Janelle Clarke v The Roman Catholic Trust Corporation for the Diocese of Cairns
[2023] FWC 1886
•5 SEPTEMBER 2023
| [2023] FWC 1886 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Janelle Clarke
v
The Roman Catholic Trust Corporation For The Diocese Of Cairns
(U2023/4648)
| COMMISSIONER SIMPSON | BRISBANE, 5 SEPTEMBER 2023 |
Application for an unfair dismissal remedy
On 26 May 2023, Ms Janelle Clarke (the Applicant) filed a Form F2 application for unfair dismissal remedy against The Roman Catholic Trust Corporation For The Diocese Of Cairns (the Respondent).
The Respondent raised a jurisdictional objection to the Applicant’s application, on the grounds that:
· the Applicant was not protected from unfair dismissal at the time of being dismissed; and
· the Fair Work Commission does not have jurisdiction to hear the Applicant’s application, as a result.
The matter was listed for a jurisdictional hearing by Microsoft Teams Video on 31 July 2023. The Applicant appeared on her own behalf and Mr Finian McGrath of Miller Harris Lawyers was granted permission to appear for the Respondent.
The Applicant relied on her statement of 24 July 2023.[1] The Respondent relied on their submissions of 17 July 2023 and the statement of Ms Deborah Crotty.[2]
Protection from Unfair Dismissal
The Applicant will be protected from unfair dismissal only if the Applicant is an employee who has completed a period of employment that is at least the minimum employment period.
The Applicant submitted that clause 8a of her contract of employment at Mount St Bernard’s College (MSB) issued on 17 January, 2023 in accordance with the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2019-2023 states that:
“8.a. If you are a new employee to the Roman Catholic Trust Corporation for the Diocese of Cairns your Employment is subject to a six-month probationary period during which the Employee’s capacity, conduct and suitability for the Position will be assessed by the Employer.”
The Applicant submitted that since she was not a new employee to the Roman Catholic Trust Corporation on that date and had been registered since November 20, 2019, and teaching regularly for over 2 years preceding this date, it would stand to reason that she was not subject to a six-month probationary period deeming the jurisdictional objection invalid and thus protecting her unfair dismissal claim.
The Applicant’s Casual Employment
As appears in paragraph 2 of Ms Crotty’s statement, the Applicant was employment as a casual relief teacher between 19 June 2020 and 15 September 2022. As appears in paragraph 19 of Ms Crotty’s statement, the Applicant was not employed by the Respondent at all from 16 September 2022 until 20 January 2023.
Under section 15A(2) of the Act, only the following considerations may be regarded in determining whether an employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work:
(a)whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b)whether the person will work as required according to the needs of the employer;
(c)whether the employment is described as casual employment;
(d)whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
In the Respondent’s submission, the Applicant’s employment as a relief teacher from 19 June 2020 until 15 September 2022 is properly characterised as casual because:
· the Applicant was offered, and accepted, the employment on the basis that the Respondent made no firm advance commitment to continuing and indefinite work according to an agreed pattern of work;
· the Applicant became employed as a casual relief teacher because she accepted that offer on those terms (as appears in paragraph 3 of Ms Crotty’s statement);
· in that role, the Respondent could elect to offer work, and the Applicant could elect to accept or reject such work (as appears in paragraphs 10 and 11 of Ms Crotty’s statement);
· the Applicant could only work as a relief teacher for the Respondent when the Respondent needed her to (as appears in paragraphs 7–9 of Ms Crotty’s statement);
· as appears in paragraphs 2 and 6 of Ms Crotty’s statement, the Applicant’s employment as a relief teacher was (and is) described as casual employment;
· as appears in paragraph 12 of Ms Crotty’s statement, the remuneration paid to the Applicant, as a relief teacher, included casual loading; and
· there was no regular pattern of hours in that role, nor could there be (as appears in paragraphs 2, 4, 5, 7–9, 13 and 14 of Ms Crotty’s statement).
In the Respondent’s submission, the Applicant’s engagement as a relief teacher was casual, and does not constitute a period of employment with the Respondent under section 384 of the Act.
The Minimum Employment Period
Under section 383(a) of the Act, the minimum employment period is a period of six months, ending at the earlier of:
the time when the person is given notice of the dismissal;
(ii)immediately before the dismissal;
Under section 382(a) of the Act, 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 period of employment;
It is the Respondent’s position that the Applicant’s period of employment with the Respondent is confined to the period of her full-time engagement. The Respondent submitted that as appears in paragraphs 16-18 of Ms Crotty’s statement, the Applicant was employed by the Respondent on a full-time basis for a period of only 3 months and 18 days. Except as a casual, the Applicant was not otherwise employed by the Respondent.
