Linda Gray v Hobart Community Veterinary Hospital

[2013] FWC 3376

[2013] FWC 3376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Linda Gray
v
Hobart Community Veterinary Hospital
(U2013/5686)

DEPUTY PRESIDENT BOOTH SYDNEY, 29 MAY 2013

Termination of employment - alleged unfair dismissal - jurisdiction - small business employer - casual employee.

[1] On 15 January 2013 Mrs Linda Gray (the applicant) lodged an application pursuant to s.394 of the Fair Work Act2009 (the Act) for an unfair dismissal remedy in respect to the termination of her employment from the Hobart Community Veterinary Hospital (the respondent or HCVH) on 9 January 2013.

[2] The respondent objects to the application being heard on the basis that the HCVH is a small business as defined in the Act and the applicant is a casual employee with less than 12 months service. Accordingly the respondent contends that the applicant is not a person protected from the unfair dismissal provisions of the Act.

[3] The matter came before me on 29 April 2013 and further submissions were provided subsequent to the hearing at my request. The respondent provided their further submissions on 6 May 2013 and the applicant responded to these on 12 May 2013.

[4] The applicant was self represented and the respondent was represented by Ms Glenise Hicks, Human Resources Advisor accompanied by Ms Denise Bradley, Director, G2Z Ltd and Dr Tering Davies, Practice Manager.

Background

[5] The respondent is a veterinary practice located in Hobart, Tasmania. HCVH is the trading name owned by G2Z Ltd and HCVH is G2Z’s only operating entity. G2Z Ltd is advised by the Animal Welfare League of Qld. There is no legal connection between G2Z Ltd and the Animal Welfare League of Qld other than a contract for services for the Animal Welfare League of Qld to provide financial and human resources advice and services to G2Z Ltd.

[6] The applicant is a veterinary nurse with over 9 years experience. She commenced employment as a casual employee on 5 May 2012. It is agreed between the parties that she was employed on a regular and systematic basis with a reasonable expectation of continuing employment on a regular and systematic basis, for less than one year.

[7] The applicant was dismissed on grounds relating to both performance and conduct, which she contests.

Contentions

[8] The respondent contends that at the time of the applicant’s dismissal it employed 14 employees, including the applicant, who were either permanent or casual but employed on a regular and systematic basis. It had a fifteenth employee who it contends was a casual who was not employed on a regular and systematic basis and should not be counted when considering whether the business was a small business in terms of the Act. Accordingly the respondent contends that the applicant is not a person protected from the unfair dismissal provisions of the Act.

[9] The applicant contends that the respondent had 15 or more employees as the time of her dismissal. She claims that the fifteenth employee of the respondent is a casual employee employed on a regular and systematic basis and should be counted when considering whether the business was a small business in terms of the Act. She also identifies one other employee of the respondent who she contends was employed at the time of her dismissal, taking the number of employees to be counted to 16. Furthermore, without specifying names or a specific number, she contends that G2Z Ltd employs more employees than are working at the HCVH and that the employees of the Animal Welfare League of Qld are employees who should be counted for the purpose of establishing whether the respondent was or was not a small business at the time of her dismissal.

Statutory framework

[10] An application for an unfair dismissal remedy is made pursuant to s.394 of the Act. Section 394(1) reads as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

[11] As long as a person has been dismissed in terms of the Act, the Fair Work Commission (the Commission) must then consider certain matters before proceeding to deal with the merits of an application. These are contained in s.396 as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[12] Section 396(b) requires the Commission to consider whether the person making the application is protected from unfair dismissal.

[13] In so far as this application is concerned s.382(a) of the Act addresses this as follows:

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.

[14] This begs the question of whether the employee has completed ‘a period of employment’. This question requires consideration of s.384 of the Act which provides:

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was 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.

[15] In this matter it is agreed that the applicant is a casual employee, employed on a regular and systematic basis, with a reasonable expectation of continuing employment by the employer on a regular and systematic basis. As such she has completed ‘a period of employment’ with the employer.

[16] However s.382 of the Act also requires an assessment of whether the period of employment is at least the ‘minimum employment period’. This question requires consideration of s.383 which provides:

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.

[17] The “minimum employment period” is one year for a small business or six months for an employer that is not a small business.

[18] To establish whether an employer is or is not a small business requires consideration of s.23 of the Act which is in the following terms:

23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.

[19] It is important to note that the test for inclusion of a casual employee for the purposes of s.384 and s.23 are different. For the purpose of s384, establishing whether a period of employment of a casual employee counts towards that employee’s period of employment requires consideration of whether the casual employee was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis. For the purpose of s.23 it is necessary only that the casual employee was employed on a regular and systematic basis.

