Madiha Asif v Crown Perth

[2021] FWC 6383

[2021] FWC 6383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Madiha Asif
v
Crown Perth
(U2021/7791)

COMMISSIONER WILLIAMS PERTH, 19 NOVEMBER 2021

Application for an unfair dismissal remedy - casual employee - regular and systematic - minimum employment period

[1] This decision concerns an application made by Mrs Madiha Asif (the Applicant) pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Crown Perth (the Respondent).

Background

[2] The Respondent in their response to the unfair dismissal application objects to the application on the ground that the Applicant was not a regular casual employee at the time of the dismissal, and she was not employed on a regular and systematic basis in the period prior to her dismissal.

[3] Consequently, on 15 October 2021 the Commission’s staff wrote to the Applicant explaining as follows,

“There are certain criteria that must be met before a person can make an unfair dismissal application. One of those criteria requires a person to have met the ‘minimum employment period’. The minimum employment period is one year of continuous service if your employer is a small business employer (ie has fewer than 15 employees), and six months of continuous service if your employer is not a small business.

Periods of service as a casual employee do not count towards the minimum employment period unless the casual employee:

•  was employed on a regular and systematic basis, and

•  had a reasonable expectation of ongoing employment on a regular and systematic basis.

The Respondent has raised an objection to your application on the basis that it says you were a casual employee who was not regularly and systematically employed and/or had no reasonable expectation of ongoing employment. In other words, they say your casual employment has not met the minimum employment period.

I refer you to the Commission’s Unfair Dismissal Benchbook, and in particular the section titled “Periods of Service as a Casual Employee”.

If you consider that you have met the minimum employment period (i.e. you were employed on a regular and systematic basis and you did have a reasonable expectation of ongoing employment), then you are directed to provide a statement within 7 days explaining why you consider you have met the minimum employment period.”

[4] In response, the Applicant filed some materials in support of her view of the objection.

[5] On 18 October 2021 the application was allocated to me for determination of the jurisdictional objection.

[6] On 26 October 2021 the parties were notified of a conference to be held on 12 November 2021. The notice of listing set out for the parties the facts the Commission believed were relevant to determination of the objection. At the conference both parties had the opportunity to dispute these facts or raise other relevant facts.

Factual findings

[7] Considering the materials and submissions of the parties I find as follows.

[8] The Applicant began working for the Respondent in December 2016 as a casual employee.

[9] The Applicant commenced a period of parental leave in April 2019 which was extended by agreement until 10 February 2021.

[10] The Applicant has not worked since commencing her parental leave in 2019.

[11] Throughout March 2021 the Applicant put forward her availability which was constrained during the week by her son’s schooling.

[12] On 19 March 2021 the Respondent formally approved the Applicant’s request for a Flexible Working Arrangement. This specified her availability as Monday to Friday 11:00am to 3:00pm, Saturday 12:00pm to 4:00pm, and Sunday 12:00pm to 5:00pm.

[13] In mid-April 2021 the Applicant enquired about whether she would be on a roster or on call and was advised that given her availability shifts would be offered depending on the business volume for lunch.

[14] On 4 June 2021, having not been offered any shifts, the Applicant complained to the Respondent’s human resources department by email.

[15] On 21 June 2020 the Respondent sent the Applicant a letter stating that, as she had not worked a shift for more than 90 days, her availability and attendance was not sufficient to fill the operational needs of the company. The letter proposed she discuss with the Respondent these issues.

[16] The Applicant and the Respondent liaised about arranging a meeting date. Human resources contacted the Applicant again on 10 August 2021 requesting her availability for a meeting the following week, but the Applicant advised that she had filed a complaint with the Human Rights Commission and did not want to come to the meeting.

[17] The Applicant was notified of her dismissal on 2 September 2021 and her dismissal took effect on the same date.

The legislation

[18] The relevant provisions of the Act are set out below.

“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 to the person 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.”

“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; 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.”

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

Consideration

[19] In this case the Respondent argues that at the time of dismissal, 2 September 2021, the Applicant was not a regular casual employee and in the period prior to her dismissal was not employed on a regular and systematic basis. It is submitted by the Respondent that at the time of dismissal the Applicant’s employment was uncertain, unpredictable with clear discontinuity in the pattern of work, with no advance commitment to work or respective pattern.

[20] Turning to consider the requirements of the legislation, under section 390 of the Act the Commission may only order a remedy, either reinstatement and/or compensation, if it is first satisfied that the person was protected from unfair dismissal at the time of being dismissed and secondly that the person has been unfairly dismissed.

[21] Section 382 of the Act prescribes that a person is protected from unfair dismissal at a time if, amongst other requirements, at that time, the employee had completed a period of employment of at least the minimum employment period.

[22] Section 383 of the Act prescribes that the minimum employment period, if the employer is not a small business as is the case here, is six months ending at the earlier of the time the employee is given notice of dismissal or immediately before the dismissal.

[23] Section 384(1) of the Act prescribes that an employee’s period of employment at a particular time is the period of continuous service the employee has completed at that time.

[24] It is important to appreciate that the relevant circumstances of a casual employee making an unfair dismissal remedy application, when deciding whether they are protected from unfair dismissal, are the circumstances that existed at the time they were given notice or immediately before their dismissal. 1

[25] What is relevant then for the Applicant making this application is whether at the time she was given notice of her dismissal, 2 September 2021, she had completed a period of continuous service of at least six months.

[26] Next it must be considered that section 384(2) of the Act prescribes that a period of service as a casual employee does not count towards their period of employment unless, the employment was on a regular and systematic basis and during the period of service the employee had a reasonable expectation of continuing appointment on a regular and systematic basis.

[27] What must be decided by the Commission is whether at the time the Applicant was given notice of her dismissal she had completed a period of continuous service of at least six months and this period of employment was on a regular and systematic basis and during this period of service she had a reasonable expectation of continuing employment on a regular and systematic basis.

[28] The facts are the Applicant’s parental leave had ended on 10 February 2021 and she did not work between then and the time of her dismissal on 2 September 2021, more than 6 Months later.

Conclusion

[29] I am satisfied that from 11 February 2021 onwards, after the Applicant’s parental leave had ended, she had not been employed on a regular and systematic basis and did not have a reasonable expectation of ongoing employment on a regular and systematic basis.

[30] I therefore am satisfied that at the time of the Applicant’s dismissal, 2 September 2021, she had not completed the minimum employment period and so by virtue of section 382 of the Act was not protected from unfair dismissal and was not able to make this application.

[31] Consequently, I uphold the Respondent’s jurisdictional objection. This Application will be dismissed and an Order [PR735933] to that effect will be issued.

Printed by authority of the Commonwealth Government Printer

<PR735932>

 1   [2010] FWA 2078 at [64] and [81].