[2021] FWC 976 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lambrini Niaros
v
Assembly Label
(U2021/882)

COMMISSIONER WILSON

MELBOURNE, 18 MARCH 2021

Application for an unfair dismissal remedy. Jurisdictional objections; date of dismissal required determination, and whether minimum employment period met. When dismissal took effect; consideration of continuous service. Whether JobKeeper payments affected employment and continuous service. Objections dismissed; application validly within time and applicant a person protected from unfair dismissal, having served the minimum employment period.

[1] This decision concerns an application under the Fair Work Act 2009 (FW Act) for unfair dismissal remedy made by Ms Lambrini Niaros (the Applicant) alleging unfair dismissal against Assembly Label (the Respondent).

[2] Ms Niaros commenced employment with Assembly Label on 8 June 2018. She was employed on a casual basis and worked predominately at the Respondent’s Armadale Store in Victoria. Ms Niaros worked her final shift with Assembly Label on 3 January 2021 and her application for unfair dismissal remedy was lodged in the Fair Work Commission (the Commission) on 4 February 2021.

[3] Assembly Label have objected to Ms Niaros’ application on two grounds; that Ms Niaros has not served the minimum employment period and that her application was made out of time.

[4] These matters were the subject of written submissions from each party, with a hearing also conducted on 26 February 2021. Ms Niaros represented herself at the hearing and gave evidence and made submissions on her own behalf, and Ms Annaliese Prigg, Assembly Label’s National Retail Manager provided evidence and submissions on behalf of the Respondent.

[5] For the reasons set out below, I have found Ms Niaros was dismissed on 30 January 2021 and that her application was therefore made within the time limits allowed for in the FW Act. I have also found that Ms Niaros has served the minimum employment period and that she is a person protected from unfair dismissal. As a consequence, Directions for the further programming of the matter will be issued shortly.

BACKGROUND

[6] The following matters of background inform my decision in relation to the above matters.

[7] Between the Applicant’s commencement as a casual employee with Assembly Label on 8 June 2018, and the cessation of her employment on 3 January 2021, there were seven distinct periods of employment and absence:

8 June 2018 to 14 July 2019	First Period of Work
15 July 2019 to 2 November 2019	First Period of Absence
3 November 2019 to 26 March 2020	Second Period of Work
27 March 2020 to 18 May 2020	Second Period of Absence
19 May 2020 to 10 July 2020	Third Period of Work
11 July 2020 to 26 October 2020	Third Period of Absence
27 October 2020 to 3 January 2021	Fourth Period of Work

[8] Ms Niaros gave evidence that monthly rosters were notified to staff two weeks in advance of the roster. 1 On 21 December 2020 she had been notified she was rostered for the following days and hours in January 2021:

“a) Monday 4 January 10-5

b) Tuesday 7 January 10-3

c) Wednesday 13 January 12-3

d) Saturday 16 January 10-6

e) Sunday 17 January 11-3

f) Friday 22 January 10-6

g) Saturday 23 January 10-6

h) Sunday 24 January 10-4

i) Saturday 30 January 10-4

j) Sunday 31 January 10-5”. 2

[9] Ms Niaros first became aware the forward rostered dates had been withdrawn on the afternoon of Sunday, 3 January 2021, after her shift had finished. 3 She became aware of the roster change only after consulting the Deputy rostering system. No-one from the Respondent spoke to her about the change. She believes that “if I hadn't checked the rostering system for some reason, I would have returned to work the following day as I believed that I had a shift”.4

[10] The Respondent submits that after releasing the January 2021 roster for the Armadale store, the Melbourne Cluster Manager (Ms Austin) and the Armadale Store Manager (Mr Ralph) met to discuss a downturn in revenue at the Armadale store. The meeting determined that the Armadale store would require less staff to be rostered to work and they reviewed the casual employee Key Performance Indicators (KPI’s) and:

“determined that it would offer shifts in January 2021 to 6 particular casual employees, and not be able to offer shifts to the 2 other casual employees, which included the Applicant.” 5

[11] Ms Prigg, who was not part of the above meeting, elaborated in her oral evidence about her understanding of the decision:

“Following Christmas we saw a steep decline in sales, which meant that as a business we need to reduce our resources within our stores. So on 2 January after a week of a steep decline in revenue within the store, the store manager, Mr Samuel Ralph, and our Melbourne cluster manager Kate Austin sat down and reviewed the Armadale roster, which resulted in the applicant as well as all other casuals in the business losing shifts. That was unfortunately resulting in the applicant not receiving any further shifts, which was the same case as one other casual that was within the business at the time.” 6

[12] The Respondent’s submissions include that a revised January roster was released by it on Saturday, 2 January 2021 which included one shift for Ms Niaros on Sunday, 3 January 2021. 7

DATE DISMISSAL TOOK EFFECT

[13] For the reasons that follow I find that the date Ms Niaros’ dismissal took effect was Saturday, 30 January 2021.

[14] In her initiating application, Ms Niaros provides the date on which her dismissal took effect as Monday, 4 January 2021. In her written evidence, she asserts the effective date of dismissal is Saturday, 30 January 2021, when she received an email from Ms Austin on the subject. 8

[15] The circumstances surrounding these matters are that Ms Niaros worked her last shift for the Respondent on Sunday, 3 January 2021 with her witness statement stating she:

“9. … became aware that her shifts had been removed without her knowledge or communication by the Respondent on 3 January.

10. The Applicant made efforts to clarify her employment status at the Respondent on 5 January, 21 January 2021 and 22 January 2021. During these conversations, The Applicant was informed by management by phone that she continued to be employed.

11. The Applicant became aware that she had been dismissed by email correspondence on 30 January 2021.

12. The Applicant filed an Unfair Dismissal claim on 4 February 2021.” 9

[16] The Respondent disputes the date Ms Niaros’ dismissal took effect was Saturday, 30 January 2021. It submits the date the dismissal took effect was Sunday, 3 January 2021, being the date on which she worked her last shift at the Respondent.¹⁰ In support of its case Assembly Label drew attention to provisions of Ms Niaros’ last employment contract which affirmed she was a casual employee and that:

“Given the above, and that the Contract specifically states at clause 1.2 that “each occasion [the Applicant] work[s] will be a separate contract of employment which ceases at the end of that engagement”, the Applicant’s employment with the Respondent ceased at the end of her last shift at the Armadale Store at 3:00pm on 3 January 2021. …”. 11

[17] The original employment contract dated 31 May 2018 is in different terms. While stating Ms Niaros to be a casual employee, the original contract provides for an ongoing relationship in at least four places:

“PROBATIONARY PERIOD: You will be initially employed on a probationary period of 6 months. During the probationary period your employment may be terminated by Assembly Label Retail by providing one week's notice or payment in lieu thereof.”

