Janell Hansson v Bronze Hospitality Pty Ltd

Case •

[2019] FWC 4362

•

3 JULY 2019

No judgment structure available for this case.
[2019] FWC 4362
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Janell Hansson
v
Bronze Hospitality Pty Ltd
(U2018/6613)

COMMISSIONER WILSON

MELBOURNE, 3 JULY 2019

Application for an unfair dismissal remedy.

[1] Through its decision dated 20 February 2019, the Full Bench has remitted to me redetermination of Bronze Hospitality Pty Ltd’s (Bronze Hospitality) jurisdictional objection that it was a small business employer, and that Ms Hansson had not served the minimum employment period of one year. 1

[2] Following this decision on the part of the Full Bench, the matter was initially relisted by me for re-hearing of the matters requiring redetermination on 17 April 2019 however, that date was instead taken with an application that I no longer deal with the matter for reason of apprehended bias. A decision was given by me on that application on 1 May 2019, which was also appealed. After the appeal on apprehended bias was determined on 21 May 2019, 2 the matter was further listed on 27 May 2019 for hearing of the matters requiring redetermination by me. On 22 May 2019, the parties were directed by my Chambers about this hearing as follows:

“Good morning parties,

Upon review of the file, the Commissioner has noted that Bronze Hospitality has not yet filed in response to the 12 Match 2019 directions (see attached), presumably due to filing an apprehended bias application.

As a result, should either party wish to file anything further pertaining to the jurisdictional hearing listed 2:00 PM (AEST) Monday, 27 May 2019 they are to file such material in the Commission and serve on the other party such materials as they seek to rely as soon as possible but not later than 12:00 PM Friday, 24 May 2019.

Kind regards,”

[3] In an email to my Chambers on 24 May 2019, Mr Thorpe for Bronze Hospitality advised my Associate that “given the scope of the issues raised in Ms Hansson’s materials lodged on April 4, 2019 Bronze Hospitality does not wish to lodge any responsive materials. However, objection will be taken to those parts of the materials that do not amount to evidence.”

[4] After appearances were taken at the resumed hearing on 27 May 2019, and after some preliminaries had been dealt with, Mr Thorpe made a further application that I no longer deal with the matter for reason of apprehended bias. 3 The application had not been foreshadowed by Mr Thorpe in his earlier communication with my Chambers, and at no time has Bronze Hospitality filed any materials in relation to its second apprehended bias application. The extent of Mr Thorpe’s submissions on the subject is set out in this exchange in transcript:

“MR THORPE:  Commissioner?  Excuse me, Commissioner, I've got a preliminary matter that I'd like to address.

THE COMMISSIONER:  All right, and what's that, Mr Thorpe?

MR THORPE:  You may be aware that Bronze Hospitality appealed your decision of 1 May to decline to recuse yourself from further hearing this matter, and on 21 May the Full Bench upheld Bronze's opinion and then considered afresh the question of whether you should be recused and the Full Bench decided that your conduct in the hearing at first instance did not warrant your recusal.

However the Full Bench did not give consideration to the question of whether the errors that it found you made in your decision of 1 May of themselves gave cause for a reasonable apprehension of bias, and it's Bronze's submission that where a decision from a recusal hearing that raises concerns about matters at a previous hearing and that recusal decision is found by an appeal tribunal to contain substantive errors, that fact heightens the concerns that in all the circumstances it would now appear difficult for any finder of fact to bring an impartial mind to the question.  So Bronze asks again that this matter be dealt with by another Commissioner.

THE COMMISSIONER:  You can state your reasons for that if you wish and place that submission to me as you wish.

MR THORPE:  Well, I've just done that but the Full Bench when it considered the recusal question afresh didn't look at the errors that it had found in the decision made at first as to whether they themselves gave cause for a reasonable apprehension of bias.  In the circumstances in fact what the Full Bench effectively said was that in the appeal decision handed down earlier this year which resulted in the matter being remitted, that the errors that you had made, Commissioner, had now been pointed out and that from now on you would not make such errors.

Bronze's position is that errors continued to be made, errors such that the Full Bench found the errors to be of such substantive effect that it overturned your decision of 1 May and we say - and that wasn't the question.  Bronze's concern is with the substance of that decision of 1 May that the Full Bench considered and we say it, as I say, heightens the ongoing concerns we've had about a reasonable apprehension of bias.

THE COMMISSIONER:  And what do you wish me to do as a result of that, Mr Thorpe?

MR THORPE:  Recuse yourself.” 4

[5] After some further short dealings on the subject with both parties, I indicated to Mr Thorpe that his application was refused and that my reasons for decision would be issued in due course. 5

[6] There is no need to repeat the principles associated with determinations of application of this sort. They have already been well articulated in the Commission’s other decisions in this matter thus far, both before me and on appeal, and further repetition is unnecessary.

[7] Mr Thorpe’s application surrounds the contention – stated briefly, but not elaborated upon to any degree – that because “the Full Bench did not give consideration to the question of whether the errors that it found you made in your decision of 1 May of themselves gave cause for a reasonable apprehension of bias”, with errors having been found in the decision at first instance, but being insufficient to give rise to a reasonable apprehension of bias, that a fair-minded lay observer would apprehend that I would, at the time of the resumed redetermination hearing on 27 May 2019, be unable to bring an impartial mind to the redetermination of Ms Hansson’s application. In this regard, the first Ebner step, the “identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits” 6 is that there were errors made by me in the decision at first instance, which were corrected by the Full Bench, but not established by it as a sufficient reason for a finding of apprehended bias. It is postulated by Mr Thorpe in effect that, having been found to be in error, it would, if I follow Mr Thorpe’s argument beyond his somewhat clipped and economical oral submissions, logically follow that an independent observer may have difficulty accepting that a subsequent decision on the remitted matters could be neutral and in accordance with the evidence. If that is the case, it thus follows that the second Ebner step of articulation of “the “logical connection” between those factors and the fear that the judge might not apply proper judicial method (that is, merits based decision-making)” is that, reasonably, with this record of dealing with the matter, a reasonable observer would form the view that I am not capable of dealing with the matter impartially.

[8] Mr Thorpe has put nothing of substance forward in relation to the matters he agitates. He failed to give notice to the Commission of his application when he had been directed to provide anything further in relation to his objections by 24 May 2019 and when he did put his application, it consisted in its entirety of just over 350 words, even after he had been specifically requested to put his case. He has pointed to nothing beyond the mere fact of the errors found on appeal – and has not even endeavoured to categorise those that he say fall within the first Ebner step. He has not referred to any conduct oral or written or otherwise on 27 May 2019 or earlier that would reinforce to the observer that I lacked impartiality. The fair-minded lay observer would likely perceive that nothing within the situation involving me is disharmonious with the obligations of the Commission to deal with matters fairly and impartially. In contrast, the fair-minded lay observer would likely see Mr Thorpe’s latest application for what it is – an imagined, confected and somewhat disingenuous endeavour to delay proceedings or to impose his will on a proceeding he does not see reason to be continued.

[9] There is no logical connection between the first and the second Ebner steps referred to. The first step is a matter of fact; errors on my part were identified in the Full Bench decision and corrected. As regards to the illusory link with the second Ebner limb, an objective observer would no doubt recall the advice already given to Mr Thorpe, that the proceedings of this tribunal proceed in accordance with the evidence:

“[37] In addition just as the ordinary fair-minded lay observer understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge, the same understanding is to be garnered in relation to the Commissioner’s arbitral powers in deciding the question remitted to him by the Full Bench. The fair-minded lay observer would recognise that a professional judge or a Member of the Commission would be capable of departing from an earlier expressed opinion or finding, particularly when an appellate body has pointed out that the earlier finding is not supported by the evidence. Reading the Jurisdictional Decision as a whole we do not consider it is accurate to suggest, as the Appellant does, that the Commissioner’s finding shows a willingness to make the small business finding in favour of the Respondent without evidence. There was some evidence, but it was insufficient to ground the finding made. A fair-minded lay observer will also understand that a decision maker will sometimes make a mistake and when that mistake is pointed out by an appellant body, that the decision maker will act diligently in not repeating the mistake.” 7

[10] Bronze Hospitality’s application that I no longer deal with the matter for reason of apprehended bias is refused.

