Janelle Wyatt v Game Farm Pty Ltd
[2023] FWC 2714
•17 OCTOBER 2023
| [2023] FWC 2714 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Janelle Wyatt
v
Game Farm Pty Ltd
(U2023/7731)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 17 OCTOBER 2023 |
Application for an unfair dismissal remedy – minimum employment period not completed – jurisdictional objection upheld – application dismissed
Introduction
Ms Janelle Wyatt believes that she was unfairly dismissed by Game Farm Pty Ltd (Game Farm) within the meaning of the Fair Work Act 2009 (Cth) (Act). Game Farm contends that Ms Wyatt was not protected from unfair dismissal because she had not completed a period of employment with Game Farm of at least the minimum employment period. Ms Wyatt disputes that contention.
Jurisdictional hearing
On 10 October 2023, I conducted a hearing to determine the jurisdictional question of whether Ms Wyatt was employed for at least the minimum employment period before her alleged dismissal on 31 July 2023. Ms Wyatt gave evidence at that hearing, as did Mr Geoffrey Patterson, Maintenance & Project Manager, for Game Farm.
Legal principles
A person is not protected from unfair dismissal unless the requirements in s 382 of the Act are met. Section 382 relevantly provides:
“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…”
Section 383 of the Act provides:
“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.”
A month means a calendar month.[1] For the purpose of determining the 6 month period referred to in s 383(a) of the Act, a calendar month begins on the employee’s first day of their period of employment and, where there are multiple months, finishes immediately before the corresponding day in the final month of the employee’s period of employment.[2]
Section 384 of the Act relevantly defines “period of employment” as follows:
“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 as a regular casual employee; 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.”
The definition of “continuous service” in s 12 of the Act is as follows:
“continuous service has a meaning affected by section 22.”
Section 22 of the Act provides:
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2‑2 (which deals with community service leave); or
(ii) a period of stand down underPart 3‑5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly…”
Because “continuous service” is not clearly defined in the Act, it has been held that it should be given its ordinary meaning of a period of unbroken service with an employer by an employee.[3]
Drawing these provisions together, it is apparent that the expression “period of employment” has a circular meaning under the Act. A “period of employment” is a period of continuous service which the employee has completed with their employer.[4] Continuous service is a period of unbroken service by an employee with their employer.[5] A period of service by an employee with their employer is a period during which the employee is employed by their employer.[6] Accordingly, a “period of employment” is an unbroken period in which an employee is employed by their employer.
Ordinarily an employee’s “period of employment” will commence on their first day at work. In Corner v SkyCity Adelaide Pty Ltd,[7] a Full Bench of Fair Work Australia held that Ms Corner’s “period of employment” as a part-time employee commenced when she first attended work on 9 February 2010. The Full Bench concluded as follows:[8]
“In the absence of evidence establishing an earlier acceptance of SkyCity’s offer, we agree with Senior Deputy President O’Callaghan that the commencement of the period of employment was 9 February 2010 when Ms Corner attended for work.”
I accept that in some unusual cases an employment contract may make clear that the employee is employed by the employer from the time the contract is made, notwithstanding that the employee is not required to commence the performance of work until a specified date in the future. However, where a contract of employment is entered into prior to the commencement of work by the employee for the employer, there will ordinarily be a difference in timing between the date on which the contract is made and the date on which the employment commences. For example, an employee and employer may enter into a binding contract of employment which provides that the employee will commence their employment with the employer in, say, six months’ time. In that event, the employment will not commence until the employee starts work for their employer in six months’ time.[9]
Agreed facts
It was not disputed, and I am satisfied on the evidence before me, that:
(a) Game Farm was not, at the time of Ms Wyatt’s alleged dismissal, a small business employer. Accordingly, the minimum employment period for Ms Wyatt is 6 months.
(b) Ms Wyatt was employed by Game Farm as a casual employee.
(c) Ms Wyatt’s employment with Game Farm came to an end on 31 July 2023.
Findings of fact
Game Farm is a producer and supplier of table game meats, including chicken, duck, quail and spatchcock. Game Farm owns and operates various poultry and game farms around New South Wales, including in Arcadia and Mandalong.
