Mr Aymen Khedher v Le Pre Cuit Pty Ltd T/A Le Bon Choix

[2020] FWC 4490

[2020] FWC 4490

FAIR WORK COMMISSION

DECISION

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

Mr Aymen Khedher
v
Le Pre Cuit Pty Ltd T/A Le Bon Choix
(U2020/8207)

COMMISSIONER HUNT BRISBANE, 26 AUGUST 2020

Application for an unfair dismissal remedy – jurisdictional objection raised that applicant did not meet minimum employment period – uncontested evidence that applicant met minimum employment period – respondent’s repeated failure to comply with Commission directions – jurisdictional objection dismissed.

[1] On 15 June 2020, Mr Aymen Khedher made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging he was dismissed from Le Pre Cuit Pty Ltd T/A Le Bon Choix (the Respondent) and the dismissal was harsh, unjust or unreasonable.

[2] The application form nominated the employment having commenced on 14 August 2018 and ending on 26 May 2020. Mr Khedher nominated 10 June 2020 as the date he was informed of the dismissal. In his application Mr Khedher stated the following as to why he considered his dismissal to be unfair:

“1. On 23 May 2020 I found out I wasn't rostered for the next week. When I tried to find out why, I was told by a staff member from head office that the owner wasn't happy with my performance and he took me off the roster, but that I wasn't fired. I asked for more information about this but no one got back to me. I followed this up with emails, texts and calls for over 2 weeks. While I didn't get any more information about the so called problem with my performance, I was told several times that I wasn't dismissed. The first time I was informed that I was fired was on the 10 June 2020 in a phone conversation with Jean Marc Li. I believe it's unfair that I wasn't informed about this decision earlier and that I didn't get a chance to rectify any so called problems.

2. I was not aware of any problems with my performance at all. I have worked for Le Bon Choix for almost 2 years as a food and beverage attendant and I've never had any issues or bad performance reviews.

3. In late 2019 the owner Savico Basset-Rouge recognised my excellent sales skills and up-selling ability and at his request he moved me from a cafe runner to being on the register as my main duty.

4. In April Savico talked to me about taking on a store manager role at the Edward St cafe. I started attending more training at the factory and manager meetings. In early May, I got a message from Sheila at head office saying she was preparing the contract with Jean-Marc. Then later that day I was notified the offer was being put on hold.”

[3] In its Form F3 – Employer response to unfair dismissal filed 30 June 2020, the Respondent raised a jurisdictional objection to the application by ticking the box “Other”. It is noted that the Respondent, represented by Ms Sarah Mouritz of Aquila Law did not tick the box, “The Applicant’s employment does not meet the minimum employment period”. The Respondent then went on to say the following:

“1. The Respondent submits a jurisdictional objection on the basis that the Applicant is not a protected from unfair dismissal as the Applicant’s engagement with the Respondent was such that it does not meet the criteria set out in s384 (2) of the Fair Work Act 2009 (Cth).

2. The Applicant was employed on a casual basis. Attachment “A” to this Application is a copy of the Applicant’s employment contract. The Applicant was remunerated on an hourly rate which included casual loading.

3. The case Shortland v Smiths Snackfood Co Ltd[2010] FWAFB 5709 (Lawler VP, Drake SDP, Lewin C, 16 September 2010), [(2010) 198 IR 237] established the principles associated with casual engagement, specifically that: “…each occasion a casual employee is engaged is a separate contract of employment. These contracts may be week to week, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement”.

4. The Respondent relies on the principle established in the case set out in clause 3.”

[4] On 27 July 2020, Vice President Catanzariti wrote to Mr Khedher including the following:

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

[5] On 3 August 2020, Mr Khedher replied to the Vice President and provided a statement as requested. It is reproduced below:

“I believe I have completed the minimum employment period with Le Bon Choix (company name Le Pre Cuit) while employed as a casual because:

•  I was employed on a regular and systematic basis (see below for further information as well as attached sample of rosters as evidence)

•  I had a reasonable expectation of ongoing employment (see below for further background)

I started working for Le Bon Choix (company name Le Pre Cuit) in August 2018 as a food and beverage attendant on a casual basis. From the beginning I had negotiated my regular days of work, as I needed to balance this job alongside another job that I had at the time. My regular days of work had mostly always been Monday and Tuesdays (and sometimes Wednesdays) from August 2018 up until COVID-19 restrictions in Queensland. I also regularly worked between 20-25 hours per week. This highlights there was a clear pattern of work due to the days and hours mentioned above.

Once the COVID-19 restrictions came in, I had a dip in hours for a short time, but once I was put onto Job Keeper my hours jumped up to between 25-30 hours a week. I was grateful to have this as it meant I was receiving a regular income, as I was ‘paused’ by my other job at the time. Job Keeper meant I could continue to pay my bills. During this time, there was only about three employees in the Queen St cafe that could work because we were eligible for Job Keeper.

