Harrison Smith v City of Stonnington
[2013] FWC 978
•14 FEBRUARY 2013
[2013] FWC 978 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Harrison Smith
v
City of Stonnington
(U2012/14272)
COMMISSIONER CRIBB | MELBOURNE, 14FEBRUARY 2013 |
Application for unfair dismissal remedy - jurisdiction - minimum employment period - casual employment on a regular and systematic basis.
[1] This decision concerns an application by Mr Harrison Smith (the applicant) under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in respect of his dismissal by the City of Stonnington (the respondent, Council). The application was lodged on 17 October 2012.
[2] The application did not proceed to a conciliation conference because the City of Stonnington lodged a jurisdictional objection on 1 November 2012. The grounds for the objection were that Mr Smith had not completed the minimum employment period of six months, that he was not employed on a regular and systematic basis and that he did not have a reasonable expectation of continuing employment on a regular and systematic basis.
[3] The hearing of the respondent’s jurisdictional objection was held on Friday, 25 January 2013. The applicant was represented by his father, Mr Dale Smith whilst the respondent was represented by Mr Rohan Millar, of counsel.
[4] This decision deals solely with the City of Stonnington’s jurisdictional objection.
Evidence
[5] Determination of the respondent’s jurisdictional objection, in this matter, turns on two issues:
1. Whether Mr Smith’s employment as a casual employee was on a regular and systematic basis, and
2. Whether, during the period of service, Mr Smith had a reasonable expectation of continuing employment by the city of Stonnington on a regular and systematic basis.
[6] If the answers to these two questions are in the affirmative, a further question arises - whether the length of Mr Smith’s continuous service meets the required minimum employment period?
[7] The summary of the evidence and submissions will primarily focus on these issues. However, it needs to be stated clearly that all of the material before the Commission has been taken into account in determining the Council’s jurisdictional objection.
[8] Mr Smith was offered casual employment as an Aquatics Services Officer – Lifeguard by letter from the Council dated 30 January 2012. 1 Mr Smith signed the letter of offer and confirmed that he accepted the position on 31 January 2012. He was dismissed on 15 October 2012.
[9] There was agreement between the parties regarding the shifts Mr Smith worked between Thursday, 9 February 2012 and Sunday 2 September 2012. 2
[10] The parties disagreed about the date Mr Smith commenced employment with the Council. Mr Smith contended that the date his son signed the letter of offer (31 January 2012) was when his employment commenced. 3 On the other hand, the Council argued that Mr Smith’s commencement date was the date of his first shift, namely, 9 February 2012.4
[11] However, the question of when Mr Smith’s employment commenced became more complicated due to the characterisation given by the Council to two shifts - the one on Thursday 9 February 2012 and the three hour shift on Sunday 26 February 2012. It was contended by the Council that Mr Smith’s first shift, on 9 February 2012 was induction training and that his next shift (on 26 February 2012) was further on-the-job training (shadowing another lifeguard). The Council, therefore, took the view that Mr Smith’s first “real” shift was 9 March 2012 and that any systematic Friday/Sunday arrangement did not commence until 16 March 2012. 5
[12] Mr Smith (junior) confirmed that, on 9 February 2012, there were two hours of induction training and he said that Mr Gasson had put that shift in the roster together with the shadow shift on 26 February 2012. He agreed that the shift on 26 February 2012 involved him shadowing another lifeguard and that the first Sunday he had worked (in the sense of performing duties as a lifeguard) was on 18 March 2012. 6
[13] The parties also held differing views as to the date of Mr Smith’s last shift with the Council. Mr Smith argued that his son had worked a shift (from 9am to noon) after 3 September 2012, namely, on Sunday 9 September 2012. 7 It was initially thought that Mr Smith (junior) had also worked on Sunday, 16 September 2012.8 Mr Smith (junior) did not recall receiving additional payments after 14 September 2012.9 Mr Smith (senior) pointed to an email exchange between Mr Gasson and his son regarding 9 September 2012 in support of his contention10 The Council’s view was that the last day Mr Smith worked was 2 September 2012.11
[14] On the basis of the payroll printout for Mr Smith, I have formed the view that, on the balance of probabilities, Mr Smith’s three hour shift on Sunday 2 September 2012 was the last shift he worked for the Council. 12
