” dated 2 June 2023 (Exhibit 1);

·     Email trail titled “Resignation” (Exhibit 2);

·     New Employee/Change of Employment Form dated 1 November 2022 (Exhibit 3);

·     Applicant’s Timesheet Details Report (Exhibit 4); and

·     Payroll Activity Report (Exhibit 5).

1. For the reasons that follow, I have determined that Ms Lemke has not completed a period of employment of at least the minimum employment period, and therefore, the Application must be dismissed.

Relevant Legislative Provisions

1. Section 394(1) of the FW Act provides as follows:

394 Application for unfair dismissal remedy

(1)    A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

1. Section 396 of the FW Act provides as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a)  whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c)  whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

1. Section 382 of the Act provides 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;

(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.

1. The meaning of “period of employment” is set out at s.384 of the FW Act as follows:

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 as a regular casual employee; 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

1. The meaning of “minimum employment period” is set out at s.383 of the FW Act as follows:

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.

1. The meanings of “service” and “continuous service” are set out in s.22 of the FW Act as follows:

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)…..

(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.

Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2

(4)     For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2:

(a) 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:

(i)any period of unauthorised absence; or

(ii)any other period of a kind prescribed by the regulations; and

(b) a period referred to in subparagraph (a)(i) or (ii) 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; and

(c) subsections (1), (2) and (3) do not apply.

.

(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.

When service with one employer counts as service with another employer

(5)     If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer….

Meaning of transfer of employment etc.

(6)     There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a)  the following conditions are satisfied:

(i)the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii)the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:

(i)the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii)the first employer and the second employer are not associated entities when the employee becomes employed by the second employer….

Relevant Factual Background

1. The relevant factual background is largely not in dispute and can be summarised as follows.

1. On 29 June 2021, the Applicant commenced employment with the Respondent as a casual employee in the role of Counsellor.

1. On 31 October 2022, the Applicant resigned from the employment with immediate effect. In her letter of resignation, the Applicant stated:

“Just wanting to formalise my resignation from CND. I have secured another job and need to spend my time there as it offers me more secure finances.”[3]

1. On 15 November 2022, the Applicant was re-employed by the Respondent. It was common ground that the Applicant was re-employed as a casual employee in the role of Counsellor. However, beyond that, neither party adduced any evidence of the terms of the Applicant’s employment. In response to a question from me, the Applicant stated that she was told upon being re-employed that she would be offered “extra work” as well as the “opportunity to be a part of groups” involved in the delivery of the Respondent’s services.[4] The Respondent did not dispute this.

1. The days and the number of hours worked each day by the Applicant were not in dispute[5] and are set out in the table annexed to this decision and marked Annexure A. It was common ground that the days and times worked by the Applicant were responsive to the needs of the Respondent’s clients seeking counselling services.[6]

1. On 2 June 2023, the Respondent sent correspondence to the Applicant advising her that it was “ceasing to provide the Applicant with any further casual work.”[7]

Consideration

1. The issue in dispute is whether the Applicant has completed a period of employment of at least the minimum employment period.

1. There was no dispute that the Respondent employed 15 or more employees at the relevant time. Therefore, the Applicant must have completed a period of employment of at least 6 months to meet the minimum employment period.

1. In this matter, the Applicant was employed over two periods by the Respondent:

·29 June 2021 to 31 October 2022; and

·15 November 2022 to 2 June 2023.

1. In Harris v Laing O’Rourke Australia Construction Pty Ltd[8], Commissioner Saunders (as the Deputy President then was) summarised the statutory regime relevant to the minimum employment period and s.22 of the FW Act as follows:

[8]   The relevant statutory regime may be summarised in the following way:

(a)An employee must have completed at least the minimum employment period to be eligible to bring an unfair dismissal claim against their employer (ss.382, 390 & 396 of the Act);

(b)For a person employed by a non-small business employer, the minimum employment period is six months (s.383 of the Act);

(c)An employee’s period of employment with an employer is the period of continuous service the employee has completed with their employer (s.384(1) of the Act);

(d)A period of “service” by an employee with their employer is a period during which the employee is employed by the employer, but does not include certain “excluded periods” (ss.12 & 22 of the Act);

(e)The expression “continuous service” is not defined in the Act. The ordinary meaning of “continuous service” is the period of unbroken service by an employee with an employer. However, the ordinary meaning of “continuous service” is affected by s.22 (s.12 of the Act);

