Joseph Calleri v Swinburne University of Technology
[2017] FWC 2702
•24 MAY 2017
| [2017] FWC 2702 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Joseph Calleri
v
Swinburne University of Technology
(U2017/2340)
| Commissioner Wilson | DARWIN, 24 MAY 2017 |
Application for an unfair dismissal remedy - jurisdictional objection - minimum employment period - casual employee.
On 3 March 2017 Joseph Calleri made an unfair dismissal application to the Fair Work Commission alleging a termination at the initiative of his former employer Swinburne University of Technology (Swinburne), and more particularly alleging that such dismissal was unfair within the meaning of the Fair Work Act 2009 (the Act).
This decision concerns two matters; the reasons for a grant of permission for representation of Swinburne by a lawyer, made by me prior to the hearing of the matter; and whether Mr Calleri has completed the minimum employment period and is thus a person protected from unfair dismissal, and eligible to make an unfair dismissal application.
PERMISSION FOR REPRESENATION BY A LAWYER
On 6 April 2017 Swinburne sought to be legally represented in these proceedings and provided short particulars to the Commission in support of its application. That material disclosed that the Respondent relied upon s.596(2)(a) to the effect that the matter might be dealt with more efficiently, taking into account its complexity. Swinburne’s application for legal representation was provided by the Commission to Mr Calleri on the same day for the purposes of eliciting his views about the application prior to the making of a decision as to representation. Mr Calleri responded, also on 6 April 2017, strongly opposing the application.
On Friday, 7 April 2017, having considered the material provided by each regarding the application for permission for legal representation, I advised the parties that I would grant the application pursuant to s.596(2)(a) and that reasons for doing so would be provided in due course in the Commission’s decision on jurisdiction.
Section 596 of the Act, which regulates when a party may be represented by a lawyer or paid agent in proceedings before the Commission, provides as follows:
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i)an organisation; or
(ii)an association of employers that is not registered under the Registered Organisations Act; or
(iii)a peak council; or
(iv)a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
In granting Swinburne’s application for permission for representation by a lawyer, I had regard to the proper interpretation of s.596, which was considered by Flick J of the Federal Court in Warrell v Walton[1]:
“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”[2]
It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission.[3] The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.[4]
In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused.[5] Sheer volume of documents or the existence of extraneous issues does not equate to complexity.[6] While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.[7] There may be many grounds for a consideration of “efficiency” and familiarity with the subject matter, the conceptualisation and organisation of argument in the statutory context and marshalling of relevant materials may be matters that assist in the efficient conduct of the hearing of a matter, as may the increased alacrity with which cross-examination may be carried out, as well as familiarity with the Act and authorities in the context of a jurisdictional question.[8] The expertise and familiarity with the issues before the Commission of human resource practitioners or in-house counsel may also be relevant.[9]
The relevant complexity in this particular matter is whether, in all the circumstances, the service of Mr Calleri may properly be regarded as continuous service for the purposes of the Act and whether, in any respect, any breaks in employment may be regarded as having broken the continuity of service. In themselves these matters are not especially complex, however within the context of a short jurisdictional hearing ostensibly to be focused upon the facts of the matter it was considered by me that legal representation by the Respondent would assist the matter to be dealt with more efficiently.
I also took into account that the Applicant is professionally a solicitor and that an unfairness to the Respondent may arise in the event that it was not permitted legal representation (s.596(2)(c)).
Accordingly, I was satisfied that representation of Swinburne by a lawyer would assist the matter to be dealt with more efficiently and so permission for legal representation was granted.
As a result. Mr Calleri appeared in the matter on his own behalf and Matthew Minucci, of Counsel, instructed by Maddocks, appeared on behalf of Swinburne.
JURISDICTIONAL OBJECTION – MINIMUM EMPLOYMENT PERIOD
Swinburne’s jurisdictional objection is that Mr Calleri has not satisfied the minimum employment period, as that term is defined in ss.383 and 384 of the Act, for the reason that his period of employment as a casual employee, with the exception of some limited concessions, was not on a regular and systematic basis and that he did not have a reasonable expectation of continuing employment, meaning that his period of service as a casual should not count towards the minimum employment period.
A person who has not completed a period of employment with his or her employer of at least the minimum employment period is not a person protected from unfair dismissal (s.382(a)). In turn, an objection that an applicant is not a person protected from unfair dismissal is one of the initial matters that need to be determined by the Commission before turning to the merits of an unfair dismissal application (s.396).
In relation to the other initial matters within s.396, it is not in contention that the Respondent is not a small business employer for the purposes of the Act and it is not contended that Mr Calleri’s termination of employment, if there was one, was a genuine redundancy.
