Mr Jefferson Bell v Aboriginal Legal Service (NSW/Act) Limited
[2018] FWC 4782
•14 AUGUST 2018
| [2018] FWC 4782 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jefferson Bell
v
Aboriginal Legal Service (NSW/ACT) Limited
(U2018/1810)
| COMMISSIONER SAUNDERS | NEWCASTLE, 14 AUGUST 2018 |
Application for an unfair dismissal remedy – whether the applicant had completed the minimum employment period – jurisdictional objection upheld – application dismissed.
Mr Jefferson Bell was employed by Aboriginal Legal Service (NSW/ACT) Limited (ALS) from 6 February 2017 until 14 February 2018, at which time Mr Bell contends that he was unfairly dismissed within the meaning of the Fair Work Act 2009 (Act). The ALS contends that Mr Bell was not protected from unfair dismissal on 14 February 2018 because he had not completed a period of employment of at least the minimum employment period.
Jurisdictional hearing
On 16 July 2018, a hearing was conducted in relation to the jurisdictional question of whether Mr Bell had completed the minimum employment period at the time of his dismissal. Mr Bell gave evidence in support of his case. Ms Nadine Miles, Principal Legal Officer, gave evidence on behalf of the ALS.
Relevant legal principles
A person is not protected from unfair dismissal unless the requirements in s 382 are met. Section 382 of the Act provides:
“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 …”
Section 383 of the Act provides:
“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 defines “period of employment” 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.”
Section 384 does not proceed on the basis that a casual employee’s period of employment starts and ends with each separate contract of employment, as understood in the common law of employment.[1] Therefore, gaps between successive contracts may count towards a casual employee’s period of employment, depending on whether their employment was on a regular and systematic basis.
It is the employment that must be on a regular and systematic basis, not the hours worked.[2] However, a clear pattern or roster of hours is strong evidence of regular and systematic employment.[3]
The term “regular” should be construed liberally.[4] It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant.[5] Employment on a “regular” basis may be constituted by frequent though unpredictable engagements.[6]
The term “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”.[7] The concept of engagement on a “systematic” basis does not require the employee 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 on the employee’s services as an incident of the business by which he or she is engaged.[8]
The Act does not define the term “reasonable expectation of continuing employment”; whether an employee had such an expectation will depend on the particular circumstances.
In Ponce, Commissioner Roe stated:[9]
“The focus on the reasonable expectation of continuing employment is not now about the expectation at the point of termination but about the expectation during the period of service that is to count towards achievement of the minimum employment period to achieve jurisdiction…The test is simply whether or not during a period of at least six months prior to the dismissal… the employee had… a reasonable expectation of continuing employment on a regular and systematic basis.”
In considering the evidence in the present matter, I adopt the test outlined by Commissioner Roe above.
Application of legal principles to the facts
It is not in dispute, and I am satisfied on the evidence, that:
· in October 2016, Mr Bell began working for the ALS on a voluntary basis to meet the requirements of his Practical Legal Training (PLT), which was supervised by Mr Mark Savic, full-time solicitor employed by the ALS in its Grafton Office;
· in January 2017, a full-time solicitor employed by the ALS in its Grafton Office (but based in its Coffs Harbour satellite office) resigned and Mr Bell was offered casual employment by the ALS in its Grafton Office;
· on 6 February 2017, Mr Bell was employed by the ALS as a casual employee in its Grafton Office;
· during the course of his casual employment, Mr Bell was aware of, and participated in, two recruitment processes for vacant solicitor position(s) in the ALS Grafton Office;
· on 30 January 2018, Mr Bell was notified and informed that his casual employment arrangements with the ALS were to cease, with his last day of casual employment being 14 February 2018;
· in the period between 2 February 2018 and 14 February 2018, Mr Bell took unpaid sick leave;
· on 14 February 2018, Mr Bell’s casual employment was terminated; and
· the ALS was not a small business employer at the time Mr Bell was given notice of his dismissal or immediately before his dismissal. Thus, his minimum employment period was six months.[10]
In order for any part of Mr Bell’s period of service as a casual employee to count towards Mr Bell’s minimum employment period, both limbs of s 384(2)(a) must be satisfied.
