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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr Nehemiah Kamanda v House with No Steps

Details

AGLC: Mr Nehemiah Kamanda v House with No Steps [2016] FWC 767
Case: [2016] FWC 767
Decision Date: 5 FEBRUARY 2016

CaseChat Overview and Summary

Mr Nehemiah Kamanda applied for relief from unfair dismissal against his employer, House with No Steps, before the Fair Work Commission (FWC). The primary dispute was whether the FWC had the jurisdiction to hear Mr Kamanda's application due to the nature of his employment arrangement. The case was heard and determined by Commissioner Wilson. The central legal issue before the court was whether Mr Kamanda's employment constituted an "employee" relationship as defined in the Fair Work Act 2009 (Cth). House with No Steps argued that Mr Kamanda was an independent contractor, not an employee, and thus the FWC lacked jurisdiction over his unfair dismissal claim.

Commissioner Wilson examined the various factors that define an employment relationship, such as the degree of control, the obligation to perform work, and the provision of benefits. The Commissioner found that while Mr Kamanda did not have a traditional employment contract, he was economically dependent on House with No Steps for his income, performed work under their control, and was subject to their instructions. Given these factors, the Commissioner concluded that Mr Kamanda was indeed an employee, thereby granting the FWC jurisdiction to hear his unfair dismissal application. As a result, the objection to the FWC's jurisdiction was dismissed.

Orders