Liam Breton v Starlight Children's Foundation Australia

[2021] FWC 1210

[2021] FWC 1210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Liam Breton
v
Starlight Children’s Foundation Australia
(U2020/13786)

DEPUTY PRESIDENT CROSS SYDNEY, 5 MARCH 2021

Application for an unfair dismissal remedy.

[1] This decision arises from an application made by Mr Liam Breton (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for relief in respect of the termination of his employment by Starlight Children’s Foundation Australia (the Respondent). The Applicant stated that he was advised of his dismissal, and the dismissal occurred, on 14 October 2020.

[2] The Applicant asserted that his dismissal was unfair and that the Respondent had no valid reason to terminate his employment. The Respondent, in its Form F3 Response, identified the following two grounds of jurisdictional objection to the Applicant’s claim:

(a) The Applicant had not been “dismissed” within the meaning of s.386(1) of the Act as the Applicant’s employment had not been terminated, or in the alternative, the Applicant had resigned from his employment (the Dismissal Ground); and

(b) The Applicant was not a person protected from unfair dismissal under s.382(a) of the Act because he had not completed a period of employment of at least the minimum employment period (being 6 months) given that the Applicant had been engaged (and remained engaged) as a casual employee since 13 May 2019. That period of service did not count towards the employee’s period of service pursuant to s.384(2) of the Act because the Applicant’s engagement was neither regular or systematic, and the Applicant had no reasonable expectation of continuing employment on a regular or systematic basis (the Minimum Employment Period Ground).

[3] In the hearing of the matter the Applicant was capably represented by his Father. The Respondent was represented by Mr S Jhinku of Herbert Smith Freehills, who appeared with permission, and without objection by the Applicant. In the Hearing the Applicant gave evidence by way of two statements, and he was cross-examined. The Respondent relied upon a statement from Mr Ken Gamma, the Program Manager of the Respondent, and Mr Gamma was cross-examined.

Background Facts

[4] The Applicant commenced employment with the Respondent as a casual employee on 13 May 2019. The Applicant’s position was performing the role of Captain Starlight in the Respondent’s Programs Department, entertaining sick children. He always reported to Mr Gamma.

[5] The Applicant was employed pursuant to a contract of employment dated 7 May 2019 (the Contract). The Contract included the following terms:

“The position being offered to you is of a casual nature, and therefore your hours of work may change from week to week, depending on the demands of the business.

And:

Working Hours

You are required to work such hours as requested by Starlight from time to time, depending on Starlight's business. Your hours of work may vary from week to week. Starlight has no obligation to offer you a minimum number of hours of work.

You must not absent yourself from your duties without informing your manager.”

[6] Mr Gamma was responsible for rostering a group of Captain Starlights for a set amount of hours each month. The number of hours allocated to casual employees fluctuated month-by-month, depending on a number of factors including leave taken by non-casual employees, children/patient numbers and ward numbers.

[7] In advance of preparing a roster, Mr Gamma would ask Captains to inform him of the days each Captain was unavailable. Mr Gamma would then allocate shifts based on the needs of the Program and the availability provided by the Captains. All casual employees retained the ability to accept or reject shifts allocated to them. Additional shifts or hours could be offered on a voluntary basis to employees. If a Captain was unavailable to complete an assigned shift due, for example, to illness, Mr Gamma would call other Captains, and offer those Captains the shift on an ad hoc basis.

[8] The shifts allocated to the Applicant varied week-to-week in terms of both the number of hours and the number of days worked. Mr Gamma prepared a spreadsheet of the hours worked by the Applicant for each fortnight since 13 May 2019. That spreadsheet, which the Applicant accepted as accurate, was as follows:

