Mr Michael Higgins v Hobart Truck Spares Pty Ltd
[2024] FWC 2631
•25 SEPTEMBER 2024
| [2024] FWC 2631 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Higgins
v
Hobart Truck Spares Pty Ltd
(U2024/8036)
| 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 11 July 2024, Michael Higgins alleges he has been unfairly dismissed by the Respondent in this matter, Hobart Truck Spares Pty Ltd (Hobart Truck Spares or the Respondent).
Mr Higgins was employed by Hobart Truck Spares on 13 October 2023 and was terminated with effect from 25 June 2024, a period of slightly more than 8 months. The implication of this period is that, in order to be a person protected from unfair dismissal, Mr Higgins 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).
Hobart Truck Spares’ objection to the continuation of Mr Higgins unfair dismissal application was the subject of a hearing before me on Thursday, 19 September 2024. Ms Mieke Matimba, from the Hobart Community Legal Centre appeared for the Applicant, with permission for her appearance being given by me pursuant to s.596(2)(a), (b) and (c). Mr Robert Martin, a Senior IR Advisor with the Victorian Automobile Chamber of Commerce appeared for Hobart Truck Spares.
For the reasons set out below, my determination is that the Respondent was a small business employer at the time Mr Higgins was dismissed and that he had not completed the minimum employment period at the time he was dismissed. It follows that Mr Higgins was not, at the time of his dismissal, a person protected from unfair dismissal and that his application must be dismissed.
BACKGROUND
Mr Higgins worked as a full-time tow truck operator between 13 October 2023 and 25 June 2024.
Irrespective of whether the Respondent was a small business employer as defined, it is nonetheless a small business. Its work involves towing vehicles after breakdown or crashes. Mr Higgins evidence is that the business performs vehicle body repairs, towing and recovery of medium and heavy duty vehicles, as well as emergency breakdown services.[1]
The parties are agreed that there are at least 12 employees to be counted towards ascertainment of the businesses status as a small business employer. The contest between the parties is over a further three employees, Ms Samantha Clark (the daughter of the owner Mr Darren Clark), and two tow truck drivers, PC and AP. It is said by the Applicant that Ms Clark worked in an administrative capacity for the business, which is denied by Mr Clark. The Applicant and Respondent are agreed that PC and AP worked in the business undertaking tow truck activities, with the dispute between the parties being over whether their employment was in such a way as to fall within the definition of regular casual employee.
A significant part of the businesses’ work is in performance of a contract it holds with the Royal Automobile Club of Tasmania and Mr Higgins was employed for the purposes of that service.[2]
Mr Higgins says that after hours work was a required part of this job and that there was an emergency breakdown roster for both normal business hours and after hours.[3] Mr Higgins also puts forward that there was a handwritten emergency breakdown roster;
“There was an emergency breakdown roster for normal business hours and an afterhours roster. Both fulltime and casual tow truck driver employees were written into the roster. Annexure A is the afterhours roster for April and May 2024 which is all I had available after I was dismissed.”[4]
The annexure to which Mr Higgins refers in the above passage shows two simple one-page calendars for April and May 2024, on which two first-names, and sometimes three, have been written in by hand.
Mr Higgins says about the matter of rosters that;
“22. There was a hierarchy of fulltime staff and rosters reflected that ranking. The business preference was that if time allowed one tow truck to respond to all the call-outs it meant less petrol used and less wear and tear on the vehicle. This meant that the employee listed first on the roster got called first and had the best chance of getting paid for a full shift of work, …”
23. The fulltime normal business hours emergency breakdown hierarchy was: (1) Craig Hayes (2) Paul Gittus (before he was on workers compensation) (3) me (4) PC (5) Jake Clark (6) Robbo (who worked as a spray painter so that was prioritised over towing during the day).
24. The afterhours emergency breakdown hierarchy was: (1) Robbo (2) Jake Clark (3) Craig Hayes (4) Paul Gittus (before workers comp) (5) me (6) [PC] and (7) [AP].”[5]
Mr Clark put forward a document headed “HTS TOWING AFTER HOURS/ON CALL ROSTER”, which did not include either PC or AP. The document is a single page, showing two first names for each day in each of four weeks, without attribution to a particular date. While the document refers to “Paul”, that is a reference to Paul Gitus, whom the Respondent accepts should be counted in the small business employer assessment and not AP, whom it contends should not. Mr Clark also says about the handwritten calendar “roster” to which Mr Higgins refers that it was only something which existed temporarily because there were multiple people on holidays or away on leave in April and May this year.