Employment was on a regular and systematic basis - s 384(2)(a)(i)
Mr Bell’s Letter of Engagement as a casual employee included the following express terms and conditions in relation to his work for the ALS:[11]
“1. Position
1.1 Your employment will be on a casual basis, as required
1.2 Each Occasion that you work will be a separate contract of employment which ceases at the end of that engagement.
1.3 As a casual employee, there will be no guarantee of ongoing or regular work.
1.4 The duties of this role are in the attached position description. On each occasion that you work you will be required to perform these duties the employer may assign you, having regard to your skills, training and experience.
1.5 You will be required to perform your duties at Taree, or elsewhere as reasonably directed by the employer.
2. Duration
1.1 Your employment will commence on 6 February 2017 for 3 day a week on a week by week basis until the Solicitor Position at Grafton has commenced…”
I accept Mr Bell’s evidence that he was asked to choose the three days on which he would work and that it was agreed that he would work Monday, Tuesday and Wednesday.[12]
Attached to Mr Bell’s statement was each pay advice slip he received during his employment with ALS.[13] I accept from these pay advice slips that Mr Bell:
(a)worked on Monday, Tuesday and Wednesday each week from 6 February 2017 until 22 January 2018 (except for in the period between 21 December 2017 and 7 January 2018, when Mr Bell did not perform work for ALS);
(b)worked 21 hours per week from 6 February 2017 until 22 January 2018 (except for in the week starting on 28 August 2017, when Mr Bell worked 28 hours, and in the period between 21 December 2017 and 7 January 2018, when Mr Bell did not perform work for ALS);
(c)worked 14 hours in the week starting on 22 January 2018 over the Monday and Tuesday of that week; and
(d)worked 7 hours on Monday, 29 January 2018.
On the basis of the evidence summarised in the previous three paragraphs, I am satisfied that Mr Bell’s employment as a casual employee in the period from 6 February 2017 until 14 February 2018 was on a regular and systematic basis, for the following reasons:
(a)First, there was a clear agreement between the ALS and Mr Bell that Mr Bell would work Monday, Tuesday and Wednesday on a week by week basis “until the Solicitor Position at Grafton has commenced”;
(b)Secondly, there was a clear pattern of days worked by Mr Bell that could not be regarded as simply occasional or irregular. Apart from two weeks over the 2017-2018 Christmas and New Year Period, Mr Bell worked Monday, Tuesday and Wednesday each week from the commencement of his employment until the week starting on 22 January 2018. Although in the last month of his employment,[14] Mr Bell did not work every Monday, Tuesday and Wednesday uniformly, he continued to be engaged by the ALS each week up until he went on unpaid sick leave on 2 February 2018; and
(c)Thirdly, the pattern of engagement by the ALS of Mr Bell occurred as a consequence of an ongoing reliance on Mr Bell’s services as an incident of the business by which he was engaged.
The fact that Mr Bell’s casual employment consisted of a series of discrete daily contractual engagements,[15] does not alter this position.
Reasonable expectation of continuing employment on a regular and systematic basis - s 384(2)(a)(ii)
Mr Bell gave evidence that, during his service as a casual employee with the ALS, he had an expectation of continuing employment by the ALS on a regular and systematic basis. Mr Bell contends that he held this expectation throughout each of the following periods:[16]
(a)from 6 February 2017 until 15 March 2017 (Period A);
(b)from 15 March 2017 until 15 October 2017 (Period B); and
(c)from 15 October 2017 until 15 January 2018 (Period C).
Period A
Mr Bell gave evidence that in Period A, although he believed that his casual employment would continue only until such time as the ALS recruited someone to fill its vacant solicitor position,[17] he had an expectation of continuing employment on the basis that he believed he had a good chance of winning the solicitor position.[18] In support of his contention that this was a reasonable expectation, Mr Bell gave the following evidence:[19]
“Mark Savic approached me and asked if I would be interested in the job. I said yes and he asked me how soon I could get my practicing certificate. He said obviously he couldn’t guarantee me the job but he would support my application and the Regional Manager Julie Perkins was also supportive. I felt given my experience I had a good chance of winning the position.”