Ms Wyatt applied for a job with Game Farm as a casual Egg Collector at its Mandalong farm.
On about 23 January 2023, Ms Wyatt attended a tour of Game Farm’s farm at Mandalong with Mr Heath McGrath, Breeding Department Leading Hand. During the tour, Mr McGrath said to Ms Wyatt words to the following effect:
“You are the only one who has applied for the job. You have got the job if you want it. Your first shifts would be on 30 and 31 January.”
Ms Wyatt said that she had prior commitments on 30 and 31 January, so could not work on those days.
Mr McGrath also told Ms Wyatt during the tour on about 23 January 2023 that the job would involve ongoing casual work, as long as she did the job correctly, and she would be given a minimum of three shifts and a maximum of five shifts per week.
Following the tour on about 23 January 2023, Mr McGrath gave Mr Patterson positive feedback about Ms Wyatt and recommended that an offer of employment be made to her.
On the morning of 24 January 2023, Mr Patterson began the process of preparing a job application on Ms Wyatt’s behalf through the Game Farm’s automated employee and payroll system known as ‘Kronos’. At 8:01am on 24 January 2023, Mr Patterson sent a text message to Ms Wyatt asking for her date of birth “to process [her] job application”. Ms Wyatt provided her date of birth to Mr Patterson later that morning. After Mr Patterson entered the relevant details into the Kronos system, a cover letter and employment contract were automatically generated. These documents were checked by Game Farm’s management team.
On 30 January 2023, Ms Wyatt was given assistance by Mary, an employee of Game Farm, to obtain access, for the first time, through the Kronos app to her cover letter and employment contract.
The cover letter for Ms Wyatt was in the following terms:
“Dear Janelle
Letter of engagement
I am pleased to welcome you to the team at Game Farm on the terms and conditions contained in the attached contract and schedule.
We ask that you review the attached contract and electronically sign it and keep a duplicate copy for your own records.
Once you have acknowledged your acceptance, we will issue you a new employee pack, which will include a number of payroll related documents that you will be required to fill out before the commencement of your role.
This offer is conditional upon you:
-Having and maintaining the right to work in Australia
-Not being subject to a restraint or precondition preventing you from performing in the position
-Being and maintaining a fitness and ability to perform the inherent requirements of the positionShould you have any queries in relation to this offer, please do not hesitate to contact myself.
Once again, I would like to welcome you to the Game Farm Team.Yours sincerely,
Geoffrey John Patterson
Mandalong Maintenance & Project Manager”
The contract of employment prepared for Ms Wyatt stated, in clause 2, that the “effective date of this contract and type of engagement is detailed at Item 2 of the Schedule”. Item 2 of the Schedule provides:
“2. Employment Terms Effective Date: 30-01-2023
Type of Employment: Casual”
Later on 30 January 2023, Ms Wyatt used the Kronos system to accept the offer of employment made to her by Game Farm.
In the period from 31 January 2023 until 1 February 2023, Ms Wyatt exchanged the following text messages with Mr Patterson:
At 11:41am on 31 January 2023, Ms Wyatt stated:
“Hey Geoff. I filled out everything in the app. All is good except I have to get a COVID 19 vax. I’ve booked in tomorrow at Main Street Pharmacy in Morisset. Is it mandatory to have the COVID VAX?”
At 11:46am on 31 January 2023, Mr Patterson stated:
“Let me chase that this arvo Janelle, my personal opinion is that we have passed all that now but let me check.”
At 11:48am on 31 January 2023, Ms Wyatt stated:
“Awesome. Yeh [sic] I thought it would be past all that. I’ve booked in for
tomorrow anyway, so I’ll get it regardless, but I would love to start the job if
you find it’s no longer mandatory rather than waiting till I’m vaccinated.”
