Kyle Pocock v Bayside Gate Frames Pty Ltd

[2023] FWC 2191

[2023] FWC 2191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kyle Pocock
v

Bayside Gate Frames Pty Ltd

(U2023/4721)

DEPUTY PRESIDENT LAKE BRISBANE, 26 SEPTEMBER 2023

Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – casual employee found to be regular and systematic – jurisdictional objection dismissed – matter programmed for merits

1. Mr Kyle Pocock (the Applicant) lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act) to the Fair Work Commission (the Commission) on 29 May 2023. The Applicant claimed that he was unfairly dismissed from his employment by Bayside Gate Frames Pty Ltd (the Respondent).

1. The Respondent raised a jurisdictional objection that the Applicant’s employment did not meet the minimum employment period in accordance with s.383 of the Act. The Respondent stated that the Applicant was employed as a casual employee, and that he was not employed on a regular and systematic basis and did not have a reasonable expectation of continuing employment. The Respondent therefore stated that the Applicant’s service as a casual employee does not count towards his minimum period of employment.

1. In accordance with s.382 of the Act, for the Applicant to be eligible to make a claim under s.394 of the Act, the Applicant will need to establish that he met the minimum employment period outlined in s.383 of the Act.

1. The matter was heard by video using Microsoft Teams on 22 August 2023. The Applicant did not appear at the hearing. Pursuant to s.596(2)(a) permission was granted for the Respondent to be represented by Ms Grace Cue of Law Squared. Ms Jane Martin, Chief Financial Officer, gave evidence on behalf of the Respondent.

Background

1. The Applicant commenced employment with the Respondent on 25 July 2022 as a concrete labourer. The Applicant was engaged on a casual basis.

1. On 9 February 2023, the Applicant suffered a workplace injury to his left thumb. The Applicant underwent surgery in relation to the injury on 15 February 2023, and was absent from work on this date until 30 March 2023. The Applicant received workers’ compensation payments throughout this period. On 31 March 2023, the Applicant returned to work.

1. The Applicant worked a variable number of weekly hours from the commencement of his employment until his dismissal.

1. The Applicant was dismissed at the conclusion of his shift on 19 May 2023. The Applicant stated that he was dismissed due to the Respondent’s financial constraints.

Consideration

1. Section 382(a) of the Act requires a person to have completed a period of employment with their employer of at least the minimum employment period to be protected from unfair dismissal. It was not in contention that the Respondent was not a small business employer, meaning the relevant minimum employment period is six months.

1. The Applicant’s period of employment is to be calculated in accordance with s.384 of the Act. Section 384 relevantly provides:

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 as a regular casual employee; 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.

…

1. Section 12 of the Act defines a “regular casual employee” as a casual employee employed on a regular and systematic basis.

1. As the Applicant was employed by the Respondent as a casual employee, I must determine the Applicant’s period of employment by considering whether the Applicant’s employment was on a regular and systematic basis, and whether the Applicant had a reasonable expectation of continuing employment.

1. The Full Bench of the Commission in Chandler v Bed Bath N’ Table (‘Chandler’) considered the concept of employment on a regular and systematic basis.[1] The Full Bench reaffirmed the approach of the ACT Court of Appeal in Yaraka Holdings Pty Ltd v Giljevic,[2] (‘Yakara Holdings’) which found that 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” must be considered in determining whether employment was regular and systematic.[3]

1. In Yakara Holdings, Crispin P and Gray J stated that it is the “engagement” that must be regular and systematic, not the hours worked pursuant to such engagement.[4] The approach in Yakara Holdings was favoured by the Full Federal Court in WorkPac Pty Ltd v Skene,[5] and adopted by the Commission in Chandler[6] and numerous other decisions.

1. In Chandler, the Full Bench determined that the Applicant’s employment as a casual employee was on a regular and systematic basis.[7] The Full Bench stated that the employment was regular because Ms Chandler was employed in every relevant week until the termination of the employment and was regularly employed for at least 3 shifts per week.[8] It was found that the employment was systematic because the Applicant was required to work in a particular position “in accordance with a pre-established and ongoing framework of legal obligations”, and that the Applicant was employed in accordance with a monthly roster system that required her to nominate her availability on a monthly basis.[9] Importantly, it was for these reasons that the employment was considered to be “arranged pursuant to an identifiable system”.[10]

1. The Full Bench found that the Applicant in Chandler had a reasonable expectation of continuing employment due to her employment contract which established a legal framework for the allocation of work, the monthly roster system based on her prior indication of availability, and the frequency and amount of work allocated to her.[11]

1. In the present case, the Respondent submitted that the Applicant was not employed on a regular and systematic basis, and did not have a reasonable expectation of continuing employment, as:

·   there was no firm advance commitment as to the duration of the Applicant’s employment;

·   the Applicant’s hours were irregular, intermittent and unpredictable;

·   the Applicant had the right to accept and reject work, including by not attending the work site on days on which work was available had he attended;

·   the Applicant was paid on an hourly basis;

·   the Applicant was paid casual loading and did not have permanent employee entitlements such as annual and personal leave; and

·   the Applicant was not required to provide notice of cessation of employment or notice of his availability for work.

