James McKinnon v Reserve Hotels Pty Ltd T/A the Crest Hotel Sylvania

[2014] FWC 5053

[2014] FWC 5053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James McKinnon
v
Reserve Hotels Pty Ltd T/A The Crest Hotel Sylvania
(U2014/5153)

DEPUTY PRESIDENT BOOTH SYDNEY, 28 JULY 2014

Termination of employment - application for unfair dismissal remedy - casual employee - whether regular and systematic.

[1] Mr James McKinnon (the applicant) was employed as a casual employee in the bottle shop of The Crest Hotel Sylvania from 22 August 2012. He was dismissed by Reserve Hotels Pty Ltd T/A The Crest Hotel Sylvania (the respondent) on 17 February 2014 on conduct grounds, which he contests.

[2] On 4 March 2013 Mr McKinnon lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[3] The respondent objects to the application being heard on the basis that the applicant was a casual employee and is not a person protected from the unfair dismissal provisions of the Act.

[4] The matter came before me on 13 June 2014. The applicant represented himself and the respondent was represented by Mr Aaron Tyack Venue Manager/Licensee.

[5] By agreement with the parties a conference was conducted however, the matter was not resolved and the parties agreed that the jurisdictional objection would be determined based on the written submissions of the parties, commonly known as a decision on the papers. Submissions were received from the applicant on 5 May 2014 and 10 June 2014 and from the respondent on 26 May 2014. Subsequent to the conciliation a submission was received from the respondent on 19 June 2014 containing pay slips for Mr McKinnon for the period 28 August 2012 to 10 February 2014. The last submission was received from the applicant on 24 June 2014. This decision is based on these written submissions.

[6] The respondent contends that the applicant’s period of service as a casual employee does not count towards his period of employment because he is a casual employee who was not employed on a regular and systematic basis and during his period of service as a casual employee, did not have a reasonable expectation of continuing employment on a regular and systematic basis.

[7] The applicant contends to the contrary, that he was a casual employee who was employed on a regular and systematic basis and during his period of service as a casual employee, he did have a reasonable expectation of continuing employment on a regular and systematic basis.

[8] An application for an unfair dismissal remedy is made pursuant to s.394 of the Act. Section 394(1) reads 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.

[9] As long as a person has been dismissed in terms of the Act, the Commission must then consider certain matters before proceeding to deal with the merits of an application. There is no contest that Mr McKinnon was dismissed.

[10] These initial matters are contained in s.396 of the Act 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.

Section 396(b) requires the Commission to consider whether the person making the application is protected from unfair dismissal.

[11] In so far as this application is concerned s.382(a) of the Act addresses this 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.

[12] A “period of employment” is defined in s.384 of the Act which provides:

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.

[13] The “minimum employment period” is defined 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.

The “minimum employment period” is one year for a small business or 6 months for an employer which is not a small business.

[14] The applicant and the respondent agree that the applicant was employed as a casual employee. The employer does not claim to be a small business employer, having 17 employees at The Crest Hotel at the time the applicant was dismissed. There is no dispute as to the date the applicant commenced employment being 22 August 2012.

[15] Therefore I must consider whether any of the service of the applicant as a casual employee can be counted in the applicant’s period of employment. To do so I must consider whether the applicant was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis. If I find in the affirmative for all or any of his service I must consider whether this service amounted to a period of employment that is at least the minimum employment period of 6 months.

[16] In a recent decision of the Fair Work Commission (the Commission), Jones C 1 considered the meaning of “regular and systematic” as follows:

“[29] The Macquarie Dictionary meaning of ‘regular’ relevantly includes:

1. Usual; normal; customary

2. Recurring at fixed time; periodic

3. Observing fixed times or habits

The Macquarie Dictionary meaning of ‘systematic’ relevantly includes:

1. Having, showing or involving a system, method or plan

2. Characterised by a system or method; methodical

3. Arranged in or comprising an ordered system

[30] The Court of Appeal, Australian Capital Territory, in Yaraka Holdings Pty Ltd v Giljevic considered a deeming provision applicable to independent contractors which, in part, deemed an individual to have been employed by an employer if the engagement ‘has been on a regular and systematic basis.’ It should be noted that the deeming provision included matters which should be considered in determining whether an engagement has been on a regular and systematic basis. The following extracts from the judgements of the majority are instructive. Crispin P and Gray J noted:

It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulations under the Workplace Relations Act 1996 (Cth), particularly reg 30B, and this concept has been considered by industrial tribunals in a number of cases.

[31] Their Honours noted that:

...it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement.

[32] Relevantly, their Honours observed in relation to the meaning of ‘regular’ that:

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”.

and formed the view that the pattern of engagement of the individual in question over the years from 1995 to 2002 satisfied this description.

[33] In respect of the meaning of ‘systematic’, their Honours held:

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. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses.

[34] Madgwick J concurred with the majority. In a separate judgement, his Honour considered examples provided in the relevant statute of ‘individuals who are workers’ concluding that ‘the meaning to be ascribed to (the deeming provision) is conditioned by the examples.’ Accordingly, his Honour stated:

It is clear from the examples that 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.

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 3^rd edn, 2001).