Mr Pomeroy’s evidence
[15] Mr Brett Pomeroy, Employee and Industrial Relations Adviser with the Council, since February 2012, gave the following evidence:
- Given his role, he had no involvement in the preparation of rosters nor any personal awareness of the day to day rostering. 13
A new roster was made available every 6-8 weeks depending on the needs of the pool. Staff were notified by email, telephone and noticeboard requesting them to submit their availability. 14
There was no obligation on a casual lifeguard to accept work nor any expectation that ongoing shifts would be offered to a particular employee in the next roster. 15 In quieter times, such as during winter and school holidays, there are substantially less shifts available for casual lifeguards.16
If an employee is consistently available for a particular shift, they will usually be rostered on that shift. There are no set shifts given to particular employees. 17
He was advised that Mr Smith had been offered additional shifts but had refused them. 18
It is the casual’s responsibility to find a replacement for a shift they had accepted but which they needed to subsequently change. 19
For a short period from 22 April 2012 until 2 September 2012, Mr Smith worked on many Sundays. Even during this period, he did not work on Sunday, 27 May 2012, 10 June 2012, 1, 8 or 15 July 2012. 20
Prior to April 2012, Mr Smith did not have consistent availability and he accepted and rejected shifts in an ad hoc way. 21
In July 2012, Mr Smith advised that he would not be available to be rostered for shifts for about four months due to his forthcoming year 12 exams. 22 He did not make himself available for further shifts until his dismissal on 15 October 2012.23
Mr Smith’s evidence
[16] Mr Smith’s evidence was:
- When he started with the Council, he met with Mr Gasson in his office who showed him the available timeslots on the roster. He had indicated that he would like Friday afternoon and Sunday afternoon. 24
He believed that he would have those shifts all year (ongoing work) until he advised Mr Gasson otherwise. Mr Gasson had never emailed him nor had he emailed Mr Gasson saying that he wanted to keep those shifts for the next roster. When he had needed to drop a shift, he had emailed Mr Gasson to that effect. During his employment, he had no contact with Mr Gasson except when he wanted to drop a shift. 25
- During his employment review with Mr Hockey in early September 2012, he had a conversation with him about his interest in becoming a receptionist or a gym instructor following his VCE exams. Mr Hockey had told him to apply online after his exams. This was said to be in addition to his lifeguard job as he wanted to mix things up a bit. 26 He also told Mr Hockey that he wanted to work as many shifts as he could following his exams in mid/late November 2012.27
- He also frequently told Mr Glasson that, as soon as he had finished school and right through uni, he wanted to work a lot of shifts. He said that he was hoping to lock in shifts (regular shifts), not just for the summer but also for the following year. 28
- He was told by Mr Gasson that, even though he was a casual employee, it was his responsibility to find a replacement if he could not work a particular shift for any reason. When he could not work because of study or school commitments, he had always found a replacement. 29
Mr Gasson was said to have been fine with him going from two shifts a week to one shift a week. Mr Gasson had not said that he wouldn’t continue on on Sundays and so he had assumed that he would continue with that shift as long as he wanted to unless he advised Mr Gasson otherwise. 30
He disagreed that the amount of work he was going to get after his exams was still up in the air. This was because Mr Gasson had assured him that he would still have a job and that he would have work when he returned. He did not know the exact times. He was hoping for a bit more than the Sunday shift but would still take that shift. He agreed that, at the time of his dismissal, the extra work options with the Council had not yet been lined up. 31
When he had emailed Mr Gasson and asked if he could drop the Sunday shift for the time being because of his exams, Mr Gasson had replied to the effect that, if staff could not work for three or more months, they would have to resign. As he had not said that he wanted to terminate the Sunday shift, he had expected that he might be able to get that shift back. He was keen to ensure that he did not have a gap of more than 3 months. 32
Because he had an expectation of ongoing employment, he took on financial commitments to buy a car. 33
He confirmed that his understanding from the beginning was that his employment status was that of casual with hours of work that were intermittent (as per the letter of offer).
