Mr Dominick DelVecchio v Tasmania Zoo
[2024] FWC 2659
•25 SEPTEMBER 2024
| [2024] FWC 2659 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Dominick DelVecchio
v
Tasmania Zoo
(U2024/9226)
| COMMISSIONER WILSON | MELBOURNE, 25 SEPTEMBER 2024 |
Application for an unfair dismissal remedy – objections; whether a person protected from unfair dismissal and whether a small business employer; minimum employment period not served; application dismissed.
Through an application made to the Fair Work Commission (the Commission) on 8 August 2024, Mr Dominick DelVecchio alleges he has been unfairly dismissed by the Respondent in this matter, Tasmania Zoo Pty Ltd (Tasmania Zoo or the Respondent).
Mr DelVecchio was employed by Tasmania Zoo on 12 October 2023 and was terminated with effect from 31 July 2024, a period of slightly more than 9 months. The implication of this period is that, in order to be a person protected from unfair dismissal, Mr DelVecchio must have worked a minimum employment period of one year, at the earlier of the time he was given notice of his dismissal or immediately before the dismissal (ss.382 – 383).
Tasmania Zoo’s objection to the continuation of Mr DelVecchio’s unfair dismissal application was the subject of a hearing before me on Wednesday, 25 September 2024. Mr DelVecchio attended for himself, making submissions and giving evidence on his behalf. MS Mariam Noorzai appeared for the Respondent, with permission for her appearance being given by me pursuant to s.596(2)(a).
For the reasons set out below, my determination is that the Respondent was a small business employer at the time Mr DelVecchio was dismissed and that, as such Mr DelVecchio had not completed the minimum employment period at the time he was dismissed. It follows that he was not, at the time of his dismissal, a person protected from unfair dismissal and that his application must be dismissed.
BACKGROUND
Mr DelVecchio was first employed by Tasmania Zoo on 12 October 2023, on a full-time basis in the position of Zookeeper, with his employment subject to an employment contract.
Tasmania Zoo operates a Zoo stated to be for the purposes of contributing to wildlife conservation and to the education of the community at large.
Tasmania Zoo puts forward that it dismissed Mr DelVecchio after investigating concerns it held about his conduct. It put those concerns to Mr DelVecchio in a meeting on 22 May 2024 and ultimately dismissing him on 31 July 2024.
APPLICABLE LEGISLATION
Section 23 of the Act defines the meaning of “small business employer” thus;
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated”
The definition of “casual employee” applying at the time Mr Higgins was dismissed was the following;
“15A Meaning of casual employee
(1) A person is a casual employee of an employer if:
(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
(b) the person accepts the offer on that basis; and
(c) the person is an employee as a result of that acceptance.
(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:
(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b) whether the person will work as required according to the needs of the employer;
(c) whether the employment is described as casual employment;
(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
Note: Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.
(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.
(5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:
(a) the employee’s employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or
(b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.
The term “regular casual employee” is defined within s.12 as;
“regular casual employee: a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:
(a) the employee is a casual employee; and
(b) the employee has been employed by the employer on a regular and systematic basis.”
The importance of theis definitions, that a small business employer is one employing fewer than 15 employees at a particular time, is that s.383 extends the minimum employment period for the purposes of eligibility to make an unfair dismissal application to one year, with that section and s.382 in these terms;
“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.”
CONSIDERATION
The relevant elements of the legislation for consideration in this matter include testing that the people in question were regular casual employees and that they had a reasonable expectation of continuing employment on a regular and systematic basis.
In Angele Chandler v Bed Bath N' Table Pty Ltd[2020] FWCFB 306 (Chandler), the Full Bench reviewed the application of these considerations applying to the current legislation and the reasoning in the earlier decision of the Court of Appeal of the ACT in Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, 149 IR 339;
“[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.”[1] (references omitted)
Chandler further held that “treating the degree of regularity in the pattern of hours worked … as the only or decisive consideration in the application of s.384(2)(a)(i) (rather than merely as one of a number of relevant considerations in the analysis)” was erroneous.[2]
While Tasmania Zoo concedes that it employed 15 people at the time Mr DelVecchio was dismissed, it argues that one of those, GW, is not a regular casual employee and therefore should not be counted in determination of the number of employees employed by it at the time Mr DelVecchio was dismissed.
Mr DelVecchio agreed in the proceedings before me that my analysis should centre around GW on the basis that, of all the people put forward by Tasmania Zoo as its employees, GW was the only one in dispute in these proceedings.
The material provided to the Commission by the Respondent shows that GW is a casual employee, engaged as a café assistant. His employment is subject to a written ‘Casual (Award) Employment Contract’, dated 3 December 2023, and includes a schedule with the commencement date also of 3 December 2023.
GW’s contract specifies they are employed as a casual employee and, relevant to hours to be worked and other matters;
“7. HOURS OF WORK
7.1 Normal hours of operation are outlined at Item 7 of the Schedule
7.2 You are employed as a casual employee and are required to perform the hours of work allocated by the Employer from time to time.