However, it may be that a question arises about whether his application was made within the time period permitted by the Act for the making of an unfair dismissal application. This is because Swinburne contends that Mr Calleri has not been dismissed and that he has not worked for it since 6 December 2016. If Mr Calleri has not been employed by Swinburne since that date, and the Commission is both satisfied that Mr Calleri was terminated on the employer’s initiative (s.386(1)(a)), as well as having been employed for at least the minimum employment period, the date upon which his application was made, 3 March 2017, would mean that it would be necessary for the Commission to consider whether there were exceptional reasons that would lead the Commission to grant an extension of time for the making of Mr Calleri’s unfair dismissal application.
BACKGROUND AND EVIDENCE
Evidence in this matter was directly received from the Applicant, Mr Calleri, and for the Respondent from Ms Simona Jobbagy, Director of Design, Media and Information Communication Technologies in the Pathways and Vocational Education Department at Swinburne.
Mr Calleri puts forward that his employment with Swinburne commenced in approximately June 2010 and that he continued in employment until February 2017. He says that the circumstances of that employment means he:
“… has served at least five (05) minimum employment periods:
In 2010 (07 months), and
In 2012 (06 months), and
In 2013 (10 months), and
In 2014 (11 months), and
In 2015 (06 months). ”[10]
Swinburne however contends that the commencement of Mr Calleri’s period of employment is only from 2016, not, as Mr Calleri contends, from 2010, and that he performed no work for them after 6 December 2016.
Swinburne put forward that Mr Calleri has had various periods of casual employment with it since 8 May 2010 but that his “casual engagements prior to 2016 were occasional, irregular, short and related to a different type of work (non-teaching work) to his 2016 casual engagements”.[11] It also put forward that Mr Calleri, prior to 2016, had not been offered or accepted work with Swinburne for more than 1 year and 4 months, or since 24 December 2014, and further that even if Mr Calleri had established any period or periods of continuous service prior to 24 December 2014 the continuous service was clearly broken by the lengthy break referred to.[12]
Swinburne says about Mr Calleri's most recent engagements in 2016 that he first had a casual engagement of 18.5 hours of work across three days on 4 – 6 May 2016 which involved writing a submission for a training award on behalf of Swinburne[13] and that other employment after the work in May was not a continuation of that work.[14]
Mr Calleri completed several “Sessional Teaching Engagement” or “Sessional TAFE Teacher Engagement” documents, referred to by him, and in this decision, as “C3 Engagements”. The documents Mr Calleri provided to the Commission including such engagements are dated 14 May 2010, 5 July 2011, 1 March 2013, and 1 March 2014, and an undated document from 2016[15] which Mr Calleri signed on 9 May 2016.[16]
A summary of Mr Calleri's timesheets and payslips submitted within his evidence would suggest that he worked the following days and hours for Swinburne between 2010 and 2016;
· 2010 – 279 hours over 43 days;
· 2011 – 61.5 hours over 9 days;
· 2012 – 397.5 hours over 86 days;
· 2013 – 91 hours over 21 days;
· 2014 – 633 hours over 76 days;
· 2015 – 200 hours over 6 days.[17]
Mr Calleri’s evidence about the work he performed for Swinburne between 2010 and 2015 was that he generally worked from home providing timesheets to Swinburne for payment, with his work being to prepare learning materials for certain courses taught by the University. Ms Jobbagy’s recollection about when she first met Mr Calleri is that he had been engaged to develop some resources for a theatre arts program[18] and that the work he performed between 2010 and 2014 included short-term once-off tasks in tender writing or course development.[19]
Mr Calleri’s evidence is that the work he performed for Swinburne in 2015 was, because of Swinburne’s budgetary position, the subject of a prepayment of $13,000 paid to him on 7 January 2015 and that he performed the work relating to the prepayment over the next six months. The work for which he was prepaid related to the development of certain learning materials for one of Swinburne’s units. On Mr Calleri’s evidence those materials were finalised by him on 5 June 2015.[20] In contrast, Swinburne put forward that the work was actually completed much earlier, in March 2015, and that Mr Calleri’s materials were not provided by him to Swinburne for some reason until June.
Ms Jobbagy’s evidence is that in 2014 Mr Calleri worked on a training submission; and that in 2015 he undertook work associated with the preparation of tender documents, and a course evaluation.
