Jeremy Beeton v Toowoomba Community Housing Service Inc. T/A Toowoomba Community Housing
[2013] FWC 896
•13 MARCH 2013
[2013] FWC 896 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jeremy Beeton
v
Toowoomba Community Housing Service Inc. T/A Toowoomba Community Housing
(U2012/13257)
COMMISSIONER JONES | MELBOURNE, 13 MARCH 2013 |
Jurisdictional Objection - Minimum Employment Period - Whether the Respondent is a Small Business - Whether Regular and Systematic Employment - Reasonable Expectation of Continuing Employment.
Introduction
[1] On 13 September 2012, Mr Jeremy Beeton (the Applicant) made an application for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
[2] Toowoomba Community Housing Service Inc. T/A Toowoomba Community Housing
(the Respondent) objects to the application on the basis that it is a small business and the Applicant did not serve the required period of employment under the Act.
[3] The jurisdictional objection was listed for 12 February 2012 and, after obtaining the views of the Applicant and the Respondent, the proceeding was conducted as a Conference under s.398 of the Act. The Applicant represented himself and the Respondent was represented by the General Manager, Ms Michelle Smith and a member of the Management Committee, Ms Bronwyn Herbertson.
Background
[4] There is no dispute that the Applicant was employed by the Respondent from early 2008 on a casual basis as a Lawn Mower until the date of his dismissal which took effect on 3 September 2012.
[5] The Respondent is a non-government organisation which provides a lawn-mowing service to its clientele, being elderly or disabled persons. This service provision is dependent on government funding and is provided following telephone contact from clients requesting their lawn to be mowed.
[6] Until around mid 2012 the Applicant’s supervisor was Mr Damien Dories who allocated lawn mowing work to various employees of the Respondent’s lawn mowing section, including the Applicant.
[7] In mid 2012, the Applicant entered into a contract of employment with the Respondent. Relevantly, the Applicant’s status as a casual employee remained. The Contract of Employment expressly provided the Applicant was not entitled to annual leave, long service leave, personal leave/carer’s leave and compassionate leave.
[8] The Contract of Employment also referred to a new fortnightly roster system introduced for all lawn mowing employees. The provision setting out the hours of work is reproduced in full.
6.2 Hours of Work
(a) The hours of work for the Employee will be recorded on a fortnightly roster and displayed in a place conveniently accessible to the Employee.
(b) Due to the nature of the work performed by the Employee being governed by weather conditions, the Employee’s hours of work, as recorded on the fortnightly roster described in clause 6.2(a), can change. In circumstances where such changes result in a reduction of hours of work, the Employee will be paid for hours worked only, and no less than the amount equivalent to one (1) hour’ work.
(c) Rostering arrangements and changes to rosters may be communicated by the Employer to the Employee by telephone (including text message), direct contact, mail, email and facsimile.
(d) Where the Employee works in excess of five (5) hours at a time, the Employee will be entitled to an unpaid meal break of not less than 30 minutes and not more than 60 minutes duration, to be taken at a mutually agreed time after commencing work.
(e) The Employee is entitled to a paid 10 minute tea break in each four (4) hours worked at a time, such time to be agreed between the Employer and the Employee. Tea breaks will be counted as time worked.
(f) The Employer does not guarantee the Employee regular and/or fixed hours of work.
[9] The Applicant was rostered on average no more than 3 days a week under this rostering system.
[10] At the time of the Applicant’s dismissal the Respondent employed 10 full-time employees and 8 casual employees who worked in the Respondent’s lawn mowing section.
[11] There is no dispute that the Applicant’s dismissal took effect on 3 September 2012.
[12] The Respondent provided the following information, which the Applicant does not dispute. The Applicant worked as a casual for the Respondent in the following periods:
- From 15 October 2011 to 3 September 2012;
- From 23 July 2011 to 19 August 2011;
- From 2 April 2011 to 15 April 2011; and
- From 18 December 2010 to 1 January 2011.
