Jake Johansen v J H Lever & Associates Pty Ltd

[2019] FWC 2766

[2019] FWC 2766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Jake Johansen
v
J H Lever & Associates Pty Ltd
(U2019/698)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 26 APRIL 2019

Application for an unfair dismissal remedy - jurisdiction - minimum employment period – service as a casual employee – period of absence - section 384 Fair Work Act 2009 - meaning of “regular and systematic” – whether “reasonable expectation of continuing employment” – section 22 Fair Work Act 2009 – meaning of “unpaid authorised absence” - statutory criteria satisfied – applicant protected from unfair dismissal

[1] Mr Jake Johansen (Mr Johansen or the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by J H Lever & Associates Pty Ltd (Lever & Associates, the employer or the Respondent). He claims to have been unfairly dismissed on 18 January 2019 (the employer claims dismissal occurred on 20 January 2019).

[2] He seeks reinstatement or in the alternative compensation to enable him time to find another job and removal of a restraint of trade.

[3] Lever & Associates oppose the application and raise a jurisdictional issue. It asserts that Mr Johansen was not a person protected from unfair dismissal under the FW Act because he had not completed the minimum employment period required by sections 382(a) and 383 of that Act.

[4] On 25 February 2019 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was referred to me for hearing and determination.

[5] The jurisdictional matter was heard by telephone hearing conducted on 17 April 2019.

[6] On 13 March 2019 I directed that Mr Johansen and Lever & Associates file in advance materials on the jurisdictional matter. I received those materials.

[7] By decision dated 11 April 2019 1 I granted a request by Lever & Associates, over Mr Johansen’s objection, to be represented by a legal practitioner at the hearing of the jurisdictional matter under section 596 of the FW Act.

[8] At the jurisdictional hearing Mr Johansen was represented by his father (Mr Kurt Johansen). Lever & Associates were represented by Ms Womersley, a legal practitioner.An audio record of the hearing was made by the Commission.

The Facts

[9] Documentary and witness evidence was submitted in support of the competing jurisdictional contentions. The employer filed a statutory declaration of its director Mr Roland Lever. Mr Johansen filed a witness statement in his name. Mr Johansen also filed a statement in the name of his mother Terri-Lee Johansen who at the relevant time was also employed by Lever & Associates as Operations Manager.

[10] Mr Johansen gave oral evidence, as did Mrs Johansen and Mr Lever. The oral evidence was consistent with the witness statements. Although each placed emphasis on different events and occurrences associated with Mr Johansen’s employment and rostering, the evidence of all three witnesses was considered and broadly reliable. Mr Lever was involved in some events but not directly involved in others. He made appropriate recognition of this in his evidence, noting that he delegated much of the day-to-day employment of Jake Johansen to Mrs Johansen.

[11] The facts relevant to the jurisdictional issue are detailed but generally not in dispute. What is in dispute are the conclusions I should draw from the facts.

[12] This decision is reached on the basis of all of the documentary material, submissions and evidence placed before me.

The Legal Framework

[13] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[14] Section 383 of the Act sets out the minimum employment period:

“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.”

[15] Section 384 states:

“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.”

[16] Section 22 states:

“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).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down underPart 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(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.”

The Facts

[17] Lever & Associates is a small privately owned manufacturing business in Adelaide owned and operated by Mr Lever (with a Sydney-based co-director Mr Schlitter). It employs approximately seven persons. It is a small business employer as defined by the FW Act.

[18] There has historically been a close connection between Mr Lever’s business and the Johansen family. Mrs Johansen was a long term Operations Manager having worked in the business for approximately thirty years. Mr Lever’s evidence was that once he provided general direction to her on operations and employment matters, he devolved responsibility to Mrs Johansen to act in the best interests of the business, and had confidence that she had and would continue to do so. 2 There was no barrier to Lever or Johansen family members working casually in the business. Mr Lever employed his nephew. With Mr Lever’s knowledge and consent, Mrs Johansen’s other sons had worked casually in the business prior to Jake Johansen doing so.

[19] Only after Mr Johansen was dismissed by Mr Lever in January 2019, did Mrs Johansen leave her long term employment.

[20] For the purposes of the jurisdictional matter, Mrs Johansen was the Operations Manager of the business at all relevant times. As part of her role she had the authority to engage employees on a particular casual roster (including her son, Jake) once Mr Lever had given general authorisation that the work she sought to have performed warranted paid casual work. 3

[21] Mr Johansen is a young man who, at the time of dismissal was a full time Production Co-ordinator in the business. The chronology of Mr Johansen’s employment is relevant to this matter. I make these findings based on the oral evidence and by reference to the written communication between the relevant persons, including employment contracts and time and wage records.

