Mr Nehemiah Kamanda v House with No Steps

[2016] FWC 767

[2016] FWC 767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Nehemiah Kamanda
v
House with No Steps
(U2015/14101)

COMMISSIONER SAUNDERS NEWCASTLE, 5 FEBRUARY 2016

Application for relief from unfair dismissal – jurisdictional objection.

[1] Mr Nehemiah Kamanda (the applicant) commenced employment with the House with No Steps (the respondent) as a casual employee on 17 March 2015. He was engaged to undertake work as a casual employee for the respondent from 17 March 2015 until he became a permanent full-time employee with the respondent on 18 May 2015. The applicant remained in full-time employment with the respondent until his employment was terminated on 28 October 2015.

[2] The respondent contends that the applicant was not protected from unfair dismissal on 28 October 2015 because he had not, at that time, completed at least the minimum employment period with the respondent (s.382(a) of the Fair Work Act 2009 (Cth) (the Act)). This decision relates to the respondent’s jurisdictional objection in relation to the minimum employment period for the applicant.

Relevant legal principles

[3] Sections 383 and 384 of the Act relevantly provide 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.

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; …”

[4] It is the employment that must be on a regular and systematic basis, not the hours worked. 1 However, a clear pattern or roster of hours is strong evidence of regular and systematic employment.2

[5] The absence of any contractual requirement for the employee to work at set times or of any assumption that the employee be present on a daily, weekly or monthly basis unless told otherwise does not preclude a finding that the employee’s engagements were regular and systematic. 3

[6] 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

[7] 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

[8] In Ponce, Commissioner Roe stated (at [76]):

“In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and the employee, then evidence of regular and systematic employment can be established where:

• The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and



• Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.”

[9] I agree with the approach taken by Commissioner Roe in Ponce, subject to the following caveat identified by Vice President Lawler in Burke v Marist Brothers St Joseph’s College t/a St Joseph’s College (at [18]): 9

“That caveat is that one must not treat the summary of Roe C as a substitute for the language of the statute: the ultimate question always remains whether the employment was ‘regular and systematic’ within the meaning of section 384(2)(a) and care must be taken not to invert the test to one which asks the question whether the employment was ‘occasional or irregular’.”

Application of legal principles to the facts

[10] Because the respondent was not a small business employer at the time of the applicant’s dismissal, his minimum employment period was six months (s.383(a) of the Act).

[11] It is not in dispute and I am satisfied on the evidence that the applicant was employed by the respondent as a casual employee in the period from 17 March 2015 until the commencement of his full-time employment on 18 May 2015. In order for any part of that period of service as a casual employee to count towards the applicant’s five months and 11 days’ service as a full-time employee 10, both limbs of s.384(2)(a) must be satisfied.

[12] The applicant’s written contract of employment as a casual employee included the following express terms in relation to his work for the respondent:

“This is a Casual shift worker position; you will be required to work across a rotating four week roster cycle. Rosters may include day shifts, evening shifts and night shifts, and in addition to rostered ordinary hours, there may be sleepover periods. Shifts may be rostered across seven days a week.… From time to time, you may be requested, with reasonable notice, to work additional hours, including attendance at training, subject to any limitations of which you have advised. You may also request to work additional hours if available. However, HWS is not obliged to provide you with any additional hours.”

[13] The evidence revealed that the applicant was rostered as a casual employee to work various shifts across four different rosters (relating to different parts of the business). However, more shifts were worked by the applicant than provided for in the rosters because the applicant was regularly called in to work at short notice to replace other staff. The applicant was “desperate for work and was happy to do whatever shifts we had”.

[14] The applicant agrees with the content of a summary prepared by the respondent in relation to the hours worked by the applicant for the respondent as a casual employee from 17 March 2015 until he became a full-time employee on 18 May 2015 (Summary of Hours). A copy of that Summary of Hours is set out in annexure A to this decision.

[15] The Summary of Hours shows that the applicant undertook induction training on 17 and 18 March 2015, and he worked his first shift as casual employee on Wednesday, 1 April 2015. It is also apparent from the Summary of Hours that, in the period from Monday, 30 March 2015 to Sunday, 17 May 2015:

(a) the applicant was rostered to work between one shift and six shifts per week;

(b) the applicant in fact worked between two and seven shifts per week, having regard to the additional shifts the applicant was called in to work to replace other staff;

(c) the applicant worked between 13 and 51 hours per week; and

(d) there was no pattern to the days the applicant worked each week or the number of hours he worked each week.