I accept Mr Bell’s evidence that he changed his subjects at College of Law in early February 2017 to accelerate his PLT so that he could be admitted as a lawyer in May 2017 and obtain his practicing certificate thereafter.[20] This evidence is corroborated by an email sent from Mr Bell to Mr Savic at 9:51am on 2 February 2017 in the following terms:[21]
“I got accepted into the Clinical Experience Module. This means I can complete my PLT and apply for admission on the 3.3.17 so hopefully make the 24.3.17 admission ceremony. Then I should be able to get my practicing certificate withing [sic] 2 weeks.”
At 10:08am on 2 February 2017, Mr Savic sent an email in reply to Mr Bell, stating “excellent mate”.[22]
Mr Bell contends that he won the first recruitment process for the vacant solicitor position in the ALS Grafton Office and that this further demonstrates that his expectation of continuing employment during Period A was reasonable.[23] For the reasons I have given in paragraph [29] below, I reject this contention.
Mr Bell appears to have selected the date of 15 March 2017 as the end date of Period A on the basis that he believed “the employment process for a new solicitor would end in March 2017 with a new solicitor appointed”.[24]
Period B
Mr Bell submitted that in Period B, he had “a reasonable expectation of ongoing employment as he was aware all employment was frozen with the new CEO and no one knew what was happening due to a restructure”.[25]
In his statement, Mr Bell gave the following evidence:[26]
“My employment from March 2017 carried on but there was no clear endpoint as no-one knew what was going to happen and if Coffs Harbour Office would ever be reopened. I was busy and felt my employment was fairly secure.”
On 30 March 2017, Mr Bell attended an interview for the vacant solicitor position as part of the first recruitment process. I accept Mr Bell’s evidence that he was not notified of the outcome the first recruitment process, despite making an enquiry with Ms Taryn Duroux, ALS Regional Administration Coordinator Northern Region – Grafton Office, approximately two weeks after the interview.[27]
Ms Miles gave consistent evidence in both her statement dated 9 July 2018 and at the hearing that the first recruitment process was suspended in or around March 2017.[28] She also gave evidence that Mr Bell could not meet the requirements of the role offered in the first recruitment process, because he had not been admitted to practice and did not have a practicing certificate at that time”.[29] I accept this evidence and find that Mr Bell did not “win” the first recruitment process.
It is uncontroversial that on 29 May 2017, Mr Lesley Turner was appointed to the role of Chief Executive Officer of the ALS and that he announced a recruitment freeze in the ALS around that time. According to Mr Bell’s best recollection, it was on or around 29 May 2017 that he found out about the recruitment freeze. At the hearing, Mr Bell gave evidence that in the period after he attended the interview on 30 March 2017 and prior to finding out about the recruitment freeze on 29 May 2017, did not know that the first recruitment process had been suspended and believed that he had been “lost in the ether”. I accept this evidence and find that Mr Bell was not informed that the first recruitment process had been suspended and was first made aware of the recruitment freeze on 29 May 2017.
At the hearing, Ms Miles gave evidence that the recruitment freeze ended in mid-June 2017 for some, but not all positions. Although I accept this evidence and find that the recruitment freeze ended in mid-June 2017, I accept Mr Bell’s evidence that he was not aware that the recruitment freeze had ended at that time.
Period C
Mr Bell gave evidence that in Period C, he initially had an expectation of ongoing employment because he was hopeful that he would win the second recruitment process. He gave evidence that after he found out in early December 2017 that he had not been selected to fill one of the two vacant solicitor positions as part of the second recruitment process, he continued to have an expectation of ongoing employment because “he was aware of considerable turbulence at the office and knew the Senior Solicitor’s position was untenable. The senior solicitor was suspended early February 2018 and never returned to work. For this reason he believed that he would be very useful to support the new solicitors duringthis turbulent time.”[30]
I accept Mr Bell’s evidence that on 29 October 2017, Ms Miles visited the Grafton Office and announced that two new solicitors were being recruited by the ALS to work as part of the Grafton Office. I also accept Mr Bell’s evidence that this was the first time he became aware that the recruitment freeze had ended and he believed that the recruitment he knew had been occurring in Western NSW before this time was “emergency recruitment”. At the hearing, Mr Bell accepted that at no point during the period in which he thought the recruitment freeze was taking place,[31] did the ALS inform him that the vacant solicitor position in its Grafton Office was not going to be recruited for.