“HOURS OF WORK: You will be expected to work up to 38 hours per week when required.

If you are required to or elect to work during public holidays you will be paid according to the Award for NSW.”

“PERSONAL/SICK LEAVE:

(a) You are not entitled to paid personal/carer's leave.

(b) You will be granted 2 days' unpaid carer's leave if you need to care for or support an immediate family member or other member of your household due to their illness

or unexpected emergency.

(c) You are entitled to 2 days' unpaid compassionate leave in the event of the death or a serious life-threatening illness or injury of an immediate family member or member of your household.

(d) You may be required to provide a medical certificate or, if it is not reasonably practicable to do so, a statutory declaration for any absence from work for carer's or compassionate leave.

(e) You must give Assembly Label Retail notice of taking carer's or compassionate as soon as practicable. You must also advise Assembly Label Retail of the period or expected period of leave.”

“PERFORMANCE REVIEW: On a progressive basis, a formal review of your performance will be carried out together with your supervisor. It is intended that this meeting be a two-way forum for open discussion.”

[18] There is a difference of evidence between Ms Prigg and Ms Niaros about whether the latter was asked by Assembly Label to sign a fresh employment contract in November 2019. It is the Respondent’s case that she was requested to do so, and then signed a new contract, in terms quite different to the original May 2018 employment contract. Ms Niaros contested she had signed the second document. At the conclusion of the hearing both parties were given an opportunity to provide evidence or submissions which supported their claims. Assembly Label provided material which included a web-based audit trail showing that Ms Niaros had been provided with a copy of the contract and had signed it through the portal. Ms Niaros provided no further material on the subject. I accept from this that Ms Niaros signed the November 2019 contract and did so on 17 November 2019.

[19] In the matter of Cameron Milford v Coles Supply Chain Pty Ltd T/A Coles Heathwood Distribution Centre 12 the Commission found that a casual employee’s employment ended after his last shift and that the relevant date for determining the date on which the 21-day application period commenced is that same day.13 Following the reasoning in Milford and in accordance with clause 1.2 of the employment contract, Ms Niaros’ dismissal would be taken to have effect at the cessation of her final shift on Sunday, 3 January 2021. Milford though is highly circumstantial, not the least because it subsequently involved Full Bench and Full Court proceedings, including on the subject of whether the Commission was required to determine the applicant had been dismissed in order for his general protections matter to proceed. While not central to the parties’ subsequent legal contest and the findings of the Full Court, the matter also involved consideration of the Full Bench reasoning in Mohammed Ayub v NSW Trains14.

[20] After noting the interaction between an employee’s statutory rights and employment contracts, Ayub explicitly considered the situation in which an employee may not become aware of their termination until some time had passed, and the effect of the passage of that time on their statutory right to make an application for unfair dismissal remedy:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:

“[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99]).”

[18] A notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied.

[19] When the termination occurs without notice on the basis that a sum of money is paid in lieu of the notice that would otherwise be required, then the termination would take effect when communicated to the employee subject perhaps to the additional requirement that the amount in lieu of notice has actually been paid to the employee.

[20] A termination of employment may also occur by way of a summary dismissal. In contractual terms, a summary dismissal is to be characterised as the exercise of an election by the employer to terminate the employment contract in response to a repudiation of the employment contract by the employee constituted by a breach of an essential term, a serious breach of a non-essential term, or conduct on the part of the employee manifesting an intention not to be bound by the contract in the future. An election to terminate a contract on this basis puts an end to the contract at the time the termination is communicated to the other party.

[21] In Stevanovski v Linfox Transport the Australian Industrial Relations Commission (Lacy SDP) rejected the proposition that at common law an employment contract could be terminated with effect from a date prior to that upon which the termination was communicated to the employee:

“[47] The notion of the termination of an employment contract retrospectively, as seems to be the purport of the letter of 9 October 2000, is inconsistent with the rule of law to the effect that the giving of a notice terminating a contractual employment, whether by employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future: Riordan v. War Office (1959) 1 WLR 1046 per Diplock J. When the respondent called the applicant to come to work on 9 October 2000, and decided to terminate his employment, it was entitled to terminate his employment either upon notice or with immediate effect. It did neither of those things. It terminated his employment with effect from a prior date. It would appear that the applicant might have been deprived of one day’s pay as a result of the respondent's retrospective termination of his employment.”

[22] It is conceivable that a contract of employment might expressly provide for its termination by the employer immediately without the termination first being communicated to the employee. However, other than in that circumstance, it is difficult to contemplate that an employment contract could ever terminate retrospectively even by agreement between the employer and the employee.

…

[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.” (endnotes omitted)

[21] The Applicant contends in her evidence that she was not aware of her dismissal until she asked for her employment status and had it confirmed to her, ultimately in an email on 30 January 2021, which said “you indeed are not a current employee of Assembly Label”. 15 The Respondent disputes this submitting that no termination letter has been provided to Ms Niaros; that due to the terms of the employment contract her employment ceased at the conclusion of her shift on 3 January 2021; and Ms Niaros knew about the cessation of her employment on the date that it occurred.16

[22] The evidence shows though that after learning rostered shifts had been withdrawn Ms Niaros took firm and repeated steps to ask Assembly Label about the status of her employment. The question was asked repeatedly, with Assembly Label dissembling and avoiding answering the question. Why that is so is a mystery and far from good employment practice.

