Jimmy Parel v Western Health

[2024] FWC 3272

[2024] FWC 3272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jimmy Parel
v

Western Health

(U2024/7818)

COMMISSIONER YILMAZ MELBOURNE, 25 NOVEMBER 2024

Application for an unfair dismissal remedy – casual employee - minimum employment period – whether protected from unfair dismissal – casual employee – non-compliance with directions- dismissed for want of prosecution

1. Mr Jimmy Parel (the Applicant) a casual nurse employed by Western Health (the Respondent) alleges that his dismissal was unfair because among other reasons, “I wasn’t informed or notified that I will be terminated if I didn’t do a shift for 3 months.”[1] Western Health raised a jurisdictional objection - that Mr Parel is not protected by the unfair dismissal provisions as a casual employee, and he was not engaged on a regular and systematic basis and had no reasonable expectation of continuing employment. It submits that Mr Parel’s employment as a casual was terminated for the reason that he did not engage with the Respondent and failed to meet competency requirements.[2]

1. However, Mr Parel did not file any submissions, nor did he attend the hearing. He was reminded that his application may be dismissed, or a decision made without the benefit of his evidence. An unfair dismissal application requires the applicant to prosecute their application.

This decision dismisses Mr Parel’s application but in doing so makes some observations of the jurisdictional objection raised by Western Health. Importantly, the basis for dismissing the application is because Mr Parel has not prosecuted his application. For completeness I observe that there are no other jurisdictional matters relevant to this application.

The jurisdictional objection

1. Western Health submit that Mr Parel had no protection under the unfair dismissal provisions because he was employed as a casual that was not engaged on a regular and systematic basis and he had no reasonable expectation of continuing employment.

The Respondent’s submissions and evidence

1. Western Health provided evidence of Mr Parel’s employment initially as a weekly employee until he transferred to casual employment from 24 October 2022. Evidence of shifts worked as a casual employee in the period 1 January 2023 to end of February 2024 (the last shift worked was on 6 February) shows a total of 17 shifts over 13 months. [3]

1. An assessment of the shifts shows no systemic pattern or regularity in the shifts, weeks or months worked nor location. Four different locations applied to the shifts offered and 1-2 shifts per month were worked, with the exception of June where 4 shifts were worked and no shifts in February, July, November and December 2023. Further no shifts were worked after 6 February 2024 in March, April, May or June in the same year.

1. Western Health provided clause 19.1 from its enterprise agreement[4] which defines a casual employee. Relevantly the clause defines a casual employee as an employee who is made “an offer of employment on the basis of no firm commitment to continuing and indefinite work according to an agreed pattern of work (e.g. relief work....).”

1. Further Western Health tendered in evidence its Nursing and Midwifery Bank policy[5] which it says is provided and referred to in the orientation to all casual employees prior to commencement. This policy document dated October 2022 references the enterprise agreement (which the Respondent submits all employees received) and describes the process recorded and relied on in the HeWS employee HR platform. The policy states:

·   That a minimum of 16 hours is to be worked per month to remain on the bank; and

·   Where an employee will not be available for a period of 3 months or more relevant steps are required so as to avoid the employee profile from being deleted from the platform.

·   In addition to other work performance and attendance obligations for nurses, the policy clearly stipulates that mandatory training and orientation competencies are to be completed annually to avoid termination of employment after 3 months of noncompliance.    

1. The analysis of the hours worked shows that Mr Parel did not satisfy the 16 hours of work per month. From the work profile it can be seen that Mr Parel listed his availability although not in any regular pattern. It can also be seen that he was not always allocated duties according to his availability. In addition, in some months where Mr Parel did not list his availability he was contacted and accepted shifts. However, the only period where more than 3 months was not worked, was after the last shift on 6 February 2024.