Mr Clark’s evidence about PC and AP is brief, asserting each was not “rostered” in the manner put forward by the Applicant;
“16. [PC] approached me about some casual work after he left his previous full time job and commenced his casual employment with us in December 2023, on the basis of covering employees who are absent or on leave for emergency call outs.
17. [PC’s] hours are not rostered as he is casual. He will be contacted in the event that it becomes apparent that a full-time employee is unavailable. [PC]does not accept shifts when he is not available due to this short notice. [PC’s]hours of work are provided in Attachment B.
18. [AP] has full-time employment with another business as a full-time heavy vehicle mechanic for Webster Trucks in, Derwent Park, Tasmania and has made himself available to assist emergency break downs. His full-time heavy vehicle mechanic position with Webster Trucks is his priority, and he is (at the time of writing) in Darwin, Northern Territory, on a period of annual leave from Webster Trucks.
19. [AP] and [PC]are in a casual pool, and are contacted in the event that I have sufficient coverage for the emergency break down work. I only contact [AP] if there is a shortage of staff if he is available and this does not affect his full-time heavy vehicle mechanic position with Webster Trucks and [AP] has been at times unavailable to perform such work.
20. As evidenced by Attachment C, there is a significant amount of time that [AP] unavailable to perform this type of work, or alternatively, is not needed be to contacted for casual relief work as this is being completed by the full-time tow truck drivers.
21. Furthermore, due to the reactionary and unknown nature of Call-back (breakdowns etc.) casual tow truck driving work makes it impossible to 'roster' this type of work due to the unpredictably associated with emergency towing work”[6]
The Attachments B and C referred to in the above passage are tables prepared by the Respondent, showing the hours and frequency of work of PC and AP over the past year. The tables are extracted and shown as an ATTACHMENT to this decision. The Applicant did not dispute the accuracy of the tables, so I rely on their contents.
Mr Clark also says that the work of his business was irregular and reactive and that because of this, casual drivers are used as a backup.[7] Further;
“37. There is no system method or plan to forecasting when an RACT motorist is likely to break down, that the RACT motorist is not able to have their issue resolved, and the availability (or unavailability) or a full-time driver is known.
38. If full time drivers are unavailable to assist in covering other drivers on leave, then casuals are asked for availability to cover if the workload gets busy or full-time drivers are on breaks.
39. For the avoidance of doubt, casual tow truck drivers assisting with our afterhours emergency service are not subject to rosters in the manner specified by the Applicant, there is no system method or plan, to the engagement of casual tow truck drivers.”[8]
The Applicant argues in relation to PC, that he was regularly and systematically engaged, having worked every week since his employment began. Further, he worked during normal business hours as well as the after-hours roster.
Mr Higgins also argued that AP worked 29 of the last 52 weeks. Mr Higgins says his weekend employment came about after AP asked to finish early on Sundays.[9]
As to the requirement that employees be systematically employed, the Applicant puts forward he and others were on-call, with an expectation be ready if called out to respond to emergency breakdowns. Tow truck operators rostered for after hours shifts were also required to take a truck home and be contactable by phone.[10]
Mr Clark responded to these contentions with the following evidence;
“15. Responding to paragraph 15, full-time tow truck drivers on the afterhours roster are part of the procedure to take one of the trucks home and be contactable by phone to ensure a streamlined emergency response. However, the casual tow-truck drivers are not ‘on-call’. And whilst they may take a tow truck home, they are in no way required to hold themselves in a state of ‘readiness’ to accept work, nor are they required to accept the call-out if contacted. As stated before Mr Darren Clark will perform this work if the casual tow truck driver is not in a position to accept the work.”[11]
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 the definition of small business employer, being 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.”[12] (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.[13]
Of the two tow truck drivers in dispute, AP is demonstrably the less regularly employed. In the period between 22 June 2023 and 25 June 2024, he worked in 30 of the weeks shown. His hours of work in those weeks varied from 1.25 hours to 32.25 hours. Of the 2024 pay weeks, there were seven in which he performed no work at all, with his hours varying between 3 in one week and 32.25 in another.