[22] Mr Johansen commenced work as a casual employee on 7 December 2017. He was employed primarily doing clerical work but upon being employed was also told that he could also be asked to work in the office, warehouse or laboratory. 4

[23] When called in, he undertook a variety of roles under the supervision of others. This included clerical (data entry) work and laboratory assistant work.

[24] This was not Mr Johansen’s only job during this period of casual employment. He also worked approximately two days a week in a law firm at Port Adelaide assisting with administrative and other tasks.

[25] On 13 September 2018 two persons who worked in the Lever & Associates warehouse ceased employment. To help fill this void, for the next month (from 17 September 2018 until 11 October 2018) Mr Johansen worked in the warehouse on a casual basis working approximately three full days per week. He reported to a production employee (Tara Gow-Hancock).

[26] Commencing from 15 October 2018 Mr Johansen accepted the job of working in the warehouse as a permanent part time employee three full days per week for a fixed term until Christmas 2018.

[27] Almost a month later on 5 November 2018 Mr Johansen was offered (and accepted) a permanent full time position as Production Co-ordinator. A written contract to that effect was executed. 5

[28] Mr Johansen remained in this role until dismissed by Mr Lever after an altercation on 18 January 2019. For the purposes of this decision it is immaterial whether the dismissal occurred on Thursday 18 January (as claimed by Mr Johansen) or Saturday 20 January (as claimed by the employer). I have not heard evidence on those events, as they relate to the merits of Mr Johansen’s unfair dismissal claim. For the purposes of this decision only (and simply in order to ascribe an end point to Mr Johansen’s period of employment) I utilise the indicative date suggested by the employer of 20 January 2019, without making any finding and without prejudice to the position of either party in any subsequent proceedings.

Consideration

[29] In order to be protected from unfair dismissal under the FW Act, the minimum employment period required to have been worked by an employee in a small business (as defined) is one year.

[30] The jurisdictional issue appears to be primarily concerned with whether a period of 79 days (approximately 11 weeks) between 30 June 2018 and 16 September 2018 (inclusive) when Mr Johansen was ‘on the books’ as a casual employee but did not work at Lever & Associates should (or should not) be counted for the purposes of the minimum employment period.

[31] If (as the employer contends) that period of 11 weeks is not included, Mr Johansen will not have served the 12 months (52 weeks) so as to meet the minimum employment period to be protected from unfair dismissal. He would have served only 46 of the 52 weeks required.

[32] If however (as Mr Johansen contends) that period of 11 weeks is included, Mr Johansen will have served 58 weeks and thereby have met the minimum employment period.

[33] In fact, if six or more weeks of that eleven week period are included, Mr Johansen’s service will have met the qualifying period.

Was Mr Johansen’s employment as a casual regular and systematic?

[34] It was not contested at the hearing that the combined fourteen weeks Mr Johansen served as a part time employee (3 weeks: 15 October to 4 November 2018) and then a full time employee (11 weeks: 5 November 2018 to 20 January 2019) comprise part of his period of employment.

[35] It is convenient to identify three blocks of time when Mr Johansen was ‘on the books’ as a casual employee:

•  Block 1: the block of 28 weeks (between commencement on 7 December 2017 and 29 June 2018) when Mr Johansen worked at Lever & Associates;

•  Block 2: the block of 11 weeks (between 30 June 2018 and 16 September 2018) when Mr Johansen did not work at Lever & Associates; and

•  Block 3: the block of 4 weeks (between 17 September 2018 and 11 October 2018) when Mr Johansen worked at Lever & Associates.

[36] For a casual employee to be said to have worked “regularly and systematically” within the meaning of section 384(2) of the FW Act it is sufficient for their employment to have been “regular” in the sense of being frequent notwithstanding it being unpredictable, and “systematic” in the sense of it being part of a pattern of engagement occurring as a consequence of businesses reliance on the employee’s services notwithstanding that the precise pattern of working may not be foreseeable to the employee. 6

[37] It is not contested that during the periods of Block 1 and Block 3 that Mr Johansen was working as a casual employee and that these periods are to be included in his period of employment for the purposes of section 384 of the FW Act.

[38] I am satisfied on the evidence that Mr Johansen’s employment during these two periods of Block 1 and Block 3 was clearly on a regular and systematic basis and that he had a reasonable expectation of continuing employment on that basis.

