Jelise Camilleri v The GEO Group Australia Pty Ltd
[2022] FWC 1384
•9 JUNE 2022
| [2022] FWC 1384 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jelise Camilleri
v
The GEO Group Australia Pty Ltd
(U2021/11770)
| COMMISSIONER BISSETT | MELBOURNE, 9 JUNE 2022 |
Application for an unfair dismissal remedy – casual employment – no reasonable expectation of continuing employment - minimum employment period not met – application dismissed.
Ms Jelise Camilleri (Applicant) has made an application to the Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which she seeks relief for unfair dismissal. The Applicant was employed by The GEO Group Australia Pty Ltd (Respondent) where, at the time of her dismissal, she worked as a casual correctional officer at the Fulham Correctional Centre. The Applicant’s employment was terminated with effect from 27 November 2022.
The Respondent has raised a jurisdictional objection to the application. The Respondent says that the Applicant has not served the minimum employment period necessary to be able to make an application for unfair dismissal because, at the time of the termination of her employment, she could not have had a reasonable expectation of continuing employment.
The application has been subject to several attempts to conciliate a resolution. These have not been successful. As a result, directions were issued for the parties to file and serve submissions and evidence.
Hearing and witnesses
Following consultation with the parties it was agreed that the proceedings would be conducted by determinative conference.
The Respondent filed two witness statements of Ms Natalie Greenfield, General Manager of Fulham Correctional Centre.
Whilst Ms Greenfield was called to give evidence, she was not subject to cross examination. The Applicant understood that, in not cross-examining Ms Greenfield, I could accept Ms Greenfield’s evidence as the truth of those matters to which she attested.
The Applicant filed a witness statement along with statements of Mr Edward Lowe and Ms Marina de Voogd.
Neither Mr Lowe nor Ms de Voogd was required for cross examination and their statements were accepted as written.
Legislative requirements
Section 396 of the FW Act sets out those preliminary matters the Commission must consider prior to a consideration of the merits of an application:
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
It was not in dispute, and I am satisfied that the application was made within the statutory period required, the Respondent is not a small business such that the Small Business Fair Dismissal Code does not apply, and that the dismissal was not related to redundancy.
Section 396(b) requires the Commission to determine if the person was protected from unfair dismissal.
Section 382 of the FW Act deals with when a person is protected from unfair dismissal and states:
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 to the person 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.
Section 383 of the FW Act specifies the minimum employment period required to be met for a person to be eligible to make an application or unfair dismissal. The minimum employment period is 6 months ending at the earlier of when the person is given notice of unfair dismissal or immediately before dismissal or, in the case of a small business, 12 months.
Section 384 of the FW Act deals with the period of employment and, in relation to a casual employee, states:
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) 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 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 Applicant’s period of employment
The Applicant’s period of employment is therefore calculated taking into the account the exception (to the extent it applies) in s.384(2)(a) of the FW Act.
The Applicant worked for the Respondent from June 2018 until 27 November 2021 when her employment was terminated. The Applicant’s pattern of employment[1] is as follows:
Period Employment status 26 June 2018 – 19 August 2018 On-going 20 August 2018 to 24 May 2020 Casual 20 May 2020 – 1 December 2020 On-going 7 December 2020 – 27 November 2021 Casual
The Applicant’s change from on-going to casual employment in December 2020 was at her instigation.[2]
The Applicant’s period of employment as a causal employee from December 2020 until her dismissal on 27 November 2021 will not count towards her period of continuous service with the Respondent unless:
(i) she was, during the period, engaged as a regular casual employee, and
(ii)she had a reasonable expectation of regular and systematic employment during this period.
The Respondent does not dispute that the Applicant was a regular casual employee. Rather, it says that, during the period of employment, she could not have a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis.
Factual matters
The following facts are derived from the uncontested evidence before the Commission.
The Fulham Correctional Centre (Centre) operates on a public-private partnership model between an associated company of the Respondent and the Victorian Government.
The Centre houses approximately 750 prisoners and employs 196 correctional officers made up of 127 full time officers, 3 part time and 66 casual correctional officers.