“You’re a gem. Thanks for all your help”
At 1:51pm on 31 January 2023, Mr Patterson stated:
“Just spoke to HR, they think that we should not worry about the vaccination,
they are just looking how we get the application sorted”
At 2:01pm on 31 January 2023, Ms Wyatt stated:
“Awesome”
“Thanks”
At 3:05pm on 31 January 2023, Mr Patterson stated:
“They said to submit the application /documents,”
At 3:22pm on 31 January 2023, Ms Wyatt stated:
“Ok”
At 3:31pm on 1 February 2023, Ms Wyatt stated:
“Hi Geoff. Can you let Heath know I can definitely work tomorrow. I’ll be there
just let me know time. Cheers See you then”
At 3:31pm on 1 February 2023, Mr Patterson stated:
“7.00am Janelle…. I will Heath know”
Ms Wyatt spoke with Mery from Game Farm on 1 February 2023 about how to complete the COVID-19 part of the application process on the Kronos system because it was asking her to upload a certificate to state that she had received a COVID-19 vaccination but Mr Patterson had informed her that she did not need to satisfy that condition. Mery told Ms Wyatt that she would complete that part of the application process for Ms Wyatt on the Kronos system. That was the last thing that Ms Wyatt had to do in order to complete the application process on the Kronos system.
I accept Mr Patterson’s evidence that on 1 February 2023 an employee of Game Farm checked the application process completed by Ms Wyatt on the Kronos system and satisfied themselves that Ms Wyatt had provided all the relevant information and was able to be rostered to work in her role as an Egg Collector.
A printout of Ms Wyatt’s profile from the Kronos system used by Game Farm states that Ms Wyatt was “hired” on 24 January 2023 and she “started” on 30 January 2023. Mr Patterson gave evidence that these entries are incorrect. Mr Patterson says that 24 January 2023 was the date on which Game Farm’s offer of employment was intended to be sent to Ms Wyatt and 2 February 2023 was the actual date that Ms Wyatt commenced employment and first attended for work at the farm. Mr Patterson further says that the “start date” of 30 January 2023 was the date he chose and entered when preparing the job application details for Ms Wyatt in the Kronos system, since that date was the “following Monday” and Mr Patterson considered that it would be a reasonable start date for Ms Wyatt.[10]
There is no dispute that Ms Wyatt worked her first shift for Game Farm on 2 February 2023, from 7:35am until 2:53pm. That shift was included in the roster prepared by Mr McGrath and written on the whiteboard in the office. The roster was also recorded on the Kronos system, but Mr McGrath informed Ms Wyatt that she should look at the roster on the white board in the office, not the roster on Kronos because that roster was not always correct. The white board roster showed each employee’s scheduled shifts for a period of one month.
During February and March 2023, Ms Wyatt worked regular shifts each week as a casual Egg Collector for Game Farm, averaging about 50 hours per fortnight. In the period from about mid-March 2023, Ms Wyatt’s weekly hours increased. By 26 May 2023, Ms Wyatt says that she had worked 48 days straight.
On 26 May 2023, Ms Wyatt had a verbal altercation with Mr Patterson. There is a dispute between Ms Wyatt and Mr Patterson as to what was said during the altercation. Mr Patterson gave evidence to the following effect in his witness statement:[11]
“(25) At approximately 9:00am on 26 May 2023, I observed Janelle had left a junior casual employee unattended to clean the inside of one of Game farm's poultry sheds. The ladder the employee was using was the wrong height for the task and the junior employee was cleaning the shed roof by scrubbing it with a broom, instead of using an available gurney. As a result, I approached Janelle and said words to the effect of:
"Janelle, you have Tovala trying to scrub dust off the inside of the roof. This is not working well and he will be there all day. I think we should ask him to use the high pressure cleaner. Also, you have given Tovala a ladder to cut curtains off the roof. The ladder is too short and he is a school boy so you cannot send him up alone to perform the task. These are work health and safety issues".
(26) After I had made these comments, Janelle became visibly angry with me, and said words to the effect of:
"That's it. I'm done. I'm finished with this.
(27) Janelle then proceeded to criticize and insult me, saying words to the effect of:
"You've bullied me. You're the reason everybody leaves. You're the reason everybody has a problem with you. You're just a male chauvinist pig."
(28) Regrettably, due to my surprise at this insult and the stressful nature of the insult, I said words to the effect of:
“Oh, fuck off.”
