Kai Mitchell Leeson v Belindara Pty Ltd T/A Flip Out Mandurah
[2024] FWC 1766
•4 JULY 2024
| [2024] FWC 1766 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kai Mitchell Leeson
v
Belindara Pty Ltd T/A Flip Out Mandurah
(U2024/2291)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 4 JULY 2024 |
Application for an unfair dismissal remedy – objection that minimum employment period not served – jurisdictional objections dismissed – Applicant was dismissed – minimum employment period completed.
Issues and Outcome
Master Kai Mitchell Leeson (the Applicant), a former casual employee of Belindara Pty Ltd T/A Flip Out Mandurah (the Respondent), made an application to the Fair Work Commission for a remedy in respect of his dismissal.
The Respondent business is an indoor play centre and trampoline park.[1] The Applicant, a high school student, started work with the Respondent in September 2022.[2] He had joined the Respondent not long after his mother had commenced working for it.[3] His parents had invested $80,000.00 into the business,[4] with a view to purchasing it from Mr Michael Smith, its director, and the Applicant’s ‘godfather’. For reasons not relevant to the matter at hand, the purchase of the business fell through, and the position of the Applicant’s mother was made redundant in early February 2024. Her employment ended at that time. The Applicant said he worked at the business until 9 February 2024, after which time he was not provided with any further work.[5]
The Respondent raises two jurisdictional objections to the application. First, the Applicant was not dismissed. Secondly, the Applicant’s employment did not meet the minimum employment period. Whilst the Respondent pressed it was a small business employer, it nevertheless submitted that if the Applicant’s periods of employment as a casual employee were periods caught within s 384(2)(a) of the Fair Work Act 2009 (Cth) (the Act), then the Respondent did not dispute that the Applicant’s periods of employment exceeded the minimum employment period, irrespective of whether that period was six months of one year. However, according to the Respondent the Applicant was not a regular casual employee and the Applicant’s hours and days of work did not give rise to a pattern of work that was regular and systematic, given the sporadic and varied nature of his shifts and duties.
For the following reasons, I am unable to agree with the Respondent’s contention. I am satisfied that the Applicant was dismissed and has completed the required minimum employment period. The Respondent’s jurisdictional objections are dismissed, and the matter will now be subject to further programming.
Background
On 28 June 2024, a hearing was held to contend with the aforementioned jurisdictional objections. The Applicant and his mother, Ms Louise Victoria Leeson, provided evidence in support of his case. The Respondent relied up on the evidence of Mr Smith. It is noted that Ms Leeson’s evidence was limited in content and probative value. It follows that little to no weight was afforded to it.
The following is extracted from the written witness statements of the Applicant and Mr Smith, and evidence provided at hearing.
2.1 The Applicant’s evidence
The Applicant says he initially started with the Respondent as a supervisor on the floor, which meant he assumed responsibility for ensuring that children were using the trampolines and equipment safely.[6]
According to the Applicant, in March 2023, he was promoted to the position of Ninja Coach for children aged two to five years.[7] This involved teaching children how to execute proper manoeuvres (presumedly on the trampolines). The Applicant said that the Ninja Coaching Program ran during the school term, and he was employed each week to work Monday, Tuesday, and Wednesday.
At hearing, the Applicant clarified that he had started working on the Monday, Tuesday, and Wednesday of each week, from on or around 3 July 2024. Pages 99 to 103 of the Digital Hearing Book set out the Applicant’s timesheet for the duration of his employment with the Respondent (Timesheet). It is evident from that Timesheet that from 3 July 2024, the Applicant had worked the pattern of eight Mondays, Tuesdays, and Wednesdays in a row. This is not to say that on other days during this period the Applicant did not work. For example, in that same period the Applicant worked 11 Tuesdays and Wednesdays in a row (exclusive of the Monday, Tuesday and Wednesday pattern), and 20 Saturday and Sunday shifts combined. [8]
In respect of the shifts worked on a Saturday, the Applicant said he worked in the Respondent café each Saturday and continued this work up until he received no more hours. The Applicant clarified that there would be some Saturdays where he did not work, as he was racing cars with certain engine size restrictions.[9] When asked if he had the opportunity to attend racing would he attend, the Applicant noted that it depended on the meeting and how much money he had in the bank.
