Kenneth Burke v Marist Brothers St Joseph's College T/A St Joseph's College

[2015] FWC 7324

[2015] FWC 7324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kenneth Burke
v
Marist Brothers St Joseph’s College T/A St Joseph’s College
(U2015/5952)

VICE PRESIDENT LAWLER SYDNEY, 26 OCTOBER 2015

Application for relief from unfair dismissal - jurisdictional objection.

[1] This is a decision that relates to a jurisdictional objection brought by the Respondent pursuant to which it contends that the Applicant has not completed the minimum period of employment, and therefore is not protected from unfair dismissal: s.382(a) of the Fair Work Act 2009.

[2] Sections 383 and 384 relevantly provide:

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.

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;

…
(emphasis added)

[3] The Applicant was employed pursuant to a written contract entered in about May 2012 as a “casual bus driver”. The contract states:

You will be employed on a casual basis. There is no expectation of ongoing employment with the College. Each day of work is a separate engagement and represents a distinct period of employment. This agreement shall apply to each such distinct period of employment.

[4] I note:

(a) The Applicant challenged the authenticity of the contract (Exhibit 3). While he accepts that his signature appears under the acceptance block on page 4 of the contract the Applicant alleges, without having articulated any clear foundation for doing so, that the front three pages of the contract have been fraudulently manipulated by Mr Habib. I accept Mr Habib’s evidence that Exhibit 3 represents an authentic business record of the College and that the accusation that the letter has been fraudulently manipulated is without substance.

(b) The contract contains other terms that may bear upon the questions for determination. For example, the contract provides that the Applicant shall “not engage in other paid work or business without the written consent of the College. The College will not unreasonably withhold its consent.”

(c) In relation to “hours” the contract provides “your casual hours of work will be set on a weekly basis and may be varied in accordance with the needs of the College.” There is a contention between the hours of work being set on a weekly basis and the extract from the contract quoted above.

[5] At the end of the day there is little dispute in relation to the facts that are determinative of this jurisdictional objection. All of the payslips for work performed by the Applicant in the 12 month period ending 19 June 2015 (the date of termination) are in evidence and their contents are accurately summarised in MFI5, a table prepared as an aide memoire by the Respondent’s representatives. That table is as follows:

Date	Week Number	Hours Worked Per Week (Timesheets)	Fortnightly Hours (Pay Report)	School Holidays
27-Jun	1	4	Yes
4-Jul	2	0	4	Yes
11-Jul	3	0	Yes
18-Jul	4	0	Classes resume on 15 July 2014
25-Jul	5	0	No
1-Aug	6	0	No
8-Aug	7	0	No
15-Aug	8	0	No
22-Aug	9	13	No
29-Aug	10	8.5	21.5	No
5-Sep	11	0	No
12-Sep	12	0	No
19-Sep	13	0	End of term on 18 September 2014
26-Sep	14	0	Yes
3-Oct	15	0	Yes
10-Oct	16	0	Classes resume on 8 October 2014
17-Oct	17	11.5	No
24-Oct	18	28.5	40	No
31-Oct	19	27.5	No
7-Nov	20	16.5	44	No
14-Nov	21	11.5	No
21-Nov	22	11.5	23	No
28-Nov	23	11	No
5-Dec	24	9.5	20.5	End of term on 4 December 2014
12-Dec	25	0	Yes
19-Dec	26	0	Yes
26-Dec	27	0	Yes
2-Jan	28	0	Yes
9-Jan	29	0	Yes
16-Jan	30	0	Yes
23-Jan	31	0	Yes
30-Jan	32	0	Classes resume on 28 January 2015
6-Feb	33	0	No
13-Feb	34	11.5	11.5	No
20-Feb	35	34	No
27-Feb	36	31	65	No
6-Mar	37	31	No
13-Mar	38	4	35	No
20-Mar	39	22	No
27-Mar	40	3	25	No
3-Apr	41	7	End of term on 1 April 2015
10-Apr	42	0	7	Yes
17-Apr	43	0	Yes
24-Apr	44	0	Yes
1-May	45	0	Classes resume on 28 April 2015
8-May	46	0	No
15-May	47	8.5	No
22-May	48	10	18.5	No
29-May	49	12	No
5-Jun	50	4	16	No
12-Jun	51	0	No
19-Jun	52	6	6	End of term on 18 June 2015

[6] Mr Smith, the Applicant’s direct supervisor and the person responsible for allocating work to the Applicant, accepted in cross-examination that he approached the allocation of work to the Applicant in the following fashion: on any day when a casual bus driver was required the first priority was given to Mr Dagg, who was the primary bus driver and mechanic who, although employed as a casual, was effectively working full-time hours.