The next work performed by Mr Calleri for Swinburne commenced in May 2016 and continued for some time, albeit with a question posed by the Respondent about whether the work was continuous service within the meaning of the Act. The 2016 work included the teaching of academic units for the University, as well as the preparation of materials for the making of a submission to an awards body on Swinburne’s behalf. Swinburne considers the different work subjects to be unconnected with each other, and thereby not to be considered as continuous employment. Ms Jobbagy deals with Mr Calleri’s 2016 employment in her witness statement as follows;
· She needed someone in early May 2016 to write a submission for a training award and asked Mr Calleri to do so. That work took him 18.5 hours with it being performed across three days between 4 and 6 May 2016;[21]
· On 30 May 2016 he performed five hours of work as a specialist guest speaker in a particular university program;[22]
· In August 2016 Mr Calleri was engaged to teach a 12-week semester course with his teaching involvement being between 2 August and 25 October 2016 and which had some associated marking work;[23]
· Mr Calleri was engaged on six occasions between 15 August and 31 October 2016 as a guest industry speaker in a particular university program;[24]
· On 4 November 2016 Mr Calleri was engaged to complete six hours of marking;[25] and
· On 6 December 2016 he was engaged to attend a three-hour meeting.[26]
Mr Calleri claims to have had an expectation of employment continuing after December 2016. There is an incomplete document trail before the Commission on the subject, however material within the Applicant’s documents show him responding by email on 15 December 2016 to an earlier email, also on 15 December, from a Swinburne manager, Mark Boyle. Mr Calleri’s communication takes issue with matters apparently referred to in Mr Boyle’s correspondence, which is not before the Commission, and mentions, amongst other things, that Mr Calleri regards Swinburne’s actions as constituting “[c]onstructive and unfair dismissal without reason”.[27] A communication the next day to Mr Calleri from Kirsten Ryan, a Swinburne HR Business Partner, informs Mr Calleri of the following;
“Hi Joe,
I am the HR Business Partner for the PAVE team within Swinburne. I've reviewed the emails below, and spoken with Mark about this. I wanted to confirm the main points from Mark's email (sent 15/12/2016).
· You have not been dismissed from employment at Swinburne.
· We would like you to continue working at Swinburne as a sessional teacher, specifically teaching the unit implementing copyright arrangements next year.
· Your teaching skills, qualifications and experience are not being questioned. In fact, from all accounts we have received positive feedback from students on your teaching this year.
· We do not have any concerns about your conduct, in relation to conflict of interest.
· At the time of making the decision to employ you, Kate Herbert did not disclose a potential conflict of interest stemming from her personal relationship with you.
· In future, Mark has asked Kate to work with him on any staffing decisions in her program area.
As DMICT are still planning timetables for 2017, can you please advise if you would like to teach the unit mentioned above?
I hope this information reassures you. If you want to meet to discuss this situation, or if you have any unresolved concerns, I would be more than happy to meet with your personally next week. Please let me know if you would like to do so.
I look forward to hearing from you.
Kind regards,
Kirsten Ryan
HR Business Partner (PAVE) / People and Culture / Swinburne University of Technology”[28]
Mr Calleri regards his termination of employment as having been notified to him and taken effect on 13 February 2017 and comes to this conclusion after seeing an email from a manager within Swinburne to Mr Calleri’s wife, Kate Herbert, who also works at Swinburne. That email indicates that another employee of Swinburne’s had been allocated teaching of the courses Mr Calleri expected to undertake. He had earlier arrived at the conclusion that he would teach the two units, having been shown a timetable with his name indicated against the relevant course units. The relevant timetable provided to the Commission by Mr Calleri indicates several preparation and revision dates between 30 November 2016 and 6 December 2016.
For its part, Swinburne submits that no work was performed for it by Mr Calleri after 6 December 2016. Ms Jobbagy concedes that the timetable submitted to the Commission by Mr Calleri shows his name held against the relevant course units but explained in her oral evidence that the particular document, being a timetable, was just a room allocation and that allocation of staff to the courses was another process, with the timetable merely identifying who was available. Further, she explained that Swinburne’s process of allocating staff to course units was firstly to prefer ongoing staff, then to consider fixed-term contract staff and then finally to consider sessional staff such as Mr Calleri. Her evidence also included that the person to whom the course units had actually been allocated had availability within her timetable because of other courses being cancelled and that the staff member concerned was to be preferred to Mr Calleri in the allocation of work.
Mr Calleri put numerous questions to Swinburne’s witness, Ms Jobbagy, to the effect that her evidence was untruthful or that she was lying or that she had made things up. While Mr Calleri put those propositions to her, each denied by Ms Jobbagy, he did not put contrary and specific information to her that would enable a finding that she had been untruthful. Rather than finding that Ms Jobbagy was untruthful in any respect I found her to be a truthful witness who was prepared to acknowledge those parts of her statement where she relied upon information provided from others or to acknowledge those aspects of her statement that were incorrect. In relation to those parts of her statement requiring correction I accept that the initial errors made by Ms Jobbagy were inadvertent, unintentional and without any intention to mislead.
LEGISLATION
A person is protected from unfair dismissal if they meet the following criteria, set out in s.382 of the Act;
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 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.
The definition ascribed to the minimum employment period is provided in s.383;
383 Meaning of minimum employment period
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.
Relevant to this decision, and the Respondent’s assertion that Mr Calleri’s period of service as a casual employee should not count towards his period of employment with Swinburne, are the terms of s.384 of the Act;
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
(b) if:
(i)the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii)the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii)the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
CONSIDERATION
I note that no work has been performed by Mr Calleri for Swinburne since 6 December 2016 and that there was a communication with him on 15 December 2016 referring to the prospect of further work. I note that Mr Calleri’s application refers to the date of termination of his employment as being both notified and taking effect on 13 February 2017.