The Applicant said he was not notified of his dismissal by the Respondent, he simply stopped receiving shifts after his mother received a notice of her being made redundant.[10] However, in cross examination it was drawn to the Applicant’s attention that he had been rostered to work on Saturday, 10 February 2024, and then again on 12, 13 and 14 February 2024,[11] dates which post-dated the date of the redundancy of his mother’s position. At paragraph [30] of the Applicant’s witness statement he states:
I note that the employer says I did not attend work during the week including 14/02/2024 of which times I was not informed of and I do not accept I was given these times, but this was due to illness which my mother forwarded a Medical Certificate for.
By text message dated 10 February 2024, the Applicant advised Mr Smith that he had woken up sick in the morning and would not be able to make it into work.[12] Mr Smith acknowledged the text message, noting that he would call around to find someone (presumedly to replace the Applicant for the shift).[13] Within an hour, Mr Smith sent a text message to the Applicant confirming he had sorted the situation.[14]
The Applicant said that on 13 February 2024, he attempted to access ‘Deputy’, the rostering program for the Respondent, to find his access had been denied. The Applicant gave evidence that rosters would be posted one to two weeks in advance on Deputy. Further, he attempted to access the Respondent’s ‘Group Chat’, to also find he had been removed from that messaging group.[15]
On 14 March 2024, the Applicant’s mother forwarded to Mr Smith a medical certificate which certified that the Applicant was going through a stressful situation and had been unfit for work from 10 February 2024, and that he continued to feel unwell until 17 February 2024.[16]
2.2 Mr Smith’s evidence
Mr Smith gave evidence that he was responsible for overseeing the whole of the business operations of the Respondent.[17] He made decisions in relation to staffing and rostering and was responsible for the day to day management of the Respondent business.[18]
As noted, the Respondent uses ‘Deputy’ as its rostering software. Mr Smith said that the software allowed him to allocate shifts to employees who he knows are available and it allows those same employees to accept those shifts, decline those shifts, or request periods of leave or other absences.[19]
Mr Smith said that he prepares rosters three to four weeks in advance to try and give the staff as much notice as possible of their allocated shifts.[20] Mr Smith said that despite this, staff sometimes find they cannot work their allocated shifts so they would message him to advise that they cannot work and that he needed to change the roster.[21] Mr Smith explained that he could not roster a staff member to work if that employee was not in the Deputy system.
When a shift is allocated, Deputy sends out a notification on the ‘APP’ telling the staff member that Mr Smith has done so.[22] Mr Smith said that if a staff member is not able to attend a shift that they have been allocated, they either contact him, or sort it out amongst the workforce and tell him who is taking that shift.[23]
Mr Smith noted that he did not ordinarily use the ‘Group Chat’ to provide rosters to employees,[24] and that the purpose of the ‘Group Chat’ was not for the purpose of rostering.[25] Mr Smith clarified that the Group Chat was used to let staff know updates about business requirements, when there was additional work available, important updates about the business and safety messages for busy times.[26]
For the hearing, Mr Smith had prepared the aforementioned Timesheet, which included a column titled ‘Area’. The ‘Area’ provided a description of the work performed by the Applicant on shift. Information had been extracted from ‘Deputy’ to assist in compiling the Timesheet.[27]
Mr Smith said the Applicant worked in multiple areas of the Respondent business. These areas included the café and reception, watching over the ‘Ninja Warrior Level 1 course’, watching over the ‘Inflatable course’ and watching over the Junior Arena when designated as ‘Junior Area’. Mr Smith explained that where the ‘Area’ is ‘Classes L3’, this referred to the Applicant training children on the trampolines and teaching them tricks of the trampolining industry (Ninja classes).[28]
Mr Smith stated that whilst there was some regularity in the shifts worked by the Applicant, he never promised that there would be ongoing work, and that he would offer the work to the Applicant when it was available.[29] Mr Smith noted that he tried to give the Applicant the same kinds of shifts when he was available for work, as this was easier operationally, and avoided the need to retrain people across different areas of the business.[30]
Mr Smith gave evidence that he had not spoken to the Applicant since 11 February 2024 and that the Applicant had not contacted him since 10 February 2024.[31]
Mr Smith referred to the text messages he had sent to the Applicant on 10 February 2024, and one sent to the Applicant on 11 February 2024, which read: ‘Hey Kai Just checking in to see how your [sic] feeling? And if you think you will be at work tomorrow’.[32] Mr Smith noted that at the bottom of the text message chain, it stated, ‘[t]his person is unavailable on Messenger’, and understood this to mean that the Applicant had blocked him.