[23] As outlined above, on Sunday, 3 January 2021 after completing her shift Ms Niaros accessed the Respondent’s rostering system “Deputy” to check her ongoing rostered shifts to find that her forward rostered shifts had been removed. 17 She was originally rostered to work in January 2021 on:

“a) Monday 4 January 10-5

b) Tuesday 7 January 10-3

c) Wednesday 13 January 12-3

d) Saturday 16 January 10-6

e) Sunday 17 January 11-3

f) Friday 22 January 10-6

g) Saturday 23 January 10-6

h) Sunday 24 January 10-4

i) Saturday 30 January 10-4

j) Sunday 31 January 10-5”. 18

[24] Logically, a person in Ms Niaros’ circumstance at that time on 3 January 2021 would wonder what was going on and whether they remained in employment, which is what she did. Ms Niaros’ evidence is that as a consequence:

• On 3 January 2021, in the evening, she contacted Ms Austin by WhatsApp messenger to enquire why she had been removed from the roster. Ms Austin responded to advise that she should address her query to the store manager responsible for creating the rosters. 19

• On 5 January 2021 she contacted Mr Ralph by telephone to confirm she remained an employee of Assembly Label, who reassured her she remained an employee. 20

• On 20 January 2021, she offered by WhatsApp messenger to cover a shift of another employee who had become unavailable. When that employee notified Mr Ralph of Ms Niaros’ availability he replied advising “[s]he doesn’t work for us anymore”. 21

• On 21 January 2021 Ms Niaros messaged Mr Ralph asking him to explain his message from the previous day. Mr Ralph did not provide a response. 22

• Also, on 21 January 2021, Ms Niaros contacted Ms Austin by telephone seeking confirmation on her employment status. Ms Austin advised she was unaware of any changes in the Applicants employment. 23

• On 22 January 2021, Ms Niaros spoke with Mr Ralph by telephone where she attempted to clarify why her attempt to fill in for the staff member was denied by the Respondent. Her evidence about this conversation includes that Mr Ralph made her aware that her services would not be required again, albeit that he somewhat contradictorily offered for her to attend the forthcoming staff Christmas party that had been postponed and for her to use the staff discount:

“53. Mr.Ralph acknowledged in the Conversation of 22 January that the Respondent had organised the dismissal of the Applicant and other staff members. When asked to confirm whether the Respondents “goal is to not give any opportunities for staff to get shifts so eventually after three months they will be dismissed from the company” Mr.Ralph responded, “Well yeah. So we’ve decided not to put you on any more shifts going forward.” Mr Ralph agreed that certain staff members would not be allowed to take on anymore shifts so that eventually they will be legally considered as dismissed.

54. Mr.Ralph made additional representations in the Conversation of 22 January which indicated that Applicant remained employed.

a. The Applicant was again reassured of her employment at the Respondent;

b. The Applicant was encouraged to use the staff discount in store;

c. The Applicant was encouraged to attend the staff Christmas Party

55. Following this conversation it was not clear to the Applicant that dismissal had taken effect. However, the Applicant was reasonably concerned about the status of their employment.” 24

• On 27 January 2021, Ms Niaros made a request to Mr Ralph, the Store Manager that she be put back onto the roster starting Monday, 1 February 2021. His reply on 29 January 2021 included this:

“Hi Lambrini,

Thank you for your email earlier this week.

I have now had the chance to genuinely consider your request and wanted to come back to you as soon as possible.

Casual engagement

As a casual employee, and as per your employment contract, your employment with Assembly Label starts at the beginning of each shift and ceases at the end of each shift. That is why:

• Assembly Label can offer you shifts on a needs basis, and equally you can freely accept or reject those shifts;

• you can stop working at Assembly Label without providing any notice, and equally Assembly Label wouldn't need to provide notice to you – as technically your employment has already ceased at the end of your last shift; and

• you receive a casual loading to compensate you for the lack of employment security.

In light of the above, I confirm that your employment has not been terminated, and that we will contact you to offer shifts only if the need arises. At the current

moment, we don't have a specific need, and that is why we have been unable to offer you any shifts.

Kind regards
Sam Ralph”. 25

• On 29 January 2021, having been told her “employment has not been terminated”, Ms Niaros tried again, pointedly asking Mr Ralph why his statement to her seemed inconsistent with other statements:

“Hi Sam,

Thank you for highlighting those sections in my contract.

Can you please explain why you have informed other staff members that I “no longer work” for Assembly Label? Was there a reason that I was not allowed to cover Molly's shift on Monday 25th January?

You have stated that I will no longer receive shifts for the foreseeable future. You also stated that I would be unable to take any shifts going forward.

Here, you confirm my employment, however previous discussions have confirmed your plans to dismiss long-serving staff members. Please advise.

Lambrini”. 26

• On 30 January 2021, Assembly Label answered Ms Niaros and finally confirmed that she was dismissed, with this communication from Ms Austin, the Melbourne Cluster Manager:

“Hi Lambrini,

Thank you for reaching out to Sam this week in regards to clarifying your role with Assembly Label. I thought it would be helpful for me to step in and respond to your email.

We have genuinely considered your email, but reiterate that as a casual employee, your employment with Assembly Label starts at the beginning of each shift and ceases at the end of each shift, meaning that your employment technically ceased at the end of your last shift.

For the sake of clarity, this means that you indeed are not a current employee of Assembly Label.

We also note that while we have the ability to offer you employment in the future if we have the need, and that you have the option of accepting or rejecting this offer if it were to occur, we are under no obligation to offer you further shifts. We also confirm that, based on current resourcing, we cannot foresee us having the need in the foreseeable future.

In light of the above, we confirm that we consider this matter final and wish you well moving forward.

Kind regards,
Kate Austin
ASSEMBLY LABEL
Kate Austin - Melbourne Cluster Manager”. 27

[25] Assembly Label contests some of the evidence given by Ms Niaros and summarised above putting forward that different things were said to her in the conversations she has relayed. However, the Respondent chose not to call evidence from any witness directly involved in these conversations and did not put to Ms Niaros in cross-examination that her recollection was incomplete or untruthful. I note about these matters that Assembly Label asserts that:

• In her conversation with Mr Ralph on 5 January 2021 he confirmed to her that due to resourcing needs Assembly Label would not offer her any shifts in the foreseeable future; 28

• On 20 January 2021, and in response to Ms Niaros’ offer to work that Ms Austin and Mr Ralph agreed that Mr Ralph would cover the shift of the employee. 29

• On 21 January 2021, Ms Austin confirmed to Ms Niaros in their conversation that due to resourcing needs Assembly Label would not offer Ms Niaros any shifts in the foreseeable future. 30

• On 22 January Mr Ralph informed Ms Niaros for a third time that due to resourcing needs, Assembly Label would not offer Ms Niaros any shifts in the foreseeable future. 31

[26] In the absence of witness evidence that would contradict or impugn Ms Niaros’ evidence I accept her evidence as truthful and to be relied upon and do not rely upon the Respondent’s unevidenced assertions about conversations with the Applicant.

