Laszlo Steven Pataki v Norfolk Island Regional Council

[2021] FWC 85

[2021] FWC 85

FAIR WORK COMMISSION

DECISION

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

Laszlo Steven Pataki
v
Norfolk Island Regional Council
(U2020/10019)

COMMISSIONER CAMBRIDGE SYDNEY, 13 JANUARY 2021

Unfair dismissal - jurisdictional objection - s. 382 (a) - whether applicant had completed minimum employment period - ss. 383 and 384 - meaning of minimum employment period -whether casual employment was regular and systematic - whether employee had reasonable expectation of continuing regular and systematic employment - minimum employment period completed - jurisdictional objection dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 23 July 2020. The application was made by Laszlo Steven Pataki (the applicant), and the respondent employer is Norfolk Island Regional Council (the employer).

[2] The application stated that the applicant began working for the employer on 6 January 2020, and the date of the applicant’s dismissal was 16 July 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. Further, the application indicated that the applicant had been employed for a period of 6 months and 10 days.

[3] On 6 August 2020, Local Government NSW (LGNSW) acting on behalf of the employer, provided an employer's response to the application for unfair dismissal remedy, (Form F3) which inter alia, raised a jurisdictional objection to the unfair dismissal claim on the basis that the applicant’s employment did not meet the minimum employment period (the minimum employment period objection or MEP objection). Importantly, the employer’s response at paragraph 2.2 point 2, confirmed that the applicant’s period of employment spanned “… a total of 6 months and 10 days.”

[4] However, at point 8 of paragraph 2.2 the employer asserted “…that by combination of the terms of the engagement letter, and the manner in which the Applicant was engaged, it would not have been possible to have a reasonable expectation of continuing employment for the entire duration of his employment, especially so in regards to the first few weeks of the employment.” Further, at point 10 of paragraph 2.2 of the Form F3, the employer asserted, “…the periods of time in the employment in which no reasonable expectation of ongoing employment could exist need to be deducted from the period of service that counts towards the Applicant’s MEP. The Respondent submits that the quantity of such ineligible service, is such that it results in the Applicant having less than 6 months of casual service that can count towards the MEP.”

[5] Following unsuccessful conciliation of the claim, Catanzariti VP of the Fair Work Commission (the Commission) sent a letter to the applicant which inter alia, required the applicant to provide a statement to support his claim that he had served the minimum employment period. On 28 August 2020, the applicant sent a documentary submission to Catanzariti VP in which he rejected the minimum employment period objection generally, and inter alia, addressed the issue regarding reasonable expectation of ongoing employment by making the assertion that, “…there was a mutual expectation of ongoing employment as a result of this investment in my training to achieve the relevant standards and qualifications required for a Screening Officer at the Airport.”

[6] On 31 August 2020, Catanzariti VP allocated the file for determination of the contested issue as to whether the applicant had completed the minimum employment period. The matter was listed for Pre-Hearing Conference/Conciliation by telephone on 10 September 2020. During the proceedings held on 10 September, the Parties confirmed that the minimum employment period objection remained a matter of contest, and Directions were made for the employer to provide evidence and submissions to support its minimum employment period objection, and subsequently for the applicant to provide any evidence and submissions in opposition to the minimum employment period objection.

[7] Subsequently, the Parties have provided documentary material in support of their respective positions on the minimum employment period objection. The documentary material provided by the Parties has included respective affidavits that have represented evidence of the detailed circumstances surrounding the period of employment of the applicant. Further, the Parties have provided submissions in support of their respective positions regarding the minimum employment period objection, and upon which it was agreed that the Commission could determine the minimum employment period objection without the requirement for any Hearing.

[8] Accordingly, this Decision, which has been confined to the determination of the employer’s minimum employment period objection, has been made upon examination and consideration of the documentary material that has been filed by the Parties.

The Employer’s Case

[9] LGNSW provided written submissions on behalf of the employer which referred to and relied upon the affidavits of Karen Quintal, Charles Hollway and James Castles. In summary, the submissions made on behalf of the employer asserted that the applicant’s period of employment as a casual did not satisfy the legislative requirements such that it was regular and systematic in nature, and that there was a reasonable expectation of continuing employment during a period of at least 6 months.

