Mr Michael (Mike) Gallagher v Kiss Me Pty Ltd
[2023] FWC 1921
•2 AUGUST 2023
| [2023] FWC 1921 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael (Mike) Gallagher
v
Kiss Me Pty Ltd
(U2023/912)
| COMMISSIONER P RYAN | SYDNEY, 2 AUGUST 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – whether the Applicant served minimum employment period – whether the Respondent was a small business employer – minimum employment period of one year – jurisdictional objection upheld - application dismissed.
Introduction
Mr Mike Gallagher (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act), alleging he has been unfairly dismissed from his employment with Kiss Me Pty Ltd (Respondent) (Application).
In the Application, the Applicant alleges his employment with the Respondent commenced on 3 April 2022 and that he was dismissed on 18 January 2023.
In the Form F3 Employer Response, the Respondent does not dispute the period of employment, but objects to the Application on the basis that the Respondent is a small business employer and that the Applicant’s period of employment did not meet the applicable minimum employment period of one year.
To be protected from unfair dismissal, a person must have completed a period of employment with their employer of at least the minimum employment period.[1] Further, whether a person is protected from unfair dismissal is a matter that must be determined prior to any consideration of the merits of an application for an unfair dismissal remedy.[2]
The matter was listed for hearing of the Respondent’s jurisdictional objection on 14 April 2023. On 14 April 2023, and after attempts to resolve the matter were unsuccessful, the proceedings were adjourned and the parties were provided with a further opportunity to file materials in support of, or in opposition to the jurisdictional objection.
On 18 April 2023, the Applicant applied for an order to produce documents directed to the supplier of Respondent’s time and attendance system. Following a hearing on 21 April 2023, an order was issued directing the Respondent to produce records identifying the employees employed as at 18 January 2023, and records identifying the dates and times each employee worked in the period of 1 December 2022 to 28 February 2023.[3]
The matter proceeded as a determinative conference on 10 May 2023. The Applicant was self-represented. The Respondent was represented by its director, Ms Gabrielle Greyem who also gave evidence.
The following documents were admitted into evidence:
· Respondent’s Timesheets for the period of 1 December 2022 to 28 February 2023 (Exhibit 1);
· Respondent’s Active Employees List (Exhibit 2);
· Respondent’s Terminated Employees List (Exhibit 3);
· Letter from HC Partners Pty Ltd (Respondent’s Tax Agent) dated 16 March 2023 (Exhibit 4); and
· Email from Ms Greyem dated 21 April 2023 (Exhibit 5).
For the reasons that follow, I have determined that Mr Gallagher has not completed a period of employment of at least the minimum employment period, and therefore, the Application is dismissed.
Relevant Legislative Provisions
Section 394(1) of the FW Act provides as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
Section 396 of the FW Act provides as follows:
Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Section 382 of the Act provides as follows:
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.”
The meaning of “period of employment” is set out at s.384 of the FW Act 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 as a regular casual employee; 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;
The meaning of “minimum employment period” is set out at s.383 of the FW Act as follows:
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.
The meaning of “small business employer” is set out at s.23 of the FW Act as follows:
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, he or she has been employed by the employer on a regular and systematic basis.
(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 meaning of “casual employee” is set out at s.15A of the FW Act as follows:
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 meaning of “regular casual employee” is defined in s.12 of the FW Act as follows:
"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.
Background and Issue to be determined
The Respondent operates two small cafes known as Jasmine Greens Café and The Beach Kiosk. Both cafes are located in close proximity to each other at Umina Beach on the Central Coast of New South Wales. There is no dispute that the Respondent did not have any associated entities.
The Respondent usually employs approximately 8-10 employees which are a combination of full-time, part-time and regular casual employees. During the school holiday and summer holiday periods, which are the busiest periods for the cafes, the Respondent employs additional casual employees.
The Applicant was employed as a café attendant. It is not in dispute that the Applicant was a regular casual employee and that his period of employment was approximately 9.5 months at the time of his dismissal on 18 January 2023. Therefore, the issue for determination by the Commission is whether the Respondent employed fewer than 15 employees immediately before the Applicant’s dismissal on 18 January 2023.
In determining this issue, the Respondent bears an evidentiary onus to adduce the necessary evidence in support of its jurisdictional objection and the underpinning facts.[4]
If it is found that the Respondent was a small business employer at the relevant time, the Application must be dismissed on the basis that the Applicant is not a person protected from unfair dismissal in relation to his employment with the Respondent.
