Louise Newman v The Western Australian Turf Club T/A Perth Racing
[2022] FWC 1492
•19 JULY 2022
| [2022] FWC 1492 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Louise Newman
v
The Western Australian Turf Club T/A Perth Racing
(U2022/276)
| COMMISSIONER SCHNEIDER | PERTH, 19 JULY 2022 |
Application for an unfair dismissal remedy
On 3 January 2022, Ms Louise Newman (the Applicant) lodged an application for an unfair dismissal remedy against The Western Australian Turf Club t/a Perth Racing (the Respondent). The application was lodged in the Fair Work Commission (the Commission) pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent objects to the application on the basis that the Applicant was not protected from unfair dismissal because she had not satisfied the minimum employment period pursuant to section 383 of the Act. The Applicant was a casual employee of the Respondent. She had worked for the Respondent for a period of more than a year. As the Respondent is not a small business, the statutory minimum employment period applicable is six months. However, the Respondent submits that the Applicant had not served six months continuous service for the following reasons:
(a) The Applicant’s employment was not on a regular and systematic basis; and
(b) even if the Applicant was employed on a regular and systematic basis, she could not have had a reasonable expectation of continuing employment on a regular and systematic basis.
Section 396 of the Act requires certain matters be determined before the merits of an application. In this matter, the Commission must first determine if the Applicant has served the minimum employment period. This decision concerns that preliminary issue.
Briefly stated, I have concluded that the Applicant is not protected from unfair dismissal. The Applicant has not completed a period of employment with the Respondent of at least the minimum employment period as required under the Act. The Applicant’s unfair dismissal application is therefore dismissed and an Order to that effect issued concurrently.[1] The reasons for this determination follow.
Background
The Applicant commenced employment with the Respondent on 11 February 2020 as a Barrier Attendant.
The Respondent requires Barrier Attendants to operate the barrier stalls on its racecourse. This operation is only required on certain days, namely race days and trial days. The Commission is informed that race days for Perth Racing are, generally, held on Wednesdays and Saturdays.
The Applicant called Mr Shane Ross (Mr Ross) to give evidence. Mr Ross previously worked for the Respondent for 32 years and now works for Racing and Wagering Western Australia (RWWA) as a barrier attendant. RWWA provide barrier attendants to the Respondent.
Mr Ross provided further insight into the wider requirements of the racing industry, giving evidence that barrier attendants commonly work on a casual basis for multiple racing organisations. Mr Ross has known the Applicant for around 17 years and worked with her at approximately 6 different racecourses, including the Respondent’s operations at Ascot and Belmont.
In relation to the points made above, the parties agree that due to the operational requirements of various racing organisations, including the Respondent’s, it is not uncommon for barrier attendants, such as the Applicant, to work for multiple employers in the racing industry at the same time.
It was also common ground that the Applicant suffered an injury whilst engaged with another employer and was unavailable for work at the Respondent for a period of around 6 months, between March and September 2021.[2] During this period, the Applicant did not complete any shifts with the Respondent.
It was also common ground that the Applicant received an email from Mr Darren Yeoh, People and Culture Manager, of the Respondent on 15 December 2021, which stated:
“I understand that Keith Langley has informed you that he does not intend to roster you for further shifts at this time. As a casual employee, Perth Racing is not obliged to provide you with any shifts nor any reasons as to why you are not being provided any further shifts. However, we would like to inform you that the decision to not offer you any further shifts was due wholly to your failure to perform your role to the standard expected by Perth Racing”
Relevant Law
Legislation
The relevant statutory provisions are sections 382, 383, and 384 of the Act. Those provisions, in part, read:
“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 …”
“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.”