REDETERMINATION - JURISDICTIONAL OBJECTIONS

[11] After refusal of Bronze Hospitality’s second application of apprehended bias, the hearing on 27 May 2019 progressed to deal with the matter of the company’s jurisdictional objection, after which my decision on the matter was reserved.

[12] Bronze Hospitality’s objection about the continuation of Ms Hansson’s application is twofold; that at the time of her termination of employment she had not served the minimum employment period and that it was also, at the time of her dismissal, a small business within the meaning of the Act.

[13] An order of the Full Bench requiring a member to redetermine a matter requires the member to determine the matter again; and the scope of any redetermination is to be assessed by reference to the source of power that supports the decision the subject of the redetermination. 8 In such a process the proper course of the redetermining member is to consider the evidence already adduced in the first instance proceeding as evidentiary material in the redetermination, and to allow each of the parties to adduce such supplementary evidentiary material as is relevant to one or more of the matters involved in the relevant source of power.9

[14] It is appropriate to deal first with the matter of Bronze Hospitality’s status as a small business, since the determination of that matter will establish the length of the applicable minimum employment period.

Is Bronze Hospitality a small business employer?

[15] The Act provides in s.23 that a person is a small business employer at a particular time if it employs fewer than 15 employees at that time. For the purposes of calculating the number of employees, a casual employee is not to be counted unless, at the time, the person ‘has been employed by the employer on a regular and systematic basis’ (s.23(2)(b)).

[16] In Bronze Hospitality’s written submissions on its jurisdictional objection, the company stated that it had 11 employees employed at the time when Ms Hansson was dismissed. The same material records that Ms Hansson’s employment status at the time of her dismissal was “full-time”. In that regard she is one of 10 employees indicated as having a full-time employment status, with there being one employee indicated with a casual status but whom Bronze Hospitality concedes should be counted for the purpose of s.23 of the Act. 10 The record filed by Bronze Hospitality shows the following 11 employees:11

    No.

    Name of employee

    Employee status at the time of the applicant’s dismissal (i.e. full-time or casuals employed on a regular and systematic basis).

    1.

    Janell Hansson

    Full-time

    2.

    Adam Crocker

    Full-time

    3.

    Calum Stirling

    Full-time

    4.

    Corey McAllan

    Full-time

    5.

    Danny Hoyes

    Full-time

    6.

    Deborah Stano

    Full-time

    7.

    Emma Paton

    Casual

    8.

    Georgia Dyball

    Full-time

    9.

    Melissa Kim Trish Timoti

    Full-time

    10.

    Parahamu Tahu

    Full-time

    11.

    Robert Deegan

    Full-time

[17] Rather than there being 11 people employed at the time she was dismissed, Ms Hansson contends that in fact there were 15 employees who worked on a regular and systematic basis and are to be counted for the purposes of assessment of whether or not the company is a small business. In this regard Ms Hansson argued that “timesheets prior to my termination will show the casual staff I have added were rostered for shifts on a weekly basis”. 12 In particular, she contended that in addition to the 11 people indicated above, that Nima Bomjan,13 Anthony Makdessi, Amy Rodgers and Lara Treacy should also be included in the count with her also saying “I worked regularly with the entire list of 15 employees. Casual staff were required most Tuesdays, Thursdays and Saturdays”.14

[18] Bronze Hospitality submits that the reason that these four other casual employees are not included in this calculation is because they “worked for short periods of time – all less than twelve months and some for only a few months or even a few days”. 15 Additionally, Bronze Hospitality submit about these casual employees that “their shift durations, days off and start and finish times were irregular”16 and that “seven have since ceased working for the Respondent of their own volition”, noting that the submission is dated 15 August 2018.17

[19] In May 2019, Ms Hansson sought and was granted an Order for Production of Documents by the Respondent, Bronze Hospitality Pty Ltd, that it produce “Timesheets for all employees of Bronze Hospitality for a period of no less than 6 months prior to 7 June 2018”. As a result of the Order, the company provided summary sheets for 58 named persons and timesheets for 45 18 employees starting with the pay period commencing on 11 December 2017 and ending with the pay period commencing on 28 May 2018 (ending on 10 June 2018) (referred to from this point as the Timesheet Records).

[20] In the course of the hearing on 27 May 2019, the Timesheet Records were included as part of the evidence to be relied upon by Ms Hansson in the redetermination of Bronze Hospitality’s jurisdictional objections. 19 While included as part of the evidence, neither party sought to identify to the Commission those records within the bundle that should be relied upon or not relied upon for the purposes of the assessment of whether Bronze Hospitality is or is not a small business employer for the purposes of the Act.

[21] As recorded above, Bronze Hospitality’s initial objections in the matter showed 11 employees employed at the time of Ms Hansson’s dismissal, 10 of whom were engaged on a full-time basis. That number includes Ms Hansson. The Timesheet Records verify that each of the other nine full-time employees who worked full-time are to be counted towards the number of employees of the company.

[22] As indicated previously only one of the 11 employees employed at the time of Ms Hansson’s dismissal, Emma Paton, was identified by Bronze Hospitality as being employed on a casual basis. Bronze Hospitality concedes that Ms Paton’s employment was regular and systematic and should be counted towards the number of employees of the company. 20 An assessment of the Timesheet Records supports that concession.  

[23] The same material also shows that Ms Hansson was working full-time on the date that she was dismissed. It is noted that a separate analysis needs to be conducted in relation to whether as a casual employee she also had a reasonable expectation of continuing employment by Bronze Hospitality on a regular and systematic basis, being a finding required under s.384(2)(a)(ii) of the Act in order to include her casual employment in assessment of her employment period. That assessment is dealt with later in this decision.

[24] Accordingly, the finding may be made that Bronze Hospitality employed at least 11 people at the time Ms Hansson was dismissed. Remaining to be tested are Ms Hansson’s contentions that the Respondent employed at least 15 people either because of the working patterns of people employed as casual employees or because of employees that require counting because of associated entity relationships between Bronze Hospitality and other entities.

[25] Throughout these proceedings Ms Hansson has contended that the business and ownership arrangements of Bronze Hospitality are such that employees of other entities associated with or operated by the company or Mr Thorpe should be included in consideration of the number of employees. However, after consideration of what she has brought forward on the subject, it may be seen that Ms Hansson’s contentions on this matter are not much more than a supposition that since the Respondent or Mr Thorpe are connected with entities or business people operating other businesses, that they were connected with Bronze Hospitality in the requisite manner and their employees should be counted for the purposes of whether the Respondent is a small business employer.

[26] The question of whether there are associated entities not only requires a precise identification of the entities in question, but also a finding that the circumstances provided for within s.50AAA of the Corporations Act 2001 (Cth) have been met.

[27] Ms Hansson’s submissions and evidence on the subject is limited, however includes that Bronze Hospitality is trading as part of the company Strzelecki Holdings:

“Strzelecki Group Hospitality Arm which incorporated the Harbour Terrace Bar & Grill which is also associated with Bronze Hospitality & Norfolk Hobbs. I have been unable to find any further details for Bronze Hospitality that isn’t associated with Strzeleki Holdings.

