Mikaylah Miller v CCM Quality Meats Pty Ltd

[2021] FWC 3967

[2021] FWC 3967

FAIR WORK COMMISSION

DECISION

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

Mikaylah Miller
v
CCM Quality Meats Pty Ltd
(U2021/4034)

DEPUTY PRESIDENT COLMAN MELBOURNE, 8 JULY 2021

Unfair dismissal application – minimum employment period

[1] This decision concerns an application by Ms Mikaylah Miller for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). Ms Miller contends that from 15 January 2020 she was employed by CCM Quality Meats Pty Ltd (company), first as a casual and from 19 December 2020 as a permanent part-time employee, and that on 11 May 2021 she was unfairly dismissed.

[2] The company objects to the application on the jurisdictional ground that Ms Miller has not served the minimum employment period, which, because the company is a small business, is one year. The company submitted that Ms Miller’s employment commenced only on 21 August 2020, when she was first engaged as a casual, and that she converted to permanent part-time employment on 1 January 2021. It submits that, even if all of Ms Miller’s casual employment were included in her period of service, which it should not be because it was not regular and systematic, the total period of employment was less than the one year minimum period that applies in relation to small businesses.

[3] Ms Miller’s unfair dismissal application was listed for hearing before me on 7 July 2021 in relation to the question of whether Ms Miller had served the minimum employment period. Ms Miller gave evidence. Mr Stephen Allan, the owner of the company, and Ms Kristen Ribaric, the administration officer, gave evidence for the company.

Minimum employment period

[4] The minimum employment period that a person must have served with an employer in order to be able to bring an unfair dismissal application is six months, or, where the employer is a small business employer, one year (s 383). Section 23 of the Act defines a small business employer as one which, at the relevant time, employs fewer than 15 employees. This number includes casual employees employed on a regular and systematic basis. It also includes the person who has been dismissed, as well as the employees of any associated entity of the employer.

[5] Mr Allan gave evidence that at the time of Ms Miller’s dismissal the company employed twelve employees, including Ms Miller. Mr Allan also said that the company did not have any associated entities. Ms Miller did not contest Mr Allan’s evidence about these matters, and I accept it. I therefore find that the company was a small business employer at the time of Ms Miller’s dismissal and that the minimum employment period that Ms Miller must have served in order to bring her unfair dismissal application is one year.

What was the period of Ms Miller’s employment?

[6] Next it must be determined whether Ms Miller has served the minimum employment period of one year. In order to answer this question, it will be necessary to determine when Ms Miller commenced employment with the company, and whether any periods of casual service were on a regular and systematic basis during which Ms Miller had a reasonable expectation of continuing on a regular and systematic basis, such that it falls within s 384 of the Act and therefore counts towards the minimum employment period.

[7] Ms Miller gave evidence that she commenced working as a casual employee of the company on 15 January 2020. She submitted a copy of a text message she received from Mr George Konstantinou on 14 January 2020 asking her if she was interested in working the following day. Ms Miller said that she agreed and commenced work the next day. She said that Mr Konstantinou told her that he needed someone to work regularly on Saturdays, and that from that time on she worked most Saturdays, usually starting at 9.00am and finishing at 4.00pm, as well as other ‘random’ days during the week. Ms Miller said that after the first two weeks working for the company, she believed that her employment would be ongoing. She said that, although she was not given any documentation about her employment, she believed that her employment was casual, as Mr Konstantinou would contact her each week, sometimes shortly before a shift, and offer her work. Ms Miller’s evidence was that she was paid cash for her casual work up until August 2020, when the company started to pay her ‘on the books’, and she received her wages by transfer into her bank account.

[8] Mr Allan gave evidence that he is the owner of the business but is not closely involved in daily management. He said that Mr Konstantinou, who had recently left the business, had dealt with staff matters. Mr Allan said that he did not believe Ms Miller had worked every Saturday. However, Ms Miller did not claim to have worked every Saturday. She acknowledged that there were some days when she had been ill. Mr Allan did not contradict Ms Miller’s evidence that she worked Saturdays, or that she was paid cash for her work. He said that he had no knowledge of these matters. Ms Ribaric did not dispute Ms Miller’s evidence either.