[39] During Block 1, Mr Johansen was regularly called in. He worked at least once in each of the 28 consecutive weeks, except for two weeks (Christmas week 2017 and the week of 17 June 2018). His pattern of work evidenced reliance by the business on his services: he usually worked for three days a week but occasionally more. He usually worked full days but sometimes half days. He learnt a variety of tasks under supervision. Those tasks reflected business needs.

[40] During Block 3 the regularity and systematic nature of Mr Johansen’s services was even more pronounced. He was called in to, temporarily at least, fill a void in the labour force requirements of the warehouse, where manufacturing occurred. He usually worked full time days for three days a week.

[41] He was rostered regularly across both of these periods, usually by Mrs Johansen after she had received general authority from Mr Lever. Mr Johansen expected to be called in, and made arrangements with his other employer (the law firm) that did not conflict with his regular work at Lever & Associates.

[42] Although the authority Mrs Johansen exercised to roster her son was based on her securing general consent from Mr Lever, this authority was not sought or given on a daily or even weekly basis. As impending work emerged, Mrs Johansen would discuss the need to engage a casual to supplement permanent staff. There was no evidence that Mr Lever refused these suggestions or curtailed Mrs Johansen’s authority to roster the work for particular days that matched her son’s availability. Broadly speaking, Mr Johansen’s roster matched the needs of the business for productive work to be performed. It was not however task-specific in the sense of Mr Johansen completing a task and then going home. Productive work, including training, was found for Mr Johansen for the whole of the period he was rostered, whether full days or half days.

[43] I conclude that Mr Johansen’s employment as a casual employee was regular and systematic within the meaning of section 384(2)(a)(i) of the FW Act.

Did Mr Johansen have a reasonable expectation of continuing employment on a regular and systematic basis?

[44] Aside from the unusual events of a single day 6 September 2018 (considered below), it is not contested that Mr Johansen remained ‘on the books’ but was not called into work and did not work in the business during an 11 week period 30 June 2018 and 16 September 2018 (Block 2).

[45] Given that Mr Johansen had, until 29 June 2018, worked in 26 of the preceding 28 weeks since he started in December 2017 the failure to be regularly rostered for 11 weeks was highly unusual.

[46] The evidence before me was that certain data entry tasks had been completed by Mr Johansen towards the end of the financial year, However, Mr Johansen’s work in Block 1 had not been restricted to data entry; he had also worked in other productive roles, including the laboratory.

[47] Mr Johansen was not rostered during the 11 week period for a combination of three reasons. Firstly, data entry work had peaked in the period before the financial year ended and supplementation by a casual was not needed to do this work in the early weeks of the new financial year. Secondly, changes in the operation of the warehouse took effect during this period requiring permanent staff to adjust to new stock rotations before being able to employ casuals. Thirdly, there was unexpected push-back by the two permanent warehouse employees to the employment of a casual during this period.

[48] The events of 5 and 6 September 2018 are relevant to this latter point. In early September Mrs Johansen identified a need for some supplementation of the warehouse staff by casual work. On 5 September she offered Mr Johansen rostered hours the following day, 6 September. Mr Johansen turned up to work. The two warehouse employees objected to a casual working alongside them at that time. Mrs Johansen was taken aback, as was Mr Johansen. In order to not create a scene Mrs Johansen sent her son home without him working. She paid him $50 for his trouble (it subsequently emerged that Mrs Johansen paid her son out of her private funds in order to not complicate the dispute with the warehouse staff; at the time Mr Johansen believed the payment came from company funds).

[49] It is well established that a break in periods of work as a casual employee do not necessarily break that employee’s continuous service for the purposes of section 384 of the FW Act. As observed in Shortland v Smiths Snackfood Co Ltd: 7

“[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[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).

[13] Continuous service by a casual employee who has 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 employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”

[50] I take into account that Mr Johansen’s periods of service as a casual prior to and following the 11 week break in service were both regular and systematic and were periods during which he had reasonable expectation of continuing employment on that basis.

[51] The question which arises is whether during Block 2 Mr Johansen similarly had a reasonable expectation of continuing employment on that basis.

[52] The meaning of the words “reasonable expectation of continuing employment” in section 384(2)(a)(ii) of the FW Act were summarised by a full bench of the Commission in Bell v Aboriginal Legal Service (NSW/ACT) Limited as follows: 8

“[12] The Act does not define the phrase “reasonable expectation of continuing employment”, nor does it set out any particular matters which should be taken into account in assessing whether a particular employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis during that employee’s period of service as a casual employee. Whether an employee had such an expectation will depend on the particular circumstances.