[13] The Respondent also provided a summary of the hours worked by the Applicant each fortnight for the period, 15 October 2011 - 3 September 2012 for the Respondent. These are:
Pay Period | Hours worked |
• ENDING 27 OCTOBER 2011 | 5.50 |
• Ending 10 November 2011 | 28.00 |
• Ending 24 November 2011 | 17.00 |
• Ending 8 December 2011 | 24.25 |
• Ending 22 December 2011 | 39.00 |
• Ending 5 January 2011 | 18.00 |
• Ending 19 January 2012 | 27.25 |
• Ending 2 February 2012 | 7.00 |
• Ending 16 February 2012 | 33.00 |
• Ending 1 March 2012 | 6.00 |
• Ending 15 March 2012 | 11.00 |
• Ending 29 March 2012 | 21.50 |
• Ending 12 April 2012 | 13.50 |
• Ending 26 April 2012 | 34.50 |
• Ending 10 May 2012 | 7.50 |
• Ending 24 May 2012 | 51.00 |
• Ending 7 June 2012 | 29.75 |
• Ending 21 June 2012 | 29.25 |
• Ending 4 July 2012 | 24.00 |
• Ending 18 July 2012 | 28.75 |
• Ending 1 August 2012 | 44.25 |
• Ending 15 August 2012 | 51.50 |
• Ending 29 August 2012 | 25.00 |
• Ending 6 September 2012 | 0.00 |
TOTAL HOURS WORKED | 576.50 |
[14] The summary of hours worked each fortnight by the Applicant was taken from time sheets submitted by the Applicant and signed off by his supervisor. 1 The Applicant did not dispute the summaries of the hours provided by the Respondent.
[15] After the Conference a Statement of the Applicant’s medical issues was provided by the Applicant’s treating physician. I am satisfied the Applicant suffers from a chronic renal condition which was diagnosed in February 2009 and whose prognosis is end stage renal failure.
The Legislation
[16] S.382 of the Act 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; 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.”
[17] There is no dispute that a modern award covers the Applicant’s employment. As noted the Respondent disputes that the Applicant completed the minimum employment period.
[18] S.383 of the Act defines what a minimum employment period is and provides that for an employer who is not a small business, the period is 6 months ending at the time the person was given notice of dismissal or immediately before the dismissal (whichever time is earlier). For a small business the minimum employment period is 12 months.
[19] S.23 of the Act sets out the meaning of small business and relevantly provides:
23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
[20] The Respondent submits that at the time of the Applicant’s dismissal it employed 10 full-time and 8 casual employers none of whom were employed on a regular and systematic basis.
[21] S.384 relevantly provides:
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
...
[22] The Respondent submits that the Applicant was never employed on a regular and systematic basis. The Applicant submits that he was employed on a regular and systematic basis from July 2011 until he was sacked and that during the period he had a reasonable expectation of continuing employment on a regular and systematic basis during that time.
Issues in Dispute
[23] The issues in dispute are:
(a) Whether the Respondent was a small business at the time of the Applicant’s dismissal. This will require, in the circumstances of this matter, deciding whether the 8 casuals employed by the Respondent in the lawn mowing section were employed on a regular and systematic basis; and
(b) If the Respondent is not a small business, whether the Applicant completed 6 months employment with the Respondent; or
(c) If the Respondent is a small business whether the Applicant completed 12 months employment with the Respondent; and
(d) In deciding the period of employment the Applicant completed with the Respondent, a decision must be made whether a period of service by the Applicant with the Respondent was on a regular and systematic basis and whether during the period the Applicant had a reasonable expectation of continuing employment with the Respondent on a regular and systematic basis.
Authorities
[24] The meaning of ‘regular’ or ‘systematic’ are not defined in the Act. It is, therefore, useful to consider the meaning of these words and the application in the context of the legislative provisions before dealing with the evidence.
[25] S. 23(2)(b) provides that a casual employee is not to be counted unless at that time, he or she has been employed on a regular and systematic basis (my emphasis).
[26] I am satisfied that the reference to ‘at that time’ is a reference to the date of dismissal in this matter.
[27] I note that the provision requires that the employee ‘has been employed’ and not ‘is employed’ on a regular and systematic basis. I am satisfied that, accepting the observation of the Full Bench in Shortland v The Smiths Snackfood Co Ltd, 2 that a casual employee may move from periods of engagement which are intermittent and periods which are regular and systematic, the provision requires an examination of the basis of the casual employee’s employment over the whole period of the casual employee’s employment with the Respondent.3
[28] The Court of Appeal, Australian Capital Territory, in Yaraka Holdings Pty Ltd v Giljevic 4considered a deeming provision applicable to independent contractors which, in part, deemed an individual to have been employed by an employer if the engagement ‘has been on a regular and systematic basis.’5 It should be noted that the deeming provision included matters which should be considered in determining whether an engagement has been on a regular and systematic basis. The following extracts from the judgements of the majority are instructive. Crispin P and Gray J noted:
It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulations under the Workplace Relations Act 1996 (Cth), particularly reg 30B, and this concept has been considered by industrial tribunals in a number of cases. 6
[29] Relevantly, their Honours observed in relation to the meaning of ‘regular’ that:
The term “regular” should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”. 7
and formed the view that the pattern of engagement of the individual in question over the years from 1995 to 2002 satisfied this description.