The Applicant submitted that pursuant to section 384(2) of the Act, her period of service as a casual (and full-time contracted employee) meets the criteria because:
· her employment as a casual employee was as a regular casual (and sometimes contracted full-time) employee; and
· during the period of service as a casual (and contracted full- time employee), the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
The Applicant submitted that her work during term time followed a regular and systematic pattern of engagement, averaging 3-4 days a week, when in Cairns, throughout 2021 and 2022. The Applicant contended, there was an expectation that when she was in Cairns and available for work, she would be granted work and often she was booked in advance via her key school contacts.
The Applicant stated that during 2022 as an example, she undertook a total of three plus short-term full-time contracts, which were organised in advance and included planning and assessment duties. Dates included:
· Feb 7 – Feb 25, 2022: Mackillop Catholic College MCC1
· Apr 19 – May 13, 2022: St Monica’s College SMC1
· Aug 22 – Sep 14, 2022: St Monica’s College SMC2
The Applicant submitted that due to her partner’s itinerant work commitments in Film & Television Australia-wide and scheduled international travels, she was away from Cairns at times but any absences, including extended absences early in Term 3, 2022 and throughout Term 4 in 2022, were authorised and communicated to her key contacts in advance. The Applicant contended that it needs to be noted that she was approached by a key school contact via text message in January 2023, to act as ‘their priority relief teacher’ throughout 2023 but on the basis of her acceptance of the MSB contract, she needed to decline. Therefore she remained employed despite her unpaid authorised period of absence during Term 4, 2022.
The Applicant submitted that throughout her time employed with CES prior to the Mt St Bernard’s College (MSB) contract, she had worked a total of 172 days with CES which equates to 0.9 of a regular school year for a full-time employee. The Applicant submitted that therefore, prior to the MSB contract, her employment with CES had already significantly exceeded the required probationary period of 6 months. Adding on the additional 3 months and 18 days undertaken at MSB, the Applicant submitted period of service equates to approximately 1.3 years of full-time continuous service.
Conclusion
I am satisfied on the basis of the material before me that prior to the Applicant being engaged on a permanent basis with a probationary period in 2023, the Applicant was engaged as a casual relief teacher who on certain occasions was engaged for short term continuous periods of several weeks on a relief basis. I accept as was submitted by the Respondent, that it is not true that the Applicant was engaged in any full-time work prior to 2023, and the consecutive engagements on consecutive days sometimes spanning several weeks was still casual employment. The very nature of casual relief teaching generally involves engagements to cover periods of work where a need to do so arises, because of the absence of a permanent teacher for various reasons and is generally not as part of a regular and systematic arrangement.
I have examined the material filed and I am not satisfied that the periods of work performed by the Applicant for the Respondent as a casual relief teacher between 2020 and 2022 can count towards the minimum employment period because, despite there being a considerable volume of work performed, the nature of the work was not on a regular and systematic basis. It also cannot be said that during this period of service as a casual employee, the Applicant had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis given whether work was offered or not was contingent on whether a casual relief teacher was required, and that cannot be predicted in advance as work that is going to be offered as part of a system or pattern of work, but will necessarily be unpredictable.
The Respondent submitted that that Applicant has sought to rely on the issue of probation in her employment contract, however I agree with the submission that the entitlement to bring an unfair dismissal application is conferred by the Fair Work Act 2009, and the interpretation question concerning the expression ‘new employee’ in the contractual provision is irrelevant to the determination of the jurisdictional objection.
Given my conclusion that the Applicant cannot rely on the casual relief work performed prior to her being offered a permanent position, it follows the period of work performed as permanent employment is not sufficient to satisfy the minimum employment period. The Fair Work Commission does not have jurisdiction to determine the Applicant’s claim, because the Applicant was not protected from unfair dismissal at the time she was dismissed. On that basis the Applicant’s claim is dismissed. An order will be issued separately and concurrently with this decision to that effect.
COMMISSIONER
Appearances:
Ms Janelle Clarke on her own behalf.
Mr Finian McGrath of Miller Harris Lawyers for the Respondent.
Hearing details:
2023
By Microsoft Teams Video
31 July
[1] Exhibit 1
[2] Exhibit 2
Printed by authority of the Commonwealth Government Printer
<PR764741>
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