(f)An “excluded period” does not break an employee’s “continuous service” with their employer, but does not count towards the length of the employee’s “continuous service” (s.22(3) of the Act). “Excluded periods” include a period of unauthorised absence and a period of unpaid leave or unpaid authorised absence, subject to certain exceptions (s.22(2) of the Act);

(g)Subsections 22(5) and (7) of the Act alter the ordinary meaning of “continuous service”. In effect, they deem service by an employee with one employer to be service with another employer if there is a transfer of employment within the meaning of s.22(7) of the Act. In addition, those provisions stipulate that, in the event of such a transfer of employment, the period between the termination of employment with the first employer and the commencement of employment with the second employer does not break the employee’s “continuous service” with the second employer, but the “gap” does not count towards the length of the employee’s “continuous service” with the second employer (s.22(5)(b) of the Act); and

(h)In order for an employee’s service with a previous employer to be deemed to be part of their “continuous service” with a subsequent employer as a result of a “transfer of employment”, one of the following sets of conditions must be satisfied (s.22(7) of the Act):

·     First, the first and second employers must be “associated entities” and the “gap” in employment must not be more than three months; or

·     Secondly, the first and second employers are not “associated entities” and the employee is a “transferring employee” in relation to a “transfer of business” within the meaning of s.311 of the Act.

[9] It is plain from the references to a transfer of employment from the “first employer” to the “second employer” in s.22(5) and (7) of the Act that the deeming provisions in those sections do not apply unless the employee is employed by two different employers at two different points in time. The Act does not deem or otherwise permit an employee whose employment relationship with an employer comes to an end and is later re-employed by the same employer to have their earlier period of service with the employer combined with their later period of service as part of their “continuous service” with the same employer. Put another way, a “gap” between periods of employment with the same employer would not satisfy the ordinary meaning of “continuous service” because the service is broken and there is nothing in s.22 or elsewhere in the Act to alter this outcome. For those reasons, I agree with the conclusion reached in relation to this issue by Commissioner Spencer in Voican v Monadelphous Engineering Pty Ltd at [64]-[69] and Commissioner Roe in Tebble v Rizmas Pty Ltd at [6], but respectfully disagree with the obiter remarks by Commissioner Cambridge in Kefer v Tattersall’s Holdings Pty Ltd at [41]-[44].

(Footnotes omitted; Emphasis added)

1. While the Applicant accepts that her employment ended on 31 October 2022 and that she was re-employed on 15 November 2022,[9] the Applicant submitted that her re-employment was a continuation of employment as the Respondent “reneged” (which I understand to mean rescinded or consented to the withdrawal of) her resignation. The Applicant did not lead any evidence in support of this submission, and it appears to be based on her on own impression rather than anything the Respondent said to her.[10] To the contrary, the Respondent’s submissions are clear that there were two distinct periods of employment, which is consistent with the documentary evidence before the Commission.[11] Based on the material before me, the Applicant’s contention must be rejected.

1. Adopting the analysis in Laing O’Rourke, whether the Applicant has completed the minimum employment period is to be determined by reference to the period of casual employment which commenced on 15 November 2022 and ended on 2 June 2023. That is a period of 6 months and 19 days.

1. However, as set out in s.384(2)(a) of the FW Act, a period of service as a casual employee does not count towards an employee’s period of employment unless the employment was as a regular casual employee and during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment on a regular and systematic basis.

1. The term ‘regular casual employee’ is defined in s.12 of the FW Act as follows:

“regular casual employee”: a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:

(a)the employee is a casual employee;

(b)the employee has been employed by the employer on a regular and systematic basis.

1. The phrase ‘regular and systematic basis’ is not defined in the FW Act. In Chandler v Bed Bath N’ Table Pty Ltd[12] (Chandler), a Full Bench of the Commission set out the correct approach to determining whether casual employment is regular and systematic as follows:

[11] It is apparent on the face of the decision that the Deputy President’s determination as to whether Ms Chandler’s casual employment was regular and systematic was attended by a significant error of principle. In her application of s 384(2)(a) to the facts of the case, the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic. We do not consider this to be the correct approach. In Yaraka Holdings Pty Ltd v Giljevic, the Court of Appeal of the ACT gave consideration to the proper construction of s 11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as workers for the purpose of that Act casual workers if their “engagement, under the contract or similar contracts, has been on a regular and systematic basis” taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work. Crispin P and Gray J observed that the concept of employment on a regular and systematic basis was drawn from the Workplace Relations Act 1996, and went on to say (emphasis added):

“[65] It should be noted that it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work.However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent.
...
[67] Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.