[10] The employer’s submissions rejected as simplistic the prospect of counting the period of the applicant’s employment to encompass the period between his first engagement on 6 January 2020, up to his dismissal on 16 July 2020, as being 6 months and 10 days. The employer submitted that particular periods within the 6 month and 10 day total period should be deducted from that total because there was basis to establish that particular aspects of the applicant’s employment did not allow for it to be characterised as regular and systematic. The periods that were said to require deduction from the total period of employment related to; (i) an 11 day period from 6 to17 January when the applicant was undertaking paid training, (ii) a week in May when the applicant was working in an alternative role as a Social Distancing Ambassador, and, (iii) a period exceeding three months from April 2020, which involved the applicant performing casual work on a much less frequent basis as a result of the impacts of Covid 19 travel restrictions.

[11] In further submissions the employer mentioned that there were two periods when the applicant requested not to be rostered on in order to facilitate his travel off Norfolk Island, and it asserted that these periods represented periods of unpaid leave which, pursuant to s. 22 of the Act, could not be counted as service for the purposes of the minimum employment period. The employer submitted that the periods alleged to represent unpaid leave should be discounted from service capable of forming the minimum employment period. Alternatively, the employer submitted that these periods of alleged unpaid leave would not lend to an expectation of ongoing regular and systematic employment.

[12] LGNSW also made further or alternative submissions which asserted that during the total period of the applicant’s 6 months and 10 days employment he could not have had a reasonable expectation of continuing employment through the course of the 6 months and 10 days. In particular, the employer’s submissions stressed that the reasonable expectation of ongoing regular and systematic casual employment needed to exist throughout the course of at least 6 months and not just at one point or another during the employment. In support of this submission, the LGNSW referred to inter alia, the Commission Full Bench Decision in Bronze Hospitality Pty Ltd v Janell Hansson  1 (Bronze).

[13] The employer submitted that the applicant could not have had a reasonable expectation of continuing employment throughout a period of at least 6 months. The alleged absence of any reasonable expectation of continuing employment on a regular and systematic basis was said to have been created because firstly, there was nothing in the pre-employment discussions or representations including the letter of offer of employment, that would give rise to a reasonable expectation of ongoing employment. Secondly, the employer submitted that the reduction in the frequency of engagements from April onwards would not have been conducive to any expectation of continuing employment lasting the entire requisite 6 months which was needed to establish that the minimum employment period had been completed.

[14] LGNSW also provided written submissions in reply to material that had been provided by the applicant. The employer’s reply submissions rejected various propositions advanced by the applicant regarding the nature of the evidentiary material produced by the employer, and they further rejected the applicant’s assertions that the period of his employment should be extended at both the time of commencement and termination. The reply submissions reiterated the assertion that the period spent in training prior to the applicant commencing work in the role for which he had been engaged as an Airport Screening Officer (ASO), should not count towards the applicant’s minimum employment period.

[15] In conclusion, the employer submitted that there were a number of factors upon which the Commission should find that the applicant had not completed the minimum employment period as his service as a casual employee did not satisfy the requirements of s. 384 (2) (a) of the Act. In summary, these factors involved; (a), changes in the frequency of the work performed which should lead to a finding that the employment was not on a regular and systematic basis, (b), a deduction from the total period of 6 months and 10 days for the period of training undertaken prior to commencement of ASO duties, (c), deduction of the periods that the applicant spent performing duties other than as an ASO, (d), deduction of the periods where the applicant had requested not to be rostered on and which were said to represent unpaid leave that could not count towards the minimum employment period, and (e), periods of time at both the commencement of the employment and following the Covid 19 related reduction in frequency of engagements, which could not have provided the applicant with a reasonable expectation of continuing employment.

[16] The employer submitted that when the various factors surrounding detailed aspects of the employment of the applicant were considered, the total period of his employment of 6 months and 10 days did not involve a period of at least 6 months of service as a casual employee that was on a regular and systematic basis and during which the applicant had a reasonable expectation of continuing employment on a regular and systematic basis. Consequently, the employer submitted that the applicant had not completed the minimum employment period of at least 6 months and its jurisdictional objection should be upheld and the substantive proceedings dismissed.

The Applicant’s Case

[17] The applicant filed documentary material which included a document described as an affidavit which included various attachments. The applicant’s affidavit material contained a mixture of assertions of fact and submissions much of which was not directly relevant to the determination of the minimum employment period objection, and instead appeared to involve issues that were connected with the alleged unfairness of his dismissal.

