Joel Lindsay v Kilmore Golf Club Inc. T/A Kilmore Golf Club

[2018] FWC 6346

[2018] FWC 6346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joel Lindsay
v
Kilmore Golf Club Inc. T/A Kilmore Golf Club
(U2018/7058)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 23 OCTOBER 2018

Application for an unfair dismissal remedy – jurisdictional objections – casual employee not employed on a regular and systematic basis – no dismissal – jurisdictional objections dismissed.

[1] On 9 July 2018, Mr Joel Lindsay (the applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The applicant was employed by Kilmore Golf Club Inc. T/A Kilmore Golf Club (the respondent) as a chef/caterer. 1

[2] On 23 July 2018, the respondent filed an employer response in which it objected to the application on jurisdictional grounds. It contends that the applicant was not dismissed. The respondent filed further jurisdictional objections on 7 September 2018 and 10 September 2018, contending that the business is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code, and the applicant was a casual employee and not employed on a regular and systematic basis and is therefore not a person protected from unfair dismissal under the Act.

[3] This decision concerns the respondent’s jurisdictional objections that the applicant was a casual employee and not employed on a regular and systematic basis and is therefore not a person protected from unfair dismissal under the Act and alternatively, that the applicant was not dismissed.

[4] A hearing was held before me on 12 October 2018. The applicant was self-represented and gave evidence on his own behalf. Mrs Bea Lay appeared for the respondent and gave evidence on its behalf.

Is the applicant protected from unfair dismissal?

[5] Section 382 of the Act outlines 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.’

[6] It was not disputed and I am satisfied that the applicant was covered by a modern award (s.382(b)(i)) and his income was less than the high income threshold (s.382(b)(iii)).

[7] Section 383 of the Act defines the minimum employment period as follows:

‘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.’

[8] It is agreed between the parties that the respondent is a small business 2 therefore, the minimum employment period that applies to the applicant is one year.

[9] Section 384 of the Act defines a period of employment as follows:

‘(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;

…’

[10] Under s.384(2) of the Act, I must consider whether any of the applicant’s service as a casual employee counts towards his period of employment. This requires me to determine whether the applicant was employed on a regular and systematic basis and during his period of service, had a reasonable expectation of continuing employment on a regular and systematic basis. Should I find that any or all of the applicant’s service is counted in his period of employment, I must be satisfied this is of at least one year duration.

[11] If I am satisfied that the applicant is a person protected from unfair dismissal in accordance with s.382 of Act, I must then determine if the applicant was dismissed by the respondent.

Was the applicant dismissed?

[12] Section 385 of the Act provides:

‘A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.’

[13] Section 386 of the Act provides the meaning of dismissed as follows:

‘(1)  A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

...’

Consideration

Casual employee not employed on a regular and systematic basis

[14] The applicant has not been asked to work any shifts for the respondent since a discussion he had with the respondent on 18 June 2018, 3 which was later confirmed in an email dated 22 June 2018 from “John”, presumably John Thalassinos, the General Manager of the respondent. The email stated:

‘As per our discussion on Monday 18th June, we have you based as a casual employee of the golf club and as we do not have food service this Friday and very few golfers on Saturday we do not require you to come in and work. At this stage we don’t have you rostered on for any shifts but if a shift becomes available we will call you and give you the option to work it.’ 4

[15] Notwithstanding the reference in this subsequent email and elsewhere to casual employment, the applicant gave unchallenged evidence that he was employed as a regular part-time employee. He said that when he accepted employment with the respondent in place of a contractor relationship, he was offered employment on a regular part-time basis by the Mr Thalassinos, with minimum payments per week, and that he accepted that employment offer. 5

Conclusion

[16] Mrs Lay for the respondent said that she was not present at that conversation, and was not able to contradict the applicant’s account. She conceded that Mr Thalassinos could have said that and when asked about the applicant’s claim that he was offered a regular part-time job and accepted it, she said:

‘Well, I don’t know. I mean how would I know?’ 6

[17] The applicant submitted that:

‘[He] was never on-call. [He] was never rung out of the blue to work a day here or there. That was never the case. [He] was always expected to be there Wednesday. If [he] wasn't there [he] had to ring or if something was wrong, which wasn't the case. But [he] was always expected to be there. [He] was an employee of the golf course... [He] was employed every single week for the last two years.