1. To be available to work shifts (and have shifts allocated) a casual must have completed the required annual competency training. The Training Requirements policy[6] stipulates the requirement to complete training competencies and allows for up to 8 weeks for a new starter after orientation to finalise the training. Western Heath gave evidence that from late 2023 Mr Parel fell behind in completion of his mandatory competencies.

1. The witness statement of Chad Minnie, Workforce Allocations Lead, NMWU[7] provides that a competency report was run on 13 March 2024 to check on outstanding training for casuals. The report noted that Mr Parel had all training outstanding and that he had been previously notified of this on 10 November 2023. A further email was sent to Mr Parel on 13 March 2024 advising him to complete the training and that he would be blocked from completing shifts until the training is complete. A further follow up took place on 31 May 2024 by email and text with a 2-week deadline to complete the training.

1. In March 2024 Mr Parel responded seeking access to the IT platform to complete the training. An email of 13 March 2024 reinstated Mr Parel’s IT access on the platform and reminded him that in order to record his availability he was required firstly to complete the online mandatory training competencies.[8] The Respondent submits that Mr Parel was aware of his obligation to complete the competencies as he had done so each year except as required in late 2023.        

1. The Respondent submits that the email and text notice of 31 May 2024[9] was clear and unambiguous that termination of employment would occur on 14 June 2024 where Mr Parel fails to complete his training competencies and then advise of his availability confirming an intention to resume work. On assessment of this document, I observe that the instructions are clear and unambiguous, and the Nurse and Midwifery Bank policy was attached in support of the email.    

1. Mr Parel in his application Form F2 alleges that he was not informed that his employment would be dismissed if he didn’t complete a shift for 3 months. The evidence of Western Health disputes this contention.

The legislation

1. The context of Western Health’s jurisdictional objection concerns the provisions of the Fair Work Act 2009 (the Act) that identify those persons protected from unfair dismissal. Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period. Section 383 of the Act provides a period of 12 months if a small employer, or 6 months if not a small employer. Western Health is not a small employer.  

1. The relevant period is defined in s.384 as the period of continuous service the employee has completed with the employer. Relevantly, s.384 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 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…”

1. The jurisdictional objection requires consideration of whether the casual employee was a regular casual and during the period of service the employee had a reasonable expectation of continuing employment as provided by s.384 (2).  

1. Mr Parel made no submissions to contest any of the material from Western Health. Western Health submit that Mr Parel was a casual employee, and it appears from the material that the service is consistent with the definition of service in s.22 of the Act.

1. Section 22 of the Act is relevant to the purposes of s.384 because it states that the period of employment is the period of continuous service with the employer. A casual may be engaged on each occasion, but for the purposes of unfair dismissal, it is the period of service that counts towards the period of employment.[10] Further, the legal principles confirm that “regular” may be “constituted by frequent though unpredictable engagements and that a ‘systemic basis’ need not involve either predictability of engagements or any assurance of work at all.”[11] The Full Bench in Chandler[12] observed that the term regular ought to be interpreted liberally, and it should not be interpreted as predictable.

1. It is the casual engagements that need be regular and systematic and not the hours,[13] and the evidence shows that neither the hours or engagements of Mr Parel can be identified as regular or systematic after 6 February 2024 and from 13 March after he was informed that he will be blocked from any shifts until he completes the mandatory training.

1. However, the jurisdictional objection rests on whether Mr Parel completed the minimum employment period of 6 months as a casual employee as provided by s.384. Western Health did not address s.384 in its entirety nor whether s.390(1)(a) of the Act had any relevance to the objection. Section.390 (1)(a) of the Act provides that the Commission must be satisfied that the person was protected from unfair dismissal at the time of being dismissed. More specifically the requirements for protection concerns the period of employment (6 months in this case ending at the time the person is given notice of the dismissal or immediately before the dismissal, whichever is earlier[14]), that the period is continuous,[15] and regular. A regular casual employee is defined as a casual employee at a particular time that has been employed by the employer on a regular and systematic basis.[16] The legal principles remain relevant for the purposes of interpreting these provisions.