The shift he worked on Monday, 12 March 2012 was a one-off because someone needed to be covered. 34
Between 25 March 2012 and 20 April 2012, he did not work at the Harold Holt pool as a result of Mr Gasson contacting him and advising him that he was not needed because it was going to be quieter during that period. He confirmed that it was unsurprising that he was not required as the weather was getting cooler. 35
- On Friday, 30 March 2012, he was meant to be working but was away with a compulsory school football camp. He had contacted Mr Gasson and told him he couldn’t find anyone to replace him. He had then contacted the centre on the day and left them a message. 36
He confirmed that he worked at the Prahran pool on 4 April 2012 as a one-off arrangement. 37
It was explained that the shift on 20 April 2012 was longer than normal as he had been asked if he could stay back, which occurred from time to time. 38
- He confirmed that he was either not available to work or did not work on Sunday 27 May 2012. 39 By Friday 1 June 2012, he had discontinued working on Fridays which the Council was fine about.40
- He confirmed that the period from 24 June 2012 to 22 July 2012 was a quieter period and that Mr Gasson had emailed/called him to that effect. 41
- Mr Gasson then sent out another roster and he had been put back on the next roster. He thought that this period was the school holiday period because, during the school holidays, Mr Gaston would take him off. Then, after the school holidays, Mr Gasson would put him back on the roster. 42
Having put up the roster on his wall, after the second time, he had realised that his roster was always going to be the same. He said that the Friday and Sunday afternoons were his shifts even if he had to find somebody else to cover one for him. 43
- He confirmed that he did not work on Sunday 19 August 2012. 44
With respect to his payroll record, he thought that his payments varied a bit across time as a result of helping out by picking up other people shifts. He did not agree that his expected income was all over the place from week to week. 45
He said that he regularly worked on Fridays and Sundays and that, when school things etc popped up, he had to get his shift covered. However, it was still his shift that was being worked albeit, not by him. However, it was his responsibility that those hours were worked by somebody. He could have worked all of the shifts but he put his study before it on a few occasions. That was why it may seem a bit irregular. 46
He had always assumed that the Council wanted him throughout the school term. Then, in the school holidays, he had assumed that he would take them off (not work) unless Mr Gasson said that he still wanted him to work. 47
He confirmed that he had swapped shifts on seven occasions and held the view that he had a lot of flexibility regarding his shifts. 48
A new roster would be emailed to him every 6 to 8 weeks with all the shifts filled. Sometimes, Mr Gasson would email him, prior to the roster being issued, to let him know that he had a spare shift on a Friday night for example. 49
CONSIDERATIONS AND CONCLUSIONS
The legislation
[17] Section 382 of the Act sets out when a person is protected from unfair dismissal:
“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.”
[18] The meaning of “minimum employment period” is contained in s.383 of the 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.”
[19] “Period of employment” is defined in section 384 of the Act:
“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……”
Issues
[20] As indicated in paragraph 5, the first two issues to be determined are:
1. Whether Mr Smith’s casual employment was on a regular and systematic basis.
2. Whether, during the period of service as a casual employee, Mr Smith had a reasonable expectation of continuing employment by the Council on a regular and systematic basis.
[21] Commissioner Roe, in his decision in Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic (Ponce), 50 summarised the test as follows:
“The test is simply whether or not during a period of at least six months prior to the dismissal the employment as a casual employee was on a regular and systematic basis and the employee had, during that period, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.” 51
[22] It was common ground that Mr Smith was employed by the City of Stonington as a casual employee and that he was dismissed on 15 October 2012. The Commission has found that the last shift Mr Smith worked was on Sunday 2 September 2012.
[23] However, it was not agreed as to when Mr Smith commenced employment with the Council. Mr Smith believed that it started on 31 January 2012. On the other hand, the Council held the view that the shifts on 9 February 2012 and 26 February 2012 should be excluded. Even though these shifts constituted paid employment, it was argued that the regular and systematic employment (Friday/Sunday arrangement) did not commence until 16 March 2012.
