Mandy Morrow v MedHealth Pty Limited T/A MedHealth

[2017] FWC 3120

[2017] FWC 3120

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mandy Morrow
v
MedHealth Pty Limited T/A MedHealth
(U2017/3603)

COMMISSIONER PLATT ADELAIDE, 7 JUNE 2017

Application for relief from unfair dismissal – minimum employment period met – jurisdictional objection dismissed.

[1] On 3 April 2017, Ms Mandy Morrow made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in respect of her dismissal by MedHealth Pty Limited T/A MedHealth (MedHealth) on 29 March 2017.

[2] On 13 April 2017, MedHealth raised the jurisdictional objection that Ms Morrow had not met the minimum employment period on the basis that her employment was casual and not regular and systematic.

[3] A hearing by way of telephone conference was conducted on 29 May 2017. A sound file record of the hearing was kept.

[4] Mr Upham from the Australian Municipal, Administrative, Clerical and Services Union represented Ms Morrow, and Ms Thevathasan (of counsel) represented MedHealth. Permission was granted pursuant to s.596(2)(a) of the Act.

[5] Witness statements (including attachments) were received from Ms Morrow and Mr Camilleri, Executive General Manager, on behalf of MedHealth. No credit issues arise from the evidence before me.

[6] Ms Morrow advised that she commenced employment with Australian Medico Legal Services Pty Ltd, a predecessor of MedHealth in 2002 or 2003. Her employment arrangements were last documented in a written contract provided by MedHealth dated 5 May 2010.

[7] It is not in dispute that MedHealth employed more than 15 persons at the time of the dismissal and is not a small business employer within the meaning of s.23 of the Act. As a result, and in accordance with s.383(b) of the Act, the length of the applicable minimum employment period is 6 months.

[8] As Ms Morrow’s period of casual employment with MedHealth is greater than 6 months, I do not need to determine if MedHealth was a successor employer to Ms Morrow’s original employer.

[9] The key issue to be determined in this matter is if Ms Morrow’s employment in the 6 months prior to her dismissal was regular and systematic, and whether she had a reasonable expectation of continuing employment on that basis.

[10] MedHealth contends as follows;

• Ms Morrow was one of about 30 casual employees in a typist pool who performed ‘overflow’ work from home.



• Most work was uploaded into a virtual queue called ‘Report Manager’ by MedHealth.



• The amount of work uploaded to Report Manager each day was not predicable.



• Ms Morrow was not required to log in to Report Manager on any fixed schedule.



• Ms Morrow’s work was self-allocated with no minimum work requirement.



• Ms Morrow was not employed on a regular and systematic basis during at least the 6 months prior to the dismissal.



• Ms Morrow’s fortnightly pay fluctuation is evidence of the sporadic and inconsistent nature of her engagement.



• It is unreasonable for Ms Morrow to have an expectation of on-going work as it would be picked up by other casual typists in the pool and, on some occasions, Ms Morrow sought work to be allocated.

[11] Ms Morrow contends as follows;

• She was employed as a casual typist.



• The employment was on a regular and systematic basis as evidenced by:

○ The frequency of the work performed as detailed in the timesheets; and

○ The provision of Clause 7 of the contract of employment which refers to the notification of working hours, the requirement to be on a roster, and an email from Mr Camilleri seeking further commitments from typists for increased workload.

• Whilst there is no roster, evidence of regular and systematic employment can be inferred from the engagements. 1



• On occasions Ms Morrow sought additional work to supplement her income.



• Her workload was consistent in the last 6 months and she had worked on a similar basis in the previous years and thus she had a reasonable expectation of on-going employment.

[12] Ms Morrow’s employment is described in the written contract as Medical Audio-Typist (Casual). I have ignored the fact that the footer of the contract of employment describes the document as a ‘Non Managerial (Full-Time) Employment Agreement’. I note that in other respects (e.g. no entitlement to Annual or Personal Leave, Redundancy etc.) the contract is consistent with one of casual employment.

[13] Clause 7 of the written contract concerns hours of work and provides that Ms Morrow will be notified of her working hours from time to time, reasonably in advance. The days and hours of work may fluctuate. The number of hours to be worked in any week shall not exceed 20 hours, unless mutually agreed.

[14] Ms Morrow’s role involved the preparation of typed medical reports from audio files provided by the employer. The process involved logging onto an internet portal, reviewing audio files in the queue and selecting the files that Ms Morrow undertook to transcribe within a 24 hour period. Ms Morrow and others formed part of a typing pool, which was used by MedHealth to ensure that the available work was performed in a timely manner.

[15] The length of time that the audio files took to transcribe varied based on length, ease of hearing, the understanding of voices and, to a lesser extent, the complexity of the terms used. Ms Morrow was paid based on the length of the report as measured per line, and not on the basis of hours worked. 2

[16] Whilst the written contract of employment refers to a maximum number of hours per week, the system used to allocate work was such that Ms Morrow self-managed and had control over the work she was to perform, subject to MedHealth making audio files available on the portal. MedHealth did not allocate work to Ms Morrow.