…

... [He] was told [he'd] be a permanent member of the golf course. [He'd] [have] regular shifts, the same shifts all the time, and that's what [he] did. [He] was never on-call. [He] was never rung to work a shift.’ 7

[18] Mrs Lay for the respondent conceded elsewhere that she had no direct evidence to the contrary, but still maintained that the applicant was a casual. 8 She did not wish to cross-examine the applicant, and the applicant’s evidence was unchallenged. While she claimed in the employer submission that the applicant was not guaranteed shifts,9 she said that:

‘Well, I’ll accept what he says. I’m in no position to doubt otherwise.’ 10

[19] It may be the case that payments made by the respondent were not consistent with such an arrangement being made, and that in practice he was, on occasion, treated as a casual employee by the respondent. 11 Mrs Lay said that ‘[if] there’s no work then why have someone in?’12 She explained that providing food services ‘was not economically viable, the income generated became less than the cost of employing Joel for 4 hours, so food services were suspended.’13

[20] However, the applicant wrote letters to the respondent asking for payment of monies owed. 14 He said that the underpayments by the respondent and failure to pay ‘agreed wages is tantamount to theft.’15 He said that after he formally asked for the underpayments to be addressed by the respondent, ‘[he] suddenly found [himself] a casual employee, on call and no further shifts!’16 In a letter dated 25 June 2018, the applicant claimed that he was supposed to receive a minimum of eight hours pay each week, and other payments, which he did not receive and wanted to claim as underpayments.17

[21] I do not regard the respondent’s actual practices as conclusive evidence about the nature of the initial contract between the applicant and the respondent because the applicant was in dispute about those practices, and claimed that they were not what had been agreed to. The respondent’s actual practices may simply be breach of contract rather than evidence about the terms of the original contract. The respondent did not appear to have well-developed employment practices, or any great knowledge of the workplace system or legal requirements. There was no evidence of specialist Human Resource advice. Rather it is likely that the respondent simply reacted to requirements week by week, doing the best it could.

[22] In the circumstances, I accept the applicant’s unchallenged evidence given, in particular, the acceptance by the respondent of that evidence. 18 I find that he was employed as a regular part-time employee from 12 October 201619 and has therefore met the required one year’s service. Given my finding, I must dismiss the first jurisdictional objection.

No dismissal

[23] In relation to the second issue, whether or not he was dismissed, it is clear that the applicant did not perform any work on or after 22 June 2018. 20 No shifts were arranged for him, he was not asked to work, in fact he was told on 22 June 2018 that there were no shifts, no food service, and they would call him if a shift became available. No call was made.

[24] In Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd, 21 Lee, Moore and Marshall JJ said:

‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.’

[25] In Ms Tamicka Louise Dover-Ray v Real Insurance Pty Ltd, 22a Full Bench of the Commission said:

‘[18] Section 643(1) of the WR Act confers a right on an employee whose employment has been terminated to apply to the AIRC for relief in respect of that termination but only if that employee’s employment “has been terminated by the employer”. It is well established that the Commission has no jurisdiction to deal with an application for relief against termination of employment unless such termination was at the initiative of the employer.’

Conclusion

[26] Mrs Lay submitted that ‘... I don’t think that email that was sent on 22 June is a dismissal document.’ 23 She explained that what happened was not a dismissal but rather there was no demand for the applicant’s services. Instead of termination she said that ‘I could say no longer needed.’24 She did not disagree that the applicant did not work after the 22 June 2018 email was sent by the respondent.

[27] The applicant said that on 18 June 2018 he had a telephone conversation with Mr Thalassinos after he sent official letters asking for monies owed, and Mr Thalassinos ‘made it quite clear that [he wouldn’t] be working. [Mr Thalassinos] was quite angry when he told [him] on the phone.’ 25

[28] In all the circumstances of this case, the treatment of the applicant amounted to a termination of employment. At the initiative of the respondent, the applicant ceased to perform any work, and received no pay. There was no prospect of a resumption of work because the respondent had reorganised services and did not provide food services at the time he was supposed to be working. 26 His employment as a regular employee was clearly at an end. I must therefore dismiss the second jurisdictional objection.

[29] The matter will now be referred for arbitration.

[30] An order dismissing the jurisdictional objections is separately issued in PR701279.

DEPUTY PRESIDENT

Appearances:

Mr J Lindsay on his own behalf.

Mrs B Lay appearing for the respondent.

Hearing details:

2018.

Melbourne:

October 12.

Printed by authority of the Commonwealth Government Printer

<PR701278>

 1   Applicant’s Outline of Argument: Merits, 3; F3 Employer Response to Unfair Dismissal Application, 6.

 2   Applicant’s Outline of Argument: Objections, 13 and Respondent’s F4 Application, 3.

 3   Applicant’s Outline of Argument: Merits, 5 and Mrs Bea Lay’s Witness Statement, 1.

 4   Respondent’s Documents, A.

 5   Transcript PN81-129.

 6   Transcript PN155.

 7   Transcript PN127 and PN129.

 8   Transcript PN148-175.

 9   Respondent’s Outline of Arguments: Merits, 13, question 6b.

 10   Transcript PN175.

 11   Transcript PN177-179.

 12   Transcript PN181.

 13   Respondent’s Outline of Arguments: Merits, 14, question 6b.

 14   Transcript PN137.

 15   Applicant’s Witness Statement, 5.

 16   Ibid, 4.

 17   Applicant’s Documents, A and B.

 18   Transcript PN175.

 19   Applicant’s Outline of Argument: Merits, 3.

 20   Transcript PN181-185.

 21 [1995] IRCA 645.

 22   [2010] FWAFB 2670.

 23   Transcript PN181.

 24   Transcript PN205.

 25   Transcript PN145.

 26   Transcript PN181-206.