Legal precedent

[20] In this matter the meaning of the term ‘regular and systematic’ is of importance because if the fifteenth employee is a casual employed on a regular and systematic basis, then he is to be counted towards the number of employees, and the respondent would not be a small business. In such a circumstance the applicant’s service would count towards her period of employment and she would be a person protected from unfair dismissal.

[21] In Charles Borg v NSW Greyhound Breeders, Owners & Trainers’ Association

 1 Deputy President Sams considered the dismissal of Mr Borg, a Kennel Supervisor at Wentworth Park Greyhound Race Track. The respondent objected to the application on the grounds that the applicant was a casual employee who was not employed on a ‘regular and systematic’ basis and thus was not a person protected from unfair dismissal. Sams DP helpfully reviewed the authorities.

[22] At paragraphs 63-66 he said:

“[63] It is helpful to understand the true nature of the applicant’s employment by reference to a number of authorities on the subject; albeit the earlier authorities were decided under a different statutory regime. In Robert James Power t/a Beta Frozen Products [2001] AIRC 772, a Full Bench of the Australian Industrial Relations Commission said at paragraph 9:

‘[9] We have considered the evidence before the Commissioner and the findings made by him. Whether the Applicant was a casual employee is a question of fact to be determined having regard to all the facts and circumstances of the employment: see generally Doyle v. Sydney Steel Co. Ltd (1936) 56 CLR 545. Some of the factors that might be had regard to are referred to by Sharkey P. in Serco (Australia) Pty Ltd v. Moreno (1996) 65 IR 145, at 150-151 as follows:

“Certain indicia may be indicative of the nature of the contract, but they are not determinative, taken alone. These may include the classifying name given to a worker and initially accepted by the parties, the provisions of the relevant award, the reasonable expectation that work would be available to him, the number of hours worked per week, whether his employment was regular, whether the employee worked in accordance with a roster published in advance, whether there was reasonable mutual expectation of continuity of employment, whether the notice is required by an employee prior to the employee being absent on leave, whether the employer reasonably expected that work would be available, whether the employee had a consistent starting time and set finishing time, and there may be other indicia.’”

[64] Another Full Bench in Cetin v Ripon Pty Ltd [2003] AIRC 1195 (‘Cetin’) said at paragraph 59:

‘[59] In our view all the facts and circumstances bearing upon the nature of the engagement should be considered in determining the true character of the employment. Consistent with the approach of Moore J in Blue Line Cruises, the informality, uncertainty and irregularity of an engagement supports a conclusion that the employment has the characteristic of being casual. Conversely regular and systematic engagements with a reasonable expectation of continuing employment are usually not characteristic of casual employment.’

[65] Senior Deputy President Watson in Bailey v Red Earth Nominees Pty Ltd [2005] AIRC 933 referred to Cetin (supra above) and said at paragraphs 24 and 25:

‘[24] As noted by a Full Bench in Grocery Products Manufacture - Manufacturing Grocers Award 2003:

“The term ‘casual employee’ does not have a precise legal meaning [Doyle v Sydney Steel Company Limited (1936) 56 CLR 545]. While it has been described as a form of ‘intermittent or irregular work’ or work which is ‘informal, irregular and uncertain and not likely to continue for any length of time’ [Reed v Blueline Cruises Limited (1996) 73 IR 426], the WR Act also recognises that a ‘casual employee’ can be one who is engaged on a ‘regular and systematic basis’ and who has a ‘reasonable expectation of continuing employment’ [s.170CBA(3), Nightingale v Little Legends Childcare, PR948229].”

[25] As noted by the Full Bench in Cetin v Ripon Pty Ltd t/as Parkview Hotel the words ‘casual employee’ have no settled meaning in Australian domestic law and the determination of the true character of the employment will require consideration of all the facts and circumstances bearing upon the nature of the engagement.’

[66] In the Federal Court Barker J said in Williams v MacMahon:

‘It was open to the Federal magistrate to find that Mr Williams was not a “casual employee” under the general law and therefore for the purposes of the WR Act. His engagement was not for the performance of work on an intermittent or irregular basis. The future was provided for. The nature of the work required of the employee was stipulated. A roster was in place which made clear the regularity of the employment. Travel arrangements were organised to facilitate it. All this suggests that this was an employment arrangement far beyond that of casual employment.’”

Consideration

[23] Dr Davies gave thorough and credible evidence about the status of each of 13 employees employed at the HCVH at the time of the applicant’s dismissal. There is no doubt in my mind that each of these employees was employed on a regular and systematic basis. It is not contested that the applicant, the fourteenth employee was also employed on a regular and systematic basis. The status of the fifteenth employee is disputed.