[27] The Assembly Label submissions are not consistent with the things that actually occurred in January as evidenced by the documents which are before me. The company apparently had a need to reduce its workforce and it did so by removing Ms Niaros from previously rostered shifts. When she queried her situation it dissembled and obfuscated. When Mr Ralph deviated from the script and told her on 22 January 2021 “Well yeah. So we’ve decided not to put you on any more shifts going forward” he was soon brought back to line, subsequently denying in his written communications to Ms Niaros that she had been dismissed. It took Ms Austin on 30 January 2021 to finally state that “you indeed are not a current employee of Assembly Label …we cannot foresee us having the need in the foreseeable future … we confirm that we consider this matter final and wish you well moving forward”.

[28] Ms Prigg, who appeared in this matter for Assembly Label, asserted that this was not an “official letter”. 32 Ms Prigg, however, did not go so far as to assert that Ms Austin had no authority to make such a statement to Ms Niaros.33 I accept that Ms Niaros was entitled to take Ms Austin as having authority to communicate the decision that Ms Niaros was not a current employee. I find that this correspondence was the first time Ms Niaros was aware her employment had been terminated.

[29] In making this finding, I have taken into account whether Mr Ralph’s verbal comment to Ms Niaros on 22 January 2021 that “we’ve decided not to put you on any more shifts going forward” should be taken as the date of dismissal. Mr Ralph is a store supervisor, likely following the instructions of others. What was said in the conversation is neither consistent with other of his reported comments or those of other managers or supervisors. He made the content of the conversation very ambiguous by suggesting Ms Niaros come to the postponed Christmas party and that she should use her staff discount. It is likely he was not authorised to communicate this information, and likely this was understood by Ms Niaros as well. Irrespective, the situation was put beyond doubt when Mr Ralph recanted his earlier comments by stating to her in his email of 29 January 2021, that she was “a casual employee, and as per your employment contract, your employment with Assembly Label starts at the beginning of each shift and ceases at the end of each shift … [and] … I confirm that your employment has not been terminated”.

[30] Ms Austin’s correspondence from 30 January 2021 was plainly an endeavour by her to take over from her subordinate a communication that was getting out of hand. Her title is “Melbourne Cluster Manager” and she communicated firmly and with authority to Ms Niaros that she was not currently employed by the Respondent; that no further work would be provided by Assembly Label to the Applicant; and that she was not interested in further discourse on the matter. There is no ambiguity in this communication and it is plainly many degrees more authoritative in what it says to the Applicant than the rather under-cooked and very ambiguous conversation Mr Ralph had with her on 22 January 2021.

[31] I am therefore satisfied from the evidence that Ms Niaros did not become aware of her dismissal until Saturday, 30 January 2021. Since her unfair dismissal application was made to the Commission on 4 February 2021 it is within time. The Respondent’s jurisdictional application on that subject therefore fails.

HAS THE MINIMUM EMPLOYMENT PERIOD BEEN COMPLETED?

[32] Determination of the Respondent’s minimum employment period objection requires consideration of the nature of Ms Niaros’ engagement with Assembly Label and in particular whether periods of casual employment should be counted towards the Commission’s determination of her period of employment.

[33] A person is protected from unfair dismissal if they have “completed a period of service of at least the minimum employment period” and, so far as is relevant to this case, they are covered by a modern award (s.382). Since the Respondent’s materials note that Ms Niaros was covered by the General Retail Award 2020, the relevant question to be determined regarding whether she is a person protected from unfair dismissal is whether she had completed a period of continuous service of at least the minimum employment period. Since Assembly Label employed 68 people at the date it nominated as the date of dismissal, 3 January 2021, 34 the relevant period is 6 months.

[34] In this regard, the FW Act provides a general meaning of “service” as set out in s.22:

“(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) 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;

…”

[35] Section 384 of the Act provides that the period of employment to be taken into account in determination of the minimum employment period is the period of continuous service the person had with the employer, but that certain casual employment is to be excluded. The section provides the following, so far as is relevant:

“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.

(3) …”

[36] Determination of the matters within s.386 requires an examination of the basis of a person’s employment, with it being accepted that “[i]t 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”. 35 In Angele Chandler v Bed Bath N’ Table36 the Full Bench comprehensively summarised the considerations relevant to assessment of whether work is regular and systematic:

“[11] It is apparent on the face of the decision that the Deputy President’s determination as to whether Ms Chandler’s casual employment was regular and systematic was attended by a significant error of principle. In her application of s 384(2)(a) to the facts of the case, the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic. We do not consider this to be the correct approach. In Yaraka Holdings Pty Ltd v Giljevic, 37 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 1996,38and went on to say (emphasis added):

“[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 s11 (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.”

[12] Similarly, Madgwick J said (emphasis added):

“[89] … 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.

[90] The respondent’s work for the appellant was certainly frequent enough to be termed ‘regular’ within an acceptable understanding of that term, which may, even in ordinary speech, be used to denote ‘frequent’.

[91] 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 (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3^rd edn, 2001).”

[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, 39 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”)40. 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 Sawtell41and Bronze Hospitality Pty Ltd v Janell Hansson42 as well as in numerous first instance decisions.”

[37] The Full Bench in Shortland v Smiths Snackfood Co Ltd, 43 considered in detail the matter of continuous service, noting the legislation required a distinction to be drawn between a period of service and a period of employment. It acknowledged that within the overall period of employment there may be parts unable to be counted toward the minimum period for the reason they are excluded casual periods. An excluded period is a period of casual employment in which the employee does not have both regular and systematic employment and a reasonable expectation of continuing employment by the employer on a regular and systematic basis. The Full Bench set out some of the factual background which included that the Appellant’s work history had been characterised by intermittency and an extended absence. He had worked for the business for some years and changed his status to casual employment a short time earlier. This and the short absences when he performed no work at all did not create a discontinuity in employment and the casual work he performed was characterised as him having a reasonable expectation of continuing employment on a regular and systematic basis:

“[6] The Commissioner held:

“[32] From the evidence, I have to conclude that from June 2009 the Applicant’s engagement was intermittent until September 2009. During that period, it would have to be described as irregular in terms of weeks and hours of engagement. In terms of a system, there appears to be no evidence on which to say that the employment was systematic.

[33] From September 2009 to January 2010, there was simply no employment of the Applicant.

[34] From 17 June 2009, in my view, the Applicant’s employment was not regular and systematic in accordance with s.384(2)(i) nor had he any reasonable expectation of continuing employment in conformity with s.384(2)(ii). Consequently, at the time of his dismissal, the Applicant was not protected from unfair dismissal.””