“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 as a regular casual employee; 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; …”
Section 22 of the Act provides the definition of ‘service’ and ‘continuous service’:
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 22 (which deals with community service leave); or
(ii) a period of stand down under Part 35, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly. …”
Authorities
The Court in Yaraka Holdings Pty Ltd v Giljevic (Yaraka),[3] provided clarification on the construction of the regular and systematic test. The Court highlighted that it is the engagement in question that must be the subject of scrutiny:
“It should be noted that it is the "engagement" that must be regular and systematic; not the hours worked pursuant to such engagement.” [4]
The Full Bench of the Commission has reinforced the relied on this construction of the test in a subsequent judgement.[5] The Full Bench stressed that a pattern of hours worked is only one consideration in determination of whether the engagement itself is regular and systematic.[6]
Regarding the meaning of regular and systematic the Court in Yaraka explained:
“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".” [7]
“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 …” [8]
The parties in the matter currently before the Commission have discussed the pattern and predictability of the Applicant’s shifts at length. The Court in Yaraka provided the following in relation to that issue:
“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.” [9]
The Court in Yaraka found the engagement in question in that matter was systematic and regular. The Court provided the major considerations for its determination:
“In my view there was such a basis apparent here. The system, method or plan involved:
(a) a shared understanding that a substantial part of the respondent’s time was and would be devoted to work for the appellant;
(b) the respondent preferentially making himself available to the appellant whenever possible;
(c) expected and acknowledged loyalty and commitment by the respondent to the appellant’s interests and ventures (the bonus payments are significant here);
(d) that the respondent would personally perform the work desired by the appellant rather than delegate it – such an inference, as indicated above, appears overwhelming;
(e) a shared understanding that the appellant would, in return, furnish the respondent with a substantial amount of work;
(f) an unusually high degree of mutual personal regard, trust and confidence between the parties (frequently deferred payment for services; ability to pledge the appellant’s credit); and
(g) stability of those features over a long period.” [10]
The Commission has relied on the Court’s construction of regular and systematic from Yaraka in several subsequent decisions. In Ponce v DJT Staff Management Services Pty Ltd the Commission expanded on the assessment of whether an employee is regular and systematic and provided the following considerations:
“ • The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and
• Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.”[11]
Regarding the reasonable expectation of continuing employment, Jackson J in Bronze Hospitality Pty Ltd v Hansson (No 2) (Bronze) noted the following in relation to forming an expectation:
“If the employee's expectation was based, not on anything the employer said, but solely on her own observation of the regularity of her work shifts, it would be wrong to look back and say that, as it turned out, there was a reasonable expectation from the very beginning. An expectation could not be reasonable until the time at which the pattern necessary to make it so has emerged.”[12]
In relation to the reasonableness of an expectation that is formed, Jackson J stated:
“If that expectation has been formed, it is necessary to assess whether it is a reasonable one. It is true that the word 'reasonable' is generally used in the law to import an objective standard: Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at [33] (Lord Hoffmann). But the FWA does not limit the matters that may be taken into account in determining whether the expectation is reasonable.” [13]
Submissions
Respondent
On 20 May 2022, the Respondent filed submissions in support of the jurisdictional objection.
The Respondent filed a witness statement for Mr Antonio Favazzo (Mr Favazzo), Chief Operating Officer of the Respondent.
Section 384(2)(a)(i) – Regular and Systematic Casual
The Respondent’s position, in summary, was that the Applicant was one of 10-15 casual employees, alongside a few permanent employees, who would be sent a bulk group text in which the Respondent offered casual shifts to the recipients. The Respondent submits that, due to the Respondent’s operations, these shifts were primarily offered on Wednesdays and Saturdays.
The Respondent asserts that, consistent with Yaraka, the Applicant was not engaged on a ‘system, method or plan’. Rather, the bulk group text was sent to all casuals who could accept or decline the shifts as they pleased.
Mr Favazzo gave evidence on behalf of the Respondent and verified payroll records which confirmed the Applicant declined, or did not accept, 46 shifts out of around 123 shifts. Making an approximately 37% rejection rate. The Respondent is of the position that these rejections demonstrate the casual nature of the engagement and that there was no regular or systematic engagement.
Section 384(2)(b)(ii) – Reasonable Expectation of Continuing Employment
The Respondent highlighted that the Applicant’s contract of employment, at clause 1.1, and the governing enterprise agreement, at clause 5.5a,[14] confirmed, in writing, to the Applicant at the commencement of her engagement with the Respondent that, as a casual employee, she should have no expectation or guarantee of ongoing employment with the Respondent.
The Respondent cited several recent decisions of the High Court as the primary authority supporting its position.[15]
Applicant
On 6 June 2022, the Applicant filed response submissions in relation to the jurisdictional objection.