Because I was eligible and nominated by Le Bon Choix to receive Job Keeper as a long-term casual employee (as at 1 March 2020), this shows Le Bon Choix recognised that I was employed on a regular and systematic basis for at least 12 months prior and they affirmed this to the relevant authorities in nominating me for Job Keeper.

I have attached copies of my various rosters before COVID-19 restrictions (ie. prior to April 2020) and also during COVID-19 (ie. from April-May). I believe these rosters are evidence of my regular and systematic employment. You will see I was regularly rostered Mondays and Tuesdays, and also sometimes Wednesdays. In April-May 2020, I mostly kept working Tuesdays and Wednesdays, but I was also getting more shifts on other days of the week.

I also had a reasonable expectation of continuing employment with Le Bon Choix for several reasons. I never had any bad performance reviews during my time at Le Bon Choix and at the end of April the owner Savico Basset-Rouge continued to talk about promoting me to manage the Edward St café, which implies he had future plans for me.

I started attending some manager meetings and taking on more responsibilities in the Queen St café in preparation for the transfer. As included in the evidence attached to my unfair dismissal application, Sheila from head office communicated to me that they were organising my new contract and the necessary paperwork. She also confirmed to me that the manager of Edward St would start to train me up in preparation (as there was talk this manager was going to be transferred to the new Gold Coast café). Please see evidence below including text messages that:

•  Requested my attendance at a manager meeting

•  Show Sheila from head office talking about me being trained up at Edward St café and that she was preparing my contract for the management position

[text messages]

In conclusion, I believe my unfair dismissal application meets the criteria as I completed the minimum employment period with Le Bon Choix while employed as a casual because: I was employed on a regular and systematic basis and I had a reasonable expectation of ongoing employment, as outlined above. I believe my treatment at Le Bon Choix was harsh and unjust. It was especially disappointing that I wasn’t even informed of my dismissal until weeks later….”

[6] Rosters of various weeks throughout 2019 worked by Mr Khedher were provided by him, together with those since April 2020 in a period affected by the COVID-19 pandemic.

[7] The matter was allocated to my chambers on 4 August 2020 to determine the jurisdictional objection.

Directions for determination of jurisdictional objection

[8] On 5 August 2020, I issued directions to the parties, noting that Mr Khedher had provided a witness statement to the Commission and requiring the Respondent to, by no later than 10 August 2020, file material relevant to the jurisdictional objection that Mr Khedher has not met the minimum employment period. The directions required the Respondent to specifically address the regularity of shifts and suggested that a payroll record of all shifts worked on a weekly basis, including weekly hours would be helpful.

[9] Mr Khedher was directed to file material no later than 17 August 2020 in reply to the Respondent’s material.

[10] By Monday, 10 August 2020 the Respondent did not file any materials in compliance with directions that had been issued. As such, on 11 August 2020 my Associate corresponded with the legal representative of the Respondent, as below:

“Dear Ms Mouritz,

Reference is made to direction [1] issued by Commissioner Hunt on 5 August 2020 (per the below correspondence) requiring the Respondent to file and serve materials by no later than Monday, 10 August 2020.  

It is noted that chambers has not received any materials in compliance with the above directions.  Chambers follows up the Respondent with respect to the above matter.”

[11] No response was received from the Respondent. On 12 August 2020 my Associate telephoned the Respondent’s legal representative and spoke with Ms Mouritz. During the telephone conversation Ms Mouritz explained that the dates for filing materials had been diarised incorrectly and that the Respondent would write to chambers proposing amended directions.

[12] On 13 August 2020, the below correspondence was received from Ms Mouritz:

“Dear Ms Furfaro,

As per our telephone discussion yesterday, we respectfully request an extension on the directions issued by Commissioner Hunt on 5 August, 2020.

The request for an extension is on the basis that due to representative’s error, the representative had incorrect filing dates for the representative’s material.

If the Commissioner is agreeable, we would request the following variations to the directions:

1. By no later than Wednesday, 19 August 2020, the Respondent files to Chambers and serves on the Applicant:

Submission relevant to its jurisdictional objection that the Applicant had not completed the minimum applicable employment period, specifically addressing the regularity of shifts worked by the Applicant.  A payroll record of all shifts worked on a weekly basis, including weekly hours would be helpful.

2. By no later than Wednesday, 23 August 2020, the Applicant files to Chambers and serves on the Respondent submissions and material in reply.

We apologise to the Applicant and the Commissioner for the miscommunication.”