PC worked more frequently, and according to the table, he worked for Hobart Truck Spares in all of the pay weeks after 7 December 2023, which was the week he first worked for the Respondent. While that is shown by Mr Clark’s table, it is not corroborated by the payroll data the Respondent was ordered to produce by the Commission, with that material indicating that PC was not paid in at least 2 of the weeks (pay weeks ending 13 December 2023 and 3 January 2024). While unexplained and regrettable, the discrepancy is not relevant to this decision. PC’s hours in 2024 varied from 6 hours in one week to two occasions when he worked 38.25 hours.
In respect of both tow truck drivers, there is little question that each worked regularly. 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, including the applicable contract of employment and the prevailing rostering system.[14] A finding that either was employed on a systematic basis requires ascertainment of “something that can fairly be called a system, method or plan”.[15]
There is no direct evidence from either employee 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 Mr Clark, who is adamant that there is no rostering of the two men and that the calendar rosters brought forward by Mr Higgins for April and May 2024 were merely for the purposes of dealing with a temporary labour shortage, which had resolved itself by June.
For his part, Mr Higgins says that being available for after hours emergency breakdown work at Hobart Truck Spares involved taking a truck home, keeping with him a mobile phone and being otherwise ready to be called out if need be.
While I accept what he has to say in respect of him and others taking a tow truck home and being ready to return to work, his state of preparedness is obviously a product of his full-time status about which there is no dispute. However, the question which needs to be resolved here is whether the same applied to two casual employees, PC and AP. While it appears from the evidence that each took a tow truck home and such leans towards a finding of a systematic engagement, there is no reliable evidence before me that would cause me to extrapolate the other elements of standing by for return to work to apply to them, as it does for Mr Higgins.
In relation to the significance of casual employees taking a truck home, Mr Clark explained in his evidence that there was still no guarantee of work. A callout would be allocated to a casual employee if the full time employees were all busy and casual was required.[16]
In many respects, the tables produced by Mr Clark showing the hours worked by each of PC and AP reinforce his position. The hours worked in any particular week vary considerably, implying that what Mr Clark has to say is correct; that casual engagements are contingent upon full-time employees not being available.
Because of these matters, I am unable to make a finding that there was a “system, method or plan” sufficient to make a finding that there was a reasonable expectation of continuing employment of PC and AP by Hobart Truck Spares on a regular and systematic basis.
As a result of this finding, it is unnecessary for me to determine to finality the status of Ms Clark as an employee. However, the fact that she was paid by her father’s business every week and issued with payslips with PAYG taxation deducted, strongly implies that she is an employee of the business. That implication is rejected both by Mr Clark and Ms Clark, with both saying that she performs no work in the business. While I am inclined to agree with Ms Matimba, the lawyer for Mr Higgins, that the Respondent cannot have it both ways, representing Ms Clark as an employee for tax purposes, but not for Fair Work Commission purposes, the matter has been insufficiently argued for me to be confident of a determination in this regard.
Having found that each of PC and AP are not to be counted for the purposes of calculating the number of employees employed by the Respondent, I find that the Respondent was a small business employer at either available termination date. Since both dates are within a calendar year of the date on which employment started, it is unnecessary for me to determine the actual date of termination of Mr Higgins’ employment.
It follows that the minimum employment period applicable to Mr Higgins is one year. Having commenced employment on 13 October 2023 and having been dismissed on 25 June 2024, it follows that he has not completed the minimum employment period.
Mr Higgins 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:
Ms M. Matimba, for the Applicant.
Mr R. Martin, for the Respondent.
Hearing details:
19 September.
2024.
[1] Exhibit A1, Witness Statement of Michael Higgins, [4].
[2] Ibid, [15].
[3] Ibid, [16] – [17].
[4] Ibid, [17].
[5] Exhibit A1, Witness Statement of Michael Higgins.
[6] Exhibit R1, First Witness Statement of Darren Clark.
[7] Exhibit R2, Second Witness Statement (Statutory Declaration) of Darren Clark, [37].
[8] Ibid.
[9] Exhibit A1, [30].
[10] Ibid, [20].
[11] Exhibit R1, First Witness Statement of Darren Clark..
[12] [2020] FWCFB 306.
[13] Ibid, [14].
[14] Angele Chandler v Bed Bath N' Table Pty Ltd[2020] FWCFB 306, [14].
[15] Yaraka Holdings Pty Ltd v Giljevic, [2006] ACTCA 6, 149 IR 339, [91].
[16] Teams Recording 21:38 – 22:15.
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