Section 384(2)(a)(i) – Regular and Systematic Casual
The Applicant contends that she was engaged on a regular and systematic basis and satisfies the requirements of section 384(2)(a)(i) of the Act.
The Applicant highlights that the Respondent’s operations required the Applicant to be engaged primarily on Wednesdays and Saturdays, and on other days subject to the operational requirements and the Applicant’s availability.
The Applicant contends that the Respondent made a representation (the Representation) as follows:
“At the time of entering the contract the Applicant was informed that she would be offered regular shifts on Wednesdays and Saturdays as they are race days, and, also, other days should there be need and her be available.”
The Applicant relies on the Representation as the basis for the engagement meeting the requirements under section 384(2) of the Act.
There is no evidence that is available that can confirm that the contract signed on 12 February 2020 by the Applicant has even been superseded or replaced with a revised agreement that changed the intent of the initial contract of employment.
The Applicant also cites Yaraka on the basis that the Respondent’s operational requirements and rostering arrangements, being the bulk group text to casual employees, form a “system, method or plan”.
The Applicant submitted that, as a casual employee, there was no requirement for her to accept every shift offered by the Respondent and she accepted shifts primarily on Wednesdays and Saturdays that she was available to work.
The Applicant also noted that when she had recovered from her injury, that caused her absence from 16 March 2020 to 2 September 2020, the Respondent recommenced offering shifts to her.
Mr Ross provided evidence that, while completing his duties for the Respondent’s operations, he had worked alongside the Applicant.
Section 384(2)(b)(ii) – Reasonable Expectation of Continuing Employment
The Applicant relied on the Representation as forming a reasonable expectation of continuing employment.
The Applicant noted that the Respondent’s witness, Mr Favazzo, confirmed via his witness statement that “a text message containing any offer of between 1 to 2 shifts is sent to the pool of casual employees on a weekly basis, typically 2-3 weeks in advance of the shift date(s)”. The Applicant submits that this process demonstrated to the Applicant that she had a reasonable expectation of ongoing employment.
The Applicant highlighted that she had been working for the Respondent for close to 2 years with the exception of the 6-month absence for a workers’ compensation matter.
The Applicant addressed the recent High Court authorities cited by the Respondent. The Applicant distinguished her case from those authorities. The Applicant submits that the matter before the Commission differs from those authorities, in part, for the following reasons:
The Applicant is not in a labour hire arrangement with her employer;
She was not under the service of separate contracts;
Her shifts were offered 2-3 weeks in advance; and
Unlike some authorities, the Applicant was an employee and not subject to a labour hire arrangement.
It is the Applicant’s position is that these differences in fact render the authorities of little relevance to the current matter.
Consideration
Section 384(2)(a)(i) – Regular and Systematic Casual
Payroll Data
The payroll data provided by the Respondent outlines the below key details which I have factored into my decision making:
Prior to her injury related absence, the Applicant was offered 8 shifts and declined or cancelled 3 (noting that one of these rejections was at the commencement of her injury related absence).
Following the 6-month injury related absence, the Applicant worked 72 shifts between 9 September 2020 and 15 December 2021.
The Applicant declined shifts, cancelled shifts, or did not attend shifts after being rostered a total of 44 times in the time period outlined above.
The Applicant worked approximately 62% of the shifts that she was offered by the Respondent.
The payroll data reflects several instances where the Applicant was not offered shifts by the Respondent for the regular race days. Neither party highlighted these instances nor provided a reason why the Applicant was not offered shifts.
The way in which shifts were offered, whereby the Applicant would be offered shifts via text message along with a pool of casual employees, was consistent with the operational requirements of the business. The texts would be sent with some regularity, whenever there were races that needed barrier attendants. However, the way in which, and frequency by which shifts were offered does not alone lend to the engagement being regular and systematic. Although, this has been held as a relevant factor in the consideration.
The Applicant formed part of the pool of employees who were offered shifts on race days which could be accepted or rejected. It does not appear the Applicant formed part of a roster, in the traditional sense, whereby employees would be assigned shifts or a where roster would be drafted pursuant to employee’s individual availability.[16]
There is no evidence or suggestion, from either the Applicant or the Respondent that the Applicant was offered more or less shifts than other casual barrier attendants. There is no evidence to suggest that the Applicant, individually, was more critical to the Respondent’s operations than her fellow team members, or critical to the operations. From the evidence submitted, it is clear there was not a reliance on the Applicant. There is no evidence that the Applicant’s rejection rate impacted the Respondent’s ability to run their operations or that the Respondent relied on the Applicant as a worker.