[38] The relevant requirement for jurisdiction is whether the minimum employment period has been completed by the employee. The Full Bench in Shortland considered the different terms employed within s.384:

“[10] 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.

[11] 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.

[12] 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).

[13] 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.

[14] 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.

[15] 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.”

[16] 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.

[17] On the evidence before the Commissioner, Mr Shortland had a period of continuous service within the meaning of s.384 that commenced in July 2006 and continued until his employment was terminated by Smiths’ letter of 11 January 2010.

[18] For these reasons we find that the Commissioner erred in finding that the requirement in s.382(a) was not met and that consequently Mr Shortland was not protected from unfair dismissal within the meaning of s.382.” (references omitted)

[39] The following observations may be drawn about establishment of continuous service:

• person’s continuous employment is broken only when the employer or the employee make it clear to the other that there will be no further engagements; 44

• the gaps between individual engagements do not necessarily interrupt the employee’s continuous employment; 45

• a series of contiguous periods of service may count toward a single period of employment; 46

• contiguous periods of employment will only count toward the person’s period of employment if the conditions within s.384(2)(a)(i) and (ii) are met; 47 further, in such assessment it is the engagement that must be regular and systematic, not the hours and that ‘regularly’ should be construed liberally, and that ‘systematic’ does not mean predictable;48 however the hours of work are not unanalytically unimportant.49

[40] The Applicant’s evidence on the subject of her employment over the whole of her time from the initial engagement, was that she “was a long serving casual employee and was regularly and systematically employed and had a reasonable expectation of continuing employment.” 50 The Respondent expressly refutes Ms Niaros was regularly and systematically employed and that she had a reasonable expectation of continuing employment.

[41] As outlined previously, there were seven distinct periods of employment and absence since the Applicant’s commencement with Assembly Label.

First Period of Employment

[42] Ms Niaros was engaged between 8 June 2018 and 14 July 2019 and during that period worked 317 hours on 63 occasions.

First Period of Absence

[43] At the conclusion of her shift on 14 July 2019, the Applicant commenced a period of absence of 111 days where she travelled overseas. Her evidence on the subject included that she was not given any indication she would not have a job on return and that she believed she would fall back into place into her original position. 51

Second Period of Employment

[44] In the Second Period of Employment Ms Niaros was engaged between 3 November 2019 and 26 March 2020. In that period of slightly under four months Ms Niaros worked a total of 48 hours on 9 occasions. This period of employment ended with the closure of the Armadale store as a result of the Victorian Government’s COVID-19 Pandemic restrictions.

Second Period of Absence

[45] As a result of those restrictions the Respondent’s Victorian stores were closed and no work was performed by Ms Niaros between 27 March and to 18 May 2020.

Third Period of Employment

[46] After the Victorian Government’s restrictions eased, Ms Niaros was once again rostered for work beginning on 19 May 2020. Between that date and 10 July 2020, when COVID-19 related restrictions closed the store once again, Ms Niaros worked a total of 48 hours on 9 occasions.

Third Period of Absence

[47] The Respondent’s stores were closed under the Victorian Government COVID-19 lockdown restrictions between 11 July 2020 and 26 October 2020.

Fourth Period of Employment

[48] After the July - October closure ended Ms Niaros worked a total of 90 hours on 16 occasions between 27 October 2020 and 3 January 2021.

[49] Assembly Label submits about the Second and Third Periods of Absence that “the Applicant was offered in store fulfillment shifts during these two periods and, consistent with the Applicant’s ability as a casual employee, she rejected this offer.” Further, it rejects that Ms Niaros was not offered shifts during the Second and Third Periods of Absence. 52

[50] The Respondent provided a schedule of the days and hours Ms Niaros worked for the whole of her employment. The following table summarises the number of hours and number of occasions worked by Ms Niaros each month throughout her employment with Assembly Label:

Hours worked each month
2018	2019	2020	2021
Jan	25.5	9.75	4
Feb	16	7
Mar	41	4.25
Apr	11	0
May	15.75	16
Jun	49.75	24.75	28.5
Jul	33.25	6	3
Aug	21	0	0
Sep	30.25	0	0
Oct	16.75	0	4.5
Nov	17.25	8	37.5
Dec	8.5	19.25	43.5

Number of occasions worked each month
2018	2019	2020	2021
Jan	5	2	1
Feb	3	1
Mar	8	1
Apr	3	0
May	3	3
Jun	8	5	5
Jul	6	2	1
Aug	5	0	0
Sep	6	0	0
Oct	3	0	1
Nov	4	2	6
Dec	2	3	8

[51] The Second and Third Periods of Absence were each in 2020 commencing after the start of the COVID-19 Pandemic.

[52] During both periods the Applicant received the JobKeeper wage subsidy from the Australian Government under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020. The first JobKeeper payment made to Ms Niaros was on 24 April 2020 and the last on 23 December 2020. Material provided to the Commission by Ms Niaros shows she was paid more than $20,000 in JobKeeper benefits, through 38 separate payslips.

[53] The eligibility requirements for a casual employee to receive the JobKeeper wage subsidy outlined in Section 9 of the Rules 53 provides that an eligible employee of an employer for a JobKeeper fortnight is a person who satisfies the following eligibility requirements:

“1 March 2020 requirements

(2) The requirements are that, on 1 March 2020:

(a) the individual was aged 16 years or over; and

(b) the individual was:

(i) an employee (other than a casual employee) of the entity; or

(ii) a long term casual employee of the entity; and

(i) was an Australian resident (within the meaning of section 7 of the Social Security Act 1991); or

(ii) was a resident of Australia for the purposes of the Income Tax Assessment Act 1936 and was the holder of a special category visa referred to in the regulations under the Migration Act 1958 as a Subclass 444 (Special Category) visa.

Note: See subsection (5) for the meaning of long term casual employee.”

“Meaning of long term casual employee

(5) An individual is a long term casual employee of an entity at a time if:

(a) at that time, the individual was a casual employee of the entity; and

(b) the individual had been employed by the entity on a regular and systematic basis during the period of 12 months that ended at that time.”

[54] It is to be noted that the FW Act also includes a definition of “long term casual employee” in not dissimilar terms to the Rules (see s.12), with application of the definition being to entitlements to flexible work arrangements (s.65(2)) and parental leave (s.67(2)), neither of which is material to the matter to be decided here.