Mr Smith acknowledged that he had received an email from the Applicant’s mother on the afternoon of 14 February 2024, which attached a medical certificate.[33] However, he noted that the Applicant had not attempted to contact him directly to say he was available for work and would like some work, and the Applicant’s mother had not asked for the Applicant to have more shifts.[34]
Mr Smith confirmed that he had removed the Applicant from the Respondent’s Group Chat on or around 14 February 2024. Mr Smith stated that when the Applicant stopped responding to his messages, based on everything that was going on with his mother, and the fact that he simply did not turn up for three shifts, he assumed that the Applicant was no longer interested in working at the business.[35]
Having received the medical certificate, Mr Smith said that he expected, as was usual in a case where an employee returned from a period of absence, that the Applicant would message him to confirm that he was feeling better and available for work.[36]
Was the Applicant dismissed?
Central to the consideration of whether the Applicant was dismissed is the operation of s 386(1) of the Act.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2 of the Act, which concerns Unfair Dismissal. The word ‘dismissed’ is defined in s 12 of the Act as having adopted the meaning in s 386 of the Act.
Section 386(1) of the Act reads:
(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.
There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; those exceptions are not relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (Bupa),[37] in the following terms:
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[38]
While a summary of the position under s 386(1) of the Act was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Limited v Balgowan (City of Sydney RSL),[39] gave further consideration to the operation of s 386(1)(a) of the Act, expressing:
[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s 386(1)(b) and that concept is not subsumed in s 386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)
The Full Bench in City of Sydney RSL placed reliance on the decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [No 2] (Mohazab).[40] This is unsurprising given the Full Court of the Federal Court in Mahony v White observed that the Act had retained the use of the phrase and that the judgment in Mohazab remained good authority as to the connotation of that formula. [41]
While finding it unnecessary and undesirable to endeavour to formulate an exhaustive description of what constituted ‘termination at the initiative of the employer’, the Court in Mohazab identified that an important feature was that the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee.[42] Furthermore, while a termination of employment may involve more than one action, it was important to ask oneself what was the critical action or actions, which constituted a termination of employment.
My findings can be succinctly put. I have found the Applicant was dismissed for the following reasons.
First, having considered the evidence of both Applicant and Respondent, I find that the Applicant was aware that he had been rostered to work on 12, 13 and 14 February 2024. The Applicant gave evidence that rosters were posted on Deputy one to two weeks in advance and Mr Smith said they were posted three to four weeks in advance. In light of such evidence and observing that the Applicant was fully aware he was rostered to work 10 February 2024, I consider it more likely than not that as of Saturday, 10 February 2024, the Applicant knew what his roster was for the upcoming week. The provision of a medical certificate to the Respondent covering those dates reinforces this finding.
Secondly, whilst aware that he was rostered to work on 12, 13, and 14 February 2024, it nevertheless remains that at no stage did the Applicant proffer a resignation. Furthermore, the Applicant was rostered to work on 14 February 2024, and mid-way through that shift, provides, via his mother, a medical certificate to cover for his absence. Clearly, this act was not indicative that the Applicant had resigned from his position.
Thirdly, I find that prior to the provision of the Applicant’s medical certificate on 14 February 2024, Mr Smith had removed the Applicant from Deputy, the Respondent’s only source of providing to its employees the roster and for employees, providing their availability to work on certain days of that roster. Mr Smith gave evidence that if an employee was not on Deputy, he could not physically roster the employee. The Applicant gave evidence that as of 13 February 2024, he was unable to access Deputy, having been removed. Mr Smith confirmed that he had removed the Applicant from Deputy.