[68] 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”. Considered in the light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.

[69] Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. 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.”

[12] Similarly, Madgwick J said (emphasis added):

“[89] ... 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.

[90] The respondent’s work for the appellant was certainly frequent enough to be termed ‘regular’ within an acceptable understanding of that term, which may, even in ordinary speech, be used to denote ‘frequent’.

[91] Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001).”

[13] The reasoning in Yaraka Holdings has been applied to the concept of casual employment on a regular and systematic basis in the FW Act. In WorkPac Pty Ltd v Skene, the Federal Court Full Court favoured (without needing to finally adopt) the view that the construction in Yaraka Holdings should be applied to the definition of “long term casual employee” in s 12 of the FW Act (which includes a requirement that the employee has been employed “on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months”). The Commission in its own decisions has consistently applied Yaraka Holdings to s 284(2)(a), including in the Full Bench decisions in Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell and Bronze Hospitality Pty Ltd v Janell Hansson as well as in numerous first instance decisions.

(Footnotes omitted)

1. In Bronze Hospitality Pty Ltd v Hansson (No 2)[13] (Bronze Hospitality), a matter concerning an application for judicial review of a decision of a Full Bench of Fair Work Commission[14], the Federal Court held that:

37. Section 384(2)(a)(i) calls for an evaluation of whether the employment as a casual employee was on a regular and systematic basis. So it is the relationship of employment that must be characterised, one way or the other. It is true that the basis of the relationship can change over time, so it is necessary to determine when it became employment on a regular and systematic basis. But if, looking back after the end of the relationship (as is of course inevitable in an unfair dismissal case) the evidence as a whole supports a characterisation of its basis as regular and systematic from the beginning, it does not matter that looking forward from the beginning, one would not have yet seen all that evidence. The basis of the employment was, in fact, regular and systematic from the start, even if sufficient evidence of that fact did not accumulate until later.

(Emphasis added)

1. In relation to s.384(2)(a)(ii), the Federal Court held[15]:

40.…The ordinary meaning of the words of s 384(2)(a)(ii) requires that the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis. If that expectation has been formed, it is necessary to assess whether it is a reasonable one. It is true that the word ‘reasonable’ is generally used in the law to import an objective standard: Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at [33] (Lord Hoffmann). But the FWA does not limit the matters that may be taken into account in determining whether the expectation is reasonable. Certainly, the shorter the period of employment, generally the harder it will be for the employee to establish that he or she reasonably relied on a pattern of work, if that is the basis of his or her reasonable expectation. But the reasonableness of the expectation depends on all the circumstances, and there is no minimum period in the legislation that makes a week and half insufficient in every case.

…

43.What the employer tells the employee must be relevant. Counsel for Bronze accepted this. If the employee in fact has the necessary expectation, and if what the employer said at the beginning of the employment was sufficient to make the expectation reasonable, and nothing in the circumstances indicated that what the employer said was unreliable, implausible or was otherwise to be disbelieved, then the criterion may be satisfied from that time. If nothing happens subsequently to show that the expectation will not be fulfilled, then it may subsist, as a reasonable expectation, throughout the entire period of service as a casual employee. There is nothing in the legislation which indicates that the employee’s expectation cannot be reasonable until a pattern of regular and systematic employment, such as regular shifts, has in fact emerged.

(Emphasis added)

1. Having regard to the above authorities and the evidence before me, it is my view that the Applicant’s employment as a casual employee was on a regular and systematic basis from 17 January 2023 (the engagement in pay period ending 22 January 2023). It was from that point that the employment became regular with engagements usually every fortnight increasing to weekly from the beginning of May. The employment was systematic from that point as the engagements exhibited a plan in that the Applicant was generally engaged on a fortnightly basis on Tuesdays for 4-5 hours, notwithstanding there was some variation in the number of hours and/or the week worked.