[24] Having considered all of the material before me, I have formed the view that Mr Smith commenced employment as a casual employee with the Council at the time of his first period of work - namely Thursday 9 February 2012.
1. Regular and systematic employment
[25] Having established the commencement of Mr Smith’s employment as a casual employee, it is then necessary to determine, firstly, whether or not, in the period between 9 February 2012 and 2 September 2012, the employment of Mr Smith as a casual employee was on a regular and systematic basis.
[26] The parties held different views about whether or not Mr Smith’s employment was on a regular and systematic basis. The City of Stonnington argued that Mr Smith’s casual employment did not meet the threshold set out in Ponce. 52 It was contended that, although Mr Smith’s evidence was that he had an expectation that he would be on a particular roster, this was not determinative of whether the employment was on a regular and systematic basis. Mr Millar explained that there needed to be a degree of planning to ensure that there would be lifeguards when required. However, it did not extend to locking in employment on a regular and systematic basis as it remained casual employment rather than permanent part-time employment. This was because it differed from period to period depending on the needs of the Council and of Mr Smith.53
[27] Specifically, the Council submitted that Thursday 9 February 2012 and Sunday 26 February 2012 should be excluded as these were induction training and shadowing another lifeguard, respectively. Further, it was argued that the Friday/Sunday arrangement did not begin until 16 March 2012. 54 The Council contended that the Friday/Sunday arrangement only continued for a few weeks and then there was a month’s gap. This was then followed by some pattern of Friday and Sundays with a number of gaps (27 May 2012, 10 June 2012) and with differing hours worked. Another gap followed (from 24 June 2012 to 22 July 2012) which was said to render it impossible that the employment was on a regular and systematic basis. This was despite Mr Smith’s evidence that, during the quieter periods, Council told him that he would not be rostered.55
[28] The Council also argued that the periods when Mr Smith was not rostered (from 25 March 2012 to 20 April 2012 and from 24 June 2012 to 22 July 2012) needed to be excluded in counting the six months. Further, it was stated that the evidence showed that the arrangements fluctuated with Mr Smith advising that he wanted to drop the Friday shift and to put the Sunday on hold. As well, there were seven occasions when he would otherwise have worked but had swapped shifts (gaps). 56 This was said to not be the legislative test, however. It was what was actually worked rather than what was rostered or planned by the parties.57 On this basis, the Sundays that Mr Smith swapped should also be excluded. These gaps were said to emphasize the irregular nature of the employment.58
[29] Accordingly, it was contended that there was not six months of regular and systematic employment. Rather, the arrangement was true casual employment which fitted in with the needs of both the employer and the employee. When those needs coincided, shifts were worked. When they did not coincide, there was no employment. The pattern of employment was irregular and over a limited period. Any periods within which where it was regular and systematic, did not total the required six months when all of the gaps were excluded. 59
[30] For his part, on behalf of his son, Mr Smith (senior) submitted that whether Mr Smith (junior) was shadowing someone or at training, he was being employed by the Council, whether or not it was regular and systematic. He argued that both shifts were on the roster and that, irrespective of the functions performed, Mr Smith (junior) was employed by the Council for those two shifts. He had therefore commenced employment on either 9 or 16 February 2012 - from his very first pay packed. The issue was whether Mr Smith (junior) was employed on a regular and systematic basis. 60
[31] It was contended that an employee need not work every day they can in order to be systematically and regularly employed. Mr Smith was said to have been employed for 9 Fridays and 18 Sundays over a seven month period. Irrespective of whether or not there were gaps, Mr Smith argued that the pattern to his son’s employment was systematic and regular. It was acknowledged that there were gaps but Mr Smith argued that life meant that, on occasion, a person could not necessarily attend work. When this occurred, Mr Smith (junior) had organised someone to replace him on the roster. Further, it was stated that Mr Smith (junior) clearly had an expectation of Sunday shifts. 61
[32] Finally, with respect to the Council’s evidence about the roster system, Mr Smith stated that the roster was not changed unless a lifeguard said that they could not work the shifts. It was said that there was a clear expectation that, if you were on the Friday and the Sunday then next month and the month after etc, you would continue to be rostered to those shifts. Mr Gasson had not changed Mr Smith’s roster except at his request and Mr Gasson had not asked him for his shift availability in advance of the roster his son was rostered on. 62