[55] Amendments were also made to the FW Act in 2020 authorising various JobKeeper related actions, including the issuing of JobKeeper Enabling Standdown Directions, or to give directions about duties or location of work, to make agreements on related matters and to permit the Commission to deal with disputes arising over JobKeeper matters. The Object of Part 6 – 4C is stated to include the following:

“789GB Object

The object of this Part is to:

(a) make temporary changes to assist the Australian people to keep their jobs, and maintain their connection to their employers, during the unprecedented economic downturn and work restrictions arising from:

(i) the COVID-19 pandemic; and

(ii) government initiatives to slow the transmission of COVID-19; and

(b) help sustain the viability of Australian businesses during the COVID-19 pandemic, including by preparing the Australian economy to recover with speed and strength after a period of hibernation; and

(d) ensure the continued effective operation of occupational health and safety laws during the COVID-19 pandemic; and

(e) help ensure that, where reasonably possible, employees:

(i) remain productively employed during the COVID-19 pandemic; and

(ii) continue to contribute to the business of their employer where it is safe and possible for the business to continue operating.”

[56] Three things follow from consideration of the JobKeeper legislation and the Rules.

[57] Firstly, there is an entry threshold which requires an examination of the past. A person’s eligibility to receive a JobKeeper payment requires them to have been employed on one of the threshold bases set out above, and relevant to this case that they were a “long term casual employee:”, being one who was a casual employee and has been employed by the employer on a regular and systematic basis during the period of 12 months that ended “at that time”, being 1 March 2020 and subsequent JobKeeper fortnights.

[58] Secondly, there is the policy objective for the future as set out in the FW Act’s Part 6 – 4C, namely that the payments are to assist Australians “to keep their jobs, and maintain their connection to their employers” and “continue the employment of employees”.

[59] Thirdly, the rights and obligations in Part 6 – 4C, which include matters of threshold eligibility, payment, the issuing of JobKeeper Enabling Directions and assistance from the Commission with a dispute pertain to those who are an “employer” and an “employee”, with s.789GDC (Definitions) respectively defining those terms as “a national system employer” and “a national system employee”. Those latter terms are in turn defined by ss.13 – 14 of the FW Act. Relevantly, a “national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement”. Part 3 – 2, dealing with unfair dismissal, also defines the meaning of “employee” and “employer” to be respectively a national system employee and a national system employer (s.380).

[60] While Part 6 – 4C enables an employer to issue a JobKeeper Enabling Direction to an employee (standing them down, directing them as to duties or location of work, etc), there is no obligation for an employer to provide such an obligation to an employee.

[61] The Respondent submits that it “engages all casual employees under a tailored casual employment agreement that specifically sets out the nature of their engagement” 54 Further, it draws upon the Full Court judgement in WorkPac Pty Ltd v Skene55 and Workpac Pty Ltd v Rossato56to conclude that Ms Niaros’ employment was as a casual employee as she:

• “had no firm advance commitment as to the duration of her employment or the days (or hours) of work;

• her hours were irregular, uncertain, discontinuous, intermittent and unpredictable;

• she had the right to accept, reject, or pick up new shifts, at all relevant periods, and utilised this right to work flexible and inconsistent hours with the Respondent;

• she was paid on an hourly basis, which was not consistent; and

• she was paid a casual loading.” 57

[62] Pertinent to the fact that it offered JobKeeper nomination to Ms Niaros and then processed her agreement and then paid JobKeeper payments to her for the period between April and December 2020, Assembly Label submitted that nothing is to be drawn for the purposes of these proceedings from the fact of the JobKeeper payments:

“In relation to the JobKeeper payments, we submit that they have no impact on the Applicant’s minimum period of employment for the purpose of section 383 of the Fair Work Act 2009 (Cth) (FW Act). This is because:

• as per paragraphs 15 to 19 of our Outline of Arguments, the test for casual employment is based on how the employee is engaged, whether they are working on a regular and systematic basis, and whether there was a reasonable expectation of continuing employment on that same regular and systematic basis;

• the Applicant was not performing any shifts during the periods whereby the above payslips corresponded to – given that the payments were made by the Government to the Respondent, who simply then provided them to the Applicant; and

• therefore, this period of time does not provide any support to any argument that the Applicant’s period of employment should be recognised under section 383 of the FW Act, as it doesn’t impact the Applicant’s type of engagement with the Respondent.

We also submit that any finding to the contrary would mean that any casual employee that received JobKeeper payments in Australia would automatically become a permanent employee, which would impact thousands of employees and employers in the Retail sector across Australia.

We therefore submit that the Applicant was not protected from unfair dismissal as their period of service as a casual employee did not count towards their period of employment for the purpose of section 384(2)(a).” 58

[63] The Respondent’s reliance upon the Full Court’s judgements in Skene and Rossato do not assist its case to any material extent. Skene confirmed the Appellant in those proceedings was mischaracterised as a “Casual Field Team Member” and that pertinently the term “casual employee” has acquired a legal meaning. The Full Court did not accept that a casual employee is one designated as such by the applicable industrial instrument alone. 59 Further with reference to ascertainment of the true nature of the contract, “the term “casual employee” has no precise meaning and that whether any particular employee is a casual employee depends upon an objective characterisation of the nature of the particular employment as a matter of fact and law having regard to all of the circumstances”.60 Rossato did not disavow this approach, finding of relevance to this matter that “the assessment of whether a person is a “casual employee” is to be conducted by a characterisation of all of the relevant facts which speak to the type of employment that existed at the time the entitlements in question accrued”.61

[64] The submission that a finding in favour of Ms Niaros in these proceedings “would mean that any casual employee that received JobKeeper payments in Australia would automatically become a permanent employee” is uninformed and baseless. The determination of these proceedings obviously rests on the foundation of the provisions of the FW Act with the relevant question being whether at the time she was dismissed, Ms Niaros’ employment as a casual employee is to be properly characterised as regular and systematic employment and that she had a reasonable expectation of continuing employment also on a regular and systematic basis. The fact that both parties stated to the Australian Taxation Office that Ms Niaros’ employment to the date of her nomination for the JobKeeper benefits in April 2020 met the entry criteria, including that she was “a long term casual employee of the entity” is plainly part of the relevant factual basis for this decision. By stating that Ms Niaros was eligible for JobKeeper benefits, it was accepted by both parties that she “had been employed by the entity on a regular and systematic basis during the period of 12 months that ended at that time”.

