Lovelady v Townsville City Council
[2021] QIRC 60
•19 February 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lovelady v Townsville City Council [2021] QIRC 060 |
PARTIES: | Lovelady, Emma v Townsville City Council |
CASE NO: | TD/2020/104 |
PROCEEDING: | Application for reinstatement |
| DELIVERED ON: | 19 February 2021 |
MEMBER: | POWER IC |
ORDER: | Application dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW – where Applicant seeks reinstatement – whether Applicant is excluded from the unfair dismissal regime because she was a short-term casual employee |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 315, 316 and 317 |
Reasons for Decision
Ms Emma Lovelady ('the Applicant') commenced employment with the Townsville City Council ('the Respondent') in late 2019 in a position described as Venue Support Staff.
The Applicant's employment was terminated on 30 September 2020.
The Applicant filed an Application for Reinstatement on 16 October 2020 pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('the Act') on the basis that her dismissal was harsh, unjust or unreasonable and therefore unfair.
On 22 October 2020, the Respondent filed a response opposing the application for reinstatement on grounds that the Applicant was a 'short term casual employee' and consequently, the Commission had no jurisdiction to hear and determine the matter pursuant to s 315(1)(c) of the Act.
The Respondent submits that the Applicant commenced employment with the employer on 8 October 2019 and having ceased employment on 30 September 2020, is considered to be a 'short term casual employee' under the Act and therefore not able to access the remedy under s 317 of the Act.
The sole issue for determination is whether the Applicant is precluded from the unfair dismissal regime under the Act on the basis that she was a 'short term casual employee'.
Statutory provisions
Section 316 of the Act is outlined as follows:
316 When is a dismissal unfair
A dismissal is unfair if it is harsh, unjust or unreasonable.
Section 315 of the Act provides:
315 Employees to whom this part does not apply
(1) Section 316 does not apply to any of the following —
…
(c)a short term casual employee.
…
(9) In this section —
short term casual employeemeans a casual employee, other than a casual employee who —
(a) is engaged—
(i) by a particular employer on a regular and systematic basis; and
(ii) for several periods of employment during a period of at least 1 year; and
(b) apart from the employer’s decision not to offer the person further employment, had a reasonable expectation of further employment by the employer.
Applicant's submissions
In the Application for Reinstatement the Applicant nominated her commencement date as 27 September 2019.
The Applicant contends that her employment commenced on 27 September 2019 because on the day she received the email confirming she was employed by the Townsville City Council she purchased appropriate clothing and footwear for the position.
On 27 September 2019, the Applicant went and looked at the venues that she would possibly be working at for prompt arrival and parking.
The Applicant submits that when she received the email confirming her employment, she knew that she could be rostered on from that day forward. The Applicant submits that she cut her hours back at her other position to make herself available for the Council shifts and emailed Mr Anthony Timms on 28 September 2019 requesting an induction as soon as possible.
The Applicant made further submissions relating to the reasons given for the termination of her employment which are not relevant to the jurisdictional issue.
Respondent's submission
The Respondent submits that the Applicant was appointed to the casual position of Venue Support Staff on 8 October 2019. The Applicant was subsequently dismissed on 30 September 2020, having been employed in a casual capacity for less than one year.
The Respondent relies on two documents as evidence of the Applicant's commencement date. A Letter of Offer to the Applicant dated 27 September 2019 and the signed 'Acceptance of Employment' document dated 29 September 2019 both confirm, inter alia, the commencement date of 8 October 2019.
The Respondent also submits that their remuneration records confirm the Applicant's first claim for payment was for time worked on 8 October 2019.
Further submissions were made with respect to the reasons for the decision to dismiss the Applicant that are not relevant to the jurisdictional issue.
Consideration
The issue for determination is whether the Commission has jurisdiction to hear the Application for Reinstatement filed by the Applicant.
Section 315 of the Act outlines the circumstances in which the unfair dismissal provision does not apply as including at s 315(1)(c), a 'short term casual employee'.
The term 'short term casual employee' is defined in s 315(9) of the Act as a casual employee, other than a casual employee who satisfies the following criteria:
(a) is engaged—
(i) by a particular employer on a regular and systematic basis; and
(ii) for several periods of employment during a period of at least 1 year; and
(b) apart from the employer’s decision not to offer the person further employment, had a reasonable expectation of further employment by the employer.
If the Applicant has been employed as a casual employee for periods of employment for a period of less than one year, she is deemed to be a short term casual and is unable to access the unfair dismissal remedies of the Act.
It is agreed between the parties that the Applicant's employment was terminated on 30 September 2020. The commencement date of the Applicant's employment is, however, disputed. The Respondent contends that it commenced on 8 October 2019 and the Applicant nominates the 27 September 2019 as her commencement date.
The Respondent filed a copy of the Letter of Offer dated 27 September 2019 provided to the Applicant. The letter outlines the following:
Your casual employment at Council commences on Tuesday 8 October 2019.
The Letter of Offer also states that the offer is conditional upon satisfaction of pre-employment checks:
This offer is subject to the successful completion of the following employment checks, prior to commencement:
1. Pre-employment Drug and Alcohol Screen
2. Pre-employment Medical Assessment
3. Criminal Declaration Form
4. Copies of the required Qualifications, Licenses and Tickets as per Schedule One.
The date upon which the Applicant's employment was to commence was clearly stated in the Letter of Offer as being 8 October 2019. Further, employment on this date was conditional upon the successful completion of a range of employment checks.
The Respondent also filed a document titled 'Acceptance of Offer' signed by the Applicant on 29 September 2019. This document outlines the following:
I would / would not (delete whichever does not apply) like to accept the position of Venue Support Staff commencing on Tuesday 8 October 2019.
The Applicant contends that her employment commenced on 27 September 2019 because on that date she did the following:
·purchased appropriate work clothing for the role;
·visited the work venue to identify parking to ensure prompt arrival at work;
·reduced her available hours at her other position to ensure she was available for Council shifts; and
·emailed the Respondent requesting an induction as soon as possible.
On the evidence before me, including both the Letter of Offer and Acceptance of Offer, it is clear that the Applicant first commenced work on 8 October 2019. This is supported by the Respondent's confirmation that the first payment of wages was for time worked on 8 October 2019.
The Applicant may have been eager to commence work following receipt of the email on 27 September 2019 and undertook steps to ensure she was prepared to start work as soon as possible thereafter. However, there is no evidence that the Applicant actually commenced work on this date or any other date prior to 8 October 2019.
On the basis that the Applicant commenced employment on 8 October 2019 and was dismissed on 30 September 2020, the Applicant has been employed for less than one year. The Applicant meets the definition of a 'short term casual employee' in s 315(9) of the Act and is consequently excluded from accessing unfair dismissal remedies under s 316 of the Act.
In respect of the Applicant's submissions regarding the manner in which her dismissal occurred, I note that requirements for dismissal outlined in Division 3 of the Act do not apply to casual employees pursuant to s 315(4)(a).
For the reasons outlined, the Application is dismissed.
Order
I make the following order:
Application dismissed.
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