Fourthly, Mr Smith had, in addition, removed the Applicant from the ‘Group Chat’ prior to the receipt of the Applicant’s medical certificate. The Group Chat was not the forum for disseminating rosters or signalling availability for work on a particular week. However, it was a central means of communicating updates about business requirements, when there was additional work available, important updates about the business and safety messages for busy times.[43]
Fifthly, on receipt of the medical certificate, Mr Smith took no steps to enquire with the Applicant as to his availability to work shifts post 17 February 2024. The medical certificate advised that the Applicant was unwell until 17 February 2024. It was open to Mr Smith to have rostered the Applicant post this date, but he did not. Further, even if he did, the Applicant, having been removed from Deputy, would not have known he had been rostered. Furthermore, the Applicant was unable to signal his availability to be rostered via the system – having been removed.
The steps taken by Mr Smith were inconsistent with maintaining the Applicant’s employment with the Respondent. Whilst the Applicant did not respond to Mr Smith’s text message of 11 February 2024, he had on the day prior, notified he was sick. In circumstances where there was no communication from the Applicant for a period of only three to four days, and in light of the Applicant’s length of service with the Respondent (since 2022), it was premature of Mr Smith to have removed the Applicant from the Respondent’s rostering system and the Group Chat. Compounding matters further for the Respondent, is Mr Smith’s inaction on receipt of the medical certificate. Having received a medical certificate for the Applicant certifying that the Applicant was unwell for the days of work he had missed – hence providing explanation for the absence, Mr Smith took no step to reinstate the Applicant on Deputy or the Group Chat.
Whilst the question may be asked as to why the Applicant did not respond to Mr Smith when Mr Smith messaged him on 11 February 2024, it was evident from the medical certificate that the Applicant had been unwell. As to the Applicant not contacting Mr Smith post 17 February 2024, by that date the Applicant had been removed from Deputy and the Group Chat, and in addition Mr Smith had received the Applicant’s medical certificate and yet, did not reinstate him to those platforms or otherwise contact him.
To conclude, it was the acts of the Respondent which resulted directly or consequentially in the termination of the Applicant’s employment on 13 February 2024. The Applicant did not voluntarily leave the employment relationship. It therefore proves necessary to consider whether the Applicant has satisfied the minimum employment period.
Had the Applicant satisfied the minimum employment period?
Section 390(1)(a) of the Act provides that the Commission must, relevantly, be satisfied that a person was ‘protected from unfair dismissal’ at the time of being dismissed before it may make an order for an unfair dismissal remedy in the person’s favour. Section 382(a) provides that the first of the two requirements that must be satisfied in order for a person to be ‘protected from unfair dismissal’ is that the person is an employee who has completed a ‘period of employment’ with the relevant employer of at least the ‘minimum employment period’. Section 383(a) provides, in respect of an employer which is not a small business employer, that the ‘minimum employment period’ is 6 months ending at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal (the period is one year for a small business employer).
In the case before me, the Respondent’s evidence as to the number of employees it had at the time of the Applicant’s dismissal, was insufficient to make a finding that the Respondent had less than 15 employees. It follows that I have proceeded on the basis that the minimum period of employment was six months.
Section 384 of the Act is concerned with how an employee’s period of employment is calculated for the purpose of determining if the employee has satisfied the minimum employment period. The relevant part reads:
(1) [Meaning of period of employment]
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.
(emphasis added)
The starting point is that a period of employment is also referred to as a period of continuous service.
Section 22 defines the terms ‘service’ and ‘continuous service’, the relevant subsections follow:
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) [Exceptions to meaning of service]
The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or
(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;(c) any other period of a kind prescribed by the regulations.
(3) [Excluded period does not break continuous service]
An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service…
A period of continuous service can be made up of a series of periods of service.[44] An employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment (period of continuous service) with that employer.[45]
In the case of a casual employee, a period of service will not count towards the casual employee’s period of employment unless:
a) the employment as a casual employee was as a regular casual employee; and
b) 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.[46]
In Chandler v Bed Bath N’ Table Pty Ltd (Chandler),[47] the Full Bench identified what it considered to be the correct approach to the application of s 384(2)(a) of the Act. That approach was clearly drawn from the reasoning in Yaraka Holdings Pty Ltd v Giljevic (Yaraka Holdings)[48] (see paragraph [11] of Chandler):
In Yaraka Holdings Pty Ltd v Giljevic, the Court of Appeal of the ACT gave consideration to the proper construction of s 11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as workers for the purpose of that Act casual workers if their “engagement, under the contract or similar contracts, has been on a regular and systematic basis” taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work. Crispin P and Gray J observed that the concept of employment on a regular and systematic basis was drawn from the Workplace Relations Act 1996 (Cth), and went on to say:
[65] It should be noted that it is the "engagement" that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent.
