Hodder v Ngnampa Health Council

[2016] FWC 2601

[2016] FWC 2601

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Anne Hodder
v
Ngnampa Health Council
(U2016/620)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 27 APRIL 2016
Application for relief from unfair dismissal.

[1]        Ms Anne Hodder alleged the termination of her employment by Ngnampa Health

Council on 20 January 2016 was unfair.

[2]        Her unfair dismissal application lodged on 13 February 2016 was not made within 21

days of the date of the dismissal.

[3]        The Council objected to Ms Hodder’s application on the grounds that she had not

served the minimum employment period and her application was lodged out of time. The

hearing of this matter dealt with both objections.

[4]        At the hearing, I granted permission to the Council to be represented by a paid agent

as I accepted the submission that the question of whether a casual employee was engaged on a

regular and systematic basis with a reasonable expectation of ongoing employment involves

some complexity and that it would enable the matter to be dealt with more efficiently if I

permitted the Council to be represented.

Minimum period of employment

[5]        The Council submitted that Ms Hodder had not served the minimum period of

employment.

[6]        It is not disputed Ms Hodder had been employed by the Council as a casual employee

from 2013 until she was offered a full time contract from 27 October 2015.

[7]        Ms Hodder was employed on annual contracts as a casual personal care attendant. The

contract provided that her dates of work and hours of duty are negotiated with the Residential

Care Manager.

[8]        Ms Hodder said that when she was a casual employee she was called in when needed

to cover people when they were sick or on annual leave. Evidence was given about Ms

Hodder’s pattern of work in this period.
[2016] FWC 2601

[9]        Ms Hodder worked the following periods as a casual employee:

a. 22/4/2013 - 4/6/2013;

b. 3/11/2013 - 11/11/2013;

c. 16/12/2013 - 4/01/2014;

d. 29/10/2014 - 10/11/2014;

e. 7/6/2015 - 21/6/2015;

f. 7/8/2015 - 9/10/2015.

[10]      The time records show that in each period she worked each day for 7.6 hours per day.

She had two days off per fortnight. Ms Hodder varyingly worked days, afternoon and night

shifts.

[11]      There is no doubt that, in each period she worked, her work was regular and

systematic. This is not surprising as she was called in to replace permanent workers who were

on leave.

[12]      Ms Hodder then worked on a permanent contract from 27 October 2015 until 20

January 2016.

[13]      There is no dispute that for Ms Hodder to be protected from unfair dismissal she was

required to have six months service as it was not contended that the Council was a small

business.

[14]      For Ms Hodder’s period of causal employment to count towards the minimum period,

she needs to establish that she worked on a regular and systematic basis and had a reasonable

expectation of ongoing employment.

1

[15] In Shortland v The Smith Snackfood Co Ltd a Full Bench considered the meaning of

s.384 in relation to casual employees.

[16]      The Full Bench said as follows: “it is clear from the language of s.384(2) that an

employee may have a series of contiguous periods of service with an employer which 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

2

employment only if the requirements in s.384(2)(a)(i) and (ii) are met.”

[17]      The Full Bench held that “continuous service by a casual employee who had an

established sequence of engagements with an employer is broken only when the employer or

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

engagements. The gaps between individual engagements in a sequence of engagements

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

3

meaning of s.384.”

[2016] FWC 2601

[18]      In this case, Ms Hodder was engaged on three casual contracts of employment from 20

April 2013 - 19 April 2014, 15 May 2014 - 14 May 2015 and 14 May 2015 - 13 May 2016.

[19]      Given Ms Hodder did not have a contract with the Council between 19 April and 15

May 2014 her employment came to an end on 19 April 2014 as the contact expired. I accept

that when that contract ended Ms Hodder’s employment and hence her service with the

Council ended.

[20]      The effect of this is that Ms Hodder’s service commenced again on 15 May 2014 and

continued until 26 October 2015 on a casual contract of employment and then from 27

October to 20 January 2016 on a permanent contract.

[21] It was submitted that Ms Hodder had no reasonable expectation of ongoing

engagement because at the end of each engagement she was given no promise of further

work. I do not accept that submission. There was no evidence that the Council made it clear to

Ms Hodder at the end of each engagement that she would not be offered further work.

Further, she was placed on annual fixed term, albeit casual, contracts of employment. While it

was said that this was done, so as to avoid the necessity to provide separate contracts for each

engagement, the contracts speak for themselves and I cannot have regard to the subjective

intention of one of the parties to construe the contracts. Further it was clear from Ms Hodder’s

evidence that Ms Hodder had a reasonable expectation that when staff were on leave that she

would be offered work.

[22]      It is clear that during the periods Ms Hodder was engaged her employment was regular

and systematic. The question is whether in the period 15 May 2014 - 26 October 2015 Ms

Hodder’s aggregate engagements, when added to her period of permanent employment,

totaled six months employment.

[23]      In the period 15 May 2014 to 26 October 2015 as a casual employee, Ms Hodder was

engaged for a period of 89 days on a regular and systematic basis. As a permanent employee

she engaged for a period of 85 days which is a total of 174 days.

[24]       As this is less than six months, Ms Hodder had not served the minimum period of

employment and her application must be dismissed. Accordingly it is not necessary to deal

with Ms Hodder’s application for an extension of time to lodge her application.

DEPUTY PRESIDENT

[2016] FWC 2601

Appearances:

A. Hodder representing herself.

J. Wilson and D. Busuttil on behalf of the Respondent.

Hearing details:

2016.

Melbourne (by telephone to Adelaide and Perth):

April 20.

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1

[2010] FWAFB 5700

2

Ibid at [12].

3

Ibid at [13].