BRETON, LIAM - HOURS FROM COMMENCEMENT
Fortnight Commencing	Hours Worked	Comments
6-May-19	31.00
20-May-19	61.00
3-Jun-19	60.50
17-Jun-19	62.00
1-Jul-19	52.50
15-Jul-19	60.00
29-Jul-19	49.00
12-Aug-19	60.50
26-Aug-19	55.50
9-Sep-19	59.00
23-Sep-19	53.00
7-Oct-19	61.00
21-Oct-19	56.50
4-Nov-19	41.00
18-Nov-19	56.25
2-Dec-19	60.75
16-Dec-19	50.50
30-Dec-19	38.50
13-Jan-20	52.00
27-Jan-20	52.50
10-Feb-20	66.50
24-Feb-20	58.58
9-Mar-20	59.50
23-Mar-20	46.00	Fortnight period changed
30-Mar-20	22.50
13-Apr-20	12.00
27-Apr-20	7.00
11-May-20	1.50
25-May-20	11.00
8-Jun-20	1.50
22-Jun-20	18.75
6-Jul-20	21.00
20-Jul-20	6.00
3-Aug-20
17-Aug-20	12.00
31-Aug-20	25.50
14-Sep-20	13.50
28-Sep-20	36.00
TOTALS	1,491.83

[9] From in or around mid to late March 2020 onwards, due to the COVID-19 pandemic, the number of available hours and shifts for Captains were reduced. Mr Gamma had daily meetings with Captains in the Program to update them on COVID-19-necessitated changes. Due to funding constraints, since March 2020, shifts have been largely allocated to permanent part-time employees. With the limited number of shifts left available, Mr Gamma allocated those to employees eligible for the JobKeeper program.

[10] The Applicant only became eligible for the JobKeeper program from in or around September 2020. Due to the Applicant's initial ineligibility and the continued reduced availability of shifts, Mr Gamma had been unable to allocate many shifts to the Applicant. The shifts allocated to the Applicant since the COVID-19 pandemic had been made on an ad hoc basis arising from unexpected absences.

[11] On Wednesday 14 October 2020, Mr Gamma telephoned the Applicant and said "due to the changes brought about by COVID and reduction in hours I won't have shifts for you in 2021 and so after December 2020 you won't be employed by Starlight.”

[12] On Thursday 15 October 2020, the Applicant telephoned Mr Gamma and requested the reasons as to why he would not be employed in 2021. Mr Gamma recalled that in the conversation he said "Unfortunately a decision has been made and nothing will change. Let's rearrange a time to chat about this." The Applicant’s recollection of that conversation was that Mr Gamma said there were "two different situations and that whilst the other casuals would be employed by Starlight, I would not.”

[13] On Friday 16 October 2020, Mr Gamma telephoned the Applicant to explain to him the reasons as to why he would not be employed with Starlight in 2021. Mr Gamma recalled he said “Look, we were looking at the program's needs and the number of people who work on a casual basis and considered a number of factors including availability, quality and consistency of performance in the role, team alignment and ability to meet all expectations. Unfortunately we decided to let you go from the end of 2020." The Applicant recalled Mr Gamma explained the criteria regarding which employees would remain was "based on availability, performance and ability in the role and team cohesion". He recalled Mr Gamma said, based on those factors, he "would not receive any shifts in 2021."

[14] The Applicant had four shifts allocated to him after the telephone conversation on Wednesday 14 October 2020. He completed a shift on 17 October 2020 and came to work for a shift on 18 October 2020. However, the latter shift could not proceed because the second Captain rostered for the same shift was unwell.

[15] On 19 October 2020, The Applicant filed his Form F2 Unfair Dismissal Application.

[16] On 20 October 2020, the Applicant sent a text message to Mr Gamma that stated "I've got a job interview tomorrow and won't be able to attend my shift, sorry for the inconvenience."

[17] On 26 October 2020, Mr Gamma sent the Applicant an email that stated the following:

“Thanks Liam,

I acknowledge that I received your email of 16 October. There are a number of points that I do not agree with. What I can confirm though is that on October 14, I advised you that due to the impact of Covid-19 on our fundraising, that our program hours for 2021 will be reduced and that I would not have any casual shifts/hours for you after the end of December 2020.

In additional please be aware if you do need support during this time, you can call our EAP provider on 1300 360 364 to organise a confidential meeting. In addition if you are starting to look for alternate employment before the end of December, and would like assistance with the preparation of your CV or with interview skills you can contact Bee Joya or Emily Owen from our P&C team and they would be happy to support you.

Liam, I have not shared this news with the team, can you let me know if it will be ok to share? I would also like to arrange a farewell for you so let's talk about that.”