[33] A summary of Mr Smith’s submissions was that:
- Mr Smith’s (junior) employment was on a regular and systematic basis. 63
- His employment commenced on 9 February 2012 (with his first pay packet) as the Act does not distinguish between training etc - it is simply “employed”. 64
Mr Smith (junior) worked 18 - 19 Sunday’s (3 hours) and 1 other Sunday (3.25 hours). 65
- There was a belief and expectation that the minimum employment would be 3 hours of regular and systematic employment on a Sunday. 66
- Even though the Friday shift stopped, there was a pattern of systematic and regular employment. The Friday shift reinforced that pattern. 67
Cannot pick and choose which days constitute a regular and systematic pattern. 68
Contend that the pattern of systematic and regular employment was two days. Not required to work every Sunday to show regular and systematic employment. 69
[34] During submissions in reply by the Council, it was agreed between the parties that Mr Smith had worked 17 Sundays. 70 Mr Millar contended that there were about 30 Sundays in the period from 9 February 2012 to 2 September 2012, 17 of which were worked by Mr Smith. It was argued that this was not sufficient to constitute employment on a regular and systematic basis.71
[35] Secondly, the Council contended that the gaps could not be included as there were no periods of continuous service on a regular and systematic basis. A period of a few weeks’ regular and systematic employment, broken by a gap and then regular and systematic employment, but on a different basis, could not be said to be employment on a regular and systematic basis across the continuum. The period of employment required by the Act was stated as the period of continuous service the employee has completed. Casual employment only counts to the extent that it meets section 384(2)(a) - which Mr Smith’s employment did not. 72
2. A reasonable expectation of continuing employment on a regular and systematic basis
[36] The second issue to be determined is whether, during the period of service with the Council, Mr Smith had a reasonable expectation of continuing employment with the Council on a regular and systematic basis.
[37] It was submitted by Mr Millar, on behalf of the Council, that Mr Smith’s evidence was that he was hoping to return to more hours in the future. However, it was said that the pattern that had been worked in the past was not an expectation into the future at the time of dismissal. The arrangement was on hold and exactly what the future would be was going to be the subject of negotiation. What Mr Smith was going to be working in the future was said to be up in the air. 73 It was argued that Mr Smith’s email about the Sunday shift was not about suspending it but about dropping it. Therefore, there could have been no expectation that the pattern of Sunday shifts was going to continue on into the future. There was no guarantee that the dropped Sunday shift was going to continue.74
[38] Finally, the Council contended that the irregular nature of Mr Smith’s employment could not reasonably have given rise to an expectation of ongoing regular and systematic work even if this was what Mr Smith desired. Further, it was stated that the period of employment was short and that Mr Smith did not work for more than 6 months prior to his dismissal. 75
[39] On the other hand, it was Mr Smith’s submission that his son clearly had the expectation that the Sundays would be continued. What he had hoped for was to get extra shifts. However, his expectation was that the Sunday shifts would continue in the future and that nothing that Mr Gasson had said changed that view. 76
[40] Further, it was argued that Mr Smith (junior) reasonably expected to be rostered on in mid November 2012 and he had had discussions with the Council about working throughout university. He had also taken on financial obligations (the car) on the basis of his expectation of continuing employment with the Council. 77
[41] In summary, Mr Smith’s submissions were that:
- Mr Smith (junior) had a reasonable expectation that the Sunday shift would continue after his VCE exams (ie be taken off hold) as it had been put on hold so he could do his exams. 78
Mr Smith (junior) was hopeful that he could also pick up additional shifts as a lifeguard and also in terms of additional roles. 79
Conclusions
1. Regular and systematic employment
[42] Taking into account all of the material before me, I make the following findings:
- Mr Smith commenced employment with the Council on 9 February 2012 and was dismissed on 15 October 2012.
- He worked his last shift prior to his dismissal on 2 September 2012.
- I accept Mr Smith’s evidence that Mr Gasson told him that he would be rostered/work during school terms only but not during the school holidays as the pool was quieter.