From the payroll data provided, the Applicant would be available for a period of time, then would appear to be unavailable for a period of time before being available for work.
The Representation
I note the Respondent disputes the existence of the representation. The Respondent claimed that, if the Representation had been made, it did not lend to a finding that the engagement was intended to be regular and systematic.
I accept that the Representation, more than likely, would have occurred.
The Representation, as described in the Applicant’s submissions, related to the days of potential shifts and perhaps the frequency of being offered those shifts, not the regular and systematic nature of the engagement. Although a relevant consideration, the Representation, if it occurred as described in the Applicant’s submissions, does not itself mean the engagement was on a regular and systematic basis.
Other Considerations
The predictability of the race days, which in turn led to the Applicant generally working Wednesdays and Saturdays, and the alleged assurance of receiving the group text does not itself lend to the Applicant’s engagement being regular and systematic.[17] The industry in which the Respondent operates largely dictates the regularity of the race days. The Respondent offered work to the Applicant based on its pre-determined racing schedule.[18]
I am not satisfied that the Applicant accepted or engaged in work in a way that would form a regular and systematic engagement.[19] It is evident from the payroll data provided that the Applicant would accept or reject shifts that were offered to her as she desired. The Commission highlights that it is in the nature of casual employment that a worker has the flexibility to cancel shifts.[20] The fact that the Applicant decided to cancel and reject shifts does not itself preclude a finding that the engagement being regular and systematic. The Commission emphasises the high frequency by which the Applicant cancelled and rejected shifts.
The high rejection and cancellation rate reflects the irregular and unreliable nature of the engagement. The Applicant did not generally make herself available to the Respondent.[21] The engagement of the Applicant did not occur as a consequence of any ongoing reliance on the Applicant’s services or engagement.[22] The Applicant did not accept work regularly enough for the engagement to not be considered occasional or irregular.[23]
In summary, I am not satisfied that the Applicant met the requirements of section 384(2)(a)(i) of the Act at any time throughout the engagement.
Section 384(2)(b)(ii) – Reasonable Expectation of Continuing Employment
The Applicant’s submissions in relation to section 384(2)(a)(ii) of the Act highlight the different personal circumstances of the Applicant to the High Court authorities. The Respondent agreed that factual differences were present. However, the Respondent highlighted that the decisions of the High Court held weight for the purposes of the Commission interpretating the nature of the Applicant’s engagement with the Respondent.
The Respondent focused on the wording and underlying intent of the contract and enterprise agreement that were in place. As outlined below:
The Contract of Employment at clause 1.1 states that the Applicant will “be employed on a casual basis…. Casual means you are engaged by the hour with no guarantee of ongoing employment”.
The Enterprise Agreement at clause 5.5(a) states “casual employees are engaged from time to time when work is offered to them and are paid as such. Work may not be available each week and Perth Racing provides no guarantee of on-going employment”.
The Applicant also relied on the Representation and offering of shifts as evidence for a reasonable expectation of ongoing engagement.
Expectation
I note that the Respondent’s actions in offering the Applicant shifts after her return from her injury related absence is a relevant consideration in assessing the continuing nature of the engagement. I also note the Respondent continuously offered shifts to the Applicant.
I accept the Applicant may have formed the expectation on the basis of the Respondent’s repeated offering of shifts.
I do not however, consider the offering of shifts or the Representation to be basis for a reasonable expectation of continuing engagement on a regular and systematic basis. Although a relevant consideration, it is not decisive.
Reasonable expectation
The Applicant’s contract of employment was submitted into evidence. There is nothing included in the contract signed by the Applicant that made any suggestions that employment arrangement would be ongoing or potentially subject to a subsequent ongoing arrangement.[24]
From the evidence submitted, it is clear there was no agreed change in writing between the parties which suggested there was any change to the initial terms of the original contract.