As part of the Strzelecki Holdings view to improving and developing exciting tourist businesses in WA, it operates a number of hospitality businesses, including their latest franchise concept, Seafood Nation. With venues located around the Perth and Mandurah regions, plus work on exciting growth opportunities in other regions. Strzelecki Holdings is well placed to deliver exciting restaurants and cafes, aimed at both locals and tourists. Currently, the following restaurants and safes are operated by the group:

Cucina Italia

Oceanic Bar + Grill

Two40Three Bar & Grill

Coventry Seafood Bar & Grill

The Harbour Terrace Bar & Grill

Kaldi Café

Seafood Nation

Coventry Seafoods

The directors for Strzelecki Group consist of:

Greg Poland Husband

Jennifer Poland Wife

Jay Poland Son

Katie Poland Daughter

Katie Poland is the director of Bronze Hospitality, the Harbour Terrace & Norfold Hobbs. The business address for these companies for contact is 83 – 85 Stirling Highway Nedlands Was 6009 PH [number removed]. This address is used by all Strzelecki Company’s

Strzelecki Company’s include:

Sorrento Quay

Dolphin Quay

The Moorings

Oceanic Retreat

North Port Quay

Coventry Village

Coventry Seafoods

The Strzelecki Group employs over 170 people with an annual turnover of $34.5.

I Have attached the relevant information to the above. I have also added to the list of employees at the Harbour Terrace again with an email from David Walters listing himself as the operations manager not as an adviser as he stated. David Walters if also operations manager Oceanic Bar & Grill, Coventry’s, The Harbour Terrace and 243 Bar & Grilland which are all part of Strzelecki Holdings…” 21

(underlining removed)

[28] Ms Hansson has also provided a number of ASIC extracts in relation of each of the entities referred to in her submissions. Oral submissions were also made by Ms Hansson in the hearing on 27 May 2019 to the effect that Mr Thorpe uses a “Strzelecki” email address as do all employees and that the address for each of these organisations is registered as the same Strzelecki Group address. 22

[29] Ms Hansson expanded upon these submissions in the 27 May 2019 hearing (extracted as relevant):

“… I also have provided evidence in relation to the possibility of Bronze Hospitality being part of a larger corporation and possibly being part of associated entity which is Strzelecki Holdings, as they hold many other hospitality companies under their banner.

According to their website the Strzelecki Group employs over 170 people with an annual turnover of 34.5 and I'm assuming including as their company - the Strzelecki company includes Sorrento Quay, Dolphin Quay, The Moorings, Oceanic Retreat, North Port, Coventry Village and Coventry Seafoods, and it also includes The Harbour Terrace, Two40Three Bar & Grill, Oceanic Bar, Kaldi Café, Seafood Nation, I'm assuming that's where they must be calling the number of employees from.  And I also state that all of these companies themselves also have addresses at the same address as Strzelecki Holdings.

I'd also like to point out as well that Andrew himself has as his email using the Strzelecki email address.  So I'm not sure how the Commission stands on associated entities as such.  I'm sure it's not like a McDonald's.  I can't claim it's that because McDonald's is one company.  However I do believe associated entities being all at the one address and all employees using the same email address, I do believe at some point the control from what I've read and learnt, that I do believe Greg Strzelecki himself - or, sorry, Greg Poland himself does have control over all these businesses in some sense.

So even though there may be directors, he initially as the CEO of Strzelecki Holdings would at some point be I guess the lead in what happens with all these other companies that are under the Strzelecki Holdings Group.  These are on their website.  It was - I mentioned there as well and I did provide evidence in relation to this.  All their contact phone numbers are the same, all their addresses are the same, and I believe unless each business themselves has a separate office they are basically under the Strzelecki Holdings Group.

Again I'm not a lawyer and I don't have the knowledge, the law knowledge behind me but this was the only evidence I could provide relating to the associated entity.  And also in relation as well to the employees provided, there were a couple of employees on the list that I know were seen to - that were provided to the Harbour Terrace, and again I understand that that list is a timesheet list.  I still at this point don't feel strongly enough to believe that is a full employment list of Bronze Hospitality as I feel they may be employing other staff to maybe Oceanic Bar + Grill, Two40Three Bar & Grill.

    …

    I couldn't contact them to get an employee to work for my company, so I'm just wondering how that makes them not part of the Strzelecki Group and why are all the directors and even the secretary using Strzelecki as their email address?  So I just believe that they are an associated entity with the Strzelecki Holdings Group and that Greg Poland himself does make a final decision, because Andrew Thorpe himself used to be the legal representative for Strzelecki Group before becoming director of Bronze Hospitality.  And, yes, I don't know exactly what you do - well, I would like you to decide in my favour that they're an associated entity and those 170 employees are included as well as Bronze Hospitality.  So whether or not they are included I don't know, but that's why I could only provide the information that I've been able to get online.” 23

[30] Alternatively, Mr Thorpe’s evidence is that Bronze Hospitality is a stand-alone corporation with two directors and one shareholder; 24 with Strzelecki Holdings being a separate entity with no employees;25 and that while there may be a number of businesses and companies, they are unrelated to Bronze Hospitality and certainly unrelated in the sense that is set out in s.50AAA of the Corporations Act.26 In the hearing on 7 September 2018 the following exchange occurred in relation to Bronze Hospitality and how it is run:

“THE COMMISSIONER:  All right.  I thought that was what was being put but I just wasn't quite sure, so I thought I should clarify that.  Maybe if you can just take me, please, through how The Harbour Terrace restaurant runs and its connection, if any, with any of the other businesses with which you're connected.

MS HANSSON:  Yes, so in relation to what you're saying with the connected businesses, I'm only saying they must be connected businesses because we have managers that swap over; that go from Coventry Bar & Grill to The Harbour Terrace Bar & Grill.  Initially there was a manager that had been reprimanded for an incident at work.  She was then transferred from where she was at The Harbour Terrace as a venue manager to the other pub in Morley.  It swaps them around.

We had one manager come from one and then she got over to the other, so I'm assuming there must be some kind of connection between the two businesses.

THE COMMISSIONER:  All right.  Ms Hansson, I did try and fish that from you previously, but thank you for giving that to me.  Now, what I'm going to do is turn back to Mr Thorpe and pose that question again, which is from your perspective what is the connection, if any, between Bronze Hospitality and any of the other businesses in your group?

MR THORPE:  Well, there is no connection.  The founding director of Bronze Hospitality is a director of some other companies, but those other companies don't have any dealings with Bronze Hospitality.  Bronze Hospitality is effectively a corporation that provides employees - provides staff to The Harbour Terrace.

THE COMMISSIONER:  I see.  All right.  Let me just write that down.  I take it from that that The Harbour Terrace then is part of another entity?

MR THORPE:  The Harbour Terrace is, as Ms Hansson said, a business run by a company called Norfolk Hobbs.  The operating director of that is the same director - founding director - of Bronze Hospitality; that is Katie Poland.

THE COMMISSIONER:  Right.

MR THORPE:  But The Harbour Terrace itself doesn't have any employees.

MS HANSSON:  She is also the director of the Strzelecki Group, her father's company.

THE COMMISSIONER:  All right.  We will come to you in a moment, Ms Hansson.  So Norfolk Hobbs you say has no employees, Mr Thorpe?

MR THORPE:  Correct.

THE COMMISSIONER:  All right.  Your core submission is that simply there is no connection between these various entities other than the ownership?

MR THORPE:  Yes.” 27

[31] Through his cross-examination of Ms Hansson on 27 May 2019, Mr Thorpe highlighted that some of the connections she put forward were assumptions on her part, rather than matters of firm knowledge:

“All right. You've said that Greg Poland's wife is Jennifer Poland. Why do you say that?---We weren't sure if it was the wife and I do apologise if it's not the wife it's just according to the way the documents were, we had Greg Poland, Jennifer Poland. I did know Jay Poland was Katie's brother because I met him on a couple of occasions at The Harbour Terrace, and I just - I had never heard of a Jennifer Poland so I just - and I'll be honest I did assume it was Greg Poland's wife. It may not be, it may be another daughter.