On or about 1 October 2021, the Victorian Government issued Chief Health Officer Directions (Mandate) that required those who work in Victorian Correctional Centres (amongst others) have their first COVID-19 vaccination by Friday 15 October 2021 and be fully vaccinated by Friday 26 November 2021. This was advised to all staff of the Respondent employed at the Fulham Correctional Centre on 6 October 2021.[3]
Later, on 6 October 2021, further advice was issued to staff. That advice included the following information:
· To continue working on-site staff would be required to comply with the Mandate
· The list of “authorised workers” required to comply with the Mandate included workers performing “services related to the administration of justice (including prisons and Justice Service centres)” in Victoria and accordingly applied to employees of the Respondent;
· If a person had decided, for personal reasons, not to be vaccinated or was not willing to provide proof of vaccination they would not be allowed into the Centre after 14 October 2021 and were unlikely to maintain employment in the future.[4]
The Applicant did not see either email of 6 October 2021 until 10 October 2021 when she next worked.[5]
On 12 October 2021, the Applicant wrote to Mr Marcus Vella of the Respondent and advised that she was ready, willing and able to work and would remain so in the future but sought a copy of the Respondent’s “COVID-19 vaccination risk assessment for Correctional Officers working in the Gatehouse”[6] where she worked.
On 14 October 2021, an email was sent to the Applicant by Jenna O’Connor, Training Specialist at the Centre, reminding the Applicant (and presumably others) of the content of the emails of 6 October 2021 in relation to vaccination requirements. That said that a failure to provide proof of vaccination would result in a denial of entry to the site. The Applicant, in reply on 15 October 2021, requested a copy of her contract[7] of employment.
On 19 October 2021, Ms Greenfield wrote to the Applicant and advised her that:
· The requirement to be vaccinated was a lawful and reasonable direction which employees had a common law obligation to comply with
· As the Applicant had not provided proof of having received her first dose of the vaccine, she was not permitted to enter the Centre
· In order to enter the site, the Applicant would need to provide proof of having booked in for her first vaccine by 22 October 2021
· If she did not have such an application booked the Applicant would be placed on unpaid leave and would be unable to attend the site
· If the Applicant had not received both vaccines by 26 November 2021 her employment would be terminated on 27 November 2021.[8]
On 26 November 2021, the Applicant was advised by letter from Ms Greenwood that, as she had not provided proof of vaccination as required (or that she was an “excepted person”), she was unable to attend and perform her work as a correctional officer and could no longer satisfy the inherent requirements of her role. For these reasons, her employment would be terminated effective 27 November 2021.[9]
The Applicant worked regularly as a casual employee through 2021 but did not undertake any work for the Respondent after 10 October 2021.[10]
The Applicant did send a letter to Ms Greenfield (undated) in which she asked a range of questions of relation to the Mandate and safety of the vaccines.[11]
Submissions
The Applicant says that she was employed on a regular and systematic basis and that, during her employment, she had a reasonable expectation of continuing employment with the Respondent. She submits that this was so as the Respondent was short staffed and she was ready, willing and able to work.
The Respondent submits that, by her emails to staff of 6 October 2021, Ms Greenfield broke any reasonable expectation the Applicant could have had of continuing employment without the Applicant being vaccinated. The Applicant was aware from 10 October 2021 when the Applicant agrees she saw the emails of 6 October 2021, of the changed circumstances of the Respondent (in that it could not allow an employee on site who did not meet the Mandate requirements) and must have known at that time but also well prior to the termination of her employment on 27 November 2021 that, should she fail to comply with the Mandate, she could not expect to be offered further employment.
On this basis the Respondent submits that, for the totality of the six-month period prior to the termination of her employment the Applicant, while she was employed on a regular and systematic basis until 10 October 2021, she could not have had a reasonable expectation of continuing employment on a regular and systematic basis (or at all).
Consideration
To be eligible to make an application seeking relief from unfair dismissal the Applicant must satisfy two tests – first that she was engaged as a regular casual employee and, second, that she had a reasonable expectation of continuing employment on a regular and systematic basis.
The answer to the first question is not in dispute. The Applicant had been engaged as a regular casual employee. The times and dates of work as evidenced by Ms Greenfield for 2021 confirm this.