[24] He is Mr Jeremy Goscombe who performed sundry maintenance and gardening tasks.

[25] Mr Goscombe was engaged as a casual employee with PAYG tax deductions and a title of Maintenance/Groundsman. I must consider whether he was employed on a regular and systematic basis. I note that the test contained in s.23(2)(b) of the Act does not include ‘the employee had a reasonable expectation of continuing employment on a regular and systematic basis’. The test is therefore an entirely objective one.

[26] Mr Goscombe’s employment status and title could lead an observer to conclude that he was employed on a regular and systematic basis. However that would be a superficial conclusion based on form rather than the substance of his mode of working. I can understand why the applicant may have thought Mr Goscombe was an employee who should be counted in the number of employees for the purposes of the threshold in s.23 of the Act, however, when his mode of working is examined and the authorities considered, I come to a different conclusion.

[27] Dr Davies gave evidence that Mr Goscombe was employed on an irregular and infrequent basis. It was her evidence, substantiated by documents tendered, that he was not included on the roster of the respondent and that he came in when called on a spontaneous basis.

[28] The applicant gave evidence that she saw him on the Tuesday of the week containing 9 January 2013, the date of her dismissal, and he was getting his lawn mowing tools out of the back of his car.

[29] Dr Davies gave evidence that Mr Goscombe worked on five occasions in the last 10 weeks of records provided for any period between 9 hours to half an hour. I was subsequently provided with Mr Goscomb’s pay slips for the period 3 July 2012 to 20 November 2012 which generally confirms her evidence and revealed a haphazard series of engagements lasting from 1 hour to 9.5 hours a week with some weeks containing no engagement at all. 2

[30] She also gave evidence that the respondent did not rely upon Mr Goscombe’s availability since volunteers or other paid workers were available to undertake the tasks Mr Goscombe undertook. I accept this evidence.

[31] His hours of work vary markedly between engagements, engagements are intermittent, with no discernable regularity. This is consistent with Dr Davies’s evidence that Mr Goscombe was a person called in on a case by case basis to undertake specific tasks as needed.

[32] Considering the mode of his employment in the light of the authorities, I find that Mr Goscombe was a casual employee but was not employed on a regular and systematic basis. Accordingly he is not to be counted in determining whether the respondent is a small business in terms of the Act.

[33] The applicant also contended that one more employee, Laura Radford, now on the roster at the respondent was employed on the date of the applicant’s dismissal. Dr Davies gave credible evidence, corroborated by signed letters of offer, that Ms Radford was employed after the applicant’s date of termination and I accept this evidence. She is therefore not to be counted when considering whether the respondent is a small business in terms of the Act.

[34] The applicant also contended that G2Z Ltd employs more employees than are working at the HCVH. Dr Davies gave evidence that G2Z Ltd is the legal entity and the HCVH is the trading name and the HCVH is the only operating entity such that the two are “one in the same”. The applicant provided no evidence to the contrary and I accept the evidence of Dr Davies. Accordingly, for the purpose of establishing whether the respondent is a small business in terms of the Act, this submission is rejected.

[35] The applicant also contended that the employees of the Animal Welfare League of Qld are employees who should be counted. She contended that pursuant to s.23(3) of the Act associated entities are taken to be one entity and G2Z Ltd and the Animal Welfare League of Qld are associated entities.

[36] Dr Davies gave evidence that the Animal Welfare League of Qld provided accounting and human resources services to the respondent on a contracted or consulting basis. There was no evidence given to suggest that the Animal Welfare League of Qld was related to G2Z Ltd or the HCVH in the manner described in s.50AAA of the Corporations Act 2001. Accordingly for the purpose of establishing whether the respondent is a small business in terms of the Act I do not intend to count employees of the Animal Welfare League of Qld.

Conclusion

[37] I have considered the submissions and evidence in this matter and I conclude that the respondent had 14 relevant employees at the time of the applicant’s dismissal and is therefore a small business pursuant to the Act. Since the applicant was a casual employee with less than 12 months employment she is not a person who is protected from unfair dismissal pursuant to s.396 of the Act. Her application is dismissed.

DEPUTY PRESIDENT

Appearances:

L Gray, the Applicant

G Hicks, human resource advisor, with D Bradley and T Davies, Hobart Community Veterinary Hospital

Hearing details:

2013.

Sydney/Hobart (Videolink):

April 29.

Final written submissions:

12 May 2013

 1   [2012] FWA 10013

 2   Further Submissions of the Respondent, Payroll Advice of Jeremy Goscombe 1/7/12 to 14/1/13

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