Louise Kneen-McDaid v Jaycorp Pty Ltd T/A Homestart

[2017] FWC 1819

[2017] FWC 1819

FAIR WORK COMMISSION

DECISION

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

Louise Kneen-McDaid
v
Jaycorp Pty Ltd T/A Homestart
(U2016/14829)

COMMISSIONER WILSON MELBOURNE, 28 APRIL 2017

Application for an unfair dismissal remedy - jurisdictional objection - minimum employment period - casual employee - employment regular and systematic, reasonable expectation of ongoing employment - minimum employment period satisfied.

[1] Louise Kneen-McDaid has made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Kneen-McDaid was employed by Jaycorp Pty Ltd, trading as Homestart, as a casual employee from 18 November 2015 until the date of her dismissal on 24 November 2016.

[2] This decision concerns the Respondent’s jurisdictional objection that Ms Kneen-McDaid has not satisfied the minimum employment period, as that term is defined in ss.383 and 384 of the Act, for the reason that the Applicant’s period of employment as a casual employee was not on a regular and systematic basis and that the Applicant did not have a reasonable expectation of continuing employment, and as such her period of service as a casual should not count towards the minimum employment period.

[3] It is not in contention that the Respondent is not a small business employer for the purposes of the Act. It is also not in contention that Ms Kneen-McDaid was employed on a casual basis.

[4] For the reasons set out below, I find that Ms Kneen-McDaid was employed by Homestart on a regular and systematic basis, that she had a reasonable expectation of ongoing employment with Homestart on a regular and systematic basis, and that, in turn, she has completed the minimum period of employment of 6 months.

BACKGROUND & EVIDENCE

[5] Evidence in this matter was received for the Applicant from Ms Kneen-McDaid, and for the Respondent from Ms Deirdre McTiernan, Sales Manager at Homestart.

[6] Homestart is a building and construction company specializing in homes for first home buyers. Ms Kneen-McDaid was employed as a Telemarketer, with her role being to contact potential customers to arrange appointments with sales representatives of the company. Her contract of employment clearly delineates her position as being on a casual basis. 1

[7] The Applicant’s statement records that she “had an ongoing roster every week and although my hours of work varied every day of the week I had a minimum of 20 hours of work per week.” 2

[8] The Applicant provided copies of 27 fortnightly timesheets to the Commission, which date from 16 November 2015 to 27 November 2016. Those timesheets record, respectively, 36.75 hours for the fortnight ending 4 December 2015; 52 hours for the fortnight ending 18 December 2015; 26 hours for the fortnight ending 1 January 2016; 25.5 hours for the fortnight ending 15 January 2016; 67.5 hours for the fortnight ending 29 January 2016; 70.5 hours for the fortnight ending 12 February 2016; 74 hours for the fortnight ending 26 February 2016; 57 hours for the fortnight ending 11 March 2016; 65.5 hours for the fortnight ending 25 March 2016; 53 hours for the fortnight ending 8 April 2016; 51.5 hours for the fortnight ending 22 April 2016; 52 hours for the fortnight ending 6 May 2016; 55 hours for the fortnight ending 20 May 2016; 60 hours for the fortnight ending 3 June 2016; 56 hours for the fortnight ending 17 June 2016; 53.5 hours for the fortnight ending 1 July 2016; 46.75 hours for the fortnight ending 15 July 2016; 60.5 hours for the fortnight ending 29 July 2016; 27.5 hours for the fortnight ending 12 August 2016; 34 hours for the fortnight ending 26 August 2016; 54.5 hours for the fortnight ending 9 September 2016; 61 hours for the fortnight ending 23 September 2016; 52.5 hours for the fortnight ending 7 October 2016; 42 hours for the fortnight ending 21 October 2016; 55 hours for the fortnight ending 4 November 2016; 59 hours for the fortnight ending 18 November 2016; and 55 hours for the fortnight ending 2 December 2016. 3

[9] The Applicant submits that the timesheets provided demonstrate that she worked on a weekly basis, while acknowledging the hours of work varied daily. The Applicant further submits that she “generally made herself available to work, and work was offered and accepted regularly in a repetitive pattern enough that it could no longer be regarded as occasional or irregular. Engagements were not infrequent and erratic”. 4

[10] The Respondent’s submissions provide that Ms Kneen-McDaid’s hours were allocated by her supervisor, Ms McTiernan, on a daily basis, and depending on the number of “leads” that had been referred to the telemarketers by formal and informal means. The Applicant’s successes in converting these referrals to appointments with sales representatives determined her ongoing suitability for the role.