[7] Mr Smith was required to make arrangements for necessary buses to be available during school term to meet travel needs in relation to excursions, sporting events, dances, debating and the myriad other activities that require the transportation of students. Mr Smith made an effort to allocate known excursion days in each term at or shortly before the beginning of that term, however, many of the occasions where bus transport was required arose with only short notice. During the summer and winter sporting seasons there was a substantial requirement for bus transportation on most Saturdays, most of which was satisfied through the use of charter coaches that were more expensive to use than the use of a school bus with casual drivers, at least where the large bus owned by the school was being used.

[8] It is clear from the evidence of Mr Smith that he allocated work to the Applicant on what were described as “general sports” Saturdays and then allocated additional work to the Applicant in relation to excursions etc with as much notice as possible. Mr Smith’s description of the way in which work was allocated to casual bus drivers had a system to it.

[9] It should be noted that the table above, supplemented by the oral evidence, demonstrates that the Applicant was free to decline work that he would ordinarily be offered during school terms when, for example, he went on an extended cruise with his wife and, on another occasion, travelled to the USA for several weeks to attend to urgent private matters.

[10] On any view, the Applicant received work that can properly be described as regular over the period of three years that he worked for the College. The key issue is whether the pattern of work allocated to the Applicant in his employment can properly be characterised as “systematic” within the meaning of section s.384(2)(a).

[11] There are two distinct approaches that emerge in the single Member decisions of the Commission that, in particular cases, will lead to different outcomes. A Full Bench is yet to rule upon the correctness of those competing approaches.

[12] The Respondent relied upon the decision of Deputy President Hamilton in Leane v Federal Hotel [2011] FWA 5959 (Leane), applied, for example, by Deputy President Harrison in Organ v Bushman’s Bakery Pty Ltd[2012] FWA 8079.

[13] In Leane the employee’s pattern of employment has certain similarities with the pattern of employment of the Applicant in this case. Hamilton DP stated:

[20] Secondly, Mr Leane's employment was not regular and systematic. Mr Leane's bank records show at most some consistency in the amount of the wages in the first three weeks, and then a separate but consistent amount for a second period of four weeks, and thereafter the payments usually vary each week, except for two periods of two weeks each in December and January. Irregular wages by themselves are no basis for a finding that Mr Leane's employment until March 2011 was regular and systematic.

[21] The time and wages records filed by the Federal Hotel provide more evidence that the employment was not regular and systematic. They confirm the evidence of Mr Leane's bank records that the wages earned by Mr Leane usually varied each week. In addition they indicate that the wages were usually earned on different days, usually one day a week but sometimes more, and the hours worked were different. The only regularity was that Mr Leane often, but not always, worked one day a week. There were no regular hours or patterns of work or rosters: Robert James Power v. Rupe. I note that there are some minor differences between Mr Leane’s bank records and the time and wages records which record net pay, but most correlate, and reinforce the accuracy of the records.

(footnotes omitted)

[14] The Applicant relied upon the decision of Commissioner Roe in Ponce v DJT Staff Management Services Pty Ltd [2010] FWA 2078 (Ponce), a decision that has been applied on a number of occasions by other members.

[15] In Ponce, Roe C undertook a lengthy analysis that included the following:

Regular and systematic employment

[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal,  or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.

[67] In my view, full-time and part-time work must be regarded as meeting the definition of regular and systematic. This is one reason why regular and systematic casual work meets the jurisdictional hurdle and why it is distinguished from irregular, occasional or non-systematic casual work for the purposes of a range of entitlements under the Act and Awards as discussed above. Legislators have deemed it fair to give regular and systematic casuals the same entitlements as other workers because they are engaged regularly and systematically, like full and part-time employees (in respect to matters such as parental leave and unfair dismissal jurisdiction).