[18] The submissions contained in the applicant’s affidavit which addressed the minimum employment period objection referred to his earlier submission material that was provided to Catanzariti VP on 28 August 2020. Relevantly, the applicant referred to the offer of employment letter dated 29 November 2019, which stated that the date of commencement would be 30 December 2019. The applicant submitted that the date of commencement should be the date included in the letter of offer, namely 30 December 2019. Further, the applicant asserted that his period of employment should be extended to cover a two week period of notice that was required but not provided to him when he was dismissed on 16 July 2020.

[19] The applicant made submissions which rejected the proposition that his period of service had been broken by periods of unpaid leave when he had requested not to be rostered on. The applicant provided evidence that although he had initially requested not to be rostered in a period between 30 March to 3 April, to enable his travel to Australia for medical treatment, the arrangements were cancelled due to the Covid 19 restrictions. Confirmation of the cancellation of the applicant’s travel plans was confirmed by way of an email dated 17 March 2020 (Attachment LP-10) sent to the Acting Airport Operations Manager, Karen Quintal. Further, the applicant stated that during the entire period of his employment he was not available for three shifts which if deducted from the total period of his employment, would still amount to a period of more than 6 months.

[20] The further submissions made by the applicant asserted that his employment was on a regular and systematic basis and he provided payslip and roster details to support this proposition. The applicant also submitted that the Covid 19 travel restrictions clearly reduced the amount of available work but that the employment continued on a regular and systematic basis albeit at a temporarily reduced scale.

[21] In respect to the issue regarding his reasonable expectation of ongoing employment, the applicant submitted that based upon the letter of offer dated 29 November 2019, and the provision of mandatory training prior to his commencement in the role of ASO, there was justification for his expectation of ongoing employment. The applicant acknowledged that the letter of offer stated that there was no guarantee of ongoing or regular work, however, the applicant asserted that there was a reasonable expectation that despite a fluctuation in the amount of work from time to time, the work would continue.

[22] The submissions made by the applicant also mentioned that the reduction in ASO work associated with Covid 19 restrictions led to the applicant being provided with alternative additional hours undertaking a role as a Social Distancing Ambassador (SDA). The applicant submitted that the provision of this alternative work meant that he felt that the employer valued his services and wanted to continue him in the role of an ASO when the Covid 19 restrictions were relaxed and the number of flights through the airport increased.

[23] In summary, the applicant submitted that his casual work as an ASO was on a regular and systematic basis, and that the period of his employment was from 30 December 2019 to 30 July 2020, a period of more than 6 months. Further, the applicant submitted that he had a reasonable expectation of this employment continuing on a regular and systematic basis. Therefore, the applicant submitted that he had completed the minimum employment period and the employer’s jurisdictional objection should not be accepted.

Consideration

[24] The minimum employment period objection taken by the employer in this instance has required determination of the issue of whether the applicant is a person protected from unfair dismissal. This issue arises from subsection 382 (a) of the Act.

[25] Section 382 of the Act is in the following terms:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[26] Section 383 of the Act provides a meaning of minimum employment period and is in the following terms:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[27] In this case, the employer was not a small business, and the relevant minimum employment period of 6 months has involved a contest raised by way of the minimum employment period objection. There was no dispute that the applicant was employed as a casual, and consequently the minimum employment period objection has involved an assertion that the applicant’s period of service as a casual employee did not satisfy subsection 384 (2) of the Act.

[28] The relevant provisions of s. 384 of the Act are as follows:

“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”

[29] The minimum employment period objection that was raised by the employer has asserted that the applicant had not completed a period of employment of 6 months at the time of his dismissal on 16 July 2020. This assertion was made notwithstanding that the total period of employment of the applicant was recognised to be 6 months and 10 days. The employer has advanced a number of factors relating to detailed aspects of the employment of the applicant which it was said, by virtue of the operation of subsection 384 (2) of the Act, established that the applicant had not completed a period of employment of at least 6 months at the time of his dismissal on 16 July 2020.

Regular and systematic basis

[30] The first factor that has required examination arises from the terms of paragraph (i) of subsection 384 (2) (a) of the Act, namely whether the employment of the applicant as a casual was on a regular and systematic basis. The well-established principles for determination of whether employment was regular and systematic, can be found in the Full Bench Decision in Chandler v Bed Bath N’ Table  2 (Chandler). Importantly, it is necessary to examine evidence of the history of the actual engagements in order to make any determination as to whether the employment was on a regular and systematic basis.