1. A proper assessment of the jurisdictional objection was further not assisted with the absence of Mr Parel from proceedings.

Application dismissed

1. It is of concern that Mr Parel did not engage with the Commission. He did not attend the hearing and no submissions were filed. He states in his form F2 that he is aggrieved and seeks a remedy, yet he has not prosecuted his application at all. I also hold concerns whether Mr Parel would engage with the Commission even if the jurisdictional objection is overcome. I hold this view because of his failure to engage both with the Commission and Western Health when on the evidence, he ought to have known that he simply needed to complete the mandatory training to be reinstated in the casual bank for allocation of shifts. Mr Parel stated in his form F2 that he had no access to the IT Platform, yet the Respondent tendered evidence contesting this. I find it appropriate in the circumstances to rely on s.587 of the Act to dismiss the application.

The Legislation

1. Section 587 of the Act provides as follows:

“587      Dismissing applications

(1)       Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)       the application is not made in accordance with this Act; or

(b)       the application is frivolous or vexatious; or

(c)       the application has no reasonable prospects of success.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)       is frivolous or vexatious; or

(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

Conclusion

1. At the commencement of s.587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that are not contained in ss. 587(1) (a), (b) and (c).

1. The Applicant was well aware of the requirement to file his materials. Mr Parel attended the case management hearing on 27 August 2024. Both parties were present and the dates together with the requirements were clearly articulated. Those directions were then sent through in writing on the same day.

1. When Mr Parel failed to file his submissions, he was contacted by email and given an extension with a warning that should he not comply, he risked his application being dismissed or the matter being determined in his absence.

1. On the day of the hearing in response to an email request for the video link, Mr Parel was sent the link, but he did not join and further failed attempts to contact him went unanswered. Emails from Mr Parel in the days following provided no reasonable explanation.

1. On 22 October 2024, the day after the hearing Mr Parel sent two emails, the later advising he received the link at 10.00am and he “quit so it was not his fault”, and the earlier email, which is unnecessary to include in this decision, makes various statements which do not directly relate to the jurisdictional objection or the reason(s) for failure to file submissions other than he was unable to access his emails in the last few weeks of employment and he was unaware of the 3 month rule. 

1. I am satisfied that the Applicant had ample opportunity to advise the Commission of any difficulty he had with complying with the directions but made no effort to communicate with my chambers.

1. I am satisfied that he understood the consequences of failure to comply with directions would result in dismissal of his application or a decision in the absence of his materials.

1. I have decided to dismiss the Application for the reason that numerous attempts have been made to engage with the Applicant, but in the absence of any materials in support of his application or his engagement in the process, the matter has no prospect of success. 

1. On this basis the application is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.

COMMISSIONER

Appearances:

Y Roberts with C Filippone and R Kan for the Respondent.

Hearing details:

2024.
Melbourne (via Microsoft Teams):
October 21.

[1] Applicant’s Form F2, [3.2].

[2] Respondent’s Outline of Argument: Objections.

[3] Respondent’s Document WH2.

[4] Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 (AE514984).

[5] Respondent’s Document WH8.

[6] Training Requirements Procedure, attached to the Respondent’s Form F3.

[7] Respondent’s Document WH3.

[8] Respondent’s Document WH4 - email from Chad Minnie to Mr Parel’s private email address in response to his request to unblock his access as noted in email of 12 March 2024.

[9] Respondent’s Document WH5-WH8.

[10] Shortland v Smiths Snackfood Co Ltd[2010] FWAFB 5709.

[11] Chandler v Bed Bath N’ Table[2020] FWCFB 306 [12] citing Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, 149 IR 339.

[12] Ibid.

[13] Chandler v Bed Bath N’ Table[2020] FWCFB 306 [11].

[14] Fair Work Act 2009 (Cth) s.383(a).

[15] Fair Work Act 2009 (Cth) ss.384(1) and 22.

[16] Fair Work Act 2009 (Cth) s.12.

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