The critical question is if the Applicant’s expectation was a reasonable expectation of continuing employment on a regular and systematic basis. Relevant to this is the question as to at what point in time is this expectation to be determined.
In Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic[12] Commissioner Roe said that:
[59] The focus on the reasonable expectation of continuing employment is not now about the expectation at the point of termination but about the expectation during the period of service that is to count towards achievement of the minimum employment period to achieve jurisdiction.
In the case before me the focus must be on the expectation of the Applicant across the six-month period immediately prior to the termination of her employment.
The Applicant’s employment was terminated on 26 November 2021 with effect from 27 November 2021. She was on “approved leave” (stood down) from 10 October 2021 to 27 November 2021 when her employment was terminated and this period counts towards her period of employment.[13] The inquiry therefore is as to her expectation across this 6-month period ending 26 November 2021 when she was given notice of termination of her employment.
The expectation of the Applicant is a subjective matter to be determined by reference to the belief of the Applicant. The necessary question for the Commission is whether that expectation of the Applicant was, in the circumstances, a reasonable expectation.
I accept that the expectation of the Applicant will be influenced by a variety of factors at any particular point within the six-month period and, certainly, at the commencement of that six-month period (late May 2021) the Applicant could have expected regular and systematic employment be offered to her based on her pattern of employment to that date. I accept that she maintained that subjective belief until the time of the termination of her employment and this was based on her understanding of the Respondent’s need for staff.
However, on 10 October 2021 when the Applicant read the emails of 6 October 2021 she knew that, if she did not provide evidence of having received the first COVID-19 vaccination or that she had an appointment booked, she would not be able to attend the worksite after 14 October 2021. Further, this was confirmed with the Applicant by letter on 19 October 2021. The correspondence to the Applicant was clear as to what the future held in that, if she was not vaccinated as required, she would not be able to attend the worksite. Whilst the Applicant may, subjectively, have held the belief until the time of termination of her employment that she could have expected to be offered regular and systematic employment, it is not possible to find that this belief was reasonable. Any objective consideration of the circumstances would lead a person to conclude that, if the vaccination requirements were not met, a person could not attend for work. Such a person, in the Applicant’s circumstances, could no longer reasonably expect the offer of further regular and systematic work.
In Bronze Hospitality Pty Ltd v Hansson [14] Jackson J said:
[43] What the employer tells the employee must be relevant. Counsel for Bronze accepted this. If the employee in fact has the necessary expectation, and if what the employer said at the beginning of the employment was sufficient to make the expectation reasonable, and nothing in the circumstances indicated that what the employer said was unreliable, implausible or was otherwise to be disbelieved, then the criterion may be satisfied from that time. If nothing happens subsequently to show that the expectation will not be fulfilled, then it may subsist, as a reasonable expectation, throughout the entire period of service as a casual employee. There is nothing in the legislation which indicates that the employee's expectation cannot be reasonable until a pattern of regular and systematic employment, such as regular shifts, has in fact emerged. (emphasis added)
In Callender v MCI Southport Properties Pty Ltd T/A Southport Day Hospital/Cosmetic Evolution[15] Deputy President Lake, relying on the reasoning in Shortland, said:
[20] Once continuous service is established, it is only broken in circumstances where the employer or employee makes it clear to the other party that there will be no further engagements. There was never any express communication by either party that the Applicant would no longer work for the Respondent. Although there were some months where the Applicant did not work, I am not satisfied that served to change the regular and systematic nature of her employment. The Applicant clearly considered that her relationship with the Respondent as ongoing. In support of that conclusion is the Respondent’s rostering system. As has been described above, it was common for the Respondent to send texts to the casual nursing workforce indicating the upcoming shifts required to be covered. Each nurse would indicate their availability and desire to work those shifts and the Respondent would then prepare a roster. The Respondent may have stopped offering the Applicant shifts after she stopped responding, however as soon as the Applicant indicated that she would be available to work for the Respondent she was rostered on again. (footnotes omitted)
I accept that the decision to stand the Applicant down after 14 October 2021 did not change the nature of her employment. However, the circumstances of the express communications from Ms Greenfield on 6 October 2021 and, at the latest, on 19 October 2021 had an effect on the reasonableness of any expectations of the Applicant as to future “regular and systematic employment” from that time.