[31] The applicant provided various presentations of the rostered hours that he worked in the period between 6 January and 16 July 2020. The affidavit of Mr Hollway confirmed (at paragraph 18) that work was allocated to the applicant by way of a roster organised by the Airport Manager, Ms Quintal. Further, attachment AH-05 to Mr Hollway’s affidavit set out a table that showed the actual hours worked by the applicant in each of 14 the fortnightly periods commencing on 19/01/2020 and finishing on 23/07/2020. The table in attachment AH-05 shows that the applicant worked in every one of the fortnightly periods albeit that the actual hours worked fluctuated, and generally diminished from a time that coincided with the Covid 19 restrictions, circa early April 2020.

[32] The evidence of the manner in which the work of the applicant was arranged by means of an organised roster, and the actual engagements worked as was broadly reflected in attachment AH-05 to the affidavit of Mr Hollway, has required consideration in accordance with and adoption of the approach articulated in the Decision in Chandler. Although the actual hours worked by the applicant fluctuated from fortnight to fortnight, and generally decreased from early April onward, the evidence of the regular rostering of the applicant has provided clear and compelling basis upon which to find that the employment of the applicant was on a regular and systematic basis. The employment of the applicant as a casual employee was on a regular and systematic basis during a period that spanned 14 consecutive fortnights.

[33] Although the evidence has established that the applicant worked as a casual employee on a regular and systematic basis during the period between 6 January and 16 July 2020, the employer advanced further argument which introduced factors regarding aspects of the applicant’s employment which it said would require a reduction from the total 6 months and 10 days period of employment, such that the applicant had not completed a period of continuous service of at least 6 months.

Deductions from Total Period for Paid Training, Unpaid Leave and Alternative Duties

[34] In the period between 6 January and 10 January the applicant attended paid training prior to his first engagement as an ASO on 17 January 2020. The employer submitted that the period prior to the applicant’s first engagement as an ASO on 17 January 2020, should not be counted as a period of service for the purposes of the minimum employment period. It was asserted that the period of training did not involve work as an ASO and therefore should not be treated as part of a period of regular and systematic service for the purposes of establishing the minimum employment period.

[35] The employer referred to a Decision of Richards SDP in the case of Ms Sharon Collins v STL Holdings  3 (STL Holdings), which, it was submitted, supported the proposition that time engaged in paid training should not be counted towards the period of continuous service that constitutes the minimum employment period. However, when the STL Holdings Decision is read in full and considered in context, it does not assert that engagement in paid training should not count towards the minimum employment period but rather, in the particular circumstances of that case, if the commencement of employment was said to have coincided with the first day of paid training, 18 June 2013, the continuous period of employment of Ms Collins would have amounted to only 5 months and 23 days, and therefore not have represented at least 6 months.

[36] The factual circumstances in the STL Holdings Decision were significantly different to the training undertaken by the applicant in this instance. It is relevant that in the STL Holdings case, the Commission did not conclude that the employment of Ms Collins commenced on the first day of two days of paid training, 18 and 19 June 2013, but rather on 8 July 2013, when she subsequently commenced work in the role for which she was employed. Importantly, in the STL Holdings case, the paid training was not contiguous with the subsequent period of employment, and there was no contemplation as to whether the two days of paid training should have been aggregated with the subsequent period of employment because it was clear that even if the 2 days were added, the minimum employment period of 6 months would not have been reached.

[37] Consequently, I can discern no basis as to why the applicant’s period of employment should not be held to have commenced on 6 January 2020, when he undertook paid training that was a necessary precursor to working in the role of an ASO. There is no proper basis upon which to exclude a period of paid training undertaken by an employee as not representing a period of employment. All of the ordinary elements which establish the existence of an employment relationship are present when an individual undertakes training activities at the direction of the putative or potential employer, and for which they receive payment at some level of remuneration which is ordinarily commensurate with the wage or salary applicable to the role which may subsequently be performed.

[38] In circumstances where the period of paid training may not be contiguous with the subsequent engagement in regular and systematic employment, it is likely that any disconnected prior paid training should be aggregated with the subsequent period of regular and systematic employment for the purposes of determination of a period of continuous service as contemplated by s. 384 of the Act.