Section 23(2)(a) – all employees employed at the particular time
The first step in calculating whether an employer is a small business employer is to identify all of the employees employed at the particular time, being 18 January 2023. Based on the Respondent’s records, the number of employees employed immediately prior to the Applicant’s dismissal were the following 20 employees:[5]
| Employee | Start Date | Termination Date | Employment Type |
| AM | 22/12/2022 | Casual | |
| CB | 13/08/2022 | Casual | |
| CL | 31/12/2022 | 12/03/2023 | Part-time |
| CW | 20/02/2021 | Casual | |
| DV | 6/09/2021 | Casual | |
| EB | 1/11/2020 | 5/02/2023 | Casual |
| EL | 29/12/2022 | Casual | |
| Gabrielle Greyem | 13/12/2013 | Full-time | |
| GP | 14/10/2022 | Casual | |
| GW | 14/06/2014 | Casual | |
| IA | 4/12/2022 | Casual | |
| IL | 21/12/2022 | 30/01/2023 | Casual |
| JD | 26/09/2022 | Casual | |
| JH | 18/12/2021 | Casual | |
| JW | 20/09/2022 | Casual | |
| LB | 10/07/2022 | Casual | |
| Mike Gallagher | 3/04/2022 | 18/01/2023 | Casual |
| RW | 20/02/2019 | Casual | |
| SM | 31/12/2022 | Full-time | |
| TH | 22/11/2021 | Full-time |
In addition to the 20 employees identified in the table above, there was a dispute concerning whether (former) Employee DT is to be included within the employee count.
Employee DT
The dispute in relation to DT concerns the date of termination. Employee DT commenced full-time employment on 6 July 2017. Exhibit 3 records DT’s date of termination as 16 January 2023. The Applicant contends that DT remained employed with the Respondent as at 18 January 2023.
Although the Respondent’s records identify the date of termination as 16 January 2023, Ms Greyem gave the following evidence during the proceedings:
[DT] resigned from his position on December 8, 2022. He agreed to honour his contract terms and end his employment two months from that date. [DT’s] last rostered shift was Monday January 16, 2023. However, it has come to my attention that I emailed [DT] to confirm his final working day was January 16 on January 19, 2023. Hence it is possible to interpret that [DT] was employed by Kiss Me Pty Ltd on January 18, 2023.[6]
The email Ms Greyem refers to was not in evidence. In the context where the Respondent and DT had agreed to end the employment two months after 8 December 2022, it is not clear whether DT’s final working day was 16 January 2023, or whether that was last day of his employment, and if the latter, it is not clear whether the arrangement to end the employment two months after 8 December 2022 was varied by that email or at some other time.
It is well established that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[7] If the email Ms Greyem refers to had the effect of terminating the employment of DT prior to the end of the agreed two month period, then the termination could not have taken effect prior to 19 January 2023.
Taking the above matters into consideration, I am not satisfied that the Respondent has adduced sufficient evidence to establish that DT was not an employee as at 18 January 2023.
Accordingly, DT will be included in the employee count.
Gabrielle Greyem
During the proceedings the Applicant questioned the employment status of Ms Greyem. Although Ms Greyem is a director of the Respondent, the Respondent’s records also identify Ms Greyem as a full-time employee who receives a fortnightly wage.[8] In both written and oral submissions, Ms Greyem described herself as the full-time manager and/or being employed on a “permanent full-time” basis as “full-time manager, head chef, barista and café attendant”.[9] It is not uncommon for a person to be both a director and an employee.[10]
Having regard to the material before me and the submissions of the Respondent, I find Ms Greyem is an employee of the Respondent. Accordingly, Ms Greyem will be included in the employee count.
Section 23(2)(a) – Conclusion
For the purposes of s.23(2)(a) of the FW Act, the number of all employees employed is 21 employees.
Section 23(2)(b) – casual employees are not to be counted unless they are ‘regular casual employees’
The second step in calculating whether an employer is a small business employer is that casual employees are not to be counted unless they are regular casual employees.
The list of employees identifies the Respondent employed 16 casual employees, including the Applicant. It was not in dispute that each of those were casual employees.[11]
However, what is in dispute is whether each of those employees was a ‘regular casual employee’ at the particular time.
The term ‘regular casual employee’ is defined in s.12 of the FW Act as follows:
"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;
(b)the employee has been employed by the employer on a regular and systematic basis.