So it's just an assumption?---Yes. Sorry, yes, it was.” 28

[32] Section 50AAA of the Corporations Act 2001 (Cth) provides:

“Associated entities

(1)  One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

(2)  This subsection is satisfied if the associate and the principal are related bodies corporate.

(3)  This subsection is satisfied if the principal controls the associate.

(4)  This subsection is satisfied if:

(a)  the associate controls the principal; and

(b)  the operations, resources or affairs of the principal are material to the associate.

(5)  This subsection is satisfied if:

(a)  the associate has a qualifying investment (see subsection (8)) in the principal; and

(b)  the associate has significant influence over the principal; and

(c)  the interest is material to the associate.

(6)  This subsection is satisfied if:

(a)  the principal has a qualifying investment (see subsection (8)) in the associate; and

(b)  the principal has significant influence over the associate; and

(c)  the interest is material to the principal.

(7)  This subsection is satisfied if:

(a)  an entity (the third entity) controls both the principal and the associate; and

(b)  the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8)  For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

(a)  has an asset that is an investment in the second entity; or

(b)  has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”

[33] Bronze Hospitality, through Mr Thorpe, argued that the other businesses, people and entities referred to by Ms Hansson were simply not connected to the requisite level for there to be a determination that they were associated entities for the purposes of this matter. Ms Hansson did not provide cogent evidence about there being other potential associated entities that require inclusion in my consideration. Having said that, I am concerned about some of the material provided by Bronze Hospitality in its Timesheet Records. As explained earlier, the documents include a summary document for each fortnight reporting the rostered hours and costs for each person as well as the actual worked hours and cost, together with a variation analysis. The problem within these documents is that there are at least 11 names on the summary documents for which timesheets have not been provided for some or all of the pay cycles in the six months preceding Ms Hansson’s dismissal. There is no explanation before the Commission about who these people are, or what their connection may be with the company ordered to return the documents, Bronze Hospitality Pty Ltd. Several possibilities emerge about the engagement status of those people, including that they may in fact be employed by Bronze Hospitality. It is also entirely possible that if the people are engaged by some other entity that such could either be an associated entity or not.

[34] Mr Thorpe argued that his company “is effectively a corporation that provides employees - provides staff to The Harbour Terrace”, however, of itself, that does not explain why the business records provided encompass names not included in the timesheet data. The reports were each generated in 2019 for dates in 2017 and 2018 and there is no explanation to the effect that, having been provided in response to a precisely framed order, that the names do not have connection with the material ordered for production. As set out below in greater detail, one of the possibilities for these additional names is that they are employed by entities connected with Bronze Hospitality in some way, including in the manner speculated Ms Hansson. If that is the case, and I make no findings on the subject, it may be that an associated entity arrangement could be found.

[35] Despite the uncertainty about these additional names, their employment status and their employer’s connection with Bronze Hospitality Pty Ltd, I am unable on the basis of the evidence before me to either identify the precise entity or entities to which Ms Hansson refers and have no evidence of a sufficient nature either about their employment or the factors of control, relationship, investment or influence. As a result, Ms Hansson’s arguments on the subject fail and require no further consideration.

[36] Consideration of the matter therefore turns on the number of people employed by Bronze Hospitality at the time of Ms Hansson’s dismissal, being 7 June 2018. A casual employee is not to be included in the count unless, at the time, the person ‘has been employed by the employer on a regular and systematic basis’ (s.23(2)(b)).

[37] The ascertainment of whether there was a regular and systematic basis to employment was considered in Yaraka Holdings Pty Limited v Giljevic:

“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 3rd edn, 2001).” 29

[38] Yaraka also held that it is the engagement of a casual employee that must be regular and systematic, not the hours worked pursuant to such engagement; that the term ‘regularly’ should be construed liberally, and that ‘systematic’ does not mean predictable. 30 While so, “it is important to note that the Court did not say or suggest that the hours of work are analytically unimportant. Clearly, the days on which a person works and the hours worked on those days are relevant to the consideration of whether casual employment is regular and systematic, and whether, for the purposes of s.384(2) the person has a reasonable expectation of ongoing employment”.31 Further, “[t]here is no minimum period for which persons must have been employed on a regular and systematic basis in order to ‘count’ for the purposes of s.23. All the circumstances must be taken into account.”32

[39] As set out above, Ms Hansson contends that four people not included in the Respondent’s 15 August 2018 list of people employed at the time she was dismissed require inclusion, since they “were rostered for shifts on a weekly basis” 33 and she “worked regularly with the entire list of 15 employees. Casual staff were required most Tuesdays, Thursdays and Saturdays”.34

[40] Perusal of the Timesheet Records show that at least a further 5 people may require consideration for inclusion in the count beyond the four referred to by Ms Hansson.

[41] It is to be recalled that the Timesheet Records span 13 fortnights between 11 December 2017 and 10 June 2018. The records comprise two parts:

● A rostering summary sheet reporting the rostered hours and costs for each person as well as the actual worked hours and costs for each person, together with a variation analysis; and

● Detailed time-keeping records for some, but not all persons identified as having worked in the rostering summary sheet.

[42] The rostering summary sheets include significantly more names than included in the time-keeping records.

[43] With one exception a rostering summary sheet is provided for all the 13 fortnights referred to, with the exception being the fortnight of 28 May to 10 June 2018. Even so, a rostering summary sheet for that fortnight is in the evidence before the Commission, having been filed on 15 August 2018, with Bronze Hospitality’s initial submissions dealing with its jurisdictional objection. That summary is in a different format to those within the Timesheet Records and does not include the names of people in addition to the detailed time-keeping records.

[44] The Bronze Hospitality Accountant, Ms Connellan, gave evidence in the September 2018 proceedings, and provided a “list of all persons who worked for the company in the period May 28 to June 10, 2018.” 35 That list included the names of 24 people which Ms Connellan separated into those working full-time and those working as casual employees. She also identified on the list seven people who she said were “former staff no longer working” with the dates of their last shifts written on the document as well. The end dates of all but one of these employees are after Ms Hansson’s termination of employment. In respect of Anthony Makdessi, referred to in greater detail below, Ms Connellan notes that his last shift was on 19 July 2018.36

[45] Mr Thorpe, who also gave evidence in the September 2018 proceedings submitted he accepted the first 11 people on Ms Hansson’s list as being employees to be counted for the purposes of s.23 of the Act, but that he contested whether the remaining four, being casual employees, were regularly or systematically employed. 37

[46] As indicated, examination of the Timesheet Records shows there were documents returned for 45 employees of whom perhaps nine have some basis of consideration as being casual employees “employed by the employer on a regular and systematic basis”. Four of those nine are the people identified by Ms Hansson as requiring inclusion in the count of employees, with Mr Thorpe contesting as not having regular and systematic employment as casual employees. There are a further five employees requiring consideration in addition to those identified by Ms Hansson:

•  Nima Bomjan

•  This employee first worked for Bronze Hospitality on 24 February 2018 according to the timesheets provided 38; thereafter they worked every Saturday and Sunday for the periods for which timesheets were provided in response to the Order. The person was rostered for 32 shifts in the 8 fortnights in which they worked, working an average of 33 hours per fortnight. The number of hours worked by the employee on Saturdays fluctuated, with the lowest being 6.7 hours and the highest 11.1 hours. The number of hours the employee worked on Sundays also fluctuated, with the lowest number of hours being 6.3 the highest 10.7. This employee was rostered for an average of more than 3 shifts per fortnight over which she worked an average of about 33 hours per fortnight.

•  This person’s engagement was plainly regular and systematic at the time of Ms Hanson’s dismissal. The circumstances in which they were engaged every Saturday and Sunday between 24 February 2018 and 10 June 2018, for more than six hours on every occasion, is also plainly regular and systematic.

•  I am satisfied that at the time of Ms Hansson’s termination of employment that this employee, even though a casual employee, had been employed by the Bronze Hospitality on a regular and systematic basis, and is therefore to be counted towards assessment of whether or not the company is a small business employer.