For these reasons I am satisfied that on 10 October 2021, when she accessed the emails of 6 October 2021, and while she was still employed by the Respondent, the Applicant was advised that if she did not provide evidence that had been vaccinated by 26 November 2021 she could not be allowed on site, and she would not be able to continue to work for the Respondent. On 19 October 2021 she was aware that if she did not comply with the Mandate requirements her employment would be terminated. At this point, more than 5 weeks prior to the termination of her employment, having been advised that circumstances had changed, the Applicant could not reasonably have held an expectation of continued employment on a regular and systematic (or any other) basis.
Conclusion
On the basis of the evidence before me I am satisfied that:
1. As at the date of the termination of her employment on 26 November 2021, the Applicant was a regular casual employee (s.384(2)(a)(i)).
2. The Applicant had, through the period of her employment with the Respondent, and certainly since January 2021, subjectively formed an expectation of continuing regular and systematic employment with the Respondent and that this was a view held by her at the time of her dismissal. This view was reasonably held by the Applicant up to no later than 19 October 2021.
3. The subjective view of the Applicant as to the nature of future employment was not a view that could be accepted as reasonable during the total period of her employment in the circumstances where, at least a month prior to the termination of her employment, the Respondent made clear and without qualification that if the Applicant was not vaccinated she could not work on site and if she could not work on site she could no longer work for the Respondent after 26 November 2021.
4. At the time of her dismissal the Applicant could not hold a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis (s.384(2)(a)(ii)).
In these circumstances where the Applicant could not have had a reasonable expectation of continuing employment on a regular and systematic basis, and this was clearly identified to her in October 2021 well prior to the termination of her employment, I am satisfied that, at the time her employment was terminated, the Applicant’s period of employment as a casual employee from December 2020 until her dismissal cannot count towards her period of employment for the purposes of deciding if she has met the minimum employment period necessary such that she was protected from unfair dismissal and was eligible to make an application for unfair dismissal.
The Applicant has therefore not completed six months employment at the time she was given notice of her dismissal.
The Applicant is therefore not eligible to make an application seeking relief from unfair dismissal. The application is therefore dismissed. An order to this effect will be issued with this decision.
In concluding this matter, I make two observations. Firstly, had the Applicant complied with the requirements for vaccination her employment would not have been terminated (and the Respondent has indicated that, if the Applicant does get vaccinated, she should contact the Respondent in relation to further employment). Second, I am aware that it is a technical argument as to why the Applicant cannot pursue her application but would observe that, even if she could have pursued her application, on the material before me (which I accept is not complete) it is unlikely, in circumstances where the Applicant could not fulfil the inherent requirements of her position, that her dismissal would be found to be unfair.
COMMISSIONER
Appearances:
J. Camilleri on her own behalf.
R. Casimir for the Respondent.
Hearing details:
Melbourne, by video.
31 May 2022
3 June 2022
[1] Witness statement of Jelise Camilleri, paragraphs 2-6. Note that while some of the dates do not precisely align this does not affect the analysis made or conclusion reached
[2] Second witness statement of Natalie Greenfield, annexure NG-8 (sic)
[3] First witness statement of Natalie Greenfield, paragraph 11 and annexure NG-1
[4] Frist witness statement of Natalie Greenfield, annexure NG-2
[5] Frist witness statement of Natalie Greenfield, annexure NG-4, specifically the email from the Applicant to Marcus Vella
[6] First witness statement of Natalie Greenfield, annexure NG-3
[7] First witness statement of Natalie Greenfield, annexure NG-4
[8] First witness statement of Natalie Greenfield, annexure NG-5
[9] First witness statement of Natalie Greenfield, annexure NG-6
[10] First witness statement of Natalie Greenfield, annexure NG-8
[11] First witness statement of Natalie Greenfield, annexure NG-7. See also witness statement of Jelise Camilleri, paragraph 9 although it is not clear if this is the same letter referred to
[12] [2010] FWA 2078
[13] Shortland v The Smiths Snackfood Co Pty Ltd[2010] FWCFB 5709 at [12]-[13]
[14] [2019] FCA 1680
[15] [2022] FWC 164
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