[16] On the basis of the evidence summarised in the previous four paragraphs, together with the Summary of Hours, I am satisfied that the applicant’s employment as a casual employee in the period from 30 March 2015 to 17 May 2015 was on a regular and systematic basis, for the following reasons:

(a) First, as a casual employee the applicant was engaged on frequent though unpredictable shifts;

(b) Secondly, the applicant was engaged by the respondent pursuant to a system or method. In particular, the applicant was rostered to work shifts on four different rosters, and he was regularly called into work at short notice when other employees were not available;

(c) Thirdly, the respondent regularly offered work to the applicant when suitable work was available at times when the respondent knew that the applicant had generally made himself available;

(d) Fourthly, work was offered by the respondent and accepted by the applicant sufficiently often that it could no longer be regarded as simply occasional or irregular; and

(e) Fifthly, the pattern of engagement by the respondent of the applicant occurred as a consequence of an ongoing reliance on the applicant’s services as an incident of the business by which he was engaged.

[17] The applicant gave evidence that, during his service as a casual employee with the respondent, he had an expectation of continuing employment by the respondent on a regular and systematic basis. In my view, his expectation in that regard was reasonable for the following reasons:

(a) First, the rosters on which he was placed extended for periods of four weeks each;

(b) Secondly, the respondent regularly called the applicant to fill in for staff who were unavailable;

(c) Thirdly, in the period from Monday, 30 March 2015 to Sunday, 17 May 2015, the applicant worked between 13 and 51 hours per week;

(d) Fourthly, the following express terms of the applicant’s written contract of employment as a casual employee support the reasonableness of his expectation of continuing employment by the respondent on a regular and systematic basis:

• “You acknowledge that during the course of your employment you may, within reason and within the scope of your qualifications and experience, be seconded or transferred to another position with HWNS or to another service location;



• You will commence duties with HWNS Newcastle/Lake Macquarie, Community and Disability Services. However, as noted above, after consultation with you, you may be transferred on a temporary or casual basis to work at different service outlets of the company. This may be required depending on organisational requirements;



• From time to time, you may be asked to travel to alternative locations to attend training or meetings…



• This is a casual shift worker position; you will be required to work across a rotating four week roster cycle. Rosters may include day shifts, evening shifts and night shifts, and in addition to rostered ordinary hours, there may be sleepover periods. Shifts may be rostered across seven days a week;



• From time to time, you may be requested, with reasonable notice, to work additional hours, including attendance at training, subject to any limitations of which you have advised. You may also request to work additional hours if available. However, HWS is not obliged to provide you with any additional hours;



• Your continuing employment with HWNS is conditional upon your completion of a formal orientation and induction program and your ongoing satisfactory performance;



• You will be expected to participate in a formal orientation and induction program upon commencement of your employment. Induction will include a 2 day face to face classroom based [sic] and an online learning program (i-induct). It is an essential requirement of your role that you complete the i-induct online modules within the first 7 days of employment. It is also a requirement that you obtain Certificate 3 in Disability within the first 12 months of your employment. HWNS will provide you with appropriate support to complete this qualification;



• HWNS and you are required to provide two weeks’ notice in writing of the intention to terminate your employment;



• During your employment you will … Acknowledge that HWNS is your primary employer and work solely for HWNS unless the written permission of the CEO has been granted, which will only be granted in circumstances where there is no adverse impact on your employment with HWNS; and



• We look forward to welcoming you to House with No Steps, as an important member of the Hunter Region Community Services team.”

[18] For the reasons set out above, I am satisfied that, in the period from 30 March 2015 to 17 May 2015:

(a) the applicant’s employment as a casual employee was on a regular and systematic basis; and

(b) the applicant had a reasonable expectation of continuing employment by the respondent a regular and systematic basis.

[19] It follows that the applicant’s period of service as a casual employee in the period from 30 March 2015 to 17 May 2015 counts towards his period of employment with the respondent. Once this period is combined with the applicant’s period of service from 18 May 2015 until 28 October 2015 as a full-time permanent employee, it is clear that, at the time of his dismissal, the applicant had completed at least the minimum period of employment (six months, in his case) with the respondent. Accordingly, the respondent’s jurisdictional objection is dismissed and the application may proceed to be dealt with on its merits. The file will be returned to the Unfair Dismissal Case Management Team for directions and listing.