(29) After this incident, Janelle and I walked off in different directions. Shortly afterward, I ran into Janelle again in the staff break area of the office. Janelle accused me of breaking assets owned by Game Farm and blaming her for doing so. I responded with words to the effect of "why would I have any reason to damage assets I helped construct?". Shortly after I said this Janelle left the premises. I observed that Janelle had left the alarm phone in the office, and had removed everything from her desk. For context, the alarm phone was a mobile phone that Janelle was required to have on hand at all times during her employment in case of emergencies, and she typically took it home with her each evening. Accordingly, I considered that by leaving the alarm phone in the office Janelle was not planning to return.
(30) Shortly after Janelle left the farm, at 9:28am I sent an SMS message to Janelle asking her where the master key was. A few minutes later Janelle responded by stating that she had left the key on the office verandah.
(31) A short time later, at 10:09am on 26 May 2023, Janelle sent me a text message in which she accused me of bullying her until she left, as well as being responsible for other staff leaving. Janelle then sent a follow-up SMS message in which she called me a “foolish man”.
(32) For the record, I completely deny that I ever bullied Janelle whilst at work, and I completely deny that my conduct could have reasonably caused her to resign.
(33) In order to end the de-escalate the situation, I sent a reply SMS message to Janelle acknowledging her service and wishing her all the best with her future endeavours. Janelle did not respond to this message.”
The text messages to which Mr Patterson refers in paragraphs [30] to [33] of his witness statement were in the following terms:
At 9:28am on 26 May 2023, Mr Patterson stated:
“Just checking if you left the master kay here somewhere Janelle?”
At 9:34am on 26 May 2023, Ms Wyatt stated:
“On your verandah”
At 9:36am on 26 May 2023, Mr Patterson stated:
“Thank you so much (smile emoji)”
At 10:09am on 26 May 2023, Ms Wyatt stated:
“Geoff, you have dished out this behaviour for a long time to your staff. You
Bullied me until I left. You need to take a real good look at your behaviour. It is
illegal to have me work like you have. It is illegal for you to play your games
you play. I will hold you accountable, simply because the birds deserve stability,
but due to your behaviour nobody stays. One cmpn [sic] denominator – that’s
YOU!!”
At 10:13am on 26 May 2023, Ms Wyatt stated:
“You foolish man.”
At 10:44am on 26 May 2023, Mr Patterson stated:
“Many thanks for all your hard work whilst you were here Janelle, the sheds
look lovely and tidy at the front. All the best with your future endeavors.”
Mr Patterson gave oral evidence that he regrettably lost his temper when he told Ms Wyatt to “piss off” and “get fucked” on 26 May 2023. Mr Patterson further said in his oral evidence that when he spoke with Ms Wyatt in the office area before Ms Wyatt departed the farm on 26 May 2023, Ms Wyatt said to him, “You do not know what a good worker you have lost. You have not heard the last of this. I am going to take it further.” Mr Patterson also explained that he was not sure what Ms Wyatt normally kept on her desk, but it was clean and tidy after she left the workplace on 26 May 2023.
Ms Wyatt gave the following account of the incident in her witness statement:[12]
“On the 26th May 23, I was verbally assaulted again by Geoffrey Patterson at SHED 6, after working 48 days straight without a break, and being on call 24/7. Mr Patterson yelled profanities at me telling me to “piss off” and “get fucked”. I was anxious and exhausted and went home in tears.”
