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

[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…

CaseChat Overview and Summary

The case of James McKinnon versus Reserve Hotels Pty Ltd, trading as The Crest Hotel Sylvania, was heard in the Fair Work Commission. James McKinnon, the applicant, sought an unfair dismissal remedy following his termination of employment by the respondent. McKinnon was employed as a casual worker at the hotel and claimed that his dismissal was unjust and constituted an unfair dismissal under the Fair Work Act 2009. The central issue before the Commission was whether McKinnon's employment could be classified as regular and systematic, thereby qualifying him for unfair dismissal protections despite his status as a casual employee.

The Fair Work Commission examined the nature of McKinnon's employment and whether it exhibited characteristics of regularity and systematic engagement, which would entitle him to unfair dismissal protections. The respondent argued that McKinnon's employment was genuinely casual and did not meet the criteria for regular and systematic work. The Commission considered various factors, including the predictability of work, the duration and pattern of employment, and the nature of the employment relationship. The decision hinged on whether McKinnon's employment was sufficiently consistent and predictable to warrant the application of unfair dismissal protections.

In its decision, the Fair Work Commission found that McKinnon's employment did not exhibit the regularity and systematic nature required to qualify for unfair dismissal remedies. The Commission determined that there was no pattern or predictability in McKinnon's work hours, and his employment was genuinely casual. As a result, the application for unfair dismissal was dismissed. The Commission emphasised that the burden of proof lay with McKinnon to demonstrate that his employment was regular and systematic, a burden he had not successfully met. Consequently, the respondent's termination of McKinnon's employment was deemed fair and lawful.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established