The phrase ‘regular and systematic basis’ is not defined in the FW Act. In Chandler v Bed Bath N' Table Pty Ltd[12] (Chandler), a Full Bench of the Commission set out the correct approach to determining whether casual employment is regular and systematic as follows:
[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.
(Footnotes omitted).
In Bronze Hospitality Pty Ltd v Janell Hansson[13] (Bronze Hospitality), a Full Bench of the Commission considered whether a short period of employment was sufficient to establish that an employee was a regular casual employee for the purposes of s.23 of the FW Act. The Full Bench stated:
[21] In any event, evidence of work done over a 13 day period is a fragile basis to found a conclusion that the employees were employed on a regular basis. We do not say that a period of 13 days could never be sufficient in order to reach such a conclusion. There is no minimum period for which persons must have been employed on a regular and systematic basis in order to ‘count’ for the purposes of s.23. All the circumstances must be taken into account. But in this case, considering all that is known about the four casual employees, we do not consider the evidence of their working arrangements to be an adequate basis to conclude that they were employed on a regular and systematic basis.
[22] We also note that the details of the hours worked by the four employees concerned a period that extends three days beyond the end of Ms Hansson’s employment on 7 June 2018. It is difficult to see how hours worked by the four employees after Ms Hansson’s dismissal could be taken into account. In our view, only 10 of the 13 days are relevant, and it is not known which of the hours referred to were worked in the last three days and should therefore be excluded.
Before turning to turn to a consideration of whether each of the casual employees were ‘regular casual employees’, it is important to note that the Respondent did not adduce sufficient evidence in relation to a number of employees. The time and attendance records before the Commission were limited to the period of 1 December 2022 to 28 February 2023 and were produced pursuant to an order for production. This was despite the Respondent being granted an adjournment to file further materials in support of its jurisdictional objection. Accordingly, and as will be seen below, in a number of instances I have not been satisfied the Respondent has discharged its evidentiary onus to establish that a particular employee was not a regular casual employee at the particular time.
I now turn to a consideration of whether each of the casual employees were ‘regular casual employees.’
Employee CB
CB is a school aged junior employee who was employed as a casual employee on 13 August 2022. Ms Greyem gave evidence that CB generally works 1-2 shifts per week in the school holiday periods. However, the time and attendance records identify that CB worked in December 2022 prior to the commencement of school holidays[14] and it is unclear as to the extent of CB’s hours worked prior to 1 December 2022.
In the absence of evidence regarding CB’s engagements prior to 1 December 2022, I am not satisfied that CB was not a regular casual employee at the particular time. Accordingly, CB will be included in the employee count.
Employees CW, GW and RW
It is not in dispute, and I so find, that CW, GW and RW are not regular casual employees. Each of these employees are members of Ms Greyem’s family and perform work on an extremely intermittent basis to assist the family business when needed.
Over the period of 1 December 2022 to 28 February 2023, RW worked one shift of four hours on Sunday 19 February 2023. CW and GW did not perform any work. Accordingly, CW, GW and RW will not be included in the employee count.
Employee EB
EB was initially employed as a school aged junior on a part-time basis on 1 November 2020. Ms Greyem gave evidence that EB is now a university student and is employed as a casual employee during holiday periods. The time and attendance records identify that EB regularly worked 3-4 shifts per week over the period of 1 December 2022 to 31 January 2023.[15] Under cross examination, Ms Greyem could not recall whether EB had worked during other holiday periods throughout 2022.
In the absence of evidence regarding EB’s hour worked prior to 1 December 2022, I am not satisfied that EB was not a regular casual employee at the particular time. Accordingly, EB will be included in the employee count.
Employee GP
GP is school aged junior employee who was employed as a casual employee on 14 October 2022. On or about 13 March 2023, GP was offered, and accepted, employment as a full-time apprentice. GP completed 13 shifts between 1 December 2022 and 18 January 2023. There is no evidence of the extent to which GP was engaged by the Respondent during the period of 14 October 2022 and 1 December 2022.
In the absence of evidence regarding GP’s hours worked in the period of 14 October 2022 to 1 December 2022, I am not satisfied that GP was not a regular casual employee at the particular time. Accordingly, GP will be included in the employee count.
Employees JD, JH and JW
It is not in dispute, and I so find, that JD, JH, and JW are regular casual employees. Therefore, JD, JH and JW will be included in the employee count.