[18] On 28 October 2020, the Applicant sent Mr Gamma an email stating:

“To Ken

Thank you for the offer of additional shifts post notice this matter has been referred for Unfair Dismissal proceedings before FWA.

Unfortunately due to the way the business has approached the termination of my casual employment it makes it very difficult until this matter is resolved, to then put my "Captain Starlight" character into full effect for the children I care so much about and perhaps someone else should take up these shifts.

When the matter is resolved I hope to continue to improve the lives of the children in care.

Kind Regards,
Liam Breton”

[19] Mr Gamma responded to the above email by further email, that stated:

“Hi Liam

Thank you for your email.

I understand from your email that you do not intend to attend for work on the shifts you have been allocated for the remainder of the current roster period. On that basis, I will re-allocate your shifts. However, if I have misunderstood your email, please let me know immediately.

Further, please let me know if you wish to be considered for shifts for the remaining roster periods until the end of December 2020. If I don’t hear from you, I will assume that you do not wish to be considered for shifts.

I look forward to hearing from you.
Many Thanks Ken”

Consideration

(a) Minimum Employment Period Ground

[20] The Respondent submitted that the Applicant is not a person protected from unfair dismissal under s.382(a) of the Act because he had not completed a period of at least the minimum employment period (being 6 months) given that his period of service as a casual employee does not contribute to the period of employment. A period of service does not count towards the period of employment if the employee’s engagement as a casual was neither regular nor systematic, and the employee had no reasonable expectation of continuing employment on a regular or systematic basis.

[21] In applying the test of “regular and systematic” employment to the case at hand, the Respondent submitted as follows (Footnotes omitted):

“15. Having regard to the above test, it is not possible on the facts of this matter for:

(a) the Applicant’s casual employment to be characterised as being on a “regular” basis. The Respondent accepts that “regular” implies a repetitive pattern and that it may be constituted by frequent but unpredictable engagements. While the Applicant has been engaged to perform shifts on a fortnightly basis since his commencement on 13 May 2020, the Applicant’s days of work have fluctuated as has the predictability of his hours of work in any given fortnightly cycle. This is relevant to a finding that the Applicant’s engagement has not been on a regular basis as is the fact that the Applicant’s engagement has been significantly altered throughout the COVID-19 pandemic;

(b) the Applicant’s casual employment to be characterised as being on a “systematic” basis. Systematic means something that can also be called a system, method or plan. Again, the variability of the Applicant’s days and hours of work is relevant to finding that the Applicant’s engagement has not been on a systematic basis as is the fact that the Applicant’s engagement throughout the COVID-19 pandemic has been even more ad hoc, sporadic and not developed through an established rostering system. The non-systematic nature of the engagement is further illustrated by the Applicant’s refusal to accept shifts in October and November 2020; and

(c) the Applicant had an expectation of ongoing employment with the Respondent on a regular and systematic basis. There could not have been such an expectation having regard to the fact that the Applicant’s hours were not guaranteed. Furthermore, based on his unavailability, the variability of the Applicant’s days and hours of work, and the fact that the Applicant’s hours throughout the COVID-19 pandemic fluctuated such that in some weeks the Applicant did not receive any shifts, the Applicant could not have had such an expectation.”

[22] I have no difficulty in rejecting the Respondent’s submissions, and conclude, in respect of s.384(2)(a)(i) and (ii), that the Applicant’s employment as a casual employee was on a regular and systematic basis, and he had a reasonable expectation of continuing employment.

[23] In Yaraka Holdings Pty Ltd v Giljevic, 1 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 casual workers as workers for the purpose of that Act 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 1996,2 and 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.”

[24] Similarly, Madgwick J found (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).”

[25] In Chandler v Bed Bath N’ Table Pty Ltd, 3 the Full Bench of the Fair Work Commission observed that the reasoning in Yaraka Holdings has been applied to the concept of casual employment on a regular and systematic basis in the Act. In WorkPac Pty Ltd v Skene,4 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 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).”5 The Commission, in its own decisions, has consistently applied Yaraka Holdings to s.284(2)(a), including in the Full Bench decisions of Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell,6and Bronze Hospitality Pty Ltd v Janell Hansson,7 as well as in numerous first instance decisions.