7.3 The Employer will give you reasonable notice of when you are required to work in accordance with any requirements under the Industrial Instrument. The Employer does not guarantee to provide you with a minimum or maximum amount of work.
7.4 Your maximum ordinary hours per week as a casual employee will be in accordance with the applicable Industrial Instrument. You may also be required to work reasonable additional hours.”
The normal hours of operations referred to in clause 7.1 are set out in the Schedule as being “Normal hours of operation Monday to Sunday 8:00am to 4:30pm”. This is to be regarded merely as a span of possible hours of work, not an expectation that those days and hours will be worked. This, together with the absence of a rostering clause or one setting out how hours notifications will be given to GW or how they notify their availability lean against a finding of a relationship broader than the immediate hire, such as would be expected of “something that can fairly be called a system, method or plan”.
Other parts of the contract include: a commitment by GW that they have disclosed matters that may affect their performance of the contract and that they are entitled to work in Australia and they will comply with all the employer’s policies and procedures; and that there is no entitlement to annual leave, however long service leave “will accrue” in accordance with the relevant legislation or instrument. Termination may occur without notice and there is no entitlement to any redundancy payment except where required under the FW Act. These factors suggest an employment relationship beyond merely the immediate hiring suggesting “something that can fairly be called a system, method or plan”.
At my request the Respondent provided GW’s payslips for all of the periods in which he worked. The 19 fortnightly payslips provided to the Commission show GW worked on a Monday – Saturday in 11 of the pay periods; a Public Holiday in 2 of the pay periods; and a Sunday in 18 of the pay periods. This information though is at too high a level for firm conclusions to be drawn about GW’s patterns of work, although it does establish they worked for the Respondent regularly, and especially so on Sundays.
The payslips provided by the Respondent show that GW likely worked regularly; for example he was paid for work in all of the 19 pay-periods. However, as set out in both Yaraka and Chandler there is a necessity for the Commission to take into account other matters as well before making its determination. There is a necessity for the Commission to take into account other matters as well, including the applicable contract of employment and the prevailing rostering system.[3] A finding that GW was employed on a systematic basis requires ascertainment of “something that can fairly be called a system, method or plan”.[4]
GW lives close to the Zoo and is a school student. There is no direct evidence from GW in respect of their circumstances or what might be expected of them. The closest evidence that the Commission can discern about the subject is that of Ms Rochelle Penney, who gave evidence for the Respondent as its director and owner.
In relation to the tests that need to be applied to GW’s employment, I take account of two parts of Ms Penney’s evidence.
First GW would be given an opportunity to work in a forthcoming period, perhaps a week ahead, by Rochelle Penney’s daughter Ms Roxy Penney who was responsible for arranging staff for the Zoo’s café. He would be contacted to see whether he was interested in working in the forthcoming period and if he was he may be rostered for work. The café usually worked with a full-time and a part-time staff member. The criterion for offering work to GW was usually that another employee was not available for their shifts. What emerges from the evidence is that each engagement came about as a result of an exchange between GW and Roxy Penney which might lead to an engagement, or might not.
Second, I take into account that GW has not worked at the Zoo since 20 August 2024. While that date is after the date of termination of Mr DeVecchio, which was 31 July 2024, and is not directly relevant to undertaking the count of employees for the purposes of the small business employer definition it is nonetheless important information as to the relationship between the parties. The fact that no work has been offered or accepted over the past month would lean against the proposition that the previous engagements of GW have been the subject of “a system, method or plan”. While certainly GW’s work with the Zoo was regular – working in all of the 19 pay-periods since their first engagement – that of itself is insufficient to find they were a regular casual employee. The extended absence from the roster in recent weeks is likely a product of mutual convenience, and there is no reason to discount that as the explanation for the varying, but frequent, engagement of GW in the earlier part of their relationship. That is, the earlier engagements are more likely how Tasmania Zoo characterise them, that is casual engagements according to need.
Taking into account these matters of evidence, I am not satisfied that GW’s engagements with Tasmania Zoo since December 2023 can fairly be described as being on a systematic basis.
Having found that GW is not to be counted for the purposes of calculating the number of employees employed by the employer, I find that the Respondent was a small business employer since it had fewer than 15 employees of the type required to be counted pursuant to s.23(2) at the date Mr DelVechhio was dismissed.
It follows that the minimum employment period applicable to Mr DelVechhio is one year. Having commenced employment on 12 October 2023 and having been dismissed on 31 July 2024, it follows that Mr DelVecchio has not completed the minimum employment period.
Mr DelVechhio is therefore not a person protected from unfair dismissal and his application must be dismissed. An Order to this effect is issued by me at the same time as this decision.
COMMISSIONER
Appearances:
Mr D. DelVecchio, for the Applicant.
Ms M. Noorzai, for the Respondent.
Hearing details:
25 September.
2024.
[1] [2020] FWCFB 306.
[2] [2020] FWCFB 306, [14].
[3] Angele Chandler v Bed Bath N' Table Pty Ltd[2020] FWCFB 306, [14].
[4] Yaraka Holdings Pty Ltd v Giljevic, [2006] ACTCA 6, 149 IR 339, [91].
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