•  Anthony Makdessi

•  This person was employed for an aggregate 74 shifts and worked in 11 of the 13 fortnights for which timesheets were provided in response to the Commission’s Order. In two of the fortnights he worked no hours at all but in all other fortnights he was rostered for work, with the number of engagements ranging between 1, in the case of one particular fortnight and 10, in the case of two fortnights.

•  This person’s engagement was plainly regular and systematic at the time Ms Hansson was dismissed.

•  Noting that systematic does not mean predictable, his engagements were nonetheless systematic, with him obviously being heavily relied upon for the performance of work. From the start of May 2018 he was engaged for not less than 30 hours in every fortnight.

•  The shortest shifts he worked were for around 2 to 3 hours; typically though he worked for more than six hours on each occasion and in some cases for more than ten.

•  He worked on around half the available Fridays in the whole period and more than one in three Tuesdays, Thursdays and Sundays. There was not a day of the week in the period in which he did not work for at least some time. More specifically in the total 26 week period he worked 14 Fridays, 13 Thursdays and Saturdays and 12 Tuesdays and 11 Sundays. He also worked on 6 Mondays. It was only in the fortnights of 19 March – 1 April and 16 – 29 April 2018 that this person was not rostered for any shifts at all. Relevantly, he worked on Saturday 17 March 2018, then again on a single shift on Saturday 7 April, and then performed no work until Saturday, 6 May 2018.

•  After that date until the end of the periods for which time sheets have been provided, he worked a further 18 shifts, as follows:

1. Monday, 7 May 2018;

2. Tuesday, 9 May 2018;

3. Sunday, 13 May 2018;

4. Tuesday, 15 May 2018;

5. Monday, 21 May 2018;

6. Tuesday, 22 May 2018;

7. Wednesday, 23 May 2018;

8. Thursday, 24 May 2018;

9. Friday, 25 May 2018;

10. Monday, 28 May 2018;

11. Tuesday, 29 May 2018;

12. Wednesday, 30 May 2018;

13. Thursday, 31 May 2018;

    14. Saturday, 2 July 2018

15. Tuesday, 5 June 2018;

16. Friday, 8 June 2018;

17. Saturday, 9 June 2018; and

18. Sunday, 10 June 2018 39

•  Over the entire period, including the fortnights without work, the employee was rostered for an average of more than 5 shifts per fortnight over which he worked an average of more than 36 hours.

•  Ms Connellan’s evidence is that this person’s employment ended on 19 July 2018, more than a month after the end of Ms Hansson’s employment. 40

•  I am satisfied that at the time of Ms Hansson’s termination of employment that this employee, even though a casual employee, had been employed by the Bronze Hospitality on a regular and systematic basis, and is therefore to be counted towards assessment of whether or not the company is a small business employer.

•  Amy Rogers

•  This person was employed for an aggregate 100 shifts and worked in all of the 13 fortnights within the Timesheet Records.

•  In total she worked 20 Fridays, 18 Thursdays, 15 Tuesdays, 14 Saturdays and Sundays, 11 Wednesdays and 8 Mondays. The number of rostered shifts in a fortnight varied between 2 in one fortnight and 10 and 11 in two other fortnights. She was rostered for an average of more than 7 shifts per fortnight over which she worked an average of 41 hours, working for more than 5 hours on average.

•  This person’s engagement was plainly regular and systematic at the time that Ms Hansson was dismissed. In the whole period covered by the Timesheet Records there was only one fortnight in which she was called upon to work less than six shifts per fortnight or less than 28 hours. Typically she worked for at least six, seven or eight shifts per fortnight and on two occasions 10 and 11 shifts.

•  While the hours she worked each shift were unpredictable, on most occasions she worked at least four hours per engagement, although there were some shorter engagements. There was plainly a system of sorts to her engagement, with her working more than three quarters of the Fridays in the Timesheet period and more than one in every two Tuesdays, Saturdays and Sundays.

•  I am satisfied that at the time of Ms Hansson’s termination of employment that this employee, even though a casual employee, had been employed by Bronze Hospitality on a regular and systematic basis, and is therefore to be counted towards assessment of whether or not the company is a small business employer.

•  Lara Treacy

•  Having first started work in the fortnight commencing 2 March 2018, this person was employed for an aggregate 67 shifts and worked in all 8 of the fortnights within the Timesheet Records after that date.

•  This employees engagements were plainly regular and systematic. In the five fortnights from the start of April 2018 she worked either 9, 10 or 11 shifts per fortnight. While the number of worked hours varied, in the 16 week period from the first engagement, this employee worked 13 Fridays, 11 Saturdays and Sundays, 10 Tuesdays, 8 Thursdays and 7 Mondays and Wednesdays. The number of rostered shifts in a fortnight varied between 2 in one fortnight and 10 and 11 in four other fortnights. She was rostered for an average of more than 8 shifts per fortnight in the period since the fortnight commencing 5 March 2018, over which she worked an average of more than 44 hours per fortnight.

•  I am satisfied that at the time of Ms Hansson’s termination of employment that this employee, even though a casual employee, had been employed by the Bronze Hospitality on a regular and systematic basis, and is therefore to be counted towards assessment of whether or not the company is a small business employer.

[47] In relation to the other five employees:

•  Chris Moses

•  This person was employed for an aggregate of 54 shifts and worked in all but one of the 13 fortnights for which timesheets were provided in response to the Commission’s order.

•  In the total 26 week period this employee worked 13 Fridays, 11 Saturdays, 8 Wednesdays and Sundays and 5 Tuesdays and 4 Mondays. The number of rostered shifts in a fortnight varied between as low as 1 in one fortnight and 2 in two others, and as high as 8 in one fortnight and 9 in two fortnights and 8 in one fortnight. He was rostered for an average of around 4 shifts per fortnight over which he worked an average of more than 25 hours.

•  This person’s engagement was regular and systematic at the time of Ms Hansson was dismissed, with the regularity of his work being such that it is apparent there is a system to his rostering, being that predictably he would be called upon to work for a time on at least one Friday or Saturday within the fortnight, with there also being rostering on other days as well.

•  I am satisfied that at the time of Ms Hansson’s termination of employment that this employee, even though a casual employee, had been employed by Bronze Hospitality on a regular and systematic basis, and is therefore to be counted towards assessment of whether or not the company is a small business employer.

•  Jacqueline Harris

•  This person was employed for an aggregate of 61 shifts and worked in all of the 13 fortnights for which timesheets were provided in response to the Commission’s order.

•  In the total 26 week period this employee worked 18 Fridays, 13 Thursdays, 10 Saturdays, 9 Tuesdays, 6 Wednesdays and 5 Sundays. The number of rostered shifts in a fortnight varied between 2 in two fortnights and 8 in one fortnight. She was rostered for an average of more than 3 shifts per fortnight over which she worked an average of more than 15 hours.

•  I am satisfied that there was a regularity as well as a system to the engagement of this person at the time of Ms Hansson’s dismissal. Foreseeably she would be engaged on a least one Friday in the fortnight as well as being called into work other shifts as well. While her rostering on other days may not be predictable, there is plainly, from the material submitted, both regularity of engagement as well as a level of system to those engagements.

•  I am satisfied that at the time of Ms Hansson’s termination of employment that this employee, even though a casual employee, had been employed by Bronze Hospitality on a regular and systematic basis, and is therefore to be counted towards assessment of whether or not the company is a small business employer.

•  Caleb Lawes

•  This person was employed for an aggregate of 47 shifts and worked in the 10 fortnights from 8 January 2018 to 27 May 2018. This person’s time sheets for the week of 28 May 2018 to 10 June 2018 were not provided in the material filed on 21 May 2019, nor does it appear in the summary document filed with Ms Connellan’s evidence on 15 April 2019.