In support of Mr Bell’s contention that his expectation that he would win this second recruitment process was reasonable, Mr Bell gave the following evidence:[32]
“I was admitted and had my practicing certificate and had been appearing in some matters. I now had over 12 months experience in the office.
However, and in contradiction to Mr Bell’s evidence that he believed that he would win the second recruitment process, Mr Bell stated to Ms Miles in a later email:[33]
“I am not bitter at not getting the jobs. I didn’t really prepare well so I blame myself for not focussing. I am not sure though I really want a fulltime job.”
I accept Mr Bell’s evidence that in early December 2017, he was informed by the ALS that he not been successful in the second recruitment process.
Mr Bell gave evidence that despite knowing that he had been unsuccessful as part of the second recruitment process, he held an expectation of continuing employment because he was aware of “serious issues in the office”, “felt that Mark Savic would no longer be with us by early February” and “thought that it would be sensible to keep me on, to help the new people”.[34] Mr Bell gave further evidence that he “expressed this in email to Nadine [Miles] in early February”.[35] This evidence is to be contrasted withMr Bell’s email to Ms Miles sent on 2 February 2018, [36] in which Mr Bell asked Ms Miles to “reconsider the decision communicated to me formally in your letter of 30.1.2018” and keep him “on the books as a casual but with no hours.” In this email, Mr Bell did not express to Ms Miles that he believed he should remain employed by the ALS so as to assist the newly recruited solicitors in the ALS Grafton Office.
The following evidence also casts doubt on Mr Bell’s contention that he continued to hold an expectation of continuing employment even after he was informed in early December 2017 that he was unsuccessful in the second recruitment process:
in an email sent to Ms Miles on 30 January 2018, in reply to her email attaching his notice of termination, Mr Bell stated:[37]
“This is fine. I expected for some time that I would be let go when the new people start…”
- in his email to Ms Miles dated 2 February 2018, Mr Bell stated as follows:[38]
“My point is I don’t want my dismissal (which I believe would have happened anyway) linked in my mind or anyone else’s mind to my reporting in December or to my standing up for …”
- in his witness statement Mr Bell referred to being informed in early December 2017 that he had been unsuccessful in the second recruitment process and stated:[39]
“I was given no information regards my paralegal position but felt that there was a good chance I would be let go when the new people started.”
In response Mr Bell’s email dated 2 February 2018, Ms Miles sent an email to Mr Bell on 6 February 2018, in which she stated the following (in part):[40]
“As you are aware, ALS undertook a recruit round for our Grafton/Coffs Harbour practice late last year. We will shortly commence 2 new solicitors at Grafton and it is for this reason alone that we are not in a position to continue our arrangement”. (emphasis added)
Findings re reasonable expectation of continuing employment
I make the following findings in relation to Mr Bell’s contention that he had a reasonable expectation of continuing employment by ALS on a regular and systematic basis during his service with the ALS:
(a) In the period from 6 February 2017 to 28 May 2017, I am not satisfied that Mr Bell had an expectation of continuing employment by ALS on a regular and systematic basis and, even if Mr Bell held such an expectation, it was not a reasonable expectation. During this period Mr Bell was aware that he had been employed under a contract which included an express term that his casual employment would be “on a week by week basis until the Solicitor Position at Grafton has commenced”. Mr Bell knew that he was participating in a competitive selection process for an ongoing role as a solicitor, but was not admitted as a solicitor at that stage and could not have held more than a hope that he might be successful, notwithstanding the support he had from other ALS employees to pursue to role as a solicitor. Mr Bell attended an interview on 30 March 2017 but did not hear anything for some time until he became aware of the recruitment freeze on about 29 May 2017;
