Mr David Rode v Hinterland Motors Pty Ltd T/A Hinterland Toyota
[2020] FWC 4243
| [2020] FWC 4243 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Rode
v
Hinterland Motors Pty Ltd T/A Hinterland Toyota
(U2020/4317)
| Deputy President Lake | BRISBANE, 12 AUGUST 2020 |
Unfair dismissal application – jurisdictional objection – casual employee – whether employee can be considered regular and systematic – jurisdictional objection dismissed.
On 7 April 2020, Mr David Rode made an application to the Fair Work Commission (the Commission) under s 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Hinterland Motor Pty Ltd T/A Hinterland Toyota (the Respondent).
On 1 May 2020, the Respondent lodged a Form F3 – Employer response to unfair dismissal application and objected to the application on the basis that Mr Rode was employed on a casual basis, that he was not engaged on a regular or systematic basis and that he had no reasonable expectation of ongoing employment.
An employee employed on a casual basis does not automatically exclude the employee from being protected from unfair dismissal under the Act.
As set out below, the Act provides 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 six months of continuous service if the Respondent is not a small business. Section 384 of the Act provides that 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.
Accordingly, as the Respondent has objected to the application on the basis that the Applicant was an “irregular employee”, I must determine whether Mr Rode’s service with the Respondent is sufficient to meet the requirements of s 383 of the Act and in the context of this matter, whether his casual service counts for that purpose given the provisions of s 384(2) of the Act.
After seeking the views of the parties, I determined the matter on papers.
The Legislative Framework
Section 382 of the Act sets out when a person is protected from unfair dismissal:
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.
Section 383 provides the meaning of 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.
Section 384 of the Act is the focus of this matter and provides relevantly as follows:
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…
EVIDENCE AND SUBMISSIONS
There are a range of factual disputes in the evidence, however much of that is not directly relevant to the preliminary jurisdictional point.
It is not in dispute that the Respondent was not a small business employer within the meaning of s 23 of the Act, employing 131 people. Accordingly, Mr Rode requires 6 months of eligible service in order to be protected from unfair dismissal under the Act.
The Applicant
Mr Rode was employed in the position of Truck Driver at Hinterland Toyota. An offer of employment was tendered during proceedings that was signed by Mr Rode on 4 June 2018. It set out the Respondent’s formal offer as follows:
We wish to formally set out our offer of a position at Hinterland Toyota. Please review the following details and acknowledge your receipt in the space provided at the bottom of this letter.
Position: Truck Driver
Reporting to: Daniel Hoad
Commencement date: 31/05/2018
Remuneration: $27.15 per hour
Hours: As Required
Mr Rode submitted that from 13 October 2018, he was the sole Truck Drive employed by Hinterland Nerang. Mr Rode stated that he was responsible for the cleaning and basic upkeep of a three car carrier truck, and this was not disputed by the Respondent.
Mr Rode submitted that he was required to be at work and available to perform his duties from 7:00/7:30 am to 3:00 pm, Monday to Friday each week as rostered by his direct line manager.
Mr Daniel Hoad was Mr Rode’s first line manager that he was required to report to. Mr Rode submitted that Mr Hoad had requested him to commence work at 7:00 am Monday to Friday. Mr Todd Mort was Mr Rode’s second line manager and was his line manager at the time of his dismissal. According to Mr Rode, Mr Mort had changed Mr Rode’s start time to 7:30 am Monday to Friday. Mr Rode submitted that during his employment with the Respondent, he was required to notify his direct line manager if there were any changes to his start time.
In his written submissions, Mr Rode conceded that his hours of work would vary each day dependent on the number of vehicles that required transportation. Mr Rode submitted that he would be contacted either by telephone or text message the day prior by his direct line manager to confirm his start time for the following day or whether he was required. At the end of each working day, Mr Rode stated that he was required to write his start and finish times on a clipboard located in the line manager’s office.
Mr Rode submitted that Hinterland Toyota shut down for the Christmas/New Years period every year for approximately two weeks.
From the commencement of his employment to 27 May 2020, Mr Rode submitted that he worked each and every week, with the exception of the two weeks Christmas/New Years closure in 2018 and 2019.
In 2019, Mr Rode stated that he worked an average of 31.42 hours per week for the 51 weeks he had worked. Specifically, between 12 January 2019 to 12 July 2019, Mr Rode submitted that he worked an average of 33 hours per week.
The Respondent
The Respondent submitted that Mr Rode commenced casual employment with the Respondent on 31 May 2018 and was required to drive a three car carrier truck, subject to available work.
Mr Hoad gave evidence on behalf of the Respondent and stated that Mr Rode was required to job share with another employee around a five-day fortnight. At the time the other job share driver of the truck ceased work, Mr Hoad stated that Mr Rode was advised that it was not the intention of the Respondent to re-employ a replacement driver.
The Respondent denied that from 13 October 2018, Mr Rode was the sole truck driver. According to Mr Hoad, on the occasions when Mr Road could not perform his duties or was unavailable, the Respondent arranged for another work-shop employee to carry out the driving of the truck on an as required basis.