As is evident from the provisions of s.384(1), the matter for determination in this decision is whether the Applicant has a period of continuous service with his former employer that would exceed the minimum employment period. A period of casual employment will not be counted towards the period of employment itself unless that casual employment was on a regular and systematic basis and the employee had a reasonable expectation of continuing employment with the employer also on a regular and systematic basis.
It has been held in relation to predecessor legislation, in which there was also a need to find employment on a “regular and systematic” basis in order for a casual employee to be entitled to make an unfair dismissal application, “that it is the ‘engagement’ that must be regular and systematic; not the hours worked pursuant to such engagement”.[29] In a finding made under the current legislation, employment is regarded to have commenced when the employee first attended for work, thereby accepting the offer of employment.[30]
Further, the Full Bench has made plain that the enquiry in matters such as this is an enquiry as to the whole of the period of employment, with an established sequence of engagements being capable of being considered continuous service, with that continuous service being broken only when one party makes it clear to the other by words or actions that there will be no further engagements. I take into account and apply the reasoning of the Full Bench in Shortland v Smiths Snackfood;
“As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s 384 must be construed.
The criteria in s 384(2)(a) make it clear that s 384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.
Moreover, it is more than tolerably clear that s 384 is concerned with how an employee’s period of employment is calculated for the purposes of s 382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s 384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s 384(2)(a)(i) or (ii) is not met). It is clear from the language of s 384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s 384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s 382(a).
Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s 384. In particular, a period of continuous service within the meaning of s 384(1) is not to be seen as broken by a period of “leave” or an absence due to illness or injury.”[31] (original emphasis)
The evidence about the circumstances in early 2015 includes that Mr Calleri was prepaid to undertake certain work for the first part of 2015, which he then proceeded to do. In relation to that work Mr Calleri’s outline of submissions refers to the following;
“The Applicant worked for the Respondent from January 01, 2015 to June 05, 2015 inclusive, a total period of time exceeding three months, writing Learning Materials, Unit Outlines, and Assessment Documents for the following units of study in the Respondent’s Diploma of Justice course:
· VU20861 -‐ Apply Criminal Law Within A Justice Environment.
· VU20862 -‐ Work with Family Violence.
· VU20863 -‐ Work with Culturally Diverse Clients.
· VU20864 -‐ Work with Conflict.
· VU20865 -‐ Apply Management and Leadership within Justice.”[32]
There is a dispute between the parties as to when that work was completed. On 21 March 2015, Mr Calleri’s wife, Ms Herbert, emailed Swinburne with six “Learning Material/docs” which she refers to as being “the final unit” for the course. On 4 June 2015 a person within Swinburne emailed Mr Calleri asking whether he had been asked to write a particular module in relation to the diploma to which the earlier materials related.[33] Several hours later, also on 4 June 2015, Ms Herbert responded attaching the requested documents and in doing so said “Apologies. I must have missed sending the docs for this unit in Feb”.[34]
Notwithstanding the dispute between the parties as to when the work was completed, whether that be 21 March 2015 or 4 June 2015, it is apparent that Mr Calleri’s engagement with Swinburne finished on one of those dates. I am unable to see from the evidence before me that there was any intention by Swinburne that further work would be performed by Mr Calleri after the time that he provided the course materials.
In considering the application of Shortland, referred to above, it is to be noted that that case did not concern the situation where there had been a break in continuity of service;
“The Commissioner did not find that Mr Shortland’s employment was not continuous and correctly so. Prior to June 2009 Mr Shortland worked almost every week. There were a total of 4 isolated weeks in the period of almost three years prior to June 2009 when Mr Shortland performed no work. Those breaks should not be treated as a discontinuity in Mr Shortland’s employment such that periods of service before them should be discounted. The pattern of work disclosed by the evidence suggests that Mr Shortland’s employment in the period was regular and systematic. On any view, Mr Shortland had a reasonable expectation of continuing employment on a regular and systematic basis. In June 2009 Mr Shortland ceased work as a result of an injury that he claimed was work-related and for which he has now lodged a claim for workers compensation. Smiths has disputed that claim on the basis of causation. Mr Shortland’s absence from work from June 2009 was due to that injury and incapacity.
A letter from Smiths dated 22 September 2009 informed Mr Shortland:
… Please be aware that given you are unable to undertake your full duties, we are unable to roster you for any shifts as a casual packer.
Should a medical practitioner declare you fully fit for work again, please advise us and provide a copy of the certificate so that we are able to roster you for work where required.