[9] The only basis upon which the company appeared to maintain that Ms Miller’s employment had commenced on 21 August 2020 was that this was when her employment was formalised and pay records began to be generated. If this is the company’s understanding, it is erroneous. A period of employment commences when an employee is first employed by an employer to undertake work for wages. Employers are required by law to keep employee records and to deduct PAYG tax. However, while a failure of an employer to do these things has other legal implications, it does not mean that the person concerned is not an employee.

[10] Ms Miller’s evidence about the work she performed for the company from 15 January 2020 was clear, detailed, and credible. I accept it. I find that from January 2020 until December 2020 Ms Miller worked most Saturdays, commencing in the morning and finishing in the afternoon, and that she also worked other days during the week from time to time. I find that during this period she was employed on a casual basis, whereby Mr Konstantinou would contact her and offer her casual shifts.

[11] As to the point in time when Ms Miller’s casual employment was converted to permanent employment, Ms Miller said that she became a part-time employee on 19 December 2020, whereas the company’s position was that she commenced part-time employment on 1 January 2021. However, the payroll records submitted by the company indicate that Ms Miller began accruing annual leave during the pay period 18 to 24 December 2020, which is consistent with Ms Miller’s evidence. I find that Ms Miller became a permanent part-time employee on 19 December 2020.

[12] There is no dispute about when the employment ended. On 11 May 2021, Ms Ribaric sent Ms Miller a text advising her that the company was reducing its trading hours and that it could no longer offer her shifts. This was the notification of dismissal. The dismissal took immediate effect.

[13] Ms Miller submitted that she regarded all of her casual employment as regular and systematic and that she had had an expectation, which she considered to have been reasonable, of ongoing employment throughout this period. The company contended that the casual employment was neither regular nor systematic, and that there was no reasonable basis for Ms Miller to have expected continuing employment during this time.

[14] Section384 of the Act states that 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 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…”

[15] To be ‘systematic’, the casual employment does not need to be predictable. Some system or apparent pattern may be sufficient. It is also well established that, for a period of service as a casual employee to count for the purpose of the minimum employment period under s 384, it is necessary that the employee be employed on a regular and systematic basis and have a reasonable expectation of ongoing employment on that basis throughout the relevant period. If during any part of the period of casual employment, one of these elements is not present, that part of the period of casual employment does not count (see Bronze Hospitality Pty Ltd v Hannson [2019] FWCFB 1099 at [29])).

[16] In my opinion, Ms Miller’s period of casual employment with the company from mid-January to December 2020 was regular and systematic. Although there were some Saturdays Ms Miller did not work, her casual employment during this time was regular, in that she was engaged most weeks, and it was systematic, because she worked a pattern comprised of Saturday work from morning to afternoon, together with some weekday shifts. As to whether Ms Miller had a reasonable expectation of ongoing employment over this period, I accept Ms Miller’s evidence that after two weeks working for the company, she had considered that her employment with the company was ongoing. I consider that Ms Miller had an expectation of ongoing regular and systematic casual employment, and that this expectation was reasonable, because Mr Konstantinou told her that he needed someone to work regular Saturdays. Therefore, from around the start of February 2020 until 19 December 2020, Ms Miller’s casual employment with the company satisfied the requirements of s 384 and counts towards the minimum employment period. This is a period of almost eleven months.

[17] To this must be added all of Ms Miller’s service of nearly five months as a permanent part-time employee from 19 December 2020 until the date of her dismissal on 11 May 2021, all of which counts as service for the purposes of the minimum employment period. This combined period exceeds the one year minimum employment period that applies in respect of small businesses.

Conclusion

[18] Ms Miller has completed a period of employment with the company that is at least the minimum employment period, as required by s 382(a) of the Act. The company’s jurisdictional objection is dismissed. Ms Miller’s unfair dismissal application will now be programmed and listed for further hearing.

DEPUTY PRESIDENT

Appearances:

M. Miller for herself

S. Allan and K. Ribaric for CCM Quality Meats Pty Ltd

Hearing details:

2021

Melbourne

7 July

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