[65] The declaration that Ms Niaros had been employed by Assembly Label on a regular and systematic basis during the period of 12 months ending at the JobKeeper eligibility date included the period of absence she had from early July 2019 to early November 2019 in order to travel, being the First Period of Absence.

[66] It is clear to me that when Ms Niaros was in receipt of the JobKeeper benefits from Assembly Label, she was employed as an employee and that the period of payment of those benefits was a period of employment by her employer, Assembly Label. That employment was also a period of continuous service for the purposes of s.384.

[67] While the JobKeeper nomination and payments are relevant, that on its own does not determine the question in these proceedings and most certainly says nothing about the status of any other recipient of JobKeeper benefits. While the conduct or mutual understanding of Assembly Label and Ms Niaros from April 2020 may lean toward a decision in Ms Niaros’ favour it does not decide the question, with it being necessary to also take into account the other circumstances of employment.

[68] Four periods of work require analysis and consideration as to whether the work performed by Ms Niaros within those periods “as a casual employee was on a regular and systematic basis”. The finding may be made that each period of work was regular and systematic. It was regular in the sense of Ms Niaros having worked frequent shifts. In the First Period of Work, she worked 317 hours on 63 occasions in a period of slightly under 13 months. In the Second Period of Work between 3 November 2019 and 26 March 2020 being a period of slightly under four months Ms Niaros worked a total of 48 hours on 9 occasions. In the Third Period of Work between 19 May 2020 and 10 July 2020 Ms Niaros worked a total of 48 hours on 9 days. In the Fourth Period of Work between 27 October 2020 and 3 January 2021 she worked a total of 89.5 hours on 19 days.

[69] I am satisfied the First Period of Work is employment on a regular and systematic basis and that at its conclusion it was reasonable for Ms Niaros to have an expectation of continuing employment by Assembly Label on a regular and systematic basis.

[70] There is little evidence before me regarding the end of the First Period of Work and the start of the Second Period of Work. While Ms Niaros’ evidence included that she believed she was being released for leave and that her job would be there when she returned, such appears unlikely to have been the case. In favour of the proposition is her understanding and that she was, indeed, provided with further work when she returned. The terms of the May 2018 contract of employment also assists Ms Niaros’ contentions with it providing for a relationship which plainly extends beyond the immediate engagement. As detailed previously it includes terms which connote an ongoing relationship, by providing for a probationary period; for maximum weekly hours and the taking of public holidays; for the taking of “personal/sick leave”; and for performance reviews to be conducted on “a progressive basis”; and for general termination of employment upon one week’s notice in either direction (with immediate termination in the case of misconduct).

[71] When Ms Niaros returned from travel, she contacted Assembly Label and was soon given shifts. An email was sent within the company from the Armadale store to the Respondent’s payroll office on 31 October 2019, the relevant part of which is this:

“Subject: Lambrini Niaros Contract

Hello!

We have a team member Lambrini Niaros that should be on file, but we need a contract adjustment. Lambrini has been a casual for a year now, however hasn’t worked since July as she has been travelling overseas. Now that she’s back and after discussions with Lambrini we are looking at moving her to a temporary Christmas casual contract this is for the start date of 3rd Nov” 62

[72] Ms Niaros’ evidence together with the above email lean toward a finding that the circumstances in July 2019 was not one in which “the employer or the employee make it clear to the other that there will be no further engagements”. Instead, the evidence leans to a finding the situation was to be a pause during which no work would be performed, and that the employment relationship would subsist. On this basis, the First Period of Absence is likely a period of “unpaid leave or unpaid authorised absence” within the meaning of s.22(2) and thereby “an excluded period” which although not counting as service (s.22(1)), does not break her continuous service (s.22(3)).

[73] Against the proposition that Ms Niaros’ employment carried through the period 15 July 2019 to 2 November 2019, in which no shifts were worked and in which she travelled is the fact that she notified her employer on 14 July 2019 she would immediately commence an absence. 63

[74] It is relevant to note at this point that there is a difference of evidence between Ms Prigg and Ms Niaros about whether the latter was asked by Assembly Label to sign a fresh employment contract in November 2019. It is the Respondent’s case that she was requested to do so, and did sign a new contract, in terms quite different to the original May 2018 employment contract. Ms Niaros contested she had signed the document. At the conclusion of the hearing both parties were given an opportunity to provide evidence or submissions which supported their claims. Assembly Label provided material purporting to show that Ms Niaros had been provided with a copy of the contract and had signed it. Ms Niaros provided no further material on the subject. I accept from this that Ms Niaros did sign the November 2019 contract. The fact the Respondent saw a need to seek a new contract of employment be signed suggests the First Period of Absence was not intended to be a mere pause in the employment relationship.

[75] Notwithstanding there are some indicators that may suggest the First Period of Absence broke Ms Niaros’ continuous service, I do not make that finding. The balance of evidence suggests Ms Niaros’ continuous service was not broken with the First Period of Absence, and that the period of absence is instead only to be regarded as “unpaid leave or unpaid authorised absence” being “an excluded period” which does not count as service. I am satisfied as well that it was reasonable for Ms Niaros to have an expectation of continuing employment by Assembly Label on a regular and systematic basis when she returned from travelling and started the Second Period of Work.

[76] The situation with the Second and Third Periods of Absence, namely 27 March 2020 to 18 May 2020 and 11 July 2020 to 26 October 2020 is different to the First Period of Absence. No work was performed because of the progress of the COVID-19 Pandemic in Victoria. I am not satisfied from the evidence that had these events not occurred that Ms Niaros would not have performed work. More likely the regularity of engagement would have continued, and work would have been offered and performed through those periods. That is, I am satisfied that when worked stopped at the end of the Second and Third Periods of Work Ms Niaros had a reasonable expectation that but for the forced closures of the stores at which she worked she would have continued to be offered work on the same regular and systematic basis as within the Second and Third Periods of Work. I am satisfied the Second and Third Periods of work are each characterised as periods of regular and systematic employment and that each period allowed Ms Niaros to reasonably have an expectation of continuing employment by Assembly Label on a regular and systematic basis.

[77] The reasonable expectation of continuing employment arises not only from the circumstances of Assembly Label’s past rostering of Ms Niaros, but also from the fact that it would publish a forward roster that indicated the shifts she would be provided in the coming month. The Respondent’s request that she accept its nomination of her as a JobKeeper eligible employee and the fact that she was paid the JobKeeper subsidy between April 2020 and December 2020 unquestionably reinforced to Ms Niaros that she had a reasonable expectation of continuing employment after the Second Period of Work and through the Second Period of Absence and then into the Third Period of Work and the Third Period of Absence and into the Fourth Period of Work.