In her oral evidence Ms Wyatt:
(a)denied paragraph [26] of Mr Patterson’s statement and instead gave evidence that she said to Mr Patterson, “I am done with your bullying”;
(b)denied paragraph [27] of Mr Patterson’s statement and instead gave evidence that she said to Mr Patterson, “You are a bully. You are a male chauvinist pig. Berrick left for the exact same reasons as why I am now going home”;
(c)stated that she went home on the morning of 26 May 2023 because she had worked 48 days straight, was exhausted, and was upset by Mr Patterson’s verbal abuse;
(d)stated that in the reception area of the farm, about five minutes after their initial verbal altercation and after Mr Patterson had ‘chased’ her up to the reception area in his tractor, Ms Wyatt did not say, “You do not know what a good worker you have lost”. Instead, Ms Wyatt gave evidence that she said, “You can train anyone to drive a tractor, but you can’t train somebody to love animals like I do” and Mr Patterson said, “Leave the alarm phone and your keys. I want them”;
(e)stated that, in accordance with Mr Patterson’s direction, she left the alarm phone and her work keys at the farm before she picked up her backpack and went home at about 10am. Ms Wyatt was rostered to work until 3pm on 26 May 2023. She was not paid in respect of the period from when she left the workplace at about 10am until what would have been the conclusion of her shift at 3pm;
(f)denied that she had a desk at the farm, and says that she left behind her diary and laptop cord when she left on 26 May 2023; and
(g)stated that in her text message sent to Mr Patterson at 10:09am on 26 May 2023, she said “You bullied me until I left”, by which she meant that she “left the work site”, not resigned. Ms Wyatt says that she needed the job and did not intend to resign on 26 May 2023.
On the balance of probabilities, I prefer Ms Wyatt’s evidence in relation to what was said during her verbal altercation with Mr Patterson on 26 May 2023 over the evidence given by Mr Patterson in relation to that issue. First, Mr Patterson was clearly embarrassed by his behaviour in telling Ms Wyatt to “piss off” and “get fucked” on 26 May 2023. As a result, I consider, on the balance of probabilities, that Mr Patterson has likely exaggerated, to some extent, the words spoken by Ms Wyatt during their heated exchange. Secondly, there is a clear distinction between what Ms Wyatt said on 26 May 2023 about “leaving” and her later text message to Mr Patterson on 30 July 2023, in which she said that she would be “in tomorrow to give you my formal resignation”. Ms Wyatt strikes me as a very direct person. If she was intending to leave work and never return on 26 May 2023, I consider it unlikely that she would suggest, without expressly stating, that she intended to resign by saying “I’m done”, “I’m finished with this”, “You’re the reason everybody leaves”, or “You do not know what a good worker you have lost”. I do not believe that Ms Wyatt wanted to resign on 26 May 2023. She enjoyed her job, which was close to her home, and needed the work.
Ms Wyatt was rostered to work for Game Farm on each day from 27 to 31 May 2023, but she did not work any of those shifts as a result of her verbal altercation with Mr Patterson on 26 May 2023. Ms Wyatt was not paid for any of the shifts she did not work from 27 to 31 May 2023 inclusive.
On Monday, 29 May 2023, I am satisfied that Mr Scott Evans, Chief Executive Officer of Game Farm, visited Ms Wyatt at her home. Ms Wyatt stated in her witness statement that Mr Evans visited her at home on the “next day” after 26 May 2023, but in her oral evidence Ms Wyatt could not recall when Mr Evans had attended her home and spoken to her. Mr Patterson was confident in his evidence, which I accept, that Mr Evans visited Ms Wyatt at her home on Monday, 29 May 2023 because that was the day on which Mr Evans attended the farm and spoke with Mr Patterson about his verbal altercation with Ms Wyatt on the previous Friday (26 May 2023). Mr Evans then went to speak with Ms Wyatt at her home to get her version of the verbal altercation.
I accept Ms Wyatt’s evidence that she told Mr Evans on 29 May 2023 that she needed the job, which was just up the road from her home, to which Mr Evans responded by saying that she had a “personality clash” with Mr Patterson and assured her that she still had a job, he just needed to speak with Mr Patterson.
On 30 May 2023, Ms Wyatt exchanged the following text messages with Mr Patterson:
At 8:04am on 30 May 2023, Ms Wyatt stated:
“Hi Geoff. Can you please let me know when I can return to work. I also need to have a short meeting with you to resolve loose ends and move forward. I’m sorry for calling you a chauvinist pig. Talk to you soon.”
At 8:07am on 30 May 2023, Mr Patterson stated:
“I’m sorry for many things too Janelle. I’m tied up for the next to [sic] hours and then we can arrange a chat.”
