Mr Scott Imrie v Steel Cement Pty Ltd T/A Steel Cement

[2019] FWC 6961

[2019] FWC 6961

FAIR WORK COMMISSION

DECISION

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

Mr Scott Imrie
v
Steel Cement Pty Ltd T/A Steel Cement
(U2019/8744)

DEPUTY PRESIDENT MASSON MELBOURNE, 15 OCTOBER 2019

Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – whether period of casual employment counts towards minimum employment period – whether engaged on a regular and systematic basis

Introduction and background

[1] On 8 August 2019, Mr Scott Imrie (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Steel Cement Pty Ltd t/a Steel Cement (the Respondent) was unfair.

[2] The Applicant was engaged as a casual employee with the Respondent in the period from 14 November 2018 to 28 February 2019 and was then engaged on a permanent full-time basis commencing 1 March 2019 until his dismissal on 2 August 2019.

[3] The Respondent objects to the application being heard on the basis that the Applicant’s period of service did not meet the minimum employment period and as a consequence the Applicant is not a person protected by the unfair dismissal provisions of the Fair Work Act 2009 (Cth) (the Act).

[4] Determination of the Respondent’s jurisdictional objection was set down for a hearing on 11 October 2019.

[5] The Applicant appeared on his own behalf and gave evidence. The Respondent was represented by Mr Sam Eichenbaum of Rigby Cook Lawyers who was granted permission to appear pursuant to s. 596 of the Act. The Respondent called two witnesses;

•  Mr Andrew McFarlane – Site Manager for the Respondent at its Yarraville site; and

•  Ms Sarah Rowley – Organisational Development Manager for Independent Cement and Lime Pty Ltd.

[6] The Respondent operates a manufacturing facility at Yarraville, Victoria which primarily supplies Independent Cement and Lime Pty Ltd with cementitious materials. There are 11 employees engaged by the Respondent on the site at which the Applicant was employed prior to his dismissal.

[7] The Applicant applied for a position advertised on SEEK 1 by the Respondent and subsequently accepted an offer of casual employment dated 17 October 2018 and commenced as a casual Operator Maintainer on 14 November 2018.2 The offer was attached to an email from Ms Rowley dated 17 October 2018 which stated as follows;

‘Hi Scott

Please find attached a copy of your offer and the Agreement.

I’ve put you in at Level 4 Casual until we move to a new Agreement. This rate will also attract all the penalties described in the Agreement including the 15% shift penalty.

We should finalise the interim roster in the next few days, but first, we’ll get you to work 3 days a week, predominantly Wednesday, Thursday, Friday. Please let me know if this works for you until we can put you onto a full roster.

…………….’ 3

[8] The Applicant accepted an offer of permanent employment dated 27 February 2019 and commenced on a permanent full-time basis on 1 March 2019 as an Operator Maintainer. 4

[9] In the period from 14 November 2018 to 28 February 2019 the Applicant, whilst engaged as a casual employee, worked the following hours; 5

Pay week ending	Date Worked	Weekday Worked	Hours of work	Ordinary Hours	Overtime Hours	Total Hours Worked
20/11/18	14/11/18	Wednesday	7.30 – 19.30	12
15/11/18	Thursday	7.30 – 19.30	12
16/11/18	Friday	7.30 – 19.30	12
36	36
27/11/18	22/11/18	Wednesday	7.30 – 19.30	12
23/11/18	Thursday	7.30 – 19.30	12
24/11/18	Friday	7.30 – 19.30	12
25/11/18	Saturday	10.00 – 17.00	7
36	7	43
4/12/18	28/11	Wednesday	7.30 – 19.30	12
29/11/18	Thursday	7.30 – 19.30	12
30/11/18	Friday	7.30 – 19.30	12
2/12/18	Sunday	12.00 – 17.30	5.5
36	41.5
11/12/18	5/12/18	Wednesday	7.30 – 19.30	12
6/12/18	Thursday	7.30 – 19.30	12
7/12/18	Friday	7.30 – 19.30	12
36	36
18/12/18	12/12	Wednesday	7.30 – 19.30	12
13/12	Thursday	7.30 – 19.30	12
14/12	Friday	7.30 – 19.30	12	.5
18/12	Tuesday	7.30 – 19.30	12
36	12.5	48.5
25/12/18	19/12/18	Wednesday	7.30 – 19.30	12
20/12/18	Thursday	7.30 – 19.30	12
21/12/18	Friday	7.30 – 19.30	12
36	36
1/1/19	26/12/18	Wednesday	7.30 – 19.30	P/H
27/12/18	Thursday	6.00 – 18.00	12
28/12/18	Friday	6.00 – 18.00	12
29/12/18	Saturday	6.00 – 18.00	12
30/12/18	Sunday	6.00 – 18.00	12
31/12/18	Monday	6.00 – 18.00	12
36	24	60
8/1/19	2/1/19	Wednesday	6.00 – 18.00	12
3/1/19	Thursday	6.00 – 18.00	12
4/1/19	Friday	5.00 – 13.00	8
7/1/19	Monday	6.00 – 18.00	12
8/1/19	Tuesday	6.00 – 18.00	12
36	20	56
15/1/19	9/1/19	Wednesday	6.00 – 18.00	12
10/1/19	Thursday	6.00 – 18.00	12
11/1/19	Friday	6.00 – 18.00	12
12/1/19	Saturday	6.00 – 16.00	10
13/1/19	Sunday	7.00 – 15.00	8
36	18	54
22/1/19	16/1/19	Wednesday	7.30 – 19.30	12
17/1/19	Thursday	10.30 – 19.30	9
18/1/19	Friday	7.00 – 18.30	11.5
21/1/19	Monday	8.30 – 13.00	3.5	1
36	1	37
29/1/19	23/1/19	Wednesday	7.30 – 19.30	12
24/1/19	Thursday	7.30 – 19.30	12
25/1/19	Friday	7.30 – 19.30	12
26/1/19	Saturday	7.30 – 19.30	12
27/1/19	Sunday	7.30 – 19.30	12
36	24	60
5/2/19	30/1/19	Wednesday	19.30 – 7.30	12
31/1/19	Thursday	19.30 – 7.30	12
1/2/19	Friday	19.30 – 7.30	12
3/2/19	Sunday	7.30 – 19.30	12
36	12	48
12/2/19	6/2/19	Wednesday	6.30 – 19.30	12	1
7/2/19	Thursday	7.30 – 19.30	12
8/2/19	Friday	7.30 – 19.30	12
36	1	37
19/2/19	13/2/19	Wednesday	7.30 – 19.30	12
14/2/19	Thursday	7.30 – 19.30	12
15/2/19	Friday	7.30 – 19.30	12
16/2/19	Saturday	7.30 – 19.30	12
17/2/19	Sunday	7.30 – 19.30	12
36	24	60
26/2/19	20/2/19	Wednesday	7.30 – 20.30	12	1
21/2/19	Thursday	7.30 – 19.30	12
22/2/19	Friday	7.30 – 19.30	12
36	1	