(b) In the period from 29 May 2017 until 29 October 2017, I am satisfied that Mr Bell had a reasonable expectation of continuing employment by ALS on a regular and systematic basis. During that period of time Mr Bell believed, on the basis of what the CEO had announced on 29 May 2017 and the lack of any information to the contrary until 29 October 2017, that there was a recruitment freeze on at the ALS, with the result that his employment was secure because he could not be replaced during the recruitment freeze and there was plenty of work he was required to do for the ALS during that period of time. During her evidence, Ms Miles accepted, properly in my view, that it would have been reasonable for Mr Bell to hold an expectation of continuing employment by ALS on a regular and systematic basis during the recruitment freeze. I note that the period from 29 May 2017 until 29 October 2017 is a period of approximately five months, which is less than the minimum employment period for Mr Bell (six months); and
(c) In the period from 30 October 2017 to 14 February 2018, I am not satisfied that Mr Bell had an expectation of continuing employment by ALS on a regular and systematic basis and, even if Mr Bell held such an expectation, it was not a reasonable expectation. During this period Mr Bell continued to be employed under a contract which included an express term that his casual employment would be “on a week by week basis until the Solicitor Position at Grafton has commenced”. Mr Bell knew that he was participating in another competitive selection process for an ongoing role as a solicitor. He could not have held more than a hope that he might be successful, notwithstanding that he had been admitted as a solicitor by that time and had experience working for ALS. Furthermore, Mr Bell admitted that he “didn’t really prepare well” in relation to the second recruitment process. By early December 2017, Mr Bell was aware that he had not been successful for the role of solicitor. From that point on, I do not accept the various reasons put forward by Mr Bell to substantiate the belief he says he held of continuing employment. In that regard, I refer to the matters set out in paragraphs [37] and [38] above. While there was the prospect that ALS could have asked Mr Bell to stay on for some time “to help the new people” or undertake some other work, that was nothing more than a possibility and there was no act or omission on the part of the ALS which could have given Mr Bell a reasonable expectation of continuing employment on a regular and systematic basis from early December 2017.
Conclusion
For the reasons set out above, I find that Mr Bell was not protected from unfair dismissal on 14 February 2018 because he had not completed a period of employment with ALS of at least the minimum employment period.
It follows that the ALS’s jurisdictional objection is upheld and Mr Bell’s application is dismissed.
COMMISSIONER
Appearances:
Mr Bell, on his own behalf.
Mr Stephen Woodbury, solicitor, on behalf of ALS.
Hearing details:
2018.
Newcastle:
16 July.
<PR609945>
[1] Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709 at [11]
[2] Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 399 (Yaraka) at [65]; cited in Ponce v DJT Staff Management Services Pty Ltd t/a Daly’s Traffic[2010] FWA 2078 (Ponce)
[3] Ibid at [65]
[4] Ibid at [68]
[5] Ibid; cited in Grives v Aura Sports Pty Ltd[2012] FWA 5552 at [32]
[6] Ibid at [89]
[7] Ibid at [91]
[8] Ibid at [69]
[9] Ponce at [59]- [64]
[10] s 383(a) of the Act
[11] Ex R1; attachment NM-2
[12] Ex A1 at [7]
[13] Ex A1; attachment C
[14] From 22 January 2018 to 14 February 2018
[15] Clause 1.2 of Mr Bell’s Letter of Engagement
[16] Mr Bell’s Outline of Submissions at [7] – [9]
[17] Ex A1 at [8]
[18] Ibid at [5]
[19] Ibid
[20] Ibid at [6]
[21] Ibid; attachment B
[22] Ibid
[23] Mr Bell’s Outline of Submissions at [7]
[24] Ibid at [7]
[25] Ibid at [8]
[26] Ibid at [18]
[27] Ibid at [11]
[28]Ex R2 at [8] and [16]
[29] Ibid at [16]
[30] Mr Bell’s Outline of Submissions at [9]
[31] From 29 May 2017 until 29 October 2017
[32] Ex A1 at [20]
[33] Ex A1 at annexure H
[34] Ibid at [24]
[35] Ibid
[36] Ibid; attachment H
[37] Ex R1; attachment NM-4
[38] Ibid; attachment H
[39] Ex A1 at [20]
[40] Ex A1; attachment H
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