[13] It is also to be observed that the relevant “reasonable expectation” in s.384(2)(a)(ii) is as to continuing employment with the employer on a regular and systematic basis. This plainly suggests that the relevant reasonable expectation is as to continuing casual employment by the employer on a regular and systematic basis. Were it otherwise, the words “on a regular and systematic basis” would be otiose. The connection between “employment as a casual employee” and “on a regular and systematic basis” is established by s.384(2)(a)(i) and that connection seems to us to be maintained in s.384(2)(a)(ii). Section 384(2) is concerned with the circumstances in which a casual employee’s period of service as a casual employee is included in that employee’s period of employment for the purposes of s.383.”

[53] It is self-evident that section 384(2)(a)(ii) does not require rostered work as a casual employee during each and every hour, day or week that form a “period of employment”. It requires continuous service to be characterised as regular and systematic and one during which the employee has a reasonable expectation of continuing work on that basis.

[54] The subject of section 384(2)(a)(ii) is an employee’s expectation, not the employer’s. However, determining whether a reasonable expectation existed on the part of an employee is an objective matter. This requires consideration of the evidence and circumstances as a whole, including (but not restricted to) the evidence of the business operations and conduct of the employer. The fact that an employee subjectively believes they had (or didn’t have) such an expectation is not a sufficient basis to so conclude.

[55] The relevant time (or times) at which the reasonable expectation needs to have existed includes the relevant time (or times) that the casual employee’s period of absence from the workplace is nonetheless said to be properly included in the period of service that forms part of the statutory “period of employment”. It need not be a single point in time. As a full bench said in Bronze Hospitality Pty Ltd v Hansson: 9

“We make some observations about the construction of s.384(2)(a)(ii). First, ‘during’ can mean either ‘throughout the course of’ or ‘at a point in the course of’. In our view, the first of these meanings is intended. The sub-provision is an exception to an exception; a period of casual service does not count, unless two requirements are met. Both of these requirements concern states of affairs that can develop over time. This context points to the word ‘during’ connoting a continuous period, rather than a point in time. Further, the alternative construction would mean that a casual employee need only have a reasonable expectation of continuing employment for any fleeting period in the course of the casual employment. There is no apparent rationale that would support this being the intended meaning. Finally, we note that the explanatory memorandum to the Fair Work Bill states simply that ‘service as a casual employee does not count towards the period of employment unless it was on a regular and systematic basis and the employee had a reasonable expectation of continuing engagement on a regular and systematic basis.’ This wording is consistent with the interpretation we favour, and inconsistent with a ‘point in time’ meaning. The effect of this is that a particular period of service as a casual employee only ‘counts’ in respect of periods when the casual employment was regular and systematic and the employee had a reasonable expectation of continuing employment.”

[56] Mr Johansen contends that throughout all of the 11 weeks of not being rostered he had a reasonable expectation of continuing employment on that basis. The employer says he did not, for none of that period.

[57] The evidence before me is that upon leaving his rostered shift on 29 June 2018 Mr Johansen remained on the books as a casual and expected to be shortly rostered to work in the forthcoming days or weeks though he did not know specifically when.

[58] In particular Mr Johansen had two conversations before he left the workplace, one with a production employee (Tara Gow-Hancock) and one with his mother.

[59] In conversation with Ms Gow-Hancock, Mr Johansen asked whether in light of the data entry work concluding he should look for alternate work. He was told words to the effect “of course you’ll be called in as soon as we have a job for you, you know that, don’t stress about it” and “Nah, you’ll be fine we will have work for you here as soon as possible”. 10 This conversation occurred in the laboratory and was witnessed by Mrs Johansen.

[60] Mr Johansen was given a similar assurance by his mother the Operations Manager when on or about 29 June 2018 she said words to the effect “Jake don’t worry; you work 2 days a week somewhere else and that will keep you afloat until you get called back in”. 11

[61] The evidence of Mrs Johansen was that, as Operations Manager, she knew that data entry work had subsided but that she expected other work to arise for Mr Johansen in a relatively short period of days or weeks, and that he would be rostered accordingly.

[62] The evidence is that Mr Johansen frequently asked his mother in the days and weeks that followed, almost every couple of days, when was he to be next rostered so he could arrange his movements accordingly. Mrs Johansen would advise that she expected work shortly or “soon” but was not able to be precise.