[11] As to Ms Kneen-McDaid’s work patterns, the Respondent submits the following;

“15. The applicant’s starting times varied on a daily basis and there was some variety in the finishing times. Almost every Monday was worked because most of the Leads came in over the weekend. Tuesday and Wednesday were generally always worked. Thursday and Friday varied and some Saturdays were worked.” 5

[12] As to any expectation of ongoing employment, the Respondent argues that “because of the nature of the position there could not be a reasonable expectation of continuing employment”. Ms McTiernan elaborated in this regard;

“8. When I employed Ms McDaid she was informed that her engagement was as a casual employee and there was no guarantee of the frequency of any future engagements and hours of work.” 6

[13] In relation to Ms Kneen-McDaid’s timesheets, and her working hours in general, Ms McTiernan’s statement records the following;

“21. A review of the Ms McDaid’s time sheets…show that:

a. Shift start times vary between 9.00am and 1.00pm

b. Shift times usually finish at 7.00pm but have finished as early as 2.00pm (16/4/2016)

c. Some Saturdays were worked (e.g. 5/3/2016, 16/4/2016, 10/9/2016, 17/9/2016, 24/9/2016)

d. Extended periods were taken off (not worked) e.g. from 29/7/2016 to 14/8/2016

e. The hours for each fortnightly pay period varied from as low as 26 hours (for the fortnight ending 23/12/2015) and as high as 74 hours (for the fortnight ending 21/2/2016)

22. The hours varied each week because they were largely dependent on the number of Leads that came into the Telemarketers and that required follow up. It was also a matter of how hard the Telemarketers wanted to chase the Leads, but they were required to book a minimum of 8 appointments in an average 26 hour working week. The Telemarketers' income had a direct relationship to the hours worked.” 7

LEGISLATION

[14] A person is protected from unfair dismissal if they meet the following criteria, set out in s.382 of the Act;

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 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.

[15] The definition ascribed to the minimum employment period is provided in s.383;

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.

[16] Relevant to this decision, and the Respondent’s assertion that Ms Kneen-McDaid’s period of service as a casual employee should not count towards her period of employment with Homestart, are the terms of s.384 of the Act;

384 Period of employment

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

(2) However:

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

(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

CONSIDERATION

[17] As is evident from the provisions of s.384(1), the matter for determination in this decision is whether the applicant has a period of continuous service with her former employer that would exceed the minimum employment period. A period of casual employment will not be counted towards the period of employment itself unless that casual employment was on a regular and systematic basis and the employee had a reasonable expectation of continuing employment with the employer also on a regular and systematic basis.

[18] It has been held in relation to predecessor legislation, in which there was also a need to find employment on a “regular and systematic” basis in order for a casual employee to be entitled to make an unfair dismissal application, “that it is the ‘engagement’ that must be regular and systematic; not the hours worked pursuant to such engagement”. 8

[19] Further, the Full Bench has made plain that the enquiry in matters such as this is an enquiry as to the whole of the period of employment, with an established sequence of engagements being capable of being considered continuous service, with that continuous service being broken only when one party makes it clear to the other by words or actions that there will be no further engagements. I take into account and apply the reasoning of the Full Bench in Shortland v Smiths Snackfood;

“As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s 384 must be construed.

The criteria in s 384(2)(a) make it clear that s 384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

Moreover, it is more than tolerably clear that s 384 is concerned with how an employee’s period of employment is calculated for the purposes of s 382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s 384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s 384(2)(a)(i) or (ii) is not met). It is clear from the language of s 384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s 384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s 382(a).

Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s 384. In particular, a period of continuous service within the meaning of s 384(1) is not to be seen as broken by a period of “leave” or an absence due to illness or injury.” 9 (original emphasis)

[20] In this matter, it is to be noted first of all that the commencement of Ms Kneen-McDaid’s employment was in November 2015 through the preparation and signature by both parties of documents; firstly a contract of employment, signed on 17 November 2015 comprising 14 pages and 23 clauses; and secondly an Individual Flexibility Agreement, also signed on 17 November 2015, made under the Clerks – Private-Sector Award 2010 comprising two pages and six clauses. The content of those documents make it plain that the relationship between Homestart and Ms Kneen-McDaid was intended to subsist well beyond the first week of employment. The Contract of Employment appears to be expected to continue throughout all future periods of employment, however it may be terminated by either party with the giving of one hour’s notice, or without notice in certain circumstances of misconduct; and the Individual Flexibility Agreement is stated to begin on 18 November 2015 and to be capable of termination by either party with the giving of four weeks’ written notice.

[21] Secondly, the evidence before me is equally plain that there was service of Ms Kneen-McDaid continuously from November 2015. There is no evidence before me that would suggest a break in continuity of service for any reason between November 2015 and the date on which Ms Kneen-McDaid was dismissed, namely 24 November 2015. Any periods that Ms Kneen-McDaid had away from employment, such as one identified in Ms McTiernan’s witness statement for the period of 29 July 2016 to 10 August 2016, 10 appear incidental and of the nature of the leave that any employee may be expected to take from employment from time to time, whether paid or unpaid. In any event, I am not persuaded that such periods broke the continuity of service. There is no evidence before me that such periods amounted to one party, through their words or actions, making it clear to the other that there would be no further engagements.

[22] Thirdly, the evidence before the Commission about the nature of Ms Kneen-McDaid’s employment is clear. Ms Kneen-McDaid’s employment as a casual employee was on a regular and systematic basis, as evidenced by the dates and hours that she worked for Homestart; and, because of the past periods of employment, she reasonably expected to continue in employment with Homestart on a regular and systematic basis.

[23] Fourthly, the evidence is also plain that the ongoing arrangement between the two parties was brought to an end by Homestart in a way that made it clear to Ms Kneen-McDaid by words or actions that there would be no further engagements when her manager, Deirdre McTiernan, told her on 24 November 2016, after having earlier issued Ms Kneen-McDaid with a final warning on 19 October 2016, that her failure to comply with a work procedure meant her employment would be terminated with one hour’s notice. 11

[24] As a result of this analysis, I find that Ms Kneen-McDaid is a person protected from unfair dismissal, having completed a period of employment of at least the minimum employment period. Ms Kneen-McDaid’s employment with Homestart was a period of continuous service from the date she commenced employment on 18 November 2015.

[25] This matter will now be reassigned to the Commission’s Unfair Dismissal Case Management Team to be dealt with in the usual manner.

COMMISSIONER

Appearances:

Ms A Nyariel, Australian Services Union, for the Applicant.

Ms J Brown and Mr P Zorzi for the Respondent.

Hearing details:

2017.

Melbourne (by telephone):

20 April.

 1   Exhibit A2, Witness Statement of Louise Kneen-McDaid, Attachment A.

 2 Ibid [4].

 3   Ibid Attachment B.

 4   Exhibit A1, Applicant’s Outline of Submissions [5a(ii)].

 5   Exhibit R1, Respondent’s Outline of Submissions, [15].

 6   Exhibit R2, Witness Statement of Deirdre McTiernan, [8].

 7   Ibid [21]-[22].

 8   Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, (2006) 149 IR 339, [65].

 9   [2010] FWAFB 5709, (2010) 198 IR 237, [10]–[13].

 10 Exhibit R2 [25].

 11 See Exhibit R2 [26]; Form F3 Employer Response, item 3.1, [3]–[4].

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