•  In the total 20 week period this employee worked 12 Thursdays, 9 Fridays, 8 Tuesdays, 6 Wednesdays, 5 Mondays, 4 Sundays and 3 Saturdays. The number of rostered shifts in a fortnight varied between 1 in one fortnight and 8 in one fortnight. He was rostered for an average of more than 3 shifts per fortnight over which she worked an average of more than 15 hours.

•  While considering this person’s employment for inclusion since overall there was regularity as well as some level of system to the engagements, overall it would not be appropriate to find that he was a casual employee regularly and systematically employed at the time of Ms Hansson’s dismissal. In particular, his hours of work in each fortnight had reduced in the penultimate fortnight of the period and in the last fortnight it appears he did not work at all.

•  Shannon Dixon

•  This person worked all fortnights up and until Thursday, 3 May 2018 working an average of over 25 hours per week on an average of more than 3 shifts per week.

•  With few exceptions this employee worked most Tuesdays, as well as many Thursdays and Saturdays. In the overall period shown in the Timesheet Records, he worked 20 Tuesdays and 14 Thursdays. However, he also worked no shifts in the last two fortnights, 14 – 27 May and 28 May – 10 June 2018. As a result, I do not find his employment as a casual employee at the time of Ms Hansson's dismissal was regular and systematic.

•  Wayne Boatwright

•  This employee worked in all fortnights until 19 April 2018, working an average of more than 22 hours per week over an average of more than 2 shifts per week. In this 20 week period this employee worked 17 Thursdays and 16 Wednesday and Sundays.

•  While considering this person’s employment for inclusion since overall there was regularity as well as some level of system to the engagements, overall it would not be appropriate to find that he was, a casual employee regularly and systematically employed at the time of Ms Hansson’s dismissal given he did not work the last three fortnights within the periods under examination.

[48] The material provided as part of the Timesheet Records generally, as explained above, consists of two parts; a summary document reporting the rostered hours and costs for each person as well as the actual worked hours and cost for each person, together with a variation analysis. Further there is then for many, but by no means all of the names on the first list, an elaboration of the actual times that each person worked. Evident from this material is that there are a significant number of names on the first document for which timesheets have not been provided. Mr Thorpe has not chosen to explain what the difference between the two documents may be, or even if the difference means anything at all.

[49] There are 11 names shown on the summary document for which timesheets have not been provided. The significance of this is that some of the names are identified as earning large amounts throughout the period represented by the Timesheet Records. In particular, Hamish Laird is reported in 12 of the 13 of the Summary Reports, each time earning were between $1,194 and $2,500 per fortnight and working between 42.98 and 102.17 hours per fortnight. It is noted that Ms Hansson’s evidence is that it was Mr Laird who provided her with her full-time employment contract. 41 Jazlyn Kendall is reported in 11 of the 13 Summary Reports, each time earning between $942 and $2,032; Luke Eley is reported in 12 of the 13 Summary Reports, each time earning between $2,022 and $3,077; Keith O’Grady Pitt is reported in 7 of the 13 Summary Reports, each time earning between $228 and $2,577; and David Morgan is reported in 9 of the 13 Summary Reports, each time earning between $797 and $1,621.

[50] Several possibilities emerge as to the status of these people. They may well be employees of Bronze Hospitality, in which case they would need to be counted for the purposes of s.23 of the Act. In the alternative, it might be that these people are employees of another company sufficiently connected with the business of the Harbour Terrace and therefore lead to a reconsideration of the submissions put by Ms Hansson regarding associated entities. Alternatively, they may be employees of some other firm completely unrelated to Bronze Hospitality. It is to be noted in this regard that the Summary Reports are stated as having been generated on 17 April 2019 and the detailed Timesheet Reports generated on 24 May 2019. It is likely then the reports were generated for the specific purpose of the Commission’s Order, rather than merely being a photocopy of a report generated in 2017 or 2018.

[51] While these and other possibilities may exist, there is a paucity of evidence on each and I draw no conclusions other than to comment that it would appear to be an interesting, if not unusual, circumstance in which a response to an order for the production of timesheets by one company includes material from another company completely unrelated to the things which are the subject of the order.

[52] The result of the foregoing analysis is that a finding must be made that at the relevant time Bronze Hospitality employed not less than 17 employees; 11 of whom were agreed by the Respondent for inclusion in the count; 4 identified by Ms Hansson as requiring inclusion, and 2 identified from analysis of the Timesheet Records. Accordingly, my finding is that at the time Ms Hansson was dismissed, Bronze Hospitality was not a small business employer and the relevant minimum employment period was 6 months.

Has Ms Hansson completed the minimum employment period?

[53] Ms Hansson first worked for Bronze Hospitality on 28 November 2017 and she last worked for the company when she was dismissed on 7 June 2018. Ms Hansson’s initial engagements were as a casual employee with her working in that capacity until on or around 21 January 2018, after which she became a full-time employee with that term commencing on 22 January 2018, although the Timesheet Records provided to the Commission show that the last occasion on which Ms Hansson worked as a casual employee was Saturday, 20 January 2018, and the first occasion on which she worked as a full-time employee was on 24 January 2018.

[54] Having determined that the minimum employment period and Ms Hansson’s case is a period of six months, it is necessary to consider whether any of her service as a casual employee may be taken into account in assessment of her employment period.

[55] A person is protected from unfair dismissal if they meet the following criteria, set out in s.382 of the Act:

“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 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.”

[1] The definition ascribed to the minimum employment period is provided in s.383:

“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.”

[1] Relevant to this decision, and the Respondent’s assertion that Ms Hansson’s period of service as a casual employee should not count towards her period of employment with Bronze Hospitality, are the terms of s.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

(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.”

[1] Determination of the matters within s.386 requires an examination of the basis of a person’s employment, with it being accepted that “[i]t 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”. 42 Further:

“[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:

•  The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and

•  Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.

[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis.” 43

[2] The ascertainment of whether there was regular and systematic employment was considered in Yaraka, 44 referred to above, and which is not repeated.

[3] The subject of the ascertainment of regular and systematic employment with a reasonable expectation of continuing employment was explained further by the Full Bench in Shortland v Smiths Snackfood Co Ltd, 45 (Shortland) which analysed in careful detail the provisions of the legislation ultimately requiring application. In that matter, the Full Bench acknowledged that within the overall period of employment there may be parts which are unable to be counted toward the minimum period for the reason that they are excluded casual periods. An excluded period will, of course, be a period of casual employment in which the employee does not have BOTH regular and systematic employment AND a reasonable expectation of continuing employment by the employer on a regular and systematic basis. The employee in question had first started working for the Respondent company in July 2006, but had switched to casual employment in 2009. Taking the view that the provisions of s.384 had been misconceived, the Full Bench records the following first instance findings:

“[6] The Commissioner held:

“[32] From the evidence, I have to conclude that from June 2009 the Applicant’s engagement was intermittent until September 2009. During that period, it would have to be described as irregular in terms of weeks and hours of engagement. In terms of a system, there appears to be no evidence on which to say that the employment was systematic.

[33] From September 2009 to January 2010, there was simply no employment of the Applicant.

[34] From 17 June 2009, in my view, the Applicant’s employment was not regular and systematic in accordance with s.384(2)(i) nor had he any reasonable expectation of continuing employment in conformity with s.384(2)(ii). Consequently, at the time of his dismissal, the Applicant was not protected from unfair dismissal.””

[4] After recording that the relevant requirement for jurisdiction is whether the minimum employment period has been completed and that in the case in question the period was 6 months, considered the different terms employed within s.384, the Full Bench held as follows:

“[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period.  In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.

[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.