It is clear from subsequent events that Smiths took the view that Mr Shortland was still a casual employee but he was not being allocated work because he was not fully fit for work.”[35]
The question arises in this matter as to whether or not routinely occurring breaks in the academic year might either explain some of the gaps in Mr Calleri’s employment and not be treated as breaks in continuous service. Within the context of breaks associated with employment in a school, Vice President Lawler observed the following in the matter of Burke v Marist Brothers St Joseph’s College (Burke);
“[21] In accordance with the approach laid down by the Full Bench in Shortland v Smith Snackfood Co Ltd[2010] FWAFB 5709, the breaks in employment evident in the table set out above, to the extent that they do not coincide with the school holidays when ordinarily very little work would be available to the bus drivers, do not count towards the minimum period of employment, but the periods when work was being allocated do count and can be added, consistent with Shortland, such that the Applicant has completed 6 months of regular and systematic employment with the Respondent.”[36]
The proposition that the lack of work by Mr Calleri performed for Swinburne between early-to-mid 2015 and mid-2016 can be explained by the ordinary or routine vacations that may be experienced in an academic institution such as Swinburne would require there to be significant evidence in favour of the proposition in order for it to be made out. For success the proposition would need to be illustrated with positive evidence that demonstrated that when work concluded in early-to-mid 2015 that conclusion was the product of some campus closure that meant that Mr Calleri would not be brought back until the following year. At its shortest the period is of slightly less than a year, and at its longest it is 14 months.
The work performed by Mr Calleri in early-to-mid 2015 was associated with the preparation of materials for Swinburne’s teaching courses. The work he next performed for Swinburne in May 2016 was associated with the preparation of the submission for a training award. There is no evidence before the Commission that would suggest that the two bodies of work were separated because of the period associated with the University’s activities when there was ordinarily very little work available to people such as Mr Calleri.
Mr Calleri submits that due to what he calls the “continuous length” of his employment from 2010 to 2016 inclusive he cannot be excluded from lodging a claim for unfair dismissal on the grounds of his casual status, relying on the Commission’s decision in Atkins v Box Hill High School, School Council[37] (Atkins).
That matter was decided under the Workplace Relations Act 1996 (the WR Act) and the test required to be applied by the Commission at that time was whether, in all the circumstances, the Applicant was unable to make an unfair dismissal application because work as a casual employee should be excluded from consideration “if the occasions on which the employee works for that employer under that engagement occur within a period of less than 12 months”.[38] The Commission noted that the Applicant had employment as a causal relief teacher over a series of engagements in a period of around 18 months. In deciding the matter, the Commission considered the nature of casual employment and the meaning of the verb “engage”, and concluded that the Applicant’s casual service should not be disregarded since it would be inappropriate to characterise the occasions of her employment as a separate employment relationship or relationships.[39] Atkins also considered the reasoning of the Full Court of the Federal Court in Hamzy v Tricon International Restaurants T/A KFC[40] (Hamzy), in which earlier Regulations, excluding some kinds of employees from the operation of the termination of employment provisions contained in the WR Act, were found to be invalid.[41] By the time Atkins was decided different Regulations had been made.[42]
Mr Calleri’s submission about Atkins is that its reasoning should be applied “in relation to an analysis of the “gaps” in the Applicant’s employment with the Respondent”,[43] arguing that from the Commission’s analysis of the decision, it may be inferred that “the Fair Work Act 2009 makes no mention whatsoever of the incidence, number, pattern, separation, duration or any other feature of the occasions on which a casual employee performs work for an employer”.[44]
Atkins and Hamzy were decided under predecessor legislation and two sets of different regulations, with Atkins relying on a finding that separate occasions of work were within the one engagement occurring within a period of more than 12 months. The Regulation to which the Commissioner was required to have regard in Atkins provided for the exclusion of casual employees from access to Unfair Dismissal provisions if they were engaged for a “short period” within the meaning of a sub-regulation which provided the following;
“30B. Certain employees excluded from requirements for termination of employment
(1) For subsection 170CC(1) of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act:......
(d) a casual employee engaged by a particular employer for a short period, within the meaning of subregulation (3).......”
(3) For paragraph (1)(d), a casual employee is engaged by a particular employer for a short period if the occasions on which the employee works for that employer under that engagement occur within a period of less than 12 months.”[45]
Examination of that sub-regulation, together with the decision of Commissioner Lewin, leads to the view that Atkins has limited utility in the determination of this matter. While it is consistent with the proposition that assessment of continuous service requires an analysis of the whole of the employment relationship and that there can be continuous service for a casual employee across separate contracts of employment, it does not make, as Mr Calleri would seek, a finding that any work that runs beyond a six-month span is deemed to be completion of the minimum employment period.
Hamzy has little application to this matter. The judgment is significantly concerned with matters such as the Court’s jurisdiction and the validity of certain regulations. While it also addresses the meaning of the phrase “engaged on a casual basis” used in the WR Act and considered the date from which an employee’s status may be evaluated in applying the phrase, those do not determine the application of ss.382, 383 and 384; the relevant tests in which are whether an employee has completed a period of employment of at least the minimum employment period with that period being the period of continuous service that has been completed. The fact that certain regulations were found by the Full Court to be invalid in 2001 does not impact on this decision, which concerns the application of legislation enacted by the Parliament in 2009 in altogether different terms to the invalid regulations.