[35] The finding as to whether employment is regular and systematic is a discretionary one having regard to the totality of the evidence. Setting out factors which dictate a finding one way or another is to be avoided, particularly so given the Act is silent as to the matters to be considered.”

[17] Mr McKinnon had the following employment history:

Week	Period	Hours	Gross Earnings $
1	23/8/12	59.75	1,418.26
2	3/9/12	32	732.03
3	10/9/12	22.5	526.38
4	17/9/12	14.5	346.32
5	24/9/12	27.75	621.26
6	1/10/12	14	317.87
7	8/10/12	24.25	547.73
8	15/10/12	30.25	707.89
9	22/10/12	29	719.39
10	29/10/12	9.5	202.45
11	5/11/12	20.75	485.23
12	12/11/12	19	439.44
13	19/11/12	15.25	337.07
14	26/11/12	23	548.08
15	3/12/12	25.75	579.70
16	10/12/12	23.5	544.60
17	17/12/12	44	1064.31
18	24/12/12	32.5	912.24
19	31/12/12	11.25	251.83
20	7/1/13	37	896.02
21	14/1/13	26.5	661.08
22	21/1/13	30.25	688.72
23	28/1/13	22.75	738.65
24	4/2/13	30	684.32
25	11/2/13	28	641.83
26	18/2/13	29.25	638.20
27	25/2/13	25.75	601.76
28	4/3/13	41	928.16
29	11/3/13	32.25	733.33
30	18/3/13	38.25	878.35
31	25/3/13	27.5	726.76
32	1/4/13	15.5	520.09
33	8/4/13	38.75	884.35
34	15/4/13	35	856.41
35	22/4/13	34	951.32
36	29/4/13	24.75	559.04
37	6/5/13	20	445.73
38	13/5/13	22.75	513.63
39	20/5/13	34.75	809.20
40	27/5/13	23	543.14
41	3/6/13	23	560.84
42	10/6/13	21.5	487.00
43	17/6/13	14.75	351.38
44	24/6/13	21.25	515.24
45	1/7/13	31.5	749.25
46	8/7/13	22	537.50
47	15/7/13	18.75	467.60
48	22/7/13	16.25	400.49
49	29/7/13	24.25	572.08
50	5/8/13	21.75	554.96
51	12/8/13	22.75	545.84
52	19/8/13	27	655.17
53	26/8/13	17.5	404.51
54	2/9/13	22.5	534.25
55	9/9/13	25.25	576.80
56	16/9/13	30	691.13
57	23/9/13	13.25	373.90
58	30/9/13	25.25	579.66
59	7/10/13	28	743.66
60	14/10/13	20.5	533.47
61	21/10/13	27.25	688.65
62	28/10/13	33.5	856.31
63	4/11/13	36	892.49
64	11/11/13	8	182.52
65	18/11/13	7.75	177.06
66	25/11/13	17.5	430.43
67	2/12/13	33.25	779.47
68	9/12/13	36.5	920.54
69	16/12/13	44.25	1088.12
70	23/12/13	30.25	1025.01
71	30/12/13	21.5	477.63
72	6/1/14	39	951.38
73	13/1/14	32	742.63
74	20/1/14	24.75	634.29
75	3/2/14	29.25	692.70
76	10/2/14	31	803.58

[18] The applicant submitted that he worked on average 25 to 30 hours per week, usually on a Wednesday and then on Saturday and/or Sunday nights and made himself available to attend work at other times and at short notice if required. It can be seen from the table above that he worked consistently from the period ending 23 August 2012 until his dismissal, a period of 76 weeks. The respondent said in its written submissions:

“His weekly roster was never the same, based only on our per need situation and his availability, with non-regular and non-systematic hours of employment.”  2

[19] However a different roster week to week is not fatal to a conclusion that a casual employee is employed on a regular and systematic basis.

[20] In mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 3 (the Ponce decision) Roe C said

“[66] 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. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.”

[21] I have no doubt that the applicant’s employment was on a regular and systematic basis. An analysis of his pay slips reveals that he worked at least one, and generally more than one, shift in each of his 76 weeks of employment. The number of hours worked per week varied but the engagement was regular. But for his dismissal the applicant could have expected to continue to be engaged for shifts in the bottle shop. I believe that the applicant had a reasonable expectation of continuing employment on a regular and systematic basis. All of his 76 weeks of employment therefore count towards the minimum employment period, in this case 6 months or 26 weeks, which he well and truly exceeds.

[22] In all of the circumstances I conclude that the applicant was a casual employee who was employed on a regular and systematic basis and during his period of service as a casual employee, had a reasonable expectation of continuing employment. I conclude that his period of employment was greater than the relevant minimum employment period of 6 months at the time of his dismissal.

[23] The respondent’s jurisdictional objection is dismissed and the application may proceed to be heard on its merits. The file will be returned to the Unfair Dismissal Case Management Team for directions and listing.

DEPUTY PRESIDENT

Appearances:

James Robert McKinnon, on his own behalf

Aaron Tyack, Venue Manager/Licensee, Reserve Hotels Pty Ltd T/A The Crest Hotel Sylvania

Hearing details:

2014.

Sydney:

13 June.

 1   [2012] FWA 5552

 2   Respondent’s Submissions 26 May 2014

 3   [2010] FWA 2078

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