[68] Full-time, part-time and casual employees often work on varying days and at varying times. Awards provide wide flexibility in this respect and further flexibility is available through flexibility agreements and through collective agreements. Under many awards ordinary hours can be averaged over a week, a month or sometimes longer periods; ordinary hours under many awards can be worked on any day of the week, and daily hours for full-time workers can vary under many awards from 4 to 12 hours. The fact that an employee works more hours in 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.

[69] Mr Hull for the Applicant drew my attention to Yaraka Holdings Pty Ltd v Giljevic. The legislation which was the subject of this authority concerned whether the “engagement” had been on a “regular and systematic basis” or whether “the individual had a reasonable expectation of the engagement continuing on a regular and systematic basis”. This is distinguishable from the present case because in Section 384 of the Act both of these matters are required to be established. They are not alternatives as in this authority. However in the judgment Crispin P and Gray J state:

“it was common ground that the concept of employment on a regular and systematic basis had been drawn from provisions found in regulation under the Workplace Relations Act 1996…”

[70] The Judges further observed:

“it is the engagement which must be regular and systematic not the hours of work pursuant to such engagement.

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.”

[71] The Judges then find that:

“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.”

[72] In the same case in a separate judgement Madgwick J found:

“it is clear from the examples that a ‘regular…basis’ may be constituted by frequent though unpredictable engagements and that a systematic basis need not involve either predictability of engagements or any assurance of work at all.

Engagement under contracts on a systematic basis implies something more than regularity in the sense just mentioned, that is frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan.”

…

[75] I conclude from this 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. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.

[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.

(footnotes omitted)

[16] The facts in Leane, in terms of the pattern of employment and variability in pay, bear some similarities to the facts in the present case. The approach in Leane would lead to a finding that the employment of the Applicant in the present case was not regular and systematic.

[17] On the other hand, if the approach articulated by Roe C in Ponce is adopted then the employment of the Applicant in the present case can properly be described as regular and systematic.

[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.

[20] I have come to the view that in the present case there is evidence of such a system and that the Applicant’s employment can properly be described as regular and systematic within the proper meaning of s.384(2)(a).

[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.

[22] Further, Mr Smith, who struck me as an impressive witness of truth, made a proper and candid admission that a reasonable person in the position of the Applicant would have had an expectation of ongoing employment. I am satisfied that the Applicant had such a reasonable expectation, notwithstanding the express term to the contrary in the written contract.

[23] Whether an employee has a “reasonable expectation of continuing employment” in accordance with section s.384(2)(a)(ii), is a question of fact to be determined on all the evidence. In this respect, the term of the contract to the contrary is merely a factor to be brought to account. Over the three years during which work was allocated to the Applicant I find it was done in such a way as to engender the reasonable expectation that the Applicant had and, as Mr Smith acknowledged, a reasonable person would have, continuing employment, notwithstanding the express term to the contrary within the contract.

[24] For all these reasons I am satisfied that the Applicant has completed the minimum period of employment and that the Respondent’s jurisdictional objection should be rejected.

[25] However, before concluding, I feel it necessary to make some further observations about the further conduct of this matter.

[26] I have a strong provisional view that the “cap” amount in this case has been correctly calculated by the Respondent as an amount in the order of $7,300. The Respondent made an open offer to settle of $5,000, which offer was rejected by the Applicant who countered with an offer of $18,000 - an amount that, on any view, exceeds the statutory cap.

[27] In open negotiations, the Applicant made it clear that he wanted his “day in court” in order to pursue allegations of lying and dishonesty against the key witnesses of the Respondent. This is a case where the intensity and negativity of the allegations and attacks made upon Mr Smith and Mr Habib are such that it is inconceivable that reinstatement could be regarded as appropriate – it is inconceivable that a harmonious relationship of trust and confidence could be re-established between the parties. That conclusion can be made on the evidence thus far and cannot rationally be altered by evidence yet to come.

[28] In these circumstances the Applicant should be on notice that, were the Respondent to offer the cap amount, and that offer is refused and the Applicant does not eventually secure a more beneficial outcome, then the Applicant has a real exposure to costs. The processes of the Commission do not exist to allow parties to vindicate their negative conclusions about officers or other employees of a Respondent employer.

VICE PRESIDENT

Appearances:

Mr K Burke, the Applicant, appeared for himself

Mr S Hartford-Davis, of counsel, appeared for the Respondent

Hearing details:

2015

Sydney

October 12

Printed by authority of the Commonwealth Government Printer

<Price code C, PR573240>