Ms Wyatt and Mr Patterson subsequently had a discussion and Ms Wyatt returned to work for Game Farm on 1 June 2023.
Ms Wyatt stated in her witness statement that she went back to work on 28 May 2023 “only to be advised by Geoff Patterson that I could return on the 1st June 2023”.[13] I do not accept this evidence. It is inconsistent with the sequence of events set out in the preceding paragraphs, including the text message sent by Ms Wyatt to Mr Patterson on 30 May 2023 asking when she could return to work.
From her return to work on 1 June 2023, Ms Wyatt remained in casual employment with Game Farm, working regular hours each week, until her employment came to an end on 31 July 2023. There is a dispute about whether the cessation of Ms Wyatt’s employment on 31 July 2023 constitutes a dismissal within the meaning of the Act, but I am not determining that question at this time. I will address that question, together with the fairness of the dismissal and the question of remedy, after a further hearing, if I am satisfied that Ms Wyatt was employed for at least the minimum employment period of six months.
Consideration
It is apparent from the factual findings I have made above that it was not until 1 February 2023 that Ms Wyatt had completed the “payroll related documents” which she needed to “fill out before the commencement of [her] role” in accordance with her letter of offer.[14] It was also not until 1 February 2023, after Ms Wyatt had completed filling out the documents with the assistance of Mary, that Game Farm was in a position to, and did in fact, check that Ms Wyatt had completed the application process and was in a position to be rostered for her first shift. Accordingly, the first time that Ms Wyatt could have been rostered to work her first shift was on 2 February 2023, the day after these processes had been completed on 1 February 2023.
At 3:31pm on 1 February 2023, Ms Wyatt was informed by Mr Patterson that she was to attend her first work shift for Game Farm at 7am on 2 February 2023.[15] Ms Wyatt worked her first shift for Game Farm on 2 February 2023.
I am satisfied that 2 February 2023 is the date on which Ms Wyatt commenced her “period of employment” with Game Farm. That is the date on which she first provided “service” to, and began to be employed by, Game Farm as a casual Egg Collector. Although Ms Wyatt accepted the offer of employment from Game Farm on 30 January 2023, her “period of employment” with Game Farm did not commence until 2 February 2023. The fact that Game Farm’s Kronos system recorded Ms Wyatt’s date of hire as 24 January 2023 and “start date” as 30 January 2023 is not determinative of the commencement of her “period of employment” within the meaning of the Act. In addition, the reference in Ms Wyatt’s contract to an “effective date” of 30 January 2023 is the “effective date of this contract”,[16] not the commencement of Ms Wyatt’s employment with Game Farm.
Game Farm contends that Ms Wyatt’s period of service was broken when she resigned on 26 May 2023. I do not accept that argument. Whether or not Ms Wyatt resigned on 26 May 2023 is to be determined by reference to what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.[17] In my view, a reasonable person in the position of the parties would not have understood that Ms Wyatt resigned on 26 May 2023, based on my findings as to the communications between Ms Wyatt and Mr Patterson on 26 May 2023. The statements by Ms Wyatt, in the context of her heated verbal altercation with Mr Patterson on 26 May 2023, that “I am done with your bullying”, “Berrick left for the exact same reasons as why I am now going home”, and “You bullied me until I left” would not lead a reasonable person to understand that Ms Wyatt had resigned. Those statements, considered in context, point to an employee who is upset, believes they have been treated poorly at work, and as a result, is leaving the workplace for the day to go home.
Save for the period from 26 May to 29 May 2023, I accept that Ms Wyatt’s employment with Game Farm from 2 February 2023 until 31 July 2023 was as a regular casual employee and she had had a reasonable expectation of continuing employment by Game Farm on a regular and systemic basis. The employment was regular because it was subject to a roster system, published a month in advance, pursuant to which Ms Wyatt was rostered to work regular shifts each week. Further, save for the period from 26 to 29 May 2023, it was reasonable for Ms Wyatt to have an expectation of continuing employment by Game Farm on a regular and systemic basis because (a) Ms Wyatt was told by Mr McGrath during her pre-employment tour of the farm that the job would involve ongoing casual work, as long as she did the job correctly, and she would be given a minimum of three shifts and a maximum of five shifts per week and (b) Ms Wyatt’s lived experience during her employment with Game Farm was that the monthly rosters lived up to the promise of “ongoing casual work”.