- I accept Mr Smith’s evidence that the arrangement worked out with Mr Gasson was that he would be rostered for the Friday 4 - 6pm shift and the Sunday 9am - 12 noon shift.
- During the school terms only, Mr Smith was rostered by the Council for the Friday afternoon and Sunday morning shifts, until 25 May 2012. Following Mr Smith’s request to no longer work the Friday afternoon shift, he was then rostered for the Sunday morning shift only until he requested that this shift be put on hold until after his exams. 80
[43] The days/hours Mr Smith worked, commencing the week beginning Monday 6 February 2012 (week 1), were:
Week | Day/date worked | Hours worked |
1 | Thursday 9 February 2012 | 2 (5.15am - 7.15am) |
2 | ||
3 | Sunday 26 February 2012 | 3 (9.00am - 12 noon) |
4 | ||
5 | Friday 9 March 2012 | 2 (4.00pm - 6.00pm) |
6 | Monday 12 March 2012 Friday 16 March 2012 Sunday 18 March 2012 | 5.5 (7.30am - 1pm) 2 (4.00pm - 6.00pm 3 (9.00am - 12 noon) |
7 | Friday 23 March 2012 Sunday 25 March 2012 | 2 (4.00pm - 6.00pm) 3 (9.00am - 12 noon) |
8 - 10 School holidays | Except that 1 x 5 hour shift was worked on Wednesday 4 April 2012 at Prahran Aquatic Centre | |
11 | Friday 20 April 2012 Sunday 22 April 2012 | 3.5 (4.00pm - 7.30pm) 3 (9.00am - 12 noon) |
12 | Friday 27 April 2012 Sunday 29 April 2012 | 2 (4.00pm - 6.00pm) 3 (9.00am - 12 noon) |
13 | Friday 4 May 2012 Sunday 6 May 2012 | 2 (4.00pm - 6.00pm) 3 (9.00am - 12 noon) |
14 | Friday 11 May 2012 Sunday 13 May 2012 | 2 (4.00pm - 6.00pm) 3 (9.00am - 12 noon) |
15 | Friday 18 May 2012 Sunday 20 May 2012 | 2 (4.00pm - 6.00pm) 3 (9.00am - 12 noon) |
16 | Friday 25 May 2012 [note: last Friday afternoon shift worked] | 2 (4.00pm - 6.00pm) |
17 | Sunday 3 June 2012 | 3.25 (9.00am - 12.15pm) |
18 | ||
19 | Sunday 17 June 2012 | 3 (9.00am - 12 noon) |
20 | Sunday 24 June 2012 | 3 (9.00am - 12 noon) |
21 - 23 School holidays | ||
24 | Sunday 22 July 2012 | 3 (9.00am - 12 noon) |
25 | Sunday 29 July 2012 | 4 (9.00am - 12 noon and 7.30pm - 8.30pm) |
26 | Sunday 5 August 2012 | 3 (9.00am - 12 noon) |
27 | Sunday 12 August 2012 | 3 (9.00am - 12 noon) |
28 | ||
29 | Sunday 26 August 2012 | 3 (9.00am - 12 noon) |
30 | Sunday 2 September 2012 [Note: last shift worked prior to dismissal] | 3 (9.00am - 12 noon) |
[44] On the basis of the Table above, I find that:
- The Council advised Mr Smith that he would only be rostered during term time and not during the school holidays as these were quieter periods and he was therefore not required.
- There are 30 weeks between the commencement of Mr Smith’s employment and his last shift (inclusive of both these weeks).
- There were six weeks of school holidays during this period (weeks 8 - 10 and 21 - 23). Mr Smith did work in one week of the school holidays (on Wednesday 4 April 2012).
- Mr Smith worked one day a week for a minimum of two hours for 20 weeks out of a possible 24 term time weeks plus during one week of the school holidays = 21 weeks.
- During these 20 term time weeks, Mr Smith worked 17 Sundays (between 26 February 2012 and 2 September 2012).
- The other three term time weeks were worked on different days.