Mr Calleri also drew upon the provisions of the Explanatory Memorandum to the Fair Work Bill 2008 to assist his case, referring particularly to the explanations given for the term “period of employment”. Mr Calleri did not draw the Commission’s attention to any part of the Explanatory Memorandum that would cause me to apply the provisions of the Act in a manner differently to the cases to which I have referred in other parts of this decision.
Based on the evidence before the Commission I can make no finding other than that his continuity of service with Swinburne, if there was any, was broken when he completed preparation of the course materials in 2015, whether that was in March or June 2015. None of the C3 Engagement documents he provided to the Commission give rise to a contrary finding, and neither does any other evidence. It follows that assessment of Mr Calleri’s minimum employment period for the purposes of this decision commences with the work he was contracted to perform from 4 May 2016.
Having made that finding, the question arises as to whether the work performed by Mr Calleri in 2016 was continuous service and whether, as a casual employee, he had a reasonable expectation of continuing employment by Swinburne on a regular and systematic basis.
The evidence about Mr Calleri’s 2016 engagements by Swinburne is set out above. That evidence indicates that Mr Calleri was initially contracted in May 2016 to prepare a submission for Swinburne; in May he was engaged as a specialist guest speaker; between August and October he taught classes of a particular program; also between August and October he spoke as a guest industry speaker at another university program; in November he was involved in marking associated with the classes he taught; and in December he attended a meeting for which he was paid.
Viewed both in whole and objectively, this evidence does not lead me to a finding that there is continuous service within those engagements. This is for the reason that s.384(2)(a)(i) requires employment as a casual employee that was not on a regular and systematic basis to be disregarded from inclusion in the Commission’s consideration of continuous service.
The question of whether an employee’s engagements were “regular and systematic employment” was considered at length in the matter of Ponce v DJT Staff Management Services T/A Daly’s Traffic (Ponce).[46] In that matter it was concluded that the fact “that an employee works more hours and one week or one month than another and the fact that an employee might have variable start and finish times is not conclusive evidence of irregular, occasional, or non-systematic employment or engagement”[47] and that “the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic”.[48] Further;
“[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.
[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.
[78] If the hours worked over a lengthy period are similar to or exceed that of full-time ordinary hours then this would also be strong evidence that work is being performed when offered and that work is being offered when available at the time parties know this is practical. Hence this would also be evidence of regular and systematic employment.”[49]
The Commission also considered these matters in the matter of Burke, decided after Ponce. Burke in turn gave consideration to the earlier decision of the Commission in Leane v Federal Hotel (Leane)[50] in which the patterns of payment to an employee were analysed and became the basis of an assessment of whether or not the employment of the applicant was regular and systematic, with the Commission in that matter finding that the only regularity of Mr Leane was that he often, but not always, worked one day a week.[51] After analysing the approach taken in Leane, Vice President Lawler in Burke set out the following;
“[18] With one caveat, I prefer the approach of Roe C. That caveat is that one must not treat the summary of Roe C as a substitute for the language of the statute: the ultimate question always remains whether the employment was “regular and systematic” within the meaning of section s.384(2)(a) and care must be taken not to invert the test to one which asks the question whether the employment was “occasional or irregular”.
[19] Further, it seems to me that one cannot strain or strive to find system, but rather, it must be apparent on the evidence that some system has been adopted in the allocation of work in the course of an Applicant’s employment.”[52]
I, too, apply the reasoning in Burke and Ponce and do not follow Leane in this case.
The circumstances in which Mr Calleri came to be engaged in 2016 as set out in Ms Jobbagy’s evidence are as follows;
· She needed a submission written in May 2016; was aware that Mr Calleri was a lawyer and wanted sessional work; and asked Ms Herbert if he would be available and interested. The subsequently signed employment contract specifically noted that a working with children certificate and a certificate IV qualification were “not required as this is not a teaching engagement”;[53]
· The specialist guest speaker arrangement in late May was offered by Ms Herbert and performed on 30 May 2016 and, since the work related to contracts, drew upon Mr Calleri’s qualifications as a lawyer. Ms Jobbagy says about this work that it “did not involve teaching or assessment and therefore Mr Calleri did not need a Certificate IV in Training and Assessment in order to work as a guest speaker”;[54]
· In August Mr Calleri was engaged to teach a 12-week semester 2 class in a Writing Short Non-Fiction course which is part of the Bachelor of Arts program. The engagement was arranged by Ms Herbert and approved by Mr Boyle. “Mr Calleri was engaged to teach this class because there had been an unexpected and unusually high number of enrolments in this unit, which required Swinburne to put on an extra class at short notice”. The engagement process “was a bit more rushed than usual because of the expected need for an extra class”. The work was undertaken between 2 August and 25 October 2016;[55]
· Mr Calleri was engaged on six occasions between August and October 2016 as a guest industry speaker in a particular unit. The dates on which work was performed associated with this work were 15 and 22 August and 10, 17, 24 and 31 October 2016;[56]
· There was a marking engagement of 6 hours’ work on 4 November 2016.[57] Ms Jobbagy’s evidence is unclear as to whether this work was associated with the Writing Short Non-Fiction course referred to above; however Mr Calleri’s submissions include that he performed marking tasks associated with this course well into November 2016;[58]
· There was a further, and final, meeting on 6 December 2016 comprising three hours’ work, with Ms Jobbagy conceding in her oral evidence that the purpose of the meeting was not, as stated in her witness statement, a unit assessment validation meeting, but instead a meeting to review teaching arrangements for 2017. She conceded that the unit assessment validation meeting was actually on 26 October 2016.
