Law v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)
[2022] QIRC 380
•6 October 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Law v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2022] QIRC 380 |
PARTIES: | Law, Melissa v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) |
CASE NO: | TD/2022/53 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 6 October 2022 |
HEARING DATE: | On the papers |
MEMBER: | O'Connor VP |
ORDER: | 1. That TD/2022/53 be dismissed |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - JURISDICTIONAL OBJECTION - MINIMUM PERIOD OF SERVICE - where Applicant was employed as a casual - where Applicant was terminated following a disciplinary process for failure to meet the COVID-19 vaccination requirements - where respondent submits jurisdictional objection - whether Applicant employed on a casual basis - whether Applicant meets the statutory requirements to file an Application for reinstatement - determined Application for reinstatement be dismissed |
LEGISLATION: CASES: | Industrial Relations Act 2016 (Qld), s 315, Public Service Act 2008 (Qld), s 128 Shugg v Commissioner for Road Transport and Tramways (NSW) [1937] HCA 50; (1937) 57 CLR 485 Workpac v Rossato [2021] HCA 23; (2021) 271 CLR 456; (2021) 309 IR 89 |
Reasons for Decision
Ms Melissa Law ('the Applicant') was employed by the State of Queensland, Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships ('the Respondent') as a Residential Care Officer. The letter of appointment dated 6 May 2021 confirmed that she was employed as a casual on a classification of Z003(1) with a commencement date of 27 April 2021.
During her period of employment, the Applicant undertook a series of fixed term temporary engagements between 21 June 2021 and 2 January 2022 in order to backfill two employees; one of whom was on sick leave and one who was relieving elsewhere.
The conclusion of the Applicant's temporary engagement on 2 January 2022 was due to the natural effluxion of time and, irrespective of her dismissal, her employment would have consequently reverted to casual status after that date.
The Applicant in these proceedings was for a time an employee of the Respondent. The precise nature of that employment is the source of some disagreement between the parties.
It is alleged by the Applicant that her employment was terminated following a formal disciplinary process arising out of her failure to comply with a reasonable and lawful direction to meet the requirements of the Workers in a Healthcare Setting (COVID-19 Vaccination Requirements) Direction effective 10 November 2021 and superseded by the Workers in a Healthcare Setting (COVID-19 Vaccination Requirements) Direction (No. 2) effective 16 December 2021 ('the CHO Directions'), in her role as a casual Residential Care Officer (RCO), Oxley B Service Centre, Southeast Service Area (SESA), Accommodation Support and Respite Services.
The Applicant contends that she was a full-time employee from the time she commenced her employment. Further, she submits that she had a previous 7 years working for the Respondent.
As part of the usual course of events, this matter was conferenced before me on 16 June 2022. At that conference the Respondent relied on a jurisdictional objection, namely, that the Applicant had not completed the requisite period of minimum service to qualify for protection from unfair dismissal.
Following the conference, directions were issued for the filing of submissions with the matter ultimately to be decided on the papers.
Applicant's submissions
The Applicant filed no written submissions in respect of the jurisdictional challenge raised by the Respondent. Rather, the Applicant maintained her objection to the processes adopted by the Respondent leading to her termination and asserted that she was employed by the Respondent on a full-time basis.
The Respondent's Submissions
It is convenient to begin with the Respondent's position as it is their objection which is the subject of this decision.
The Respondent makes the following submissions:
1. the Applicant was appointed as a casual employee from 27 April 2021;
2. the Applicant undertook fixed term temporary employment between June 2021 until 2 January 2022;
3. the Applicant reverted back to casual status from 3 January onwards until her dismissal on 2 February 2022; and
4. on the above timeline the Applicant fails to meet the definition of 'short term casual'.
Relevantly, reference is made to the definition under the Industrial Relations Act 2016 (Qld) ('the IR Act'). Section 315(1)(c) of the IR Act outlines that s 316 does not apply to a 'short term casual employee'. Section 315(9) defines short term casual employee as:
short term casual employee means a casual employee, other than a casual employee who -
(a)is engaged -
(i) by a particular employer on a regular and systematic basis; and
(ii) for several periods of employment during a period of at least 1 year; and
(b)apart from the employer’s decision not to offer the person further employment,
had a reasonable expectation of further employment by the employer.