- For a period of seven weeks (16 March 2012 - 25 May 2012), Mr Smith also worked on an additional day - Friday.
- Within the 24 term time weeks, there were four weeks of gaps when Mr Smith did not work (weeks 2, 4, 18 and 28) as a result of swapping shifts in three of these four weeks.
[45] In determining whether Mr Smith’s employment was on a regular and systematic basis, I note Commissioner Roe’s comments on this point, where he said that:
“It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee.” 81 [footnotes omitted]
[46] I have applied this approach to the pattern of Mr Smith’s employment set out in paragraph 44, namely one shift a week for a minimum of 2 hours, predominantly on a Sunday, for a period of 20 weeks (plus one school holiday week). On this basis, I am satisfied that Mr Smith’s employment as a casual employee with the Council was on a regular and systematic basis - in accordance with s.384(2)(a)(i) of the Act.
2. A reasonable expectation of continuing employment on a regular and systematic basis
[47] With respect to the requirements of s.384(2)(a)(ii), having considered carefully all of the material before me, I am satisfied that, during his period of service as a casual employee, Mr Smith had a reasonable expectation of continuing employment with the Council on a regular and systematic basis.
[48] It is noted that, during his period of service with the Council, Mr Smith dropped firstly, his Friday shift and then subsequently, his Sunday shift. However, I accept Mr Smith’s evidence that he had an expectation that he would pick up the Sunday shift again following his VCE exams. It was also clear from his evidence and emails that he was hopeful of picking up additional shifts/roles as well. The expectation of continuing employment extended in time to include during his university studies. There is nothing before me that would suggest that Mr Smith’s expectation was not reasonable.
3. Period of service
[49] Having found that the requirements of s.384(2)(a)(i) and (ii) have been met, I now turn to the third question - whether or not the school holidays (6 weeks) and the gaps ie when Mr Smith was rostered but did not work or had swapped his shifts (4 weeks) count towards the length of Mr Smith’s period of service as a casual employee.
[50] It was the Council’s strong view that the periods from 25 March 2012 - 20 April 2012 and from 24 June 2012 - 22 July 2012 (school holidays), together with the weeks he did not work because he had swapped his shift, should be excluded from any regular and systematic period of employment. This was on the basis that Mr Smith was not rostered on for these quieter periods (the school holidays) as the Council did not require him and, during the other gaps, he had swapped his shifts and had therefore not worked.
[51] For his part, Mr Smith (senior) argued that, whether or not there were gaps, his son was employed on a regular and systematic basis for 20 Sundays over a 7 month period. Employees were said to be allowed to be sick, away on holidays etc. Therefore, having gaps in Mr Smith’s (junior) work pattern was not fatal. Rather, it was the pattern of regular and systematic employment that was important.
[52] Section 22 of the Act deals with the meaning of “service” and “continuous service”. As indicated in paragraph 44 above, Mr Smith was rostered to work during one week of the 6 weeks of school holidays (4 April 2012). Therefore, it would only be possible to potentially exclude 5 weeks of school holidays.
[53] Having regard to section 22, I find that the 5 weeks of school holidays (weeks 8, 10, 21, 22 and 23) and the 4 weeks of gaps (weeks 2, 4, 18 and 28) fall within the exclusions set out in this section. This is on the basis that it was agreed that Mr Smith would not be rostered on over the school holiday periods and also that, if he was rostered on during the school terms, but unable to subsequently work, he was to find a replacement. If a part-time employee was in the same situation, in that they were not rostered to work, for example, over the Christmas/New Year period, for which they were then not paid, that period would not count toward the length of their continuous service. Therefore, in accordance with section 22(3), the 5 weeks of school holidays and the 4 weeks of “gaps” do not count towards the length of Mr Smith’s continuous service. Accordingly, I find the length of Mr Smith’s continuous service with the Council is 30 weeks minus 9 weeks resulting in a total of 21 weeks.
[54] As Mr Smith’s period of employment with the Council (21 weeks) is less than the minimum employment period of 6 months as required by section 383(a) of the Act, Mr Smith is unable to make an application for an unfair dismissal remedy.
[55] The Council’s jurisdictional objection is upheld and the application is dismissed. An order 82 to this effect will be issued separately.