1. Some of the factors outlined by the Respondent are simply evidence of the fact that the Applicant’s employment was in fact on a casual basis and hold little probative value in determining whether such casual employment was on a regular and systematic basis or whether the Applicant had a reasonable expectation of continuing employment.

1. In relation to the intermittence and unpredictability of the Applicant’s hours of work, as observed in Yarkara Holdings and Chandler, it is not the hours worked that are to be regular and systematic; it is instead the engagement that must be regular and systematic. Save for a two-week absence and a five-week injury-related absence, the Applicant was employed in every week until the cessation of his employment. Of the 36 weeks that the Applicant worked, the Applicant was employed for 3 or more shifts for 32 of the weeks. While, as the Respondent submitted, the Applicant’s hours varied, the Applicant’s timesheet records demonstrate that his engagement was regular.

1. In considering whether these periods of employment amount to continuous service by the Applicant, a Full Bench of the Commission in Shortland v Smiths Snackfood Co Ltd[12] held that:

“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.”

1. Periods of absence itself are not sufficient to break the employment relationship or the Applicant’s continuous service. The Applicant also returned to work with the Respondent after his injury-related absence and continued to work up until his dismissal with no issues. This furthers support of the finding that there was no break in service nor an intention by either party for the absences to have acted as such.

1. In her evidence, Ms Martin referred to the fact that the Applicant was not employed under a written contract. Despite this, I consider that there was an identifiable ‘system’ within which the Applicant was employed, such that his employment is regarded as systematic. It is clear from the Respondent’s evidence and submissions that the Applicant was engaged in a particular position (being the concrete labourer) and received an induction in relation to his employment.

1. While the Applicant was not required to inform the Respondent of his availability in advance, the evidence demonstrates that there was a system employed by the Respondent in offering its casual employees work. The Respondent would allocate shifts based on an assessment of its needs and the needs of its clients, and the availability of its employees on a given day. In response to a question from me during the Hearing, Ms Martin confirmed that there would “always” be work available to the Applicant if he were to attend work on any given day. I therefore consider that there was a system which applied to the Applicant and the other casual employees, whereby they understood that, after having made themselves available for work by attending the work site, they would be allocated work by the Respondent. Conversely, they would not be allocated in circumstances where they were unavailable for work.

1. I consider that the Applicant had a reasonable expectation of continuing employment on a regular and systematic basis. The evidence demonstrates that the Respondent consistently offered the Applicant shifts, notwithstanding the variance in the Applicant’s weekly hours, and that the Applicant would be allocated a shift should he attend the workplace on any given workday.

Conclusion

1. The Applicant’s employment as a casual employee was on a regular and systematic basis and the Applicant had a reasonable expectation of continuing employment on a regular and systematic basis. Therefore, the Applicant’s period of service as a casual employee count towards his period of employment, pursuant to s.384 of the Act.

1. In accordance with s.384(1) of the Act, the Applicant’s period of employment is his period of continuous service. The Applicant’s 2-week absence and his 5-week absence due to injury do not count as a period of service, but do not break the Applicant’s period of continuous service.[13] The Applicant’s periods of service with the Respondent amount to a period of employment of 36 weeks, or 9 months.

1. The Applicant has therefore met the minimum employment period of 6 months provided by s.383 of the Act. In accordance with s.382 of the Act, the Applicant is a person protected from unfair dismissal.

1. The Respondent’s jurisdictional objection is dismissed. I order accordingly.

1. The matter will be further programmed for consideration of the merits of the Applicant’s application.

DEPUTY PRESIDENT

Appearances:

G. Cue for the Respondent

Hearing details:

22 August 2023
Hearing via Microsoft Teams

[1] Chandler v Bed Bath N’ Table [2020] FWCFB 306.

[2] Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, 149 IR 339.

[3] Chandler v Bed Bath N’ Table [2020] FWCFB 306 at [11] citing Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, 149 IR 339.

[4] Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, 149 IR 339, at [65].

[5] WorkPac Pty Ltd v Skene [2018] FCAFC 131.

[6] Chandler v Bed Bath N’ Table [2020] FWCFB 306 at [13].

[7] Ibid at [18].

[8] Ibid.

[9] Ibid at [18]–[19]

[10] Ibid at [18].

[11] Ibid at [20].

[12] [2010] FWAFB 5709 at [13].

[13] Shortland v Smiths Snackfood Co Ltd[2010] FWAFB 5709 at [12]–[13]; Fair Work Act 2009 (Cth) s.22(1)–(3).

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