[14] The Commissioner did not find that Mr Shortland’s employment was not continuous and correctly so. Prior to June 2009 Mr Shortland worked almost every week. There were a total of 4 isolated weeks in the period of almost three years prior to June 2009 when Mr Shortland performed no work. Those breaks should not be treated as a discontinuity in Mr Shortland’s employment such that periods of service before them should be discounted. The pattern of work disclosed by the evidence suggests that Mr Shortland’s employment in the period was regular and systematic. On any view, Mr Shortland had a reasonable expectation of continuing employment on a regular and systematic basis. In June 2009 Mr Shortland ceased work as a result of an injury that he claimed was work-related and for which he has now lodged a claim for workers compensation. Smiths has disputed that claim on the basis of causation. Mr Shortland’s absence from work from June 2009 was due to that injury and incapacity.

[15] A letter from Smiths dated 22 September 2009 informed Mr Shortland:

“. . . Please be aware that given you are unable to undertake your full duties, we are unable to roster you for any shifts as a casual packer.

Should a medical practitioner declare you fully fit for work again, please advise us and provide a copy of the certificate so that we are able to roster you for work where required.”

[16] It is clear from subsequent events that Smiths took the view that Mr Shortland was still a casual employee but he was not being allocated work because he was not fully fit for work.

[17] On the evidence before the Commissioner, Mr Shortland had a period of continuous service within the meaning of s.384 that commenced in July 2006 and continued until his employment was terminated by Smiths’ letter of 11 January 2010.

[18] For these reasons we find that the Commissioner erred in finding that the requirement in s.382(a) was not met and that consequently Mr Shortland was not protected from unfair dismissal within the meaning of s.382”.

(references omitted)

[5] What may be drawn from the decided cases, so far as is relevant to this matter, are the following:

•  a casual employee’s period of employment for the purposes of s.384 does not start and end with each common law engagement; 46

•  a person’s continuous employment is broken only when the employer or the employee make it clear to the other that there will be no further engagements; 47

•  the gaps between individual engagements do not necessarily interrupt the employee’s continuous employment; 48

•  a series of contiguous periods of service may count toward a single period of employment; 49

•  contiguous periods of employment will only count toward the person’s period of employment if the conditions within s.384(2)(a)(i) and (ii) are met; 50

•  in such assessment it is the engagement that must be regular and systematic, not the hours and that ‘regularly’ should be construed liberally, and that ‘systematic’ does not mean predictable; 51 however the hours of work are not unanalytically unimportant;52

•  positive evidence of work being offered when the employer knows the employee has generally made themselves available together with it being offered and accepted sufficiently often may not only establish regularity of engagement and a system to employment but also that there was a reasonable expectation of continuing employment. 53

[6] In its decision determining Bronze Hospitality’s appeal in relation to this matter the Full Bench made the following pertinent findings about the operation of the sections:

“[28] It will be recalled that s.384(2)(a) states that 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 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”

[29] 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.’ 54 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.

[30] Secondly, the continuing employment that is to be the object of the reasonable expectation is employment as a casual employee. So much is clear from the reference to ongoing employment on a ‘regular and systematic basis’. However, if an employee has an expectation of future permanent employment, this might be relevant to whether the employee also had an expectation of continuing casual employment pending the commencement of permanent employment.

[31] Thirdly, Bronze submitted that the definition of ‘long term casual employee’ in 
s.12 of the Act affects the meaning of the word ‘casual’ in s.384(2). This is not the case. The expression ‘long term casual employee’ does not appear in s.384. It is relevant instead to requests for flexible working arrangements and parental leave (see ss.65(2)(b)(i) and 67(2)(a)).

[32] Bronze’s principal contention in its third ground of appeal was that it is not possible for a casual employee to work on a regular and systematic basis, or to have or develop a reasonable expectation of continuing employment, after some eight weeks of casual work. We reject this contention. As we have said above in relation to s.23, there is no minimum period of time that is required in order for casual employment to assume a regular and systematic character, nor is any minimum period necessary for an employee to develop a reasonable expectation of continuing employment. This can be simply illustrated by the example of a casual employee who is told on commencement that his or her casual employment will be ongoing, as well as regular and structured in some way, and who is then rostered accordingly.

[33] Where nothing is said about the regularity or system of engagement, or its possible duration, all of the circumstances are to be considered in order to ascertain whether s.384(2) is engaged. Clearly upon a person’s first engagement, without more, one could not speak of regularity or system, and in the very early phase of a casual employment relationship it may be difficult to substantiate that it is either regular or systematic, or that any reasonable expectation exists as to ongoing employment. However, a short period might well be sufficient, depending on the circumstances. The question in the present matter is whether it was reasonably open on the evidence for the Commissioner to conclude that Ms Hansson’s circumstances fell within s.384(2).” 55 (reference in original)

[7] The available material shows the following work undertaken by Ms Hansson over the period she was employed as a casual employee between 27 November 2017 and 21 January 2018: 

    DATE

    START TIME

    FINISH TIME

    1.

    Tuesday, 28 November 2017

    17:00

    20:52

    2.

    Wednesday, 29 November 2017

    17:57

    21:52

    3.

    Thursday, 30 November 2017

    17:56

    22:52

    4.

    Friday, 1 December 2017

    11:58

    17:31

    17:59

    21:08

    5.

    Saturday, 2 December 2017

    11:57

    16:01

    16:58

    23:06

    6.

    Tuesday, 5 December 2017

    11:58

    15:00

    17:28

    21:30

    7.

    Wednesday, 6 December 2017

    10:59

    16:03

    16:56

    23:31

    8.

    Thursday, 7 December 2017

    17:57

    22:43

    9.

    Friday, 8 December 2017

    16:57

    20:02

    10.

    Saturday, 9 December 2017

    18:27

    23:39

    11.

    Tuesday, 12 December 2017

    17:57

    21:29

    12.

    Wednesday, 13 December 2017

    17:25

    22:53

    13.

    Thursday, 14 December 2017

    16:58

    21:34

    21:56

    0:12

    14.

    Friday, 15 December 2017

    12:00

    16:46

    17:11

    21:38

    15.

    Saturday, 16 December 2017

    18:28

    21:48

    22:50

    0:22

    16.

    Sunday, 17 December 2017

    11:00

    17:04

    17.

    Tuesday, 19 December 2017

    17:57

    22:57

    18.

    Thursday, 21 December 2017

    16:57

    23:03

    19.

    Friday, 22 December 2018

    16:57

    22:44

    20.

    Saturday, 23 December 2017

    17:28

    23:54

    21.

    Sunday, 24 December 2017

    10:58

    16:01

    17:00

    23:13

    22.

    Tuesday, 26 December 2017

    17:57

    22:01

    23.

    Wednesday, 27 December 2017

    12:15

    17:14

    17:44

    21:00

    24.

    Thursday, 28 December 2017

    15:55

    23:22

    25.

    Friday, 29 December 2017

    10:30

    15:00

    16:13

    21:10

    21:23

    22:51

    26.

    Sunday, 31 December 2017

    11:00

    16:00

    16:30

    22:41

    22:50

    0:54

    27.

    Monday, 1 January 2018

    10:29

    14:34

    17:33

    19:35

    28.

    Tuesday, 2 January 2018

    17:16

    21:33

    29.

    Wednesday, 3 January 2-018

    17:47

    21:46

    30.

    Thursday, 4 January 2018

    11:00

    16:04

    17:55

    22:19

    31.

    Saturday, 6 January 2018

    12:03

    17:57

    32.

    Sunday, 7 January 2018

    12:07

    16:59

    17:58

    22:32

    33.

    Monday, 8 January 2018

    11:17

    17:27

    34.

    Tuesday, 9 January 2018

    17:30

    22:19

    35.

    Thursday, 11 January 2018

    11:43

    15:31

    16:31

    0:02

    36.

    Friday, 12 January 2018

    17:58

    23:56

    37.

    Saturday, 13 January 2018

    12:14

    17:30

    38.

    Sunday, 14 January 2018

    11:30

    16:30

    39.

    Tuesday, 16 January 2018

    10:55

    17:00

    40.

    Wednesday, 17 January 2018

    16:56

    23:13

    41.