[26] That the employment was “regular” in the sense of being frequent is amply demonstrated by the data in the spreadsheet referred to in paragraph [8] above. It shows the Applicant was employed in every week until the commencement of the COVID 19 pandemic, and thereafter for most weeks but on lower hours. In those weeks up until the commencement of the COVID 19 pandemic, being a period of approximately ten months, the Applicant was employed for between 41 and 62 hours a fortnight.

[27] The employment can also be characterised as “systematic” in that it was arranged pursuant to an identifiable system. The Contract “required [the Applicant] to work such hours as requested by Starlight from time to time, depending on Starlight's business.” While the work was clearly stated to be of a casual nature, with hours changing from week to week, and with no obligation to offer a minimum number of hours, in practice there was a regular roster created by Mr Gamma a month in advance.

[28] The regular and systematic nature of the employment identified above, including the contractual obligations, monthly rosters, and the sheer regularity of engagement even after the impact of the COVID 19 Pandemic, leads me to the conclusion that the Applicant had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis (s.384(2)(a)(ii)).

[29] I determine that the Applicant’s period of service from the commencement of his employment until its termination counted towards his period of employment, and the Applicant had therefore completed the minimum employment period. The Applicant is a person protected from unfair dismissal.

(b) The Dismissal Ground?

[30] The Respondent’s submission regarding the dismissal ground was as follows:

“17. In the alternative, the Respondent submits that the Applicant has not been dismissed within the meaning of section 386(1) of the FW Act. There are two alternate arguments with respect to the Dismissal Ground being that:

(a) the Applicant’s employment has not been terminated (First Dismissal Ground); and

(b) the Applicant’s employment has otherwise been terminated at his initiative by way of a resignation (Second Dismissal Ground).

18. With respect to the First Dismissal Ground, there is no evidence to suggest that the Applicant’s employment has been terminated. The Applicant currently remains employed as a casual employee and the Respondent has remained willing to continue to offer shifts to the Applicant until his employment is intended to cease at the end of 2020. At its highest, the Applicant has only been provided with notice of termination. On this basis alone, the application is misconceived and should be rejected.

19. In Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070, the Full Bench of the Commission held at [40] that “an application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act”. The Applicant’s Application is one which falls into this category. While this does not render an unfair application invalid and of no effect, the Commission can dismiss the application at its own initiative or on application to the extent that it does not comply with the FW Act. Should the Commission not be minded to dismiss the Application at its own initiative for the Applicant’s non-compliance, the Respondent reserves its rights to make an application to dismiss the Application.

20. With respect to the Second Dismissal Ground, the Respondent submits in the alternative that the Commission has no jurisdiction in circumstances where the Applicant’s employment has been ended by way of the Applicant’s resignation. The Respondent has received no response to its communication sent on 28 October 2020 and the Applicant has not indicated a preparedness to accept any shifts prior to the end of 2020. It is submitted that this constitutes a resignation on the part of the Applicant.

21. In light of the above, the Respondent submits that the Commission does not have jurisdiction in circumstances where the Applicant has not been dismissed within the meaning of section 386(1) of the FW Act.”

[31] The evidence established that on 14 October 2020, Mr Gamma telephoned the Applicant and said "due to the changes brought about by COVID and reduction in hours I won't have shifts for you in 2021 and so after December 2020 you won't be employed by Starlight.” That was confirmed in Mr Gamma’s email of 26 October 2020. On 19 October 2020, the Applicant filed his Form F2 Unfair Dismissal Application.

[32] In evidence, Mr Gamma was questioned on his evidence that he had advised the Applicant that the Respondent had “decided to let [him] go from the end of 2020.” In his statement Mr Gamma had twice claimed, in relation to the conversation of 14 October 2020 referred to in the above paragraph and the quotation in this paragraph, that “At no time did I tell the Applicant he was dismissed or that his employment had been terminated.” Mr Gamma’s evidence was as follows: 8

“MR BRETON:  Mr Gamma, I can help you out, because that's not what you said.  You said:

Looking at the program's needs and the number of people who work on a casual basis and consider a number of factors including the availability, the quality, the consistency of performance in the role, team alignment and ability to meet all expectations, unfortunately we decided to let you go from the end of 2020.