…
[67] Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.
[68] The term "regular" should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for "frequent" or "often". However, equally, it is not used in the section as a synonym for words such as "uniform" or "constant". Considered in the light of the criteria in s 11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.
[69] Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent, would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged.
In Chandler, the Full Bench confirmed:
[13] The reasoning in Yaraka Holdings has been applied to the concept of casual employment on a regular and systematic basis in the FW Act. In WorkPac Pty Ltd v Skene, the Federal Court Full Court favoured (without needing to finally adopt) the view that the construction in Yaraka Holdings should be applied to the definition of “long term casual employee” in s 12 of the FW Act (which includes a requirement that the employee has been employed “on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months”). The Commission in its own decisions has consistently applied Yaraka Holdings to s 284(2)(a), including in the Full Bench decisions in Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell and Bronze Hospitality Pty Ltd v Janell Hansson as well as in numerous first instance decisions.
(citations omitted)
To recap, in Yaraka, the Court noted that it is the engagement of a casual employee that must be regular and systematic, not the hours worked pursuant to such engagement.[49] It also held that the term ‘regularly’ should be construed liberally, and that ‘systematic’ does not mean predictable.[50] However, as was observed in the Full Bench decision in Bronze Hospitality Pty Ltd v Hansson,[51] the Court in Yaraka did not say or suggest that the hours of work are analytically unimportant, and clearly, the days on which a person works and the hours worked on those days are relevant to the consideration of whether casual employment is regular and systematic, and whether the person has a reasonable expectation of ongoing employment.[52]
In the Federal Court judgment of Bronze Hospitality Pty Ltd v Hansson (No 2) (Bronze Hospitality No.2), Jackson J expressed:
Section 384(2)(a)(i) calls for an evaluation of whether the employment as a casual employee was on a regular and systematic basis. So it is the relationship of employment that must be characterised, one way or the other. It is true that the basis of the relationship can change over time, so it is necessary to determine when it became employment on a regular and systematic basis. But if, looking back after the end of the relationship (as is of course inevitable in an unfair dismissal case) the evidence as a whole supports a characterisation of its basis as regular and systematic from the beginning, it does not matter that looking forward from the beginning, one would not have yet seen all that evidence. The basis of the employment was, in fact, regular and systematic from the start, even if sufficient evidence of that fact did not accumulate until later.[53]
Returning to the notion of ‘expectation’ and the proper construction of s 384(2)(a) of the Act, Jackson J stated:
…If the employee's expectation was based, not on anything the employer said, but solely on her own observation of the regularity of her work shifts, it would be wrong to look back and say that, as it turned out, there was a reasonable expectation from the very beginning. An expectation could not be reasonable until the time at which the pattern necessary to make it so has emerged.
But I do not accept that as a matter of construction of s 384(2)(a)(ii), a week and a half of regular employment cannot establish that pattern. The ordinary meaning of the words of s 384(2)(a)(ii) requires that the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis. If that expectation has been formed, it is necessary to assess whether it is a reasonable one. It is true that the word 'reasonable' is generally used in the law to import an objective standard: Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at [33] (Lord Hoffmann). But the FWA does not limit the matters that may be taken into account in determining whether the expectation is reasonable. Certainly, the shorter the period of employment, generally the harder it will be for the employee to establish that he or she reasonably relied on a pattern of work, if that is the basis of his or her reasonable expectation. But the reasonableness of the expectation depends on all the circumstances, and there is no minimum period in the legislation that makes a week and half insufficient in every case.[54]
(emphasis added)
In Bronze Hospitality No.2, the Federal Court proposed that what is agreed to at the commencement of employment is also relevant to the question of whether an employee has objectively reasonable grounds for an expectation of continuing employment on a regular and systematic basis.[55]
To determine whether the legal relationship is one of casual employment, the High Court has ruled that the determination of the character of the legal relationship between the parties is undertaken only by reference to the legal rights and obligations which constitute that relationship.[56]
In this case, it initially appeared that neither party cavilled with the proposition that the Applicant was an employee employed on a casual basis. The Applicant’s application identified he was a casual employee, as did his response at paragraph [2(e)] of his Outline of Argument. More importantly, the express terms of the Applicant’s employment contract stated as much. However, at hearing the Applicant’s representative advanced the proposition that the Applicant was engaged on a permanent part-time basis. Having regard to the terms of the casual contract, I am satisfied that the Applicant was a casual employee within the meaning of s 15A of the Act, from September 2022.