Mr Calleri’s evidence also refers to work undertaken on 10 October 2016 which comprised of a meeting associated with the content of a particular course;
· Ms Jobbagy;
“… represented to the Applicant that the meeting – which according to the Applicant’s hand-written notes occurred on Tuesday 10 October 2016 - with Kathleen Drew (Ms Drew) and Janelle Arena (Ms Arena) was to provide Ms Drew with legal advice regarding a human resources problem that Ms Drew was having with one of her teachers.
Jobbagy was not present during this specific 10 October 2016 meeting.
When the Applicant, acting in good faith, arrived at the meeting, he was ambushed by Ms Drew and Ms Arena who informed the Applicant that:
·Their law teacher had walked out on the Respondent the very morning that teaching classes had commenced; and
·Ms Drew and Ms Arena were, therefore, urgently seeking a teacher to come in at no notice to take on 100 hours of teaching, plus marking;
·The law course was in “chaos”;
·The law course had a very high failure rate;
·The majority of the students undertaking the law units were not native English speakers and that they had problems understanding the course materials;
·The Applicant would have less than 2 days to prepare for such a heavy workload;
·The teaching of the law units would take place over the period of December 2016 and January 2017 when the Applicant had already organised his annual leave.
In October 2016, the Applicant was already successfully teaching units for the Respondent, and the Respondent had already represented to the Applicant that he would be teaching in 2017.”[59]
· Further;
“During a validation meeting on Wednesday 26 October 2016 from 10am for the course CUFCMP301A – Implement Copyright Arrangements, involving the Applicant, Mark Boyle and Ms Kate Herbert, Mark Boyle discussed with the Applicant some possible changes that the Applicant could introduce in 2017 to some of the teaching elements (for example: note taking; oral presentations) for the course CUFCMP301A – Implement Copyright Arrangements. Therefore, the Applicant had a reasonable expectation of teaching that particular course, and continuing his employment with the Respondent into 2017.”[60]
Viewed objectively the two engagements in May 2016 are separate and distinct as between themselves, and I am unable to discern something regular and systematic within those two engagements. The work associated with the award submission is separate and distinct to the teaching and guest speaking arrangements. The guest speaking arrangements came about for different reasons to the preparation of the award submission and were offered by different people for different motives.
Further, I am unable to discern a regular and systematic basis of engagement between the May engagements and the first August 2016 teaching engagement. The first August 2016 teaching engagement came about for reasons unconnected with the May engagements. Its offering had neither a regular nor systematic basis to it.
However, I am satisfied that there is the requisite connection between the first August teaching engagement, which commenced for 12 weeks on 2 August 2016 and the second, which commenced on 15 August 2016. Each required teaching of some kind, although the second is characterised by Swinburne as being work as a “guest industry speaker”. Given that it went for several weeks and required Mr Calleri to work directly with students, I consider it has a sufficient relationship to teaching.
I also consider that the marking in November 2016 and the October 2016 and December 2016 meetings to have the character of regular and systematic employment. Each relates, it appears, to the teaching activities Mr Calleri undertook in 2016.
Whether Mr Calleri had a reasonable expectation of continuing employment on a regular and systematic basis (s.384(2)(a)(ii)) depends on how one might view the communication from Ms Ryan to Mr Calleri on 16 December 2016.
That communication, set out in full above, indicates that Swinburne would like Mr Calleri “to continue working at Swinburne as a sessional teacher, specifically teaching the unit implementing copyright arrangements next year”.[61] Ms Ryan asked Mr Calleri on that day to advise whether he would like to teach the unit mentioned above. She sought his views about whether he would still like to teach the unit mentioned. In overall context it is doubtful that the communication may be regarded as an offer of employment, however it is unnecessary to determine the question, since the relevant consideration is whether Mr Calleri had a reasonable expectation of continuing employment by Swinburne on a regular and systematic basis. Ms Ryan’s communication is to be regarded as giving him that reasonable expectation.