[17] It appears that MedHealth needed to ensure that there were sufficient typists available to undertake the work and for this reason emails were exchanged which sought to confirm when typing pool members would not be available due to illness, leave or any other reasons. 3

[18] It also appears that typists were able to seek information about new files to be loaded onto the portal so as to increase their earnings. 4

[19] Ms Morrow submitted a number of timesheets for the period between 6 September 2016 and 3 April 2017 which described the characters and lines typed for each report and the remuneration paid in respect of this work. In order to protect the confidentiality of the patient, I have made a confidentiality order pursuant to s.593(3)(d) of the Act prohibiting the publication of those timesheets unless appropriately redacted.

[20] MedHealth submitted a statement by Mr David Camilleri for MedHealth which contained, at paragraph 24, details of gross payments made to Ms Morrow in the period between 24 August 2016 and 4 April 2017.

[21] I have not been able to correlate the two data sets and at the hearing the parties accepted that I could proceed based on the information provided by Mr Camilleri.

[22] Whilst Mr Camilleri contends that the work volume would fluctuate on a daily and weekly basis, as a result of the system of allocating work used by Medhealth, and the records provided, in my view the best picture I have of the work performed by Ms Morrow is provided by the fortnightly pay records.

[23] This information is reproduced graphically below;

[24] The data indicates that there were only two fortnights where Ms Morrow earned less than $596, one of those periods was the New Year period, the other was due to the dismissal of Ms Morrow occurring halfway through the final period.

[25] Mr Camilleri, whilst giving evidence, accepted that Ms Morrow’s wages could be described as regular.

Consideration

[26] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period:

“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.”

[27] Section 383 of the Act sets out the minimum employment period:

“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.”

[28] Section 384 defines a person’s period of employment and details when casual employment counts towards the period of employment.

“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.”

[29] The finding as to whether employment is regular and systematic is an objective one having regard to the totality of the evidence.

[30] In considering the circumstances in this matter, I have had regard to the Macquarie Dictionary meanings of the words ‘regular’ and ‘systematic’ and the observations of the Court in Yaraka Holdings Pty Ltd v Ante Giljevic 5 (Yaraka). In Yaraka, it was determined that it is the ‘engagement’ that must be regular and systematic, not the hours worked. In addition, their Honours noted that the term ‘regular’ should be construed liberally, it is intended to imply some sort of repetitive pattern rather than being used as a synonym for ‘frequent’ or ‘often’. However, it need not be ‘uniform’ or ‘constant’.

[31] In Yaraka, their Honours held that systematic meant:

“[69] 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. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses.”

[32] In the matter before me it is clear that the system by which Ms Morrow was engaged, on a self-managed basis to perform transcription duties, was long standing.

[33] The absence of any contractual requirement for Ms Morrow to work set hours does not preclude finding that her engagements are regular and systematic.

[34] In the last six months, Ms Morrow regularly performed such work as to provide income at the level of about $600 per week, and in some cases more. The week where Ms Morrow earned less was adequately explained as a reduction in the work available due to the time of year. The final occasion related to the dismissal. Despite MedHealth’s contentions of varying work levels and the unpredictability of allocations, Ms Morrow’s income appeared to be predicable over the period. It appears to be relatively constant, such that a pattern emerges.

[35] Ms Morrow was employed on a systematic basis in that the pattern described in the preceding paragraph occurred as a consequence of the on-going reliance of MedHealth on Ms Morrow’s services and the pattern discloses a method or plan.

[36] It appears that this pattern has occurred over a number of years when Ms Morrow has been engaged by MedHealth and thus I cannot see why Ms Morrow would not have a reasonable expectation that this level of engagement would continue.

[37] I find that Mr Morrow’s casual employment was regular and systematic, and during that period, Ms Morrow had a reasonable expectation of on-going employment. I find that the regular and systematic casual employment occurred for a period of at least 6 months immediately prior to Ms Morrow’s dismissal.

[38] I am satisfied that Ms Morrow has completed the required minimum employment period and therefore is a person protected from unfair dismissal under s.382 of the Act.

[39] The jurisdictional objection is dismissed and an Order 6 to this effect will be issued. The application will be referred to an alternative Member of the Commission for consideration of the merits.

COMMISSIONER

Appearances:

Mr G.Upham of the Australian Municipal, Administrative, Clerical and Services Union for the Applicant.

Ms R.Thevathasan of Clayton Utz on behalf of the Respondent.

Hearing details:

2017.

Adelaide:

29 May.

 1   Harrison v Imperial Management Queensland Pty Ltd T/A Pacific Red Produce[2011] FWA 8099

 2   See Schedule 1 of the Contract of Employment dated 5 May 2010

 3   See email of Sonya Speedie dated 30 June 2016

 4   See emails exchanged between the applicant and MedHealth dated 2 October 2015, 16 June 2016, 2 December 2016, 22 December 2016, 3 February 2017.

 5 (2006) 149 IR 339

 6   PR593574

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