[30] In respect of the meaning of ‘systematic’, their Honours held:
The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses. 8
[31] Madgwick J concurred with the majority. In a separate judgement, his Honour considered examples provided in the relevant statute of ‘individuals who are workers’ concluding that ‘the meaning to be ascribed to (the deeming provision) is conditioned by the examples.’ 9 Accordingly, his Honour stated:
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. 10
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). 11
[32] In Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic,Commissioner Roe reviewed court authorities as well as decisions of predecessors to FWC dealing with the meaning of ‘regular’ and ‘systematic’. 12Commissioner Roe observed:
[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. 13
[33] Of course the ultimate determination must have regard to the circumstances in which the casual is employed to provide his or her services to the employer. 14
Is the Respondent a Small Business?
[34] The Respondent employed 10 full-time and 8 casual employees. The casual employees were engaged to mow lawns and were part of the Respondent’s lawn mowing section.
[35] Each of the casual employees have been, at least from June 2012, subject to a fortnightly roster. 15
[36] The Respondent provided information regarding the hours worked each fortnightly period by 8 casual employees. The hours worked each fortnightly period for 6 of the casual employees, including the Applicant, is extracted below:
[37] It is noted that days actually worked varied from roster to roster. Employees were provided the roster two weeks in advance.
[38] The hours worked were contingent upon the particular service provided by the employees for the Respondent’s clients. The Respondent’s evidence is that the lawn mowing service was “sporadic”. By this the Respondent meant that the service provided depended on the requirements of their clients for lawns to be mowed, the weather and the provision of government funding. 16 The Applicant’s undisputed evidence is that there were 3 crews of around 2 to 4 employees who would leave the depot and attend various addresses in town to mow lawns. The time to mow lawns would vary depending on the size of the lawn and grass growth. The hours worked on any day reflected this and the time taken to travel.17
[39] The determination of whether the employees were employed on a regular basis must have regard to these particular circumstances.
[40] I am satisfied each of the 6 casual employees specified in the table above were employed on a regular basis. All worked hours in each fortnightly roster. It is true the hours worked varied in each period, however, this reflected the nature of the services required by the Respondent.
[41] I am satisfied each of the employees were employed on a systematic basis. There can be no doubt that the commencement of a roster discloses a method or plan and that the engagement occurred as a consequence of an ongoing reliance by the Respondent on the employees services.
[42] Consequently, in calculating the number of employees employed by the Respondent at the time of the Applicant’s dismissal, the 6 casual employees are to be included in the count.
[43] Accordingly, I find that at the time of the Applicant’s dismissal the Respondent did not employ fewer than 15 employees and is, therefore not a small business within the meaning of the Act.
Did the Applicant complete the minimum employment period?
[44] As the Respondent is not a small business the Applicant must have completed a period of employment of 6 months ending at 3 September 2012.
[45] The issue for determination is whether in the 6 month period ending at 3 September 2012, the Applicant was employed on a ‘regular’ and ‘systematic’ basis and had a reasonable expectation of continuing employment on a regular and systematic basis.
[46] Consequently, the relevant period of service of the Applicant as a casual employee under consideration is the pay period ending 15 March 2012 to the date of the Applicant’s dismissal took effect on 3 September 2012. The hours worked in each fortnightly pay period are set out in the table at [13] above.
[47] The Applicant’s uncontroverted evidence is that until mid 2012 his then supervisor was Mr Damien Dorries. There was an arrangement in place until mid 2012, under which the Applicant would attend the lawn mowing workshop shed or telephone Mr Dorries in the morning. Mr Dorries would inform the Applicant whether there was work that day. This was dependent on the weather, the demands of the organisation’s clients and numbers of community service workers. 18
[48] The days the Applicant attended the workshop shed or telephoned Mr Dorries depended on his capacity to work. Because of his chronic renal and kidney condition he generally offered himself for work 3 days a week. Each fortnight he worked but the hours depended on various factors. 19
[49] As to his expectation of continuing work, the Applicant expressed it in this way:
I did have a reasonable expectation because I’d always - I know my hours might seem sporadic, but I at no point in time had I left the company or been given a separation certificate or anything like that, and he (Mr Dorries) guaranteed my future work. So there wasn’t any problems for me regarding that, as far as I know. 20
[50] The Applicant stated in August 2011 he telephoned Mr Dorries and told him he had broken his arm and would be “out of action for probably about six weeks.” 21 Mr Dorries then “assured me of my future employment within the company and that when I’m well again, I can come back and work again.”22
[51] The Respondent submits that the Applicant had limited availability for work for the term of his contract with the Respondent. 23 The Respondent relies of the contract of employment signed by the Applicant and the terms specifically of clause 6.2(b) and 6.2(f).24 The Respondent submits that the Applicant’s hours were sporadic and points out that in some fortnights the Applicant recorded only 6 or 7.5 hours of work so that there may have only been one day worked in a fortnight.
