Jodie McLennan v Northvic Parcels Pty Ltd

[2019] FWC 6571

[2019] FWC 6571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jodie McLennan
v
Northvic Parcels Pty Ltd
(U2019/7186)

COMMISSIONER MCKINNON MELBOURNE, 20 SEPTEMBER 2019

Application for an unfair dismissal remedy jurisdictional objection – minimum employment period – objection dismissed.

Introduction

[1] Jodie McLennan was employed as a Parcel Delivery Driver by Northvic Parcels Pty Ltd (Northvic). She has applied for a remedy for unfair dismissal in relation to her employment which commenced on 30 January 2017 and was terminated 12 June 2019.

[2] Northvic objects to the application both on the basis that as a casual employee, Ms McLennan did not complete the minimum employment period and because Northvic is a small business and the dismissal complied with the Small Business Fair Dismissal Code.

[3] This decision deals with whether Ms McLennan has completed the minimum employment period such that she is a person who is protected from unfair dismissal for the purposes of section 382 of the Fair Work Act 2009 (the Act).

Relevant legal principles

[4] Section 382 provides that a person is protected from unfair dismissal if, at the relevant time:

•  they have completed at least the minimum employment period; and

•  they are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

[5] There is no dispute that Ms Ms McLennan’s annual income was less than the high income threshold at the time of dismissal.

[6] A period of employment is defined in section 384 as “the period of continuous service the employee has completed with the employer” at a particular time.
[7] Section 22 defines “service” as a period of service during which the employee is employed by the employer, but excludes any period that does not count as service for the purposes of the Act, including relevantly, a period of unpaid leave or unpaid authorised absence. Excluded periods do not break a period of continuous service, but they do not count towards the length of the continuous service.

[8] Section 384 contains a further exclusion in relation to casual employees. A period of service as a casual employee does not count towards the period of employment unless the employment was on a regular and systematic basis, and during the period of service, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis. 1 The exclusion has recently been the subject of consideration in Bronze Hospitality Pty Ltd v Hansson2(Hansson). I respectfully adopt the observations of the Full Bench in Hansson.

[9] According to Northvic, it had six employees in addition to the two directors of the business, Daniel and Jillian Whipp at the time Ms McLennan was dismissed. It is plain that Northvic was a small business employer at that time, and as a result the minimum employment period required of Ms McLennan was 12 months’ continuous service, ending on 12 June 2019.

[10] Ms McLennan says that at the time she was engaged, she had a conversation with Mr Whipp in which he said to her, in words to the effect: “It will be casual, Monday to Friday.”

[11] Consistent with that evidence, the uncontested pay slips and time and wages records produced by Northvic establish that for a substantial component of her period of service, Ms McLennan’s hours of work were approximately four hours per day, Monday to Friday, starting at 4.00am on Monday and half an hour later, at 4.30am on Tuesday to Friday and finishing at “around 8.00am”:

1. In the period from 30 January 2017 to 31 March 2017, Ms McLennan worked at least four hours per day, five days per week with the exception of public holidays.

2. In the period from 1 April 2017 to 30 June 2017 Ms McLennan worked five days per week, except on public holidays and except in three weeks when she worked three days (10-12 April 2017), two days (20-21 April 2017) and four days (29 May 2017 – 1 June 2017) respectively. In the months of April and May 2017, her hours of work were at least four hours. In June 2017, there were occasional shifts worked of less than four hours.

3. In the period from 1 July 2017 to 30 September 2017, Ms McLennan worked mostly five days per week except on public holidays. For the most part, she worked at least four hours per shift. On occasion, her shifts were less than four hours. Ms McLennan was absent from work on 21 August 2017, worked four days in the week from 28-31 August 2017 and was absent (it appears due to illness) from 3-8 September 2017.

4. In the period from 1 October 2017 to 31 December 2017, Ms McLennan worked mostly five days per week except on public holidays. For the most part, she worked at least four hours per shift. On occasion, her shifts were less than four hours. In the weeks commencing 7 and 14 October 2017 and on public holidays and 29 December 2017, she did not work. She worked only four days in the week from 30 October 2017 to 3 November 2017.

5. In the period from 1 January 2018 to 31 March 2018, Ms McLennan worked at least 3.5 hours per day, five days per week with the exception of public holidays and a period of absence from 8-18 February 2018.

6. In the period from 1 April 2018 to 30 June 2018, Ms McLennan worked at least 3.5 hours per day, five days per week with the exception of public holidays and one absence on 12 June 2018.

7. In the period from 1 July 2018 to 30 September 2018, Ms McLennan worked at least 3.5 hours per day, five days per week with the exception of one public holiday.