Mr Hoad stated that given the irregular natures of Mr Rode’s casual employment, his engagement was based on the day to day bookings for transport of vehicles and that no two days were the same. For example, Mr Hoad stated that there were days when Mr Rode would commence at 7:00 am, and other days where he would commence after 10:00 am. Mr Hoad stated that Mr Rode was only paid for the days he was actually employed to drive the truck.
The Respondent contended that Mr Rode was employed in separate engagements, which could see Mr Rode employed for a few hours, half a day or a full day, and that this was the basis upon which he was hired as an irregular casual.
In advancing its position, the Respondent relied on the evidence of Mr Hoad. Mr Hoad submitted that Mr Rode’s employment varied from day to day and varied in the number of hours that he worked within each separate engagement. For example, Mr Hoad stated that Mr Rode would work every day of the week with a varying number of hours each day, however there were also weeks where Mr Rode would only be required to work one day.
Mr Hoad submitted that on a number of occasions, he had discussions with Mr Rode regarding the opportunity for Mr Rode to be converted to full-time employment. Mr Hoad stated that on each occasion, he indicated to Mr Rode that due to the nature of the work, full time work could not be guaranteed and therefore provided, and that the existing casual arrangements for Mr Rode would continue.
CONSIDERATION
In applying s 384 of the Act, the following approach arises from the face of the provision:
· There must be sufficient continuous service at the time of the dismissal;
· Service as a casual will only count for present purposes where both of the requirements of s 384(2) are met, and as a result;
· Both the service and the reasonable expectation of service held by the employee must be objectively found to be on a regular and systematic basis; and
· The nature of the employee’s expectation is to be assessed by reference to the period of service, not merely at the time of dismissal.
The operation of this provision was discussed by a Full Bench in Shortland v The Smiths Snackfood Co Ltd[1] (Shortland) which said:
[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.
In the earlier decision of Ponce, Roe C after considering the changes introduced by the Act and a range of authorities, coherently summarised his approach as follows:
[75] I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.
[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:
•The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and
•Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.
[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.
[78] If the hours worked over a lengthy period are similar to or exceed that of full-time ordinary hours then this would also be strong evidence that work is being performed when offered and that work is being offered when available at the time parties know this is practical. Hence this would also be evidence of regular and systematic employment.
More recently, the Full Bench in Chandler v Bed Bath N’ Table Pty Ltd[2] (Chandler) provided a summary of approach to determining whether a casual could be deemed regular and systematic: (emphasis added)
[11] It is apparent on the face of the decision that the Deputy President’s determination as to whether Ms Chandler’s casual employment was regular and systematic was attended by a significant error of principle. In her application of s 384(2)(a) to the facts of the case, the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic. We do not consider this to be the correct approach. In Yaraka Holdings Pty Ltd v Giljevic, the Court of Appeal of the ACT gave consideration to the proper construction of s 11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as workers for the purpose of that Act casual workers if their “engagement, under the contract or similar contracts, has been on a regular and systematic basis” taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work. Crispin P and Gray J observed that the concept of employment on a regular and systematic basis was drawn from the Workplace Relations Act 1996, and went on to say (emphasis added):
[65] It should be noted that it is the "engagement" that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent.
…
[67] Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.
[68] The term "regular" should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for "frequent" or "often". However, equally, it is not used in the section as a synonym for words such as "uniform" or "constant". Considered in the light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.
[69] Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. 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.
[12] Similarly, Madgwick J said (emphasis added):
[89] … a ‘regular ... basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all.
[90] The respondent’s work for the appellant was certainly frequent enough to be termed ‘regular’ within an acceptable understanding of that term, which may, even in ordinary speech, be used to denote ‘frequent’.
[91] Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001).
[13] The reasoning in Yaraka Holdings has been applied to the concept of casual employment on a regular and systematic basis in the FW Act. In WorkPac Pty Ltd v Skene, the Federal Court Full Court favoured (without needing to finally adopt) the view that the construction in Yaraka Holdings should be applied to the definition of “long term casual employee” in s 12 of the FW Act (which includes a requirement that the employee has been employed “on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months”). The Commission in its own decisions has consistently applied Yaraka Holdings to s 284(2)(a), including in the Full Bench decisions in Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell and Bronze Hospitality Pty Ltd v Janell Hansson as well as in numerous first instance decisions.
It is clear in the current circumstances that the Applicant performed his duties on a frequent basis, working in excess of 30 hours on average. The Applicant also provided evidence that this arrangement was regular, working some 50 weeks in a 12-month period. After the resignation of the second truck driver, he was the only employee primarily engaged to perform the task and this bolsters the ongoing nature of the Applicant’s employment.
Despite the varying start time, in light of the case law above, it cannot be held that a window of three hours would preclude the Applicant from being considered regular and systematic.
I conclude that the Applicant is a regular and systematic employee for the purposes of s 384 of the Act. I determine that there is no valid objection to the Commission hearing this matter on the merits. Accordingly, the matter will proceed to a hearing on the merits.
DEPUTY PRESIDENT
[1] [2010] FWAFB 5709, 16 September 2010 (Lawler VP, Drake SDP and Lewin C).
[2] Chandler v Bed Bath N’ Table Pty Ltd [2020] FWCFB 306, [11]-[13] (Hatcher VP, Cambridge C and Booth C).
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