[52] The Respondent’s argument is that the fact that the availability of hours was contingent upon external factors beyond the Respondent’s control and the fact that the Applicant made himself available for work depending on his fitness for work meant that the Applicant’s hours of work were not regular. As the hours of work worked by the Applicant in accordance with the roster introduced in June 2012 was contingent upon these factors, this also meant the Applicant’s hours of work were not systematic. There were so many gaps in the Applicant’s work as a casual that, in the Respondent’s submission, the Applicant could not have a reasonable expectation of continuing employment.
[53] I am satisfied that, in summary, the circumstances which dictated the Applicant’s hours of work in the relevant period, were external factors affecting the hours of work offered such as funding, the weather and the demands of clients. In addition, the hours worked were affected by his capacity to work having regard to his chronic medical condition.
[54] There is no dispute that in June 2012 the Respondent introduced a fortnightly roster for all casual employees in the lawn mowing team.
[55] As I have earlier stated consideration as to whether a casual employee was employed on a regular and systematic basis and the employee’s expectation of continuing work must have regard to the nature of the work and the circumstances under which it worked.
[56] I am satisfied that during the period of employment in the pay period ending 27 October 2011 to 3 September 2012, the Respondent regularly offered work at the times the Applicant was available to work. The hours each fortnightly pay period may have varied but they were offered and worked consistently each fortnight.
[57] Accordingly, I find that the Applicant was employed in the relevant period (being 1 March 2012 to 3 September 2012) on a regular basis.
[58] I have earlier found that the introduction of the roster for casual employees in the lawn mowing section in June 2012 disclosed a method or plan. I am further satisfied, having regard to the evidence, that there was an ongoing reliance, during the period of employment in the pay period ending 27 October 2011 to 3 September 2012, by the Respondent on the Applicant’s services as an incident of the Respondent’s lawn mowing services. I am satisfied that the Applicant was offered and accepted work consistently over the relevant period.
[59] Accordingly, I find that the Applicant was employed in the relevant period on a systematic basis.
[60] Whether the Applicant had a reasonable expectation of continuing employment within the meaning of s.384(2)(ii) is an objective test.
[61] I am satisfied that having regard to the consistent and ongoing reliance of the Respondent on the Applicant’s services, the ongoing availability of the Applicant to work (taking into his account his medical capacity), and the continuing offer of work depending of the Applicant’s availability, that the Applicant had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis.
[62] Accordingly, I find the Applicant’s period of service as a casual employee in the pay period ending 27 October 2011 to 3 September 2012 counts towards the Applicant’s period of employment.
Conclusion
[63] I find that the Applicant has completed the minimum period of employment with the Respondent and is, therefore, a person protected from unfair dismissal.
[64] The Respondent’s objection is dismissed.
[65] The application will now be listed for determination on the merits.
COMMISSIONER
Appearances:
Mr J. Beeton - Applicant
Ms M. Smith - Representative of the Respondent
Ms. B. Herbertson - Representative of the Respondent
Hearing details:
2013
Brisbane
February 12
Final written submissions:
Respondent - 26 February 2013
Applicant - 5 March 2013
1 Transcript of Hearing at PN116, PN122 - PN124
2 [2010] FWAFB 5709.
3 Ibid at [10].
4 (2006) ACTCA 6.
5 S.11, Workers Compensation Act 1951 (ACT).
6 (2006) ACTCA 6 at [64].
7 Ibid at [68].
8 Ibid at [69].
9 Ibid at [87].
10 Ibid at [89].
11 Ibid at [91].
12 2010 FWA 2078 at [66] - [75].
13 Ibid at [76].
14 Holland v UGL Resources Pty Ltd T/A UGL Resources [2012] FWA 3453 at [29] and [30].
15 Transcript of Hearing at PN289.
16 Ibid at PN458.
17 Ibid at PN440 - PN442 and PN445 - PN448.
18 Ibid at PN164, PN183 - PN184 and PN194.
19 Ibid at PN187.
20 Ibid at PN198.
21 Ibid at PN212.
22 Ibid at PN 214.
23 Ibid at PN231.
24 Ibid at PN231.
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