Kogler v Affinity Education Group Limited

[2014] FWC 6095

[2014] FWC 6095 [Note: An appeal pursuant to s.604 (C2014/1765) was lodged against this decision - refer to Full Bench decision dated 5 December 2015 [[2014] FWCFB 8752] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kogler
v
Affinity Education Group Limited
(U2014/10195)

VICE PRESIDENT CATANZARITI BRISBANE, 3 SEPTEMBER 2014

Application for relief from unfair dismissal - jurisdiction - casual employment - minimum employment period.

[1] This decision is an edited version of a decision given in transcript in Brisbane on 3 September 2014.

[2] Ms Yvette Kogler (the applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act)for unfair dismissal remedy. Affinity Education Group Limited (the respondent) has made a jurisdictional objection on the basis that the applicant has not met the minimum employment period as specified in s.383 of the Act. Alternatively, the respondent submits that the applicant’s period of employment as a casual employee does not count towards the minimum employment period as the applicant was not employed on a regular and systematic basis and she had no reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[3] The applicant submitted that her employment met the minimum employment period and that in any event her casual employment was on a regular and systematic basis and the applicant had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[4] It was not in contention between the parties, and I accept, that the applicant was employed on a casual basis by the respondent.

[5] The respondent accepts that the applicant was employed 12 December 2013 and that the applicant’s employment ended on 17 June 2014. This is a period of 6 months and 5 days. The minimum employment period as specified in s.383 of the Act is 6 months.

[6] The respondent contends that the applicant did not meet the minimum employment period on the basis that there were a number of days between 12 December 2013 and 17 June 2014 on which the applicant did not work. The respondent submitted that these days could not count towards the applicant’s period of employment for the purposes of determining whether the applicant had met the minimum employment period. In Wayne Shortland v The Smiths Snackfood Co Ltd, 1 a Full Bench made the following observations concerning the consideration of what will constitute the minimum period of employment of a casual employee:

“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” 2

(Emphasis added)

[7] I am satisfied on the basis of the evidence tendered by both parties that the applicant had an established series of engagements with the employer. I am not satisfied that any words or actions prior to 17 June 2014 broke this established sequence of engagements. As a result, I am satisfied that the respondent has met the minimum employment period for the purposes of s. 384 of the Act.

[8] Section 384(2)(a) requires me to consider whether or not the applicant’s employment was on a regular and systematic basis and whether the applicant had a reasonable expectation of continuing employment by the respondent on a regular and systematic basis.

[9] I am satisfied on the basis of the applicant’s evidence, including her contract of employment, that the applicant’s employment was on a regular and systematic basis. I have had regard to the consistency of the applicant’s days of work, as well as the nature of the position. I do not consider that the variable nature of the applicant’s hours of work or the fact that the applicant had a second job negates these factors.

[10] I further find that the applicant had a reasonable expectation of continuing employment on a regular and systematic basis. I make this finding on the basis of the nature of the role, the consistency of the applicant’s engagement and the lack of any indicator to the contrary from the respondent. I am not satisfied that the applicant’s desire to be employed on a non-casual basis in order to ensure job security indicates that the applicant did not have such a reasonable expectation. It is entirely consistent for a casual employee to desire job security whilst simultaneously holding a reasonable expectation that their employment would continue on a regular and systematic basis.

[11] On the basis of my findings, the respondent’s jurisdictional objection is dismissed. The parties will be provided further directions with respect to attendance at a conciliation conference before the Fair Work Commission.

VICE PRESIDENT

Appearances:

C Kogler for the Applicant.

L Carroll from the Respondent.

Hearing details:

2014.

Brisbane:

September 3.

 1   [2010] FWAFB 5709.

 2 Ibid [13].

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