[39] The employer also submitted that a deduction from the total 6 months and 10 days period should be made in respect of a period or periods that the applicant requested that he not be rostered on, as this was said to represent a period of unpaid leave. The employer referred to s. 22 of the Act which provides a meaning of service and continuous service. Relevantly, subsection 22 (2) (b) excludes any period of unpaid leave which does not count as service, and the employer asserted that the applicant had requested not to be rostered on for two occasions of at least three and seven days respectively. The applicant provided evidence that the second seven day period was cancelled, and he was not available for a total of three days.

[40] There may be some debate as to whether a casual employee who requests not to be rostered on for a specified period is taking a period of unpaid leave. However, for present purposes I am content to accept that any shifts for which the applicant made himself unavailable to be rostered on represented a period of unpaid leave which should not count as service that comprises the period of continuous service required by s. 384 of the Act. Consequently, the applicant’s period of employment should be reduced by three days.

[41] The employer further submitted that the periods during which the applicant was not performing duties as an ASO should not contribute towards the minimum employment period. During the time of significant Covid 19 travel restrictions, the applicant was engaged to perform alternative duties as a Social Distancing Ambassador (SDA). The affidavit of Mr Hollway confirmed that on several occasions during the week commencing 5 May 2020, the applicant worked as an SDA, and subsequently he was asked to complete a work assignment in connection with the work that he had undertaken as an SDA.

[42] The alternative duties undertaken by the applicant as an SDA and in respect of the work assignment regarding his work as an SDA, were apparently paid at the ASO point 1 rate and involved work that became available in circumstances where there was a significant reduction in work to be performed as an ASO. The applicant was provided with alternative duties in circumstances where the level of work as an ASO had significantly reduced because of the Covid 19 restrictions. Although the work as an SDA was different, it was paid as if the applicant was working as an ASO, and it represented no more than allocation of different duties to supplement the reduced level of ASO work.

[43] Consequently, the work that the applicant performed as an SDA was not undertaken as separate and distinct employment but represented a convenient, alternative set of duties caused by the unusual circumstances arising from the Covid 19 restrictions. In these circumstances, there is no basis to deduct the periods during which the applicant performed duties other than those of an ASO from the period of continuous service that contributes to the minimum employment period.

Reasonable Expectation of Continuing Employment

[44] The minimum employment period objection was further advanced on the basis that paragraph (ii) of subsection 384 (2) (a) of the Act was not satisfied. The employer submitted that throughout the applicant’s employment there could not have been a reasonable expectation of continuing employment on a regular and systematic basis. The absence of reasonable expectation was said to occur because the pre-employment discussions and representations would not give rise to a reasonable expectation of ongoing employment. Further, the employer submitted that the events during the employment from April onwards, involving significant reduction in available work as a result of the Covid 19 restrictions, meant that if reasonable expectation had developed, such reasonable expectation of ongoing work could not have been maintained.

[45] The applicant claimed that he had a reasonable expectation of ongoing employment throughout the period of his employment and that the factors that contributed to this included; the recruitment procedure; the subsequent letter of offer; the pre-employment training; and the subsequent alternative duties as an SDA which were provided to him when the amount of ASO work diminished. Further, the applicant stated that the reduction in ASO work was something that was temporary, and he always anticipated an increase in the frequency of engagements as an ASO when the Covid 19 restrictions were relaxed.

[46] The issue of whether and when an employee could be found to have objectively formed a reasonable expectation of continuing employment was traversed in the Federal Court Judgement in Bronze Hospitality Pty Ltd v Hansson (No 2)  4 (Bronze No 2). In particular, paragraphs 38 to 43 of the Judgement in Bronze No 2 deal with the basis upon which an employee may be found to have objectively formed a reasonable expectation of continuing employment. The Court held at paragraph number 43 of the Judgement in Bronze No 2, that:

“43    What the employer tells the employee must be relevant. Counsel for Bronze accepted this. If the employee in fact has the necessary expectation, and if what the employer said at the beginning of the employment was sufficient to make the expectation reasonable, and nothing in the circumstances indicated that what the employer said was unreliable, implausible or was otherwise to be disbelieved, then the criterion may be satisfied from that time. If nothing happens subsequently to show that the expectation will not be fulfilled, then it may subsist, as a reasonable expectation, throughout the entire period of service as a casual employee. There is nothing in the legislation which indicates that the employee's expectation cannot be reasonable until a pattern of regular and systematic employment, such as regular shifts, has in fact emerged.”