1. Prior to 17 January 2023, the Applicant’s engagements were sporadic and when viewed as part of the evidence as a whole, whether looking forward or back, they do not support a characterisation that the employment during that period was on a regular and systematic basis.[16]

1. I am also not satisfied that the Applicant had a reasonable expectation of continuing employment on a regular and systematic basis prior to 17 January 2023. The Applicant’s engagements prior to 17 January 2023 do not support a conclusion that a reasonable expectation could be formed in that period.

1. However, what the Respondent told the Applicant upon re-employment will be relevant. The only evidence before me is that the Applicant was told she would receive “extra work.” There is no evidence as to when the Applicant would receive that extra work, whether it was from commencement or from a later date, and whether it would be indefinite or for a limited period. I do not consider the statement of “extra work”, without more, to be a sufficient basis to form a reasonable expectation of continuing employment.

1. If I am wrong on this point, and the Respondent’s statement regarding “extra work” was sufficient for the Applicant to subjectively form a reasonable expectation of continuing employment from 15 November 2022, that is of no consequence. For a period of service to count, both the Applicant’s employment as a regular casual employee and the Applicant having a reasonable expectation of continuing employment on a regular and systematic basis must be satisfied during the period to be counted.[17] Those requirements were not concurrently satisfied until 17 January 2023.

1. Accordingly, the period of continuous service to be counted is the period commencing on 17 January 2023 and ending on 2 June 2023. That is a period of 4 months and 17 days.

Conclusion

1. The Applicant’s period of continuous service with the Respondent immediately prior to the termination of her employment was 4 months and 17 days.

1. Therefore, the Applicant has not completed a period of employment with the Respondent that is at least 6 months, the minimum employment period as required by s.382(a) of the FW Act.

1. Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.

COMMISSIONER

Appearances:

G. Lemke, Applicant.
P. Oakes, for the Respondent.

Hearing details:
2023.
Sydney (via Microsoft Teams video-link):

28 September.

Annexure A – Applicant’s hours worked by pay period[18]

Pay Period Ending	M	T	W	T	F	S	S
20 NOVEMBER 2022	0	2.5	0	0	0	0	0
27 November 2022	0	0	0	0	0	0	0
4 December 2022	0	0	0	0	0	0	0
11 December 2022	0	2.5	0	0	0	0	0
18 December 2022	0	0	0	0	0	0	0
25 December 2022	0	0	1	0	0	0	0
1 January 2023	0	0	0	0	0	0	0
8 January 2023	0	0	0	0	0	0	0
15 January 2023	0	0	0	0	0	0	0
22 January 2023	0	2	0	0	0	0	0
29 January 2023	0	0	0	0	0	0	0
5 February 2023	0	4	0	0	0	0	0
12 February 2023	0	0	0	0	0	0	0
19 February 2023	0	5.5	0	0	0	0	0
26 February 2023	0	0	0	0	0	0	0
5 March 2023	0	4	0	0	0	0	0
12 March 2023	0	1	0	0	0	0	0
19 March 2023	0	5	0	0	0	0	0
26 March 2023	0	0	0	0	0	0	0
2 April 2023	0	5	0	0	0	0	0
9 April 2023	0	0	0	0	0	0	0
16 April 2023	0	4	0	0	0	0	0
23 April 2023	0	0	0	0	0	0	0
30 April 2023	0	0	0	0	0	0	0
7 May 2023	0	1	0	0	0	0	0
14 May 2023	0	4	0	0	0	0	0
21 May 2023	0	2	0	0	0	0	0
28 May 2023	0	1	0	0	0	0	0
4 June 2023	0	1	0	0	0	0	0

[1] See s.382 and s.383 of the FW Act.

[2] See s.396 of the FW Act.

[3] Exhibit 2.

[4] Transcript at PN180.

[5] Exhibit 4.

[6] Transcript at PN138, PN142 and PN144.

[7] Exhibit 1.

[8] [2017] FWC 1204 (Laing O’Rourke).

[9] Transcript at PN158-PN159; PN171-PN182; PN206-PN207; PN214-PN215.

[10] Transcript at PN180, PN207.

[11] Exhibit 2 and Exhibit 3.

[12] [2020] FWCFB 306.

[13] [2019] FCA 1680.

[14] Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099.

[15] Bronze Hospitality at [40], [43].

[16] Bronze Hospitality at [37].

[17] Bronze Hospitality at [31].

[18] Exhibit 4.

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