The thrust of the Respondent's submission is that the Applicant was a casual employee at the time of her termination with fewer than 12 months' service. Given that her employment was neither regular nor systematic, the Respondent submits she meets the definition of a short-term casual under section 315(1)(c) of the IR Act. She should therefore be excluded from applying for reinstatement under s 316.
The Respondent recognises that Applicant was employed by the Respondent previously, however, this previous employment ended in 2010 and is therefore irrelevant to this application. Due to the break in employment being greater than 12 months the Applicant’s employment in 2010 was not recognised as service when she returned to the Respondent in April 2021.
The Respondent was unable to offer the Applicant any casual shifts after the cessation of her temporary contract on 2 January 2022 due to her decision not to be vaccinated against COVID-19.
Submissions of Respondent in reply
During the conciliation conference on 16 June 2022 the Applicant made reference to documentation which was said to be a roster showing that the Applicant was rostered for a longer period of time. The Applicant contended that this document constituted evidence that she was not a short-term casual employee.
The Respondent submitted that it was unaware of the nature of this documentation, and should the Applicant submit it in support of her application, the Respondent would seek an opportunity to respond.[1]
[1]Respondent’s submissions dated 29 June 2022 at [10].
On 14 July 2022 the Applicant filed in the Industrial Registry a photograph of the roster document. The image is of poor quality but appears to show the Applicant's name and words 'leave backfill' with numbers that are said to correspond with hours worked on specific dates. Most dates and many of the numbers are illegible, but the dates 20/06/2022 and 04/07/2022 can be distinguished from the image.
On 29 August 2022 the Industrial Registry sent an email to the Respondent asking them if they wished to be heard on the document filed by the Applicant. The Respondent confirmed it still wished to be heard. Submissions were received by the Industrial Registry on 6 September 2022.
The Applicant was afforded the opportunity to respond to the Respondent's additional submissions by 20 September 2022.
On 20 September 2022, the Industrial Registry received an email from the Applicant which read:
Hi,
I am sorry in my delay in response,
Today is my first day off since starting a new job.
The one question I have is why would these be sent to all locations it (sic) is only a resource officer tool?
Kind Regards
Melissa [2]
[2] Email sent to the Industrial Registry by the Applicant on 20 September 2022 at 7:49am.
The Industrial Registry responded to the email to confirm whether that was the Applicant’s submission in its entirety. The Applicant confirmed it was.
What can be gleaned from the email is that the Applicant challenges the veracity of the document being a 'resource officer tool' given that it was sent to all locations.
The Respondent contends that the document submitted by the Applicant is a planning tool created for the purpose of assisting staff to know their roster in advance so that leave arrangements could be planned. The Respondent submits that for leave planning purposes, staff are required to nominate their leave a year in advance.
The Respondent's submissions explain that the document is a 'planning tool' to assist in 'future rostering and leave planning'.[3] The Respondent goes on to submit that the Applicant's name is on the document because she was employed at the time it was circulated.[4] Moreover, the Respondent emphasises that the document does not constitute a contract of employment and has no effect on the dismissal date.[5] The Respondent notes that the document records the first fortnight as commencing on 5 July 2021 and identifies the Applicant as a Short Term Temporary (STT).
[3]Respondent's submissions dated 6 September 2022 at [2].
[4] Respondent's submissions dated 6 September 2022 at [3].
[5]Respondent's submissions dated 6 September 2022 at [4] – [5].
The Respondent submits that any rostering arrangements made prior to the Applicant's dismissal do not alter her short-term casual status under the IR Act. At the time of her dismissal, the Applicant had not been engaged in regular and systematic employment for a period of at least one year, as required under s 315(9)(a)(i) of the IR Act.
The Respondent maintains its argument that the Applicant is ineligible to apply for unfair dismissal and respectfully submits that, as her application is jurisdictionally incompetent, that it ought to be dismissed.[6]
[6]Respondent's submissions dated 29 June 2022 at [11].