[63] I find that Mr Johansen had, at the start of the 11 weeks on 30 June 2018 and during the following eleven weeks a reasonable expectation of continuing casual employment on a regular and systematic basis.

[64] I take into account:

•  That Mr Johansen’s pattern of work as a casual employee for a prolonged period before this time was regular and systematic;

•  That when he did resume casual work it was regular and systematic;

•  That Mr Johansen was available to work in a variety of roles, had been trained by the employer and used in a variety of roles;

•  That the restructuring of stock rotation in the warehouse in July and August 2018 was a business factor as to why Mr Johansen was not called back immediately after 30 June 2018 but that this was an unusual development and did not detract from the likelihood that casual supplementation would be needed once that change was bedded down;

•  That no manager said or did anything that suggested to Mr Johansen that he would not continue to be offered casual work on broadly the same terms that he had worked in the preceding seven months;

•  That Mr Johansen acted on the belief expressed by managers that he would be offered work in this period by not seeking out alternate work in other enterprises that could render him unavailable to take up casual work on that basis with the employer;

•  That the push-back from warehouse employees against his casual roster on 6 September 2018 was unexpected by the employer and by Mr Johansen.

[65] I therefore conclude that during his period of service as a casual employee Mr Johansen had a reasonable expectation of continuing employment on a regular and systematic basis within the meaning of section 384(2)(a)(ii) of the FW Act.

Has Mr Johansen completed a period of continuous service of at least one year?

[66] The combined periods of Mr Johansen’s employment as a full time employee, a part time employee and the three blocks of employment as a casual employee occurred over a span of fourteen months and two weeks (7 December 2017 to 20 January 2019).

[67] On the face of it, this is more than the 12 months required by section 383(b) of the FW Act.

[68] However, this assumes that no periods inside this span are required, by law, to be excluded.

[69] Lever & Associates submit that some 102 days of this span should be excluded being days when Mr Johansen was not working and not paid. 12 The employer submits that this includes the whole of the 11 weeks between 30 June 2018 and 16 September 2018 and some 26 working days between December 2017 and June 2018 during which Mr Johansen was not rostered to work.

[70] The employer contends that that these were days of “unpaid authorised absence” which under section 22 of the FW Act, whilst not breaking continuous service, are not to be included as service in the period of employment.

[71] The “period of employment” in section 384 is defined as follows:

“(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.”

[72] I have found that all of Mr Johansen’s periods of service as a casual employee count towards his period of employment within the meaning of section 384(2)(a).

[73] However, the definition of “period of employment” in section 384 does not sit in isolation from the FW Act as a whole. Its definition requires service to be “continuous service”. The word “service” and the phrase “continuous service” are defined terms. Those definitions are found in section 22 of the FW Act.

[74] Sections 22(2)(a),(b) and (c) provide three categories of absence from work which are “excluded periods”. An “excluded period” does not break an employee’s continuous service but, under section 22(3), “does not count towards the length of the employee’s continuous service”.

[75] It follows therefore that if a period (or periods) of Mr Johansen’s service was an “excluded period” then that period (or periods) do not count for the purposes of the continuous service requirement in section 384(1).

[76] The days when the business was operating but Mr Johansen was not rostered do not fall within section 22(2)(a) (unauthorised absence) or section 22(2)(c) (periods prescribed by regulations).

[77] However, were those periods “unpaid leave or unpaid authorised absence” within the meaning of section 22(2)(b)?

[78] The periods in question are twofold: firstly, the period of 11 weeks when Mr Johansen was not called in to work because there was no work required to be performed (for the sake of clarity, I regard the 6 September 2018 as a day he was called in to work by the employer; the other days of this 11 week period were days when he was not called in to work and no work was required of him); and secondly a period (of approximately 26 days according to the employer scattered throughout his first 7 months of casual employment) when Mr Johansen was not rostered to work as no work was required of him.

[79] These periods of absence were not unpaid leave. As a casual employee Mr Johansen was not entitled to leave, paid or unpaid.

[80] Were they periods of “unpaid authorised absence” as the employer contends?

[81] The characteristic of the days in these two periods is that Mr Johansen was not rostered by the employer to work on any of them. This is not a case of Mr Johansen being rostered and then being absent either with or without permission. I consider that the phrase “unpaid authorised absence” in the context of section 22(2)(b) means an absence authorised by the employer from work that would otherwise have been expected or required to have been performed by the employee but for the employer’s authorisation, and where the employee received no payment.