COMMISSIONER
Mr D Smith, for the Applicant
Mr R Millar, of Counsel for the Respondent
Hearing details:
2013.
Melbourne:
January 25.
1 Exhibit R1 at Attachment BP-1
2 Ibid at Attachment BP-3 and Transcript PN 75 and 598 - 601
3 Ibid PN 126 - 135 and 177 - 179
4 Ibid PN 136 - 155
5 Ibid PN 151 and PN 780 - 796
6 Ibid PN 602 - 608 and 752 - 757
7 Ibid PN 71 - 91
8 Ibid PN 123
9 Ibid PN 651
10 Ibid PN 107- 125 and Exhibit A1 at Attachments HS-2 and 3
11 Ibid PN 102 and PN 779 - 780
12 Exhibit R2
13 Ibid PN 234 - 240
14 Ibid PN 272 - 277 and Exhibit R1 at paragraph 6
15 Ibid PN 278 and 326 and ibid at paragraph 7
16 Exhibit R1 at paragraph 7
17 Ibid at paragraphs 7 and 10
18 Ibid at paragraph 10 and Transcript PN 327 - 328
19 Ibid at paragraph 8
20 Ibid at paragraph 10
21 Ibid
22 Exhibit A2
23 Exhibit R1 at paragraph 11
24 Transcript PN 525 and 674 - 678 and Exhibit A1 at paragraph 3
25 Ibid PN 526 - 533 and ibid at paragraphs 4 and 5 and Attachments HS-2 and 3
26 Ibid PN 535 - 538, 700 and 702 and ibid at paragraph 8
27 Ibid PN 537 and ibid at paragraph 8
28 Ibid PN 552, 568, 572, 691 - 692, 703 and 707 - 711 and Exhibit A1 at paragraph 5
29 Ibid PN 549 - 551
30 Ibid PN 552 and 565
31 Ibid PN 691 - 697, 701, 704 - 705 and 761 - 762
32 Ibid PN 566, 699, 718 - 720, 739 and 763 and Exhibit A2
33 Ibid PN 573 - 574 and ibid at paragraph 10
34 Ibid PN 611 - 613
35 Ibid PN 616, 619 and 624 - 626
36 Ibid PN 620 - 622
37 Ibid PN 617 - 618
38 Ibid PN 627 - 628
39 Ibid PN 629
40 Ibid PN 630 - 631
41 Ibid PN 632 - 634
42 Ibid PN 635 - 636 and 686 - 689
43 Ibid PN 637 - 640
44 Ibid PN 641
45 Ibid PN 656 - 660
46 Ibid PN 660 - 661 and 666
47 Ibid PN 662
48 Ibid PN 667 and 669 and Exhibit R1 at paragraph 8
49 Ibid PN 670 - 672
50 [2010] FWA 2078
51 Ibid at paragraph [64]
52 Exhibit R3 at paragraphs 8 and 13 - 17
53 Transcript PN 776 - 778
54 Ibid PN 780 - 796
55 Ibid PN 797 - 798
56 Ibid PN 801 - 811
57 Ibid PN 821
58 Ibid PN 854 - 872
59 Ibid PN 888 - 890
60 Ibid PN 903 - 905
61 Ibid PN 905 - 910
62 Ibid PN 911 - 913
63 Ibid PN 934
64 Ibid 934 - 937
65 Ibid PN 938 - 941
66 Ibid PN 942
67 Ibid PN 950 - 951
68 Ibid PN 950
69 Ibid PN 951
70 Ibid PN 975 - 977
71 Ibid PN 978 - 988
72 Ibid PN 988 - 989
73 Ibid PN 876 - 879
74 Ibid PN 886 - 888
75 Exhibit R3 at paragraphs 19 - 20
76 Transcript PN 902
77 Outline of Applicant’s Submissions dated 22 December 2012 at paragraph 9
78 Transcript PN 922
79 Ibid PN 924 - 931
80 See Exhibit R1 at Attachment BP-3 and paragraph 8
81 [2010] FWA 2078 at paragraph [66]
82 PR534100
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