COMMISSIONER

Appearances:

Mr N Kamanda on his own behalf;

Ms K Francis on behalf of the respondent.

Hearing details:

2016.

Newcastle:

February, 4.

Annexure A

Day	Date	Hours	Location	Comment
Tuesday	17 March	6	Edgeworth	Induction training
Wednesday	18 March	6	Edgeworth	Induction training
Thursday	19 March	0	n/a	n/a
Friday	20 March	0	n/a	n/a
Saturday	21 March	0	n/a	n/a
Sunday	22 March	0	n/a	n/a
Monday	23 March	0	n/a	n/a
Tuesday	24 March	0	n/a	n/a
Wednesday	25 March	0	n/a	n/a
Thursday	26 March	0	n/a	n/a
Friday	27 March	0	n/a	n/a
Saturday	28 March	0	n/a	n/a
Sunday	29 March	0	n/a	n/a
Monday	30 March	0	n/a	n/a
Tuesday	31 March	0	n/a	n/a
Wednesday	1 April	5	Flexible S	Rostered
Thursday	2 April	0	n/a
Friday	3 April	3	Flexible S	Rostered
Saturday	4 April	8	Riverview	Rostered
Sunday	5 April	8	Riverview	Rostered
Monday	6 April	0	n/a	n/a
Tuesday	7 April	0	n/a	n/a
Wednesday	8 April	0	n/a	n/a
Thursday	9 April	0	n/a	n/a
Friday	10 April	3	Flexible S	Rostered
Saturday	11 April	11	Flexible/Riverview	2 @ Flexible Rostered / 9 @ Riverview Rostered
Sunday	12 April	0	n/a	n/a
Monday	13 April	0	n/a	n/a
Tuesday	14 April	0	n/a	n/a
Wednesday	15 April	0	n/a	n/a
Thursday	16 April	0	n/a	n/a
Friday	17 April	8	Sandgate	Called at short notice to replace Akinola
Saturday	18 April	0	n/a	n/a
Sunday	19 April	5	Marton	Rostered
Monday	20 April	8	Riverview	Rostered
Tuesday	21 April	5	Marton	Rostered
Wednesday	22 April	2	Flexible	Rostered
Thursday	23 April	8	Riverview	Rostered
Friday	24 April	8	Riverview	Rostered
Saturday	25 April	8	Sandgate	Called at short notice to replace Akinola
Sunday	26 April	8	Sandgate	Called at short notice to replace Akinola
Monday	27 April	9	Marton / Sandgate	1 @ Marton Meeting / 8 @ Sandgate Called at short notice to replace Akinola
Tuesday	28 April	8	Sandgate	Called at short notice to replace Knight
Wednesday	29 April	0	n/a	n/a
Thursday	30 April	10	Marton / Flexible	8 @ Marton Rostered / 2 @ Flexible Rostered
Friday	1 May	8	Sandgate	Called at short notice to replace Akinola
Saturday	2 May	8	Marton	Called at short notice to replace Gorrick
Sunday	3 May	8	Marton	Rostered
Monday	4 May	8	Sandgate	Rostered to replace Akinola
Tuesday	5 May	8	Sandgate	Rostered to replace Akinola
Wednesday	6 May	8	Sandgate	Rostered to replace Akinola
Thursday	7 May	3	Flexible Support	Rostered
Friday	8 May	8	Sandgate	Rostered to replace Akinola
Saturday	9 May	8	Sandgate	Rostered to replace Akinola
Sunday	10 May	0	n/a	n/a
Monday	11 May	8	Marton	Rostered
Tuesday	12 May	8	Sandgate	Rostered to replace Akinola
Wednesday	13 May	8	Marton	Rostered
Thursday	14 May	11	Marton / Flexible Support	Rostered @ Marton / 3 @ Flexible Rostered
Friday	15 May	0	n/a	n/a
Saturday	16 May	0	n/a	n/a
Sunday	17 May	0	n/a	n/a
Monday	18 May	0	n/a	n/a

 1   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)

 2   Ibid

 3   Yakara at [67]

 4   Yaraka at [68]

 5   Yaraka at [68]; cited in Grives v Aura Sports Pty Ltd[2012] FWA 5552 at [32]

 6   Yaraka at [89]

 7   Yaraka at [68]

 8   Yaraka at [69]

 9   [2015] FWC 7324

 10   18 May 2015 to 28 October 2015 inclusive

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