[78] Section 384 provides that “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” (underlining added). Section 12, the Dictionary to the FW Act, provides that the meaning of continuous service is affected by s.22. Section 22(1) in turn provides that 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”. Section (22)(2) sets out things which are excluded periods, and s.22(3) provides that while an excluded period does not break an employee’s continuous service such period does not count towards the length of the employee’s continuous service.

[79] In conclusion I am satisfied that Ms Niaros’ employment as a casual employee was on a regular and systematic basis, notwithstanding the pattern of days and hours worked not being regular and systematic. 64 I am also satisfied that during her period of service as a casual employee she had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[80] I am satisfied that each of the First, Second, Third and Fourth Periods of Work are continuous service on Ms Niaros’ part. I also find that the Second and Third Periods of Absence were periods of employment and as such periods of service, with Ms Niaros being paid the JobKeeper subsidy for the purposes set out in the FW Act’s JobKeeper Object – and amongst other things to assist her in keeping her job and maintaining her connection with her employer, as well as to enable the Respondent to continue its employment of her.

[81] I restate that I have not found the First Period of Absence to be a period which counts as service.

[82] The First Period of Work started on 8 June 2018 and ended on 14 July 2019, a period of 401 days. The time elapsed between when the Second Period of Work started on 3 November 2019 and when Ms Niaros was dismissed on 30 January 2021 is 454 days. Together, those two periods are 855 days, or more than 122 weeks.

[83] Consequently, I am satisfied Ms Niaros has completed the minimum employment period of six months required by section 382(a) of the Act to be a person protected from unfair dismissal. The Respondent’s jurisdictional objection on the subject of the minimum employment period having not been served therefore fails.

Conclusion

[84] I have found that Ms Niaros’ was dismissed on 30 January 2021 and that consequently her application for unfair dismissal has been made within the time period allowed for withins.394(2). Furthermore, I am satisfied that she has served the minimum employment period required to make the application. Each of the Respondent’s jurisdictional objections is therefore dismissed.

[85] As a consequence, Directions for the further programming of the matter will be issued shortly.

COMMISSIONER

Appearances:

Ms L. Niaros for herself

Ms A. Prigg for the Respondent

Hearing details:

2021.
Melbourne (via video conference);
26 February.

Final written submissions:

3 March 2021 for the Applicant
3 March 2021 for the Respondent

Printed by authority of the Commonwealth Government Printer

1 Transcript, PN 81.

2 Exhibit A2, Witness Statement Lambrini Niaros, 15 February 2021, [42].

3 Transcript, PN 86.

4 Ibid, PN 86 – 88.

5 Respondent Substantive Response attached to Form F3 – Employer’s Response Form, 11 February 2021, [28].

6 Transcript, PN 165.

7 Respondent Substantive Response attached to Form F3 – Employer’s Response Form, 11 February 2021, [29].

8 Exhibit A2, Witness Statement Lambrini Niaros, 15 February 2021, [7], [39].

9 Ibid, [9]-[12].

10 Respondent Substantive Response attached to Form F3 – Employer’s Response Form, 11 February 2021, [47].

11 Ibid, [31].

12 [2019] FWC 844.

13 Ibid, [57] – [70].

14 [2016] FWCFB 5500.

15 Form F2 Unfair Dismissal Application, 4 February 2021, item 1.5.

16 Exhibit R1, Respondent Outline of Submissions on Jurisdictional Objection, 11 February 2021, [10].

17 Exhibit A2, Witness Statement Lambrini Niaros, 15 February 2021, [43].

18 Ibid, [42].

19 Ibid, [44].

20 Ibid, [45].

21 Ibid, [47]-[48].

22 Ibid, [50].

23 Ibid, [50]-[51].

24 Ibid, [53]-[55].

25 Ibid, Attachment F.

26 Ibid.

27 Ibid.

28 Respondent Substantive Response attached to Form F3 – Employer’s Response Form, 11 February 2021, [32].

29 Ibid, [33].

30 Ibid, [34].

31 Ibid, [35].

32 Transcript, PN 133.

33 Ibid, PN 138 – 139.

34 Form F3 – Employer’s Response Form, 11 February 2021, item 1.7.

35 Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic[2010] FWA 2078, [66].

36 [2020] FWCFB 306.

37 [2006] ACTCA 6, 149 IR 339.

38 Ibid, [64].

39 [2018] FCAFC 131.

40 Ibid at [150]-[152].

41 [2016] FWCFB 4438, [15]-[17].

42 [2019] FWCFB 1099, [24].

43 [2010] FWAFB 5709.

44 Shortland v Smiths Snackfood Co Ltd, [2010] FWAFB 5709, [13].

45 Ibid.

46 Ibid, [12].

47 Ibid.

48 Ibid, [65] – [69]; adopted by the Full Bench in Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099, [24].

49 Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099, [24].

50 Exhibit A2, Witness Statement Lambrini Niaros, 15 February 2021, [18].

51 Transcript, PN 54.

52 Exhibit R1, Respondent Outline of Submissions on Jurisdictional Objection, 11 February 2021, [19(h)].

53 Coronavirus Economic Response Package (Payments and Benefits) Rules 2020; see also Explanatory Memorandum to Coronavirus Economic Response Package (Payments and Benefits) Act 2020.

54 Respondent Substantive Response attached to Form F3 – Employer’s Response Form, 11 February 2021, [4].

55 [2018] FCAFC 131.

56 [2020] FCAFC 84.

57 Respondent Substantive Response attached to Form F3 – Employer’s Response Form, 11 February 2021, [30].

58 Correspondence from Law Squared, lawyers for Assembly Label, 3 March 2021.

59 WorkPac Pty Ltd v Skene, [2018] FCAFC 131, [139].

60 Ibid, [154]–[155], [159].

61 Workpac Pty Ltd v Rossato, [2020] FCAFC 84, [211], per Bromberg J.

62 Correspondence from Law Squared, lawyers for Assembly Label, 3 March 2021, Attachment C.

63 Exhibit A2, Witness Statement Lambrini Niaros, 15 February 2021, [25]–[26].

64 Angele Chandler v Bed Bath N' Table Pty Ltd[2020] FWCFB 306.

Lambrini Niaros v Assembly Label

[2021] FWC 976

18 MARCH 2021

DECISION