The Applicant worked for the Respondent from September 2022 up until his last shift of work on 9 February 2024 –noting, however, that his dismissal took effect on 14 February 2024. It is accepted that this period is not reduced on account of any excluded period as provided for in s 22 of the Act.
The Respondent contends that the Applicant was not a regular casual employee on the basis that the Applicant’s hours and days of work did not give rise to a pattern of work that is regular and systematic in nature given the sporadic and varied nature of his shifts and duties.
Having examined the Timesheet, I make the following observations. As noted, from 3 July 2024, the Applicant had worked the pattern of eight Mondays, Tuesdays, and Wednesdays in a row. This is not to say that on other days during this period the Applicant did not work. For example, in that same period the Applicant worked 11 Tuesdays and Wednesdays in a row (exclusive of the Monday, Tuesday and Wednesday pattern), and 20 Saturday and Sunday shifts combined. [57]
The Applicant had worked each week in July 2024, averaging two to four shifts a week of varying periods ranging from three hours to nine hours.[58] In August 2023, the Applicant worked predominately two shifts a week on a Tuesday and Wednesday of three hours in duration and two Saturday shifts of five hours and eight hours respectively.[59] In September 2023, the Applicant worked each week – one week five shifts, one week six shifts, one week two shifts, and one week three shifts.[60] Days of work included weekdays and weekends, with hours ranging from three hours to seven and a half for each shift. In October 2023, the Applicant worked each week, four shifts for the first week, two shifts in the second, three in the third, and five in the fourth.[61] In November 2023, the Applicant again work two to five shifts each week ranging from shifts in three to nine hours in duration.[62] In December 2023, whilst the Applicant work on Sunday, 3 December 2023, he did not work the following week, and thereafter he worked two days a week for the following three weeks.[63] Similarly, whilst the Applicant worked on 2 and 3 January 2024, his next shift was on Monday, 15 January 2024 and thereafter he worked two shifts that week, three shifts the following week, two the following and then of course we arrive at February 2023, with the Applicant working Monday to Wednesday, 5 to 7 February 2024.[64]
The evidence points to the Applicant’s employment as a casual employee being ‘regular’ in that he worked most weeks in the six month period (with the exception of two weeks) (s 384(2)(a)(i) of the Act).
The Timesheet covers a 71-week period during which the days of work were not fixed and the hours worked on each day were also variable. I have focused on the last six months of that Timesheet. Predominately that Applicant worked each week on a Monday, Tuesday and/or a Wednesday, at times also working a Saturday and/or a Sunday. There would be times when he worked a Thursday or a Friday, but such shifts on such days were infrequent. For the most part week day shifts were three hours in duration with longer shifts being worked on the weekend. However, there were at times longer shifts worked on a week day, particularly on a Monday.
In order for a period of service as a casual employee to count towards the employee’s period of employment there must be a period of regular and systematic employment that coincides with a reasonable expectation of ongoing employment.[65] On the material before the Commission, these prerequisites are present. The Applicant’s employment as a casual employee was regular. I consider it was also on a regular and systematic basis having regard to the evidence before the Commission detailing the hours that he worked, the days on which he worked, the rostering methodology, the business requirements, and the other circumstances such as the Applicant’s availability being limited to, at times, weekdays after school, weekends and school holidays – and the rostering of the Applicant accommodating that availability. Whilst it is true that the Applicant worked in different areas of the Respondent business, at times in the café, the Junior Arena or, for example, watching over the ‘Ninja Warrior Level 1 course’, this does not negate the finding made.