Consideration
The determination of the question whether the Applicant is a short-term casual employee involves a two-step process. First, the Commission must determine the nature of the Applicant's engagement. If the Commission is satisfied that the Applicant is a casual employee, then it must determine whether the Applicant is engaged on a regular and systematic basis for several periods of employment during a period of at least 1 year; and apart from the employer's decision not to offer the person further employment, had a reasonable expectation of further employment by the employer.
The meaning of the expression 'casual' was considered by Dixon J in Shugg v Commissioner for Road Transport and Tramways (NSW),[7] where his Honour said:
The expression 'casual' is a word of indefinite meaning which elsewhere has caused difficulty. We are apt to associate with the word elements of chance or of discontinuity. We perhaps think of casual employment as occasional or intermittent.
[7] (1937) 57 CLR 485 at 496.
His Honour went on to say of the use of the term in the statutory context then before the Court:[8]
The distinction upon which the application of [the Act] turns is, I think, between a general, indefinite or continuous employment and an employment for a particular occasion or occasions, or to fulfil some special or defined purpose of brief duration.
[8] (1937) 57 CLR 485 at 496 – 497.
The Applicant was appointed pursuant to s 128 of the Public Service Act2008 (Qld) as a casual employee on 27 April 2021. By letter dated 6 May 2021 her classification level was Z003(01) on a per hour salary of $34.05 including a 23% loading.
In WorkPac Pty Ltd v Rossato,[9] the majority of the High Court held that the true employment relationship can be found in the words of the written contract. The plurality observed:
[9] (2021) 271 CLR 456.
To insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences. That it is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a quasi-legislative judgment as to the just settlement of an industrial dispute has been emphatically the case in Australia at the federal level since the Boilermakers Case.[10]
The Court also observed that:
The contractual arrangements between WorkPac and Mr Rossato did not include a mutual commitment to an ongoing working relationship between them after the completion of each assignment. The express terms of the relationship between WorkPac and Mr Rossato were distinctly inconsistent with any such commitment. Mr Rossato's entitlement to remuneration was agreed on that basis.[11]
[10] (2021) 271 CLR 456 at 478 – 479 [62].
[11] (2021) 271 CLR 456 at 491 [105].
The Applicant was employed as a casual (as expressed in her letter of appointment) and her remuneration was agreed upon on that basis.
The Applicant was paid a loading of 23% in accordance with clause 5.5.3 of the State Government Entities Certified Agreement 2019. In WorkPac Pty Ltd v Rossato,[12] the Court emphasised that the character of the relationship between the parties is established by the rights and obligations which constitute the relationship. In that regard the plurality observed:
... Mr Rossato was paid a casual loading pursuant to cll 6.4.5 and 6.4.6 of the Enterprise Agreement, which clauses were incorporated into each of the NOCEs. The circumstance that, as in this case, the parties expressly agreed that the employee would be paid a loading in lieu of entitlements whose rationale presupposes an ongoing working relationship extending beyond the duration of a particular assignment (such as, for example, an entitlement to paid annual leave) is a compelling indication by the parties that their relationship did not include such a commitment.[13]
[12] (2021) 271 CLR 456.
[13] (2021) 271 CLR 456 at 488 [97].
The contractual arrangements between the Applicant and the Respondent did not include a mutual commitment to an ongoing working relationship between the parties after the completion of each assignment. It will be recalled that the Applicant was engaged by the Respondent for the purpose of backfilling two employees. One of whom was on sick leave, and the other was undertaking relief work elsewhere.
The Applicant's last casual assignment came to an end on 2 January 2022. She was not offered any further casual shifts because of her failure to comply with the COVID-19 Directive.
The Applicant's reliance on the advance roster seems to be based upon some belief that it demonstrated a commitment to continuing the employment beyond the particular assignment. In my view it did not.
Whilst the performance of the Applicant's obligations was organised in accordance with a roster and exhibited features of regularity and consistency, the arrangement did not, in my view, establish a commitment between the parties to an ongoing working relationship after each assignment was completed. What was absent was a firm advance commitment to continuing work beyond the completion of a particular assignment. Moreover, the payment of a loading in lieu of entitlements is a compelling indication by the parties that their relationship did not include such a commitment.
For the reasons advanced above, the application for reinstatement should be dismissed.
Order
I order that TD/2022/53 be dismissed.
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