Is that, irrespective of whether it's verbatim, is that the gist of what you are saying in your evidence today and your statement before this jurisdiction?---That's correct, thank you.  Yes.

Fine.  Fine.  So what is your understanding of the words "decided to let you go?"  What happens when somebody lets someone go?---Well, they're not longer employed with the organisation.

So if you're no longer employed, in your understanding, are you dismissed?---Well, I suppose you are, yes.  Yes.”

[33] The Respondent gave the Applicant notice that he would not be employed after December 2020. While the Applicant received ten weeks notice of his dismissal, at the time the Applicant filed his Form F2 Unfair Dismissal Application, he had not actually been dismissed. In Mr Peter Mihajlovic v Lifeline Macarthur (Mihajlovic) 9 the Full Bench, having referred to Mohazab v Dick Smith Electronics Pty Ltd ,10 and Siagian v Sanel,11 found:

“[16]The above passage makes it clear that, under the Industrial Relations Act 1988 a termination of employment, being a termination at the initiative of the employer, occurred at the time that the employment relationship came to an end and, in the case of an employee who had been dismissed on notice, the termination of the employment relationship and therefore the termination at the initiative of the employer occurred when the notice period expired.

[17]Having regard to the obvious provenance in the language used in s.386(1)(a) of the Act in the termination of employment provisions of the Industrial Relations Act 1988 and their interpretation in decisions such as Mohazab and Siagian, we consider that the same approach should be adopted as in those two cases, namely that a person’s “employment with his or her employer has been terminated on the employer’s initiative” when the person’s employment relationship with the employer has ended, and that where the employee has been terminated on notice, the employment relationship ends when the notice period expires. Because s.386(1) defines when a person has been dismissed for the purpose of s.394(1), the same propositions apply to the meaning of the expression “A person who has been dismissed” in s.394(1). Section 394(1) therefore requires a person’s employment to have terminated in order for that person to make an application for an unfair dismissal remedy.”

[34] As to the effect of the Applicant filing his Unfair Dismissal Application prior to the dismissal taking effect, the Full Bench in Mihajlovic held:

“[42] Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic’s premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).”

[35] The Respondent clearly intended to dismiss the Applicant after December 2020, and advised the Applicant of such intention. The dismissal that was notified to be occurring some ten weeks later was going to be at the initiative of the Respondent. It had, however, not occurred at the time the Applicant filed his Unfair Dismissal Application, and so that application was not made in accordance with s.394(1) of the Act because the Applicant had not been dismissed (s.386). That dismissal has, by the effluxion of time, now occurred.

[36] I do not consider, however, that the Applicant resigned his employment. The Applicant’s email of 28 October 2020, merely stated he would not be accepting shifts while his unfair dismissal proceedings were before the Commission, with particular emphasis on the Applicant hoping “to continue to improve the lives of the children in care” when the unfair dismissal is resolved.

Conclusion

[37] The Applicant had completed the minimum employment period, and therefore that the Applicant is a person protected from unfair dismissal.

[38] While the Applicant had not been “dismissed” (s.386) at the time of making his Unfair Dismissal Application, it is simply the case that the Applicant prematurely filed his Unfair Dismissal Application prior to the notified time of his dismissal, and that dismissal taking place. I intend to relist the matter to determine whether the Applicant wishes to make application pursuant to s.586(b) of the Act for irregularity in the manner in which the Unfair Dismissal Application was made to be waived.

DEPUTY PRESIDENT

Appearances:

Mr J Breton for the Applicant
Mr Jhinku for the Respondent

Hearing details:

17 December 2020

Printed by authority of the Commonwealth Government Printer

<PR727537>

 1 [2006] ACTCA 6; 149 IR 339.

 2 Ibid at [64].

 3   [2020] FWCFB 306.

 4 [2018] FCAFC 131.

 5   Ibid at [150] to [152].

 6   [2006] FWCFB 4438, at [15] to [17].

 7   [2019] FWCFB 1099 at [24].

 8   Transcript PN 102 to 106.

 9   [2014] FWCFB 1070.

 10 (1995) 62 IR 200.

 11 (1994) 122 ALR 333.