Employee LB
LB is a school aged junior employee who was employed as a casual employee on 10 July 2022. Ms Greyem gave evidence that LB generally works 1-2 shifts per week in the school holiday periods. However, the time and attendance records identify that LB worked in December 2022 prior to the commencement of school holidays[16] and it is unclear as to the extent of LB’s hours worked prior to 1 December 2022.
In the absence of evidence regarding LB’s engagements prior to 1 December 2022, I am not satisfied that LB was not a regular casual employee at the particular time. Accordingly, LB will be included in the employee count.
Employees AM, EL, IA and IL
Employees AM EL, IA and IL each commenced employment with the Respondent in December 2022. Ms Greyem gave evidence that each of these employees were offered casual employment for the summer holiday period on an as required basis.
AM commenced employment as a casual employee on 22 December 2022. AM completed nine shifts between 29 December 2022 and 18 January 2023 as follows:[17]
| Date | Start | Finish | Hours |
| Thursday, 22 December 2022 | 6:30:00 AM | 2:30:00 PM | 8 |
| Tuesday, 27 December 2022 | 6:30:00 AM | 4:00:00 PM | 9.5 |
| Wednesday, 28 December 2022 | 6:30:00 AM | 4:15:00 PM | 9.75 |
| Tuesday, 3 January 2023 | 10:30:00 AM | 4:15:00 PM | 5.75 |
| Sunday, 8 January 2023 | 9:00:00 AM | 4:15:00 PM | 7.25 |
| Thursday, 12 January 2023 | 6:30:00 AM | 2:00:00 PM | 7.5 |
| Friday, 13 January 2023 | 12:00:00 PM | 4:00:00 PM | 4 |
| Saturday, 14 January 2023 | 11:30:00 AM | 4:00:00 PM | 4.5 |
| Sunday, 15 January 2023 | 6:30:00 AM | 4:00:00 PM | 9.5 |
EL is a school aged junior employee who was offered casual employment over the school holidays. EL commenced employment as a casual employee on 29 December 2022. EL completed nine shifts between 29 December 2022 and 18 January 2023 as follows:[18]
| Date | Start | Finish | Hours |
| Thursday, 29 December 2022 | 10:00:00 AM | 4:00:00 PM | 4 |
| Monday, 2 January 2023 | 9:00:00 AM | 4:00:00 PM | 7 |
| Thursday, 5 January 2023 | 9:00:00 AM | 4:00:00 PM | 7 |
| Friday, 6 January 2023 | 9:00:00 AM | 3:00:00 PM | 6 |
| Saturday, 7 January 2023 | 9:00:00 AM | 3:00:00 PM | 6 |
| Wednesday, 11 January 2023 | 8:00:00 AM | 3:00:00 PM | 7 |
| Thursday, 12 January 2023 | 8:00:00 AM | 3:00:00 PM | 7 |
| Friday, 13 January 2023 | 8:00:00 AM | 3:00:00 PM | 7 |
| Saturday, 14 January 2023 | 9:00:00 AM | 4:00:00 PM | 8 |
IA is a school aged junior employee who was offered casual employment over the school holidays. IA commenced employment as a casual employee on 4 December 2022. IA completed six shifts between 17 December 2022 and 18 January 2023 as follows:[19]
| Date | Start | Finish | Hours |
| Saturday, 17 December 2022 | 8:00:00 AM | 3:00:00 PM | 7 |
| Thursday, 29 December 2022 | 8:00:00 AM | 3:00:00 PM | 7 |
| Tuesday, 3 January 2023 | 9:00:00 AM | 3:00:00 PM | 6 |
| Wednesday, 4 January 2023 | 9:00:00 AM | 3:00:00 PM | 6 |
| Thursday, 12 January 2023 | 9:00:00 AM | 3:00:00 PM | 5.75 |
| Tuesday, 17 January 2023 | 8:00:00 AM | 3:00:00 PM | 7 |
IL is a school aged junior employee who was offered casual employment over the school holidays. IL was employed from 21 December 2022 until 30 January 2023. IL completed eight shifts across both of the Respondent’s venues between 21 December 2022 and 18 January 2023 as follows:[20]
| Date | Start | Finish | Hours |
| Wednesday, 21 December 2022 | 10:00:00 AM | 2:00:00 PM | 4 |
| Thursday, 29 December 2022 | 8:45:00 AM | 4:00:00 PM | 7.25 |
| Friday, 30 December 2022 | 9:00:00 AM | 4:00:00 PM | 7 |
| Monday, 2 January 2023 | 12:00:00 PM | 4:00:00 PM | 4 |
| Friday, 13 January 2023 | 8:00:00 AM | 4:00:00 PM | 8 |
| Saturday, 14 January 2023 | 8:00:00 AM | 3:00:00 PM | 7 |
| Sunday, 15 January 2023 | 8:00:00 AM | 4:00:00 PM | 8 |
| Monday, 16 January 2023 | 8:00:00 AM | 4:00:00 PM | 8 |
Furthermore, and while hours worked after 18 January 2023 are not taken into account,[21] I observe that each of these employees worked significantly less hours, in some cases nil hours, after 18 January 2023 and in the case of IL, the employment ended on 30 January 2023.[22]
In Paige O’Donovan v Live Fashion Group Pty Ltd ATF The Live Fashion Unit Trust[23], Deputy President Binet found that casual employees that were employed for less than three months had not been offered and accepted work regularly enough to support a finding that the employment was regular and systematic. In coming to that conclusion, the Deputy President found that each of the employees worked varying days, times and at different locations over periods of up to 72 days.