The Applicant’s employment contract at clause 1.2 sets out that the Applicant was employed on a casual basis, and, as such, the Respondent makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.[66] The clause continued that the Applicant agreed that no work pattern, rosters, or hours performed will be regular or systematic.[67] Yet, the evidence shows that for a period of six months, excluding in that period the aforementioned two weeks where the Applicant did not work, the Applicant had been provided work each and every week in the pattern so described (with the exclusion of two weeks). As was said in Bronze Hospitality No.2, the ordinary meaning of the words of s 384(2)(a)(ii) requires that the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis. If that expectation has been formed, it is necessary to assess whether it is a reasonable one. Notwithstanding the terms of the Applicant’s employment contract, I consider the evidence supports the finding that the Applicant had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis during his period of employment as a casual employee.
It follows that I am satisfied that the Applicant’s period of service as a casual employee counts towards his period of employment. As such, I am satisfied that the Applicant has completed the required minimum employment period in order to be a person who is protected from unfair dismissal.
Conclusion
Based upon the above reasons, I have concluded that the Applicant is protected from unfair dismissal because he was dismissed as of 13 February 2024, and he had completed a period of employment with the Respondent of at least the minimum employment period. The Respondent’s jurisdictional objections that the Applicant was not dismissed and has not served the minimum employment period are therefore dismissed, and the matter will now be subject to further programming.
DEPUTY PRESIDENT
Appearances:
DF Gordon, for the Applicant
S Rogers of Counsel, for the Respondent
Hearing details:
2024
Perth (by video):
28 June.
[1] Witness Statement of Michael Smith, [2] (Smith Statement).
[2] Witness Statement of Kai Mitchell Leeson, [4] (Leeson Statement); Digital Hearing Book, 103 (DHB).
[3] Ibid [9].
[4] Ibid.
[5] Ibid [10].
[6] Ibid [11].
[7] Ibid [16]-[17].
[8] DHB (n 2) 99-103.
[9] Leeson Statement (n 2) [13]-[14].
[10] Ibid [22].
[11] Smith Statement (n 1) [28].
[12] DHB (n 2) 176.
[13] Ibid.
[14] Ibid.
[15] Leeson Statement (n 2) [27].
[16] DHB (n 2) 64, 176.
[17] Smith Statement (n 1) [3].
[18] Ibid.
[19] Ibid [19].
[20] Ibid [18].
[21] Ibid.
[22] Ibid [21].
[23] Ibid.
[24] Ibid [20].
[25] Ibid [21].
[26] Ibid [38].
[27] Ibid [8].
[28] Ibid [9].
[29] Ibid [44].
[30] Ibid [14].
[31] Ibid [22].
[32] DHB (n 2) 176.
[33] Smith Statement (n 1) [23].
[34] Ibid [24].
[35] Ibid [40].
[36] Ibid [42].
[37] [2017] FWCFB 3941 (Bupa).
[38] Ibid [47].
[39] [2018] FWCFB 5.
[40] Mohazab v Dick Smith Electronics Pty Ltd [ No 2] (1995) 62 IR 200 (Mohazab).
[41] (2016) 262 IR 221.
[42] Mohazab (n 40) 205.
[43] Smith Statement (n 1) [38].
[44] Shortland v Smiths Snackfood Co Ltd (2010) 198 IR 237, 240–1 [12].
[45] Ibid.
[46] Fair Work Act 2009 (Cth) ss 384(2)(a)(i)–(ii).
[47] (2020) 295 IR 1.
[48] (2006) 149 IR 339.
[49] Ibid 355 [65].
[50] Ibid 355–6 [68]–[69].
[51] [2019] FWCFB 1099, [24] (Bronze Hospitality).
[52] Ibid.
[53] (2019) 290 IR 344, 352 [37].
[54] Ibid 352–3 [39]–[40].
[55] Ibid 353 [42].
[56] WorkPac Pty Ltd v Rossato (2021) 271 CLR 456, 477 [57].
[57] DHB (n 2) 99-103.
[58] Ibid 100.
[59] Ibid.
[60] Ibid 101.
[61] Ibid.
[62] Ibid.
[63] Ibid 102.
[64] Ibid.
[65] Bronze Hospitality (n 51) [44].
[66] DHB (n 2) 103.
[67] DHB (n 2) 103.
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