No clause in the contract or actions throughout the period of engagement reflect that the Respondent required the Applicant to prioritise or ensure ongoing availability.[25]
As noted previously, the Respondent contests the existence of the Representation. The Representation, as described in the Applicant’s submissions, related to the days of potential shifts and perhaps the frequency of being offered those shifts, not the continuing nature of the engagement. The Representation as put by the Applicant, if it did occur, does not conclude that the Respondent was inferring the engagement would be ongoing for the present purposes.
I note the Court’s findings in Bronze:
“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.” [26]
On the material before me, it is clear there were other indications that the engagement would not be of a continuing nature.
The Applicant would accept work as desired, and this suited her personal circumstances. I find that, if the Applicant and Respondent had sought to formally change the initial intent of the engagement or had there been an intent for the Applicant’s employment to be continuing, the Respondent, or the Applicant, would have made efforts to advance that intention.
I also note there is scope under the relevant enterprise agreement for the Applicant to have been engaged on a permanent part-time basis under clause 5.4(a),[27] however this had not occurred nor is there any evidence of any intention for this to occur.
The non-ongoing nature of the engagement suited the Respondent, who highlighted that it was not logical to employ a worker with an ongoing expectation of regular and systematic work while that worker still had the flexibility of cancelling and rejecting work as desired.
It was confirmed by Mr Ross, and in a section of an article submitted by the Respondent, that the Applicant had professional pursuits in the industry outside of her work at the Respondent. It follows that a non-ongoing, irregular, and unsystematic engagement would possibly suit the Applicant.
I find that the Applicant may have formed an expectation of ongoing employment due to the Respondent’s regular offering of shifts. However, considering all relevant circumstances, I do not consider that any expectation would have been reasonable at any point in time throughout the engagement.
Therefore, consistent with section 384(2)(a)(ii) of the Act, and assessing the evidence submitted, I do not believe the Applicant should have ever held a reasonable expectation of continuing employment with the Respondent.
Notwithstanding my conclusion above, in the event that the Respondent’s continued offering of shifts did form the basis of a reasonable expectation of continuing engagement, any continuing engagement would not have been on a regular and systematic basis.
Conclusion
The Applicant was not a casual employee engaged on a regular and systematic basis with a reasonable expectation of continuing employment on a regular and systemic basis. It follows that the Applicant has not met the minimum employment period.
The Applicant’s unfair dismissal application is therefore dismissed and an Order [PR742589] to that effect is issued concurrently.
COMMISSIONER
Appearances:
A Griffiths of Clayton Utz for the Respondent.
G Mullighan of Leeder Law for the Applicant.
Hearing details:
2022.
Perth (by video):
June 8 and 10.
[1] [PR742589].
[2] Service is not broken by periods of absence for injury or illness; see [2010] FWAFB 5709, at [13].
[3] (2006) 149 IR 339.
[4] Ibid, at 65.
[5] [2020] FWCFB 306, at [11].
[6] Ibid, at [14].
[7] (2006) 149 IR 339, at 68.
[8] Ibid, at 91.
[9] (2006) 149 IR 339, at 69.
[10] Ibid, at 92.
[11] [2010] FWA 2078, at [76].
[12] (2019) 290 IR 344, at 39.
[13] Ibid, at 40.
[14] [AE418617].
[15] Workpac Pty Ltd v Rossato (2021) 392 ALR 39, Construction, Maritime and Energy Union & Anor v Personnel Contracting Pty Ltd (2022) 398 ALR 404; ZG Operations & Anor v Jamsek & Ors (2022) 398 ALR 603.
[16] For contrast, see the rostering system referenced in [2020] FWCFB 306 at [19].
[17] [2020] FWCFB 306 at [11].
[18] For contrast, see the rostering system referenced in [2020] FWCFB 306 at [19].
[19] [2010] FWA 2078, at [76].
[20] [2014] FWCFB 8752, at [7].
[21] [2022] FWC 164, at [18].
[22] (2006) 149 IR 339, at 69.
[23] [2010] FWA 2078, at [76].
[24] For contrast, see contract referenced in [2020] FWCFB 306, at [18]-[19].
[25] For contrast, see the blackout periods, in which employees were required to hold themselves out as available to work, as referenced in [2020] FWCFB 306, at [20].
[26] (2019) 290 IR 344, at 43.
[27] [AE418617].
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