[47] Further, the Court also stated at paragraph number 40 of the Judgement in Bronze No 2 that; “… the reasonableness of the expectation depends on all the circumstances…”. Consequently, the Judgement in Bronze No 2 has established that a reasonable expectation of continuing casual employment may be objectively formed from the commencement of the employment, and any assessment as to the reasonableness of that expectation should involve consideration of all of the circumstances.

[48] The circumstances relevant to the applicant’s objective formation of a reasonable expectation of continuing employment involved a reasonably sophisticated recruitment process whereby he and other candidates were interviewed in respect of the casual ASO position that had been advertised, and for which a comprehensive position description document had been constructed. The applicant was subsequently one of the successful candidates for a casual ASO position. The applicant was provided with the letter of offer dated 29 November 2019, which did include the sentence; “As a casual employee, there is no guarantee of ongoing or regular work.” The applicant then completed training for the ASO position, and he subsequently performed his first engagement as an ASO on 17 January 2020.

[49] Careful consideration has been given to all of the circumstances surrounding the recruitment, selection, training and subsequent engagement of the applicant in the casual ASO position. Although the letter of offer dated 29 November 2019, mentioned that there was no guarantee of ongoing or regular work, any such guarantee would be unlikely to apply to almost all employment, other than in respect to the regularity required to provide for minimum hours for full-time or part-time employment. Having regard for all of the circumstances relevant to the applicant’s employment, I am satisfied that he objectively formed a reasonable expectation of continuing employment on a regular and systematic basis on and from the commencement of his employment on 6 January 2020.

[50] It was further submitted that if the applicant had a reasonable expectation of continuing employment on a regular and systematic basis, that expectation would have been lost from April onwards as a result of the reduction in the frequency of engagements as an ASO caused by the impacts of the Covid 19 travel restrictions. Consideration of this proposition has led to its rejection. The applicant maintained the realistic and reasonable belief that the Covid 19 travel restrictions were temporary. Further, the applicant was provided alternative duties as an SDA, and the provision of this work would have provided sound basis for an objective belief that the employer wanted to continue to provide the applicant with work so as to mitigate the impacts of the reduction in ASO work associated with the Covid 19 restrictions. Consequently, an evaluation of all of the evidence of the circumstances surrounding the employment of the applicant has established that he objectively formed a reasonable expectation of ongoing casual employment on a regular and systematic basis, and that expectation existed from the commencement to the end of the employment.

Conclusion

[51] In this Decision, the Commission has been required to determine the employer’s minimum employment period objection. The minimum employment period objection has asserted that the applicant’s period of employment did not satisfy the requirements of subsection 384 (2) (a) of the Act. Specifically, it was asserted that the applicant’s period of service as a casual employee did not count towards the minimum employment period because his employment as a casual was not on a regular and systematic basis, and that throughout the period of service as a casual employee, the applicant did not have a reasonable expectation of continuing employment on a regular and systematic basis.

[52] The evidence has established that the total period of the applicant’s employment was a period of 6 months and 10 days. Following a careful consideration of all of the evidence and submissions made in respect to any deduction that should be made to the total period of employment of the applicant, I find that three days in respect to unpaid leave should not count towards the minimum employment period. Further, I find that there is no basis for any other reduction in respect of the applicant’s period of employment for the purposes of establishing the minimum employment period. In addition, the evidence has provided sound basis to conclude that the applicant was a casual employee engaged on a regular and systematic basis and that during the entire period of his service as a casual employee he had a reasonable expectation of continuing employment on a regular and systematic basis.

[53] Consequently, in view of the findings that have been made, the period of employment of the applicant was a period of continuous service of 6 months and 7 days. Therefore, the applicant was an employee who had completed at least the minimum employment period, which in this case was 6 months ending at the time at which the applicant was given notice of his dismissal, 16 July 2020.

[54] The applicant is a person protected from unfair dismissal, and the employer’s minimum employment period objection is dismissed accordingly.

[55] This matter will be listed for further proceedings by way of Pre-Hearing Conference/Conciliation by telephone listed for 2 pm on 29 January 2021.

COMMISSIONER

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 1   Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 1099.

 2   Angele Chandler v Bed Bath N’ Table Pty Ltd [2020] FWCFB 306.

 3   Ms Sharon Collins v STL Holdings Pty Ltd T/A Sargent Rental and Maintenance [2014] FWC 3295.

 4 Bronze Hospitality Pty Ltd v Hansson [2019] FCA 1680.