While for each of these four employees the period of time is much shorter than 72 days, and there is some variation in the days and times worked, there is also a pattern emerging in relation to the days and times worked by some of them.[24] However, as stated in Bronze Hospitality, all the circumstances must be taken into account.[25]
In the context of this matter, I consider the circumstances to include the nature and seasonality of the industry in which the Respondent operates, as well as the basis upon which the employment was offered and accepted.
For each of the four employees, the hours worked were concentrated within the first two weeks of January 2023. While I accept there is no minimum period in which to assess whether a casual employee is a ‘regular casual employee’, having regard to the nature and seasonality of industry, and the basis upon which the employment was offered and accepted, I am not satisfied that the employees had been offered and accepted work regularly enough to support a conclusion of regularity. In my view, such a finding in the circumstances of this case would be ‘fragile.’[26]
Accordingly, I find that AM, EL, IA and IL were not ‘regular casual employees’ as at 18 January 2023. Therefore, they will not be included in the employee count.
Section 23(2)(b) – Conclusion
I have found that AM, CW, EL, GW, IA, IL and RW were not ‘regular casual employees’ as at 18 January 2023. Therefore, in accordance with s.23(2)(b) of the FW Act, these seven employees are not to be included in the employee count.
Conclusion
I have made findings in respect to ss.23(2)(a) and (b) of the FW Act. Based on those findings, the Respondent employed 14 employees at the particular time of the termination of the Applicant’s employment.
Therefore, the Respondent was a small business employer at the time of the Applicant’s dismissal. Accordingly, the Application must be dismissed on the basis that the Applicant is not a person protected from unfair dismissal in relation to his employment with the Respondent.
The Respondent’s jurisdictional objection is upheld. The Application is dismissed. An Order to that effect will be issued with this Decision.
COMMISSIONER
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
14 April, 10 May.
[1] See s.382 and s.383 of the FW Act.
[2] See s.396 of the FW Act.
[3] PR761325.
[4] Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan [2019] FWCFB 5104 at [43].
[5] Exhibit 2 and Exhibit 3. The name of each employee, other than the Applicant and Ms Greyem, has been redacted, The employees are identifiable by reference to their start date, their employment status and Exhibits 2 and 3.
[6] Exhibit 5 at p.4.
[7] Burns v Aboriginal Legal Service of Western Australian (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24]; See also Ayub v NSW Trains[2016] FWCFB 550 at [41].
[8] Exhibit 2.
[9] Exhibit 5 at p.3.
[10] Anderson v James Sutherland (Peterhead) Ltd. [1941] SC 203.
[11] See s.15A of the FW Act.
[12] [2020] FWCFB 306.
[13] [2019] FWCFB 1099.
[14] Exhibit 1 at p.3.
[15] Exhibit 1 at p.10.
[16] Exhibit 1 at p.24.
[17] Exhibit 1 at p.1.
[18] Exhibit 1 at p.12.
[19] Exhibit 1 at p.17.
[20] Exhibit 1 at p.18.
[21] Bronze Hospitality at [22].
[22] Exhibit E1 and Exhibit 3.
[23] [2021] FWC 6304 at [75].
[24] See EL’s hours worked from 5 January 2023 to 14 January 2023; and IL’s hours worked from 13 January 2023 to 16 January 2023.
[25] Bronze Hospitality at [21].
[26] Bronze Hospitality at [21].
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