However, in the period from when she left the farm at about 10am on 26 May 2023, after her verbal altercation with Mr Patterson, until she spoke with Mr Evans at her home on 29 May 2023, I do not consider that Ms Wyatt could have had a reasonable expectation of continuing employment by Game Farm on a regular and systematic basis. That is because, based on the findings I have made as to what happened during their verbal altercation on 26 May 2023, Mr Patterson told Ms Wyatt to “piss off”, “get fucked”, demanded that she return her work keys and the work alarm phone, and then sent her a text message at 10:44am in the following terms:
“Many thanks for all your hard work whilst you were here Janelle, the sheds look lovely and tidy at the front. All the best with your future endeavours.”
A reasonable casual employee who had received such communications from their employer’s Maintenance & Project Manager could not have a reasonable expectation of continuing employment by their employer on a regular and systematic basis. It was not until Ms Wyatt spoke with Mr Evans on 29 May 2023 and she was given an assurance that her job was safe that a reasonable person in the position of Ms Wyatt could again have formed a reasonable expectation of continuing employment by Game Farm on a regular and systematic basis.
Each period of service as a casual employee must meet the requirements of s 384(2)(a)(i) and (ii) to “count towards the employee’s period of employment”.[18] Because the requirements of s 384(2)(a)(ii) were not satisfied in respect of the period from 26 May 2023 until 29 May 2023, that period does not count towards Ms Wyatt’s “period of employment”.
Conclusion
Ms Wyatt did not complete her minimum employment period of six months with Game Farm for two separate reasons. First, Ms Wyatt’s “period of employment” with Game Farm commenced on 2 February 2023 and finished on 31 July 2023. A six month period of employment commencing on 2 February 2023 would conclude on 1 August 2023. That is one day after Ms Wyatt’s employment with Game Farm came to an end. Secondly, even if Ms Wyatt’s period of employment with Game Farm commenced on 30 January 2023 (contrary to my finding that it commenced on 2 February 2023) and concluded on 31 July 2023, she was not employed for the six month minimum employment period because, in the period from when she left the workplace on 26 May 2023 until her discussion with Mr Evans on 29 May 2023, Ms Wyatt could not have had a reasonable expectation of continuing employment by Game Farm on a regular and systematic basis. It follows that in respect of this period of time s 384(2)(a)(ii) of the Act was not satisfied, with the result that this three-day period from 26 to 29 May 2023 did not count towards Ms Wyatt’s period of service as a casual employee. Once three days are taken away from the period from 30 January 2023 to 31 July 2023, it is apparent that the six month minimum “period of employment” was not met.
Because Ms Wyatt did not complete her minimum employment period with Game Farm, she was not a person protected from unfair dismissal on 31 July 2023.[19] Game Farm’s jurisdictional objection is therefore upheld. Ms Wyatt’s application for relief from unfair dismissal is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms J Wyatt, on behalf of herself
Ms B Roman, on behalf of the respondent
Hearing details:
2023.
Newcastle:
10 October.
[1] Acts Interpretation Act 1901 (Cth), s 2G
[2] Ibid
[3] Holland v UGL Resources Pty Ltd[2012] FWA 3453 at [20]
[4] s 384(1) of the Act
[5] See paragraph [9] above
[6] s 22(1) of the Act
[7] [2011] FWAFB 955 at [7]-[8]
[8] Ibid at [8]
[9] Kelly v Melba Support Services Australia Ltd[2021] FWCFB 4845 at [20]-[23]
[10] Ex R1 at [22]
[11] Ex R1 at [25]-[33]
[12] Ex A1 at page 1
[13] Ex A1 at page 1
[14] Court Book at p 93
[15] Court Book at p 99
[16] Court Book at p 94
[17] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[18] s 384(2) of the Act; Bronze Hospitality Pty Ltd v Hansson[2019] FWCFB 1099 at [29]
[19] s 382(a) of the Act
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