8. In the period from 1 October 2018 to 31 December 2018, Ms McLennan worked at least 3.5 hours per day, five days per week with the exception of public holidays and absences from 9 – 21 October 2018, 24 October 2018, 3-11 November 2018 and 31 December 2018. In the week of 22 October 2018, she worked only on two days of the week.

9. In the period from 1 January 2019 to 26 March 2019, Ms McLennan worked at least 3 hours per day, five days per week with the exception of public holidays, one hour of work only on 17 January 2019, absences on 18 January 2019 and 6-12 February 2019. In the week of 13 February 2019 she only worked three days of the week, on 3.5 hours each day and in the week of 25 March 2019, she only worked two days of the week.

10. Ms McLennan did not work after 26 March 2019 until her employment ceased on 12 June 2019.

[12] Northvic says that while Ms McLennan generally worked from Monday to Friday, her pattern of hours varied in such a way that there was no consistency or set pattern. Her total hours of work, and related earnings, varied each week and there was no “set hours or guarantee”.

[13] In Yaraka Holdings Pty Ltd v Giljevic 3, the Court noted that it is the engagement of a causal employee that must be regular and systematic, not the hours worked pursuant to such engagement. It held that the term “regularly” should be construed liberally, and that “systematic” does not mean predictable.

[14] In my view, Ms McLennan’s employment during the period from 30 January 2017 to 26 March 2019 can readily be characterised as employment on a regular and systematic and basis. She commenced work at the same time on each day that she worked, starting half an hour earlier on Mondays than other days due to Northvic’s operational requirements. The regularity of her pattern of work during that period aligns with the explanation given to Ms McLennan by Mr Whipp upon her engagement that it would be “casual, Monday to Friday”. I am satisfied that Ms McLennan had a reasonable expectation of continuing employment by Northvic on a regular and systematic basis. She worked regularly for more than two years and while her actual hours of work varied each day, her start times were largely consistent and only varied at the direction of Northvic’s principal client, Australia Post. Her absences from work were the exception rather than the rule, and less than might be expected of a full-time employee taking their full entitlement to annual leave over the period.

[15] The position changed on or after 26 March 2019, when Ms McLennan was injured and ceased work. There is a dispute between the parties as to whether the injury was work-related. While initial advice to Northvic from Ms McLennan was that it was not a “workers’ comp” injury, a workers’ compensation claim was subsequently lodged by Ms McLennan on 9 May 2019. The claim was rejected by Allianz Australia Workers’ Compensation on 5 June 2019 on the grounds that “the injury did not arise out of or in the course of employment” and “employment was not a significant contributing factor to the claimed injury”. The decision to reject Ms McLennan’s workers’ compensation claim is the subject of an appeal.

[16] The relevance of the dispute for present purposes is in relation to how the period of service from 26 March 2019 to 12 June 2019 should be characterised. It is not in dispute that as a casual employee, Ms McLennan had no entitlement to paid sick leave. Contact between Ms McLennan and Northvic after 26 March 2019 appears to have been limited to a discussion with Ms White where Ms McLennan advised that she had been given the week “off work” by her doctor, and subsequent text messages which are not in evidence. Separately, liaison between the parties with Northvic’s workers’ compensation insurer, Allianz and related service providers also continued.

[17] In my view, the discussion between Ms McLennan and Ms White about taking time “off work”, the subsequent provision of medical certificates in the context of dealing with the workers’ compensation claim as well as Northvic’s decision to write and terminate Ms McLennan’s employment on 12 June 2019 all evidence an understanding between the parties that until 12 June 2019, the employment relationship between them continued, notwithstanding that Ms McLennan’s last casual contract of employment concluded when she finished work on 26 March 2019. It is appropriate then to characterise the period as one of unpaid authorised absence from work. It does not count as service, but it does not break the period of continuous service.

[18] The result is that for the purposes of section 382 of the Act, the period of service that counts towards Ms McLennan’s period of employment is 30 January 2017 to 26 March 2019. That period is more than the minimum period of 12 months required by section 382. Ms McLennan has completed the minimum employment period.

Conclusion

[19] Ms McLennan is a person protected from unfair dismissal and the jurisdictional objection in relation to her minimum employment period is dismissed.

[20] The matter will now be referred for arbitration on whether the dismissal was consistent with the Small Business Fair Dismissal Code, and if it was not, for arbitration on the merits.

COMMISSIONER

Appearances:

P Hill for the Applicant

J Ms McLennan on her own behalf

Hearing details:

2019.

Melbourne and Echuca (by telephone):

September 20.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth), s.384

 2   [2019] FWCFB 1099.

 3 (2006) ACTCA 6