    Thursday, 18 January 2018

    10:28

    16:00

    16:31

    20:48

    42.

    Friday, 19 January 2018

    16:16

    21:37

    21:57

    0:29

    43.

    Saturday, 20 January 2018

    11:23

    16:30

    17:09

    19:13

    44.

    Wednesday, 24 January 2018

    10:29

    14:05

    15:05

    21:29

    45.

    Thursday, 25 January 2018

    10:03

    15:58

    17:29

    22:23

    46.

    Friday, 26 January 2018

    10:56

    16:05

    17:55

    19:31 56

[8] There is no evidence before the Commission that would lead to a finding that any breaks in her period of casual employment are to be treated as breaking her continuous service. Noting that Ms Hansson’s engagement as a casual employee was until on or around 21 January 2018, it is evident from the foregoing that in the period in which she was engaged as a causal employee Ms Hansson was rostered 43 times, during which she worked at various times on each day of the week. In the period of her casual employment she was rostered to work on 8 Tuesdays and Thursdays, on 7 Fridays, Saturdays and Wednesdays and 5 Sundays and on 2 Mondays. There were about 14 days in the full casual period in which Ms Hansson did not work.

[9] The Applicant’s statement recorded that during her period of casual employment she had an ongoing roster every week and although there were variations in her hours and the days in which she worked as a casual employee she had a minimum of 30 hours each week. Ms Hansson was not particularly precise about how she came to be employed by Bronze Hospitality, either as a casual employee, or on a full time basis. However, that which she has put forward indicates that she was engaged initially in the pre-Christmas period when the business was very busy, and with the expectation that if things worked out she would be offered ongoing employment at a later time. That offer came about, likely in the last week of December, with it then taking until late January to formally document the ongoing arrangement and convert her employment from casual to full-time.

[10] The Applicant provided copies of her payslips between the period of 10 December 2017 and 4 February 2018. Those payslips record respectively:

•  65.28 hours for the fortnight ending 10 December 2017;

•  94.26 hours for the fortnight ending 24 December 2017;

•  81.51 hours for the fortnight ending 7 January 2018;

•  74.73 hours for the fortnight ending 21 January 2018; and

•  77.28 hours for the fortnight ending 4 February 2018.

[11] The Applicant submits that the timesheets provided demonstrate that she worked on a weekly basis, while acknowledging the hours of work varied daily.

[12] The Respondent submits that the duration of shifts, days worked and start and finish times all varied and was not regular and systematic employment and did not allow Ms Hansson to have a reasonable expectation of continuing employment on a regular and systematic basis. It submitted that a period of seven weeks employment was incapable of being considered as regular and systematic. More specifically, it argued that Ms Hansson’s casual employment should be disregarded by the Commission because it was not long enough for any view to be formed that it was regular and systematic. Bronze Hospitality’s submission in this regard included that the industry in which it worked was featured with very high rates of employment turnover and that, since many of the people who had worked alongside Ms Hansson no longer worked in the business, that fact illustrated its case – that regularity and systematicity of employment could not be drawn from periods of short employment.

[13] The Respondent’s argument that a period of 7 weeks employment is incapable of being regarded as a period of regular and systematic employment is not made out and fails. Further, its contention that the work within that period of 7 weeks was not regular and systematic is also not made out. The evidence of Ms Hansson was that she was engaged to work as a casual with the prospect of being converted to full time employment if the relationship progressed positively. The evidence of the timesheets is that the actual work performed by Ms Hansson in the period in question was part of a continuing relationship between the parties.

[14] I therefore find that Ms Hansson’s employment as a causal was regular and systematic. Her period of employment for the purposes of the minimum employment period was between 28 November 2017 and 7 June 2018, a period of slightly more than 6 months and 1 week.

[15] Having found both that Bronze Hospitality was not at the time of Ms Hanson’s termination of employment of small business employer and that she had at the time of her dismissal completed the minimum employment period, it follows that Ms Hansson was a person protected from unfair dismissal.

[16] This matter will now be reassigned to the Commission’s Unfair Dismissal Case Management Team to be dealt with in the usual manner.

COMMISSIONER

Appearances:

J. Hansson on her own behalf.

A. Thorpe for the Respondent.

Hearing details:

2019.

Melbourne:

27 May.

<PR709633>

 1   Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099, [48].

 2   Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 3456.

 3   Transcript, 27 May 2019, PN 21.

 4   Ibid, PN 18 – 26.

 5   Ibid, PN 33.

 6   From Middleton J in Kirby v Centro Properties Limited (No 2), (2011) 202 FCR 439.

 7   [2019] FWCFB 3456.

 8   AWU v Alcoa 2019 FWCFB 3934, [15].

 9   Ibid, [19].

 10   Transcript, 7 September 2018, PN 173.

 11   Exhibit R1, Respondent’s Outline of Argument, 15 April 2018 pp. 9.

 12   Exhibit A2, Witness Statement of Janell Hansson, 31 August 2018, pp. 4.

 13   Sometimes referred to in the Applicant’s material and Transcript as “Nima Bonjam” or “Neymar Bonjam”.

 14   Exhibit A1, Applicant Outline of Submissions Jurisdictional Objection, 31 August 2018, pp. 10 – 12.

 15   Exhibit R1, pp.10.

 16   Ibid.

 17   Ibid.

 18   Timesheets were created for 47 employees however out of those 47 Hamish Laird and Luke Eley did not have any timesheets provided therefore 45 employees had timesheets provided for.

 19   Transcript, 27 May 2019, PN 130 – 137.

 20   Transcript, 7 September 2018, PN 173.

 21   Exhibit A4, Applicant Further Submissions, dated 4 April 2019, pp. 1.

 22   Transcript, 27 May 2019, PN 39.

 23   Ibid, PN 37 - 41; 51.

 24   Ibid, PN 158.

 25   Ibid, PN 160.

 26   Transcript, 7 September 2018, PN 152 - 153.

 27   Ibid, PN 154 – 167.

 28   Transcript, 27 May 2019, PN 82 – 83.

 29 [2006] ACTCA 6, [89] – [91], [(2006) 149 IR 399].

 30   Ibid, [65] – [69]; adopted by the Full Bench in Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099, [24].

 31   Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099, [24].

 32   Ibid, [21].

 33   Exhibit A2, pp. 4.

 34   Exhibit A1, pp. 10 – 11.

 35   Exhibit R2, Witness Statement of Georgette Connellan, 15 April 2019, [2].

 36   Exhibit R4, Respondent Document List, Attachment R3.

 37   See Transcript, 7 September 2018, PN 173 - 236.

 38   Exhibit A5, Tranche of Documents filed in response to Order to Produce, 21 May 2019; noting Exhibit R4, Attachment R3 dates 26 February 2018 as the commencement date.

 39   Exhibit A5.

 40   Exhibit R4, Attachment R3.

 41   Transcript, 7 September 2018, PN 54 - 55.

 42   Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic[2010] FWA 2078, [66].

 43   Ibid.

 44 [2006] ACTCA 6, [89] – [91], [(2006) 149 IR 399].

 45   [2010] FWAFB 5709.

 46   Shortland, [11].

 47   Ibid, [13].

 48   Ibid.

 49   Ibid, [12].

 50   Ibid.

 51   Ibid, [65] – [69]; adopted by the Full Bench in Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099, [24].

 52   Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099, [24].

 53   Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic[2010] FWA 2078, [76] – [77].

 54 Explanatory Memorandum, Fair Work Bill 2008 at [1518].

 55   [2019] FWCFB 1099.

 56   Exhibit R4, Attachment R4.

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Cases Citing This Decision

2

Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 5991
Mr Ryan Murray v Dangan Pty Ltd T/A the Grounds Cairns [2021] FWC 6481
Cases Cited

5

Statutory Material Cited

0

Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 1099
Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 3456
Kirby v Centro Properties Limited (No 2) [2011] FCA 1144