[82] The phrase “unpaid authorised absence” must be read as a whole and in context. Applying it to all periods when a casual is not rostered to work would lead to absurd results, such as a requirement to deduct from the calculation of continuous service days when a casual employee was not required by the employer to be rostered for work. As a full bench said in Affinity Education Group Limited v Kogler: 13

“We consider that the expressions “unpaid leave” and “unpaid authorised absence” in s.22(2)(b) connote periods of time off work which, but for the permission or authorisation of the employer, would have been expected if not required to have been worked by the employee. In the case of a casual employee, this raises issues of some complexity, since according to normal legal concepts of casual employment a casual employee is offered and may accept or reject work on a day by day basis. When a casual employee does not work on a given day, it may be difficult absent appropriate evidence to determine whether the day was taken off as leave or an absence authorised by the employer, or whether the employee simply chose not to make himself or herself available for work that day.”

[83] In the context of section 22(2)(b) the word “absence” cannot be decoupled from the word “authorised”. The statutory test is whether there is an “authorised absence” and whether that authorised absence was unpaid. The word “authorised” provides context to the meaning of “absence”. In this context “absence” is not simply a neutral concept of not being at work on a given day or for a given period. It is a particular type of absence; absence in circumstances where authorisation is given. This context requires a precondition: an expectation if not an obligation on one party to work from which one is permitted by the other to be absent from. It is not a reasonable textual interpretation of section 22 for days an employee is not expected or required (and is not rostered) to be excluded periods (and deducted from the length of their continuous service) if they otherwise work all of the days they are expected, required and rostered. One only needs to consider the consequences for casual employees in 7-day trading businesses who are not ordinarily rostered to work every day. Deducting from their service days in a week when not ordinarily required and thus not rostered is not a proper application of the term “excluded period” in section 22.

[84] I express no view on differing factual situations, such as where a casual employee is expected or ordinarily required to work but does not do so or is rostered and agrees to work but fails to turn up for work.

[85] I conclude that no period of Mr Johansen’s service is an “excluded period”.

Conclusion

[86] Mr Johansen’s service as a casual employee was regular and systematic within the meaning of the FW Act.

[87] During the periods of service as a casual employee when not rostered to work (including the 79 day period across August and September 2018) Mr Johansen had a reasonable expectation of continuing employment on a regular and systematic basis. No periods were “excluded periods”.

[88] Accordingly, all periods of Mr Johansen’s service as a casual employee, whilst working and whilst not rostered to work, count as continuous service for the purposes of calculating his period of employment.

[89] Mr Johansen’s period of employment is comprised of the period 7 December 2017 to 17 October 2018 as a casual employee, and 18 October 2018 to 6 November 2018 as a fixed term part-time employee and from 7 November 2018 to the date of dismissal (either 18 or 20 January 2019) as a full-time employee. Mr Johansen’s period of employment was in excess of 14 months.

[90] Accordingly, Mr Johansen served the minimum employment period (of 12 months) required by section 382(2)(a) of the FW Act and was a person protected from unfair dismissal at the time of dismissal.

[91] The Commission has jurisdiction to hear and determine Mr Johansen’s application.

[92] The matter will be relisted for directions.

DEPUTY PRESIDENT

Appearances:

J. Johansen and K. Johansen, for the Applicant

M. Womersley, with permission, and R. Lever, for the Respondent

Hearing details:

2019.

Adelaide; by telephone.

17 April.

Printed by authority of the Commonwealth Government Printer

<PR707299>

 1   [2019] FWC 2491

 2 R1 Statement of Roland Lever paragraph 10

 3 R1 Statement of Roland Lever paragraph 15

 4   A2 Statement of Jake Johansen paragraph 82

 5   R3

 6   Bell v Aboriginal Legal Service (NSW/ACT) Limited[2018] FWCFB 6102 at [10] – [11]; see also Yaraka Holdings Pty Ltd v Glijevic (2006) 149 IR 399 at [65] – [68] per Crispin and Gray JJ and at [89] per Madgwick J

 7   [2010] FWAFB 5709

 8   Ibid at [12] – [13]

 9   [2019] FWCFB 1099 at [29]

 10   A2 Statement of Jake Johansen paragraphs 6 - 7

 11   A2 Statement of Jake Johansen paragraph 8; A3 Statement of Terri-Lee Johansen paragraphs 3 - 4

 12   Respondent’s Written Submissions 26 March 2019 pages 4 - 6

 13   [2014] FWCFB 8752 at [7]