[13] I considered the Respondent’s representative’s correspondence and on 13 August 2020, I wrote to the parties issuing the following directions:

“Amended directions

1. By no later than 12:00pm Tuesday, 18 August 2020, the Respondent is to file to Chambers and serve on the Applicant:

Submission relevant to its jurisdictional objection that the Applicant had not completed the minimum applicable employment period, specifically addressing the regularity of shifts worked by the Applicant.  A payroll record of all shifts worked on a weekly basis, including weekly hours would be helpful.

2. By no later than 12:00pm Tuesday, 25 August 2020, the Applicant is to file to Chambers and serve on the Respondent submissions and material in reply.”

[14] By 12:00pm Tuesday, 18 August 2020 the Respondent did not file any material in compliance with amended direction [1] above to my chambers.

[15] On 21 August 2020, my Associate wrote to the parties as follows:

“Dear parties,

Reference is made to the amended directions issued by the Commissioner on 13 August 2020, which the Respondent has failed to comply with.

The Commissioner provides the Respondent until 10:00am Monday, 24 August 2020 to file materials in accordance with amended direction [1] of 13 August 2020.  If no material is filed by the Respondent, the jurisdictional objection will be determined “on the papers” with the information the Commission currently has before it.  The Commissioner’s decision will be reserved as at 10:00am Monday, 24 August 2020 if no material is filed.

If materials are filed by 10:00am Monday by the Respondent, the Applicant will be provided with a further opportunity to respond and correspondence from chambers will follow.”

[16] No correspondence has been received from the Respondent. No explanation has been offered to the Commission for the Respondent’s continued failure to comply with the amended directions. I consider this to be very disappointing given the Respondent is represented by a law firm and in fact proposed the timetable the Commission adopted, but for the Commission bringing forward the requirement to file the material by one day.

Relevant legislation

[17] Section 383 of the Act defines the meaning of “minimum employment period” which in Mr Khedher’s case, given the Respondent has stated that it has 15 or more employees, is 6 months. Section 384 relevantly provides:

“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; …”

[18] If the minimum employment period has not been met, Mr Khedher’s application must be dismissed.

Consideration

[19] In its Form F3 the Respondent has cited the Full Bench decision in Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709. The Respondent has cited only a part of paragraph [10] of that decision. The Respondent did not, however, cite the following paragraphs which are on point in the matter before me. It is appropriate to reproduce [10]-[13] of the Full Bench decision:

“[10]As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s. 384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.” [authorities omitted]

[20] It is disappointing that the Respondent’s representative has selectively chosen only one part of one paragraph of the authoritative decision and not sought to, it seems, comprehend the decision. In the decision at [18] the Full Bench concluded that Mr Shortland had, in fact, met the minimum employment period and found error in the decision at first instance.

[21] Mr Khedher has provided uncontested evidence to the Commission that since August 2018 he regularly worked Monday and Tuesday each week. He occasionally worked Wednesdays. His evidence is that he worked 20-25 hours per week. This has not been disputed by the Respondent, and despite the Commission’s directions to the Respondent to provide a payroll report for Mr Khedher, the Respondent has ignored such direction. Mr Khedher’s uncontested evidence is that he had a reasonable expectation of the work continuing.

[22] Mr Khedher makes the point that he was in receipt of JobKeeper payments, and accordingly, the Respondent has, in order to have enrolled him in JobKeeper, informed the Australian Taxation Office (ATO) that Mr Khedher was, as at 1 March 2020, a long-term casual employee (employed on a regular and systematic basis during the 12 month period that ended 1 March 2020. The relevant eligibility criteria for casual employees for the first tranche of JobKeeper payments is produced below from the ATO website:

“1 March 2020 test

This test requires that you met all of the following criteria on 1 March 2020:

You were employed as either a

•  Non-casual employee (whether full-time, part-time, or fixed-term)

•  Long-term casual employee (employed on a regular and systematic basis during the 12 month period that ended 1 March) and, at the time you provide your employee nomination notice, you were not a permanent employee of any other employer….”

[23] This begs the question; to which institution has the Respondent correctly identified the nature of the employment relationship – the ATO or the Commission?

[24] I conclude that the Respondent has correctly identified to the ATO that Mr Khedher was, as at 1 March 2020 a long-term casual employee (employed on a regular and systematic basis during the 12 month period that ended 1 March 2020.) I do not accept the Respondent’s position put to the Commission.

Conclusion

[25] On the uncontested evidence before me, which I accept, I find that at the time of dismissal, Mr Khedher’s period of employment was at least six months. Mr reasons for this finding are that Mr Khedher’s employment as a casual employee was on a regular and systematic basis, and he had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis.

[26] Accordingly, Mr Khedher has completed the required minimum employment period. The Respondent’s jurisdictional objection is therefore dismissed.

COMMISSIONER

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