As referred to above, Swinburne argue that Mr Calleri performed no work for it after 6 December 2016. The evidence supports that proposition.
Notwithstanding Mr Calleri’s contention that his termination of employment was notified and took effect on 13 February 2017, my consideration of the minimum employment period must have regard to his “service” as a casual employee, and whether any part does not count. Noting that the term “service” is defined by s.22 of the Act to be a “period during which the employee is employed by the employer”, subject to specified exclusions, I am unable to find any period of employment after 6 December 2016. While Mr Calleri may have had a reasonable expectation of continuing employment, there is no evidence that any ever eventuated.
As a result of the findings made by me, I find that the employment period to which I must have regard commenced on 2 August 2016. All casual employment after that period was on a regular and systematic basis, with Mr Calleri having a reasonable expectation of continuing employment. Therefore, no casual employment is to be disregarded. However, his last casual employment with Swinburne was on 6 December 2016, and there was a representation to him on 16 December 2016 that there may be further employment if he was interested. There is no evidence that Mr Calleri answered Ms Ryan’s request that he advise her if he would like to teach the unit she mentioned. The absence of such a response allowed Swinburne to see that as Mr Calleri’s words or actions that there would be no further engagement under the then operating contract. There is no evidence of employment after 16 December 2016. In all likelihood Mr Calleri’s employment ended by no later than 16 December 2016, and I find that date to be his date of termination.
Mr Calleri has therefore not completed the minimum employment period
I must dismiss his application as being beyond the jurisdiction of the Commission to deal with and an order to that effect is issued at the same time as this decision.
COMMISSIONER
Appearances:
Mr J Calleri on his own behalf.
Mr M Minucci, of Counsel, for the Respondent.
Hearing details:
2017.
Melbourne:
10 April, 2 May.
[1] [2013] FCA 291.
[2] Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
[3] Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869 [5].
[4] Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 [19].
[5] King v Patrick Projects Pty Ltd[2015] FWCFB 2679 [15].
[6] Ibid [17].
[7] Singh v Metro Trains Melbourne[2015] FWCFB 3502 [16].
[8] Smith v James Cook University[2016] FWC 6010 [6]–[7].
[9] Ibid [18].
[10] Exhibit A2, Applicant’s Statement of Evidence, 2–3.
[11] Respondent’s Outline of Argument: Objections, 20 March 2017, [14].
[12] Ibid [15].
[13] Ibid [16].
[14] Exhibit R2, Witness Statement of Simona Jobbagy, [27].
[15] Exhibit A3, Applicant’s Document List, C3 Engagements.
[16] Exhibit A2, 17; Exhibit R2 [17].
[17] Exhibit A1, Applicant’s Outline of Arguments/Objections, Attachment – Joe Calleri timesheets and payslips.
[18] Exhibit R2 [7].
[19] Ibid [9]
[20] Exhibit A1, 19-20.
[21] Exhibit R2 [12]–[15].
[22] Ibid [19].
[23] Ibid [20].
[24] Ibid [24].
[25] Ibid [26].
[26] Ibid [27].
[27] Exhibit A3, Attachment Emails, 15 December 2016.
[28] Ibid, Attachment Emails, 16 December 2016.
[29] Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, (2006) 149 IR 339 [65].
[30] Corner v SkyCity Adelaide Pty Ltd[2011] FWAFB 955, (2011) 204 IR 63 [7].
[31] [2010] FWAFB 5709, (2010) 198 IR 237 [10]–[13].
[32] Exhibit A1, 20.
[33] Exhibit R1, email sent 4/6/15 at 2:06 PM.
[34] Exhibit A3, Attachment Emails.
[35] [2010] FWAFB 5709, (2010) 198 IR 237 [14] – [15].
[36] [2015] FWC 7324 [21].
[37] Unreported, PR930307 (2003).
[38] Ibid [3].
[39] Ibid [43].
[40] [2001] FCA 1589, (2001) 111 IR 198.
[41] Ibid [74]–[80].
[42] PR930307 [3], [47].
[43] Exhibit A1, 8.
[44] Exhibit A2, 7.
[45] Workplace Relations Regulations 1996 (Cth) r 30B.
[46] [2010] FWA 2078.
[47] Ibid [68].
[48] Ibid [75].
[49] Ibid [76]-[78].
[50] [2011] FWA 5959.
[51] Ibid [21].
[52] [2015] FWC 7324 [18]-[19].
[53] Exhibit R2 Attachment SJ-2.
[54] Ibid [19].
[55] Ibid [20]–[21].
[56] Ibid [24].
[57] Ibid [26].
[58] Exhibit A1, 37-38.
[59] Ibid, 39.
[60] Exhibit A2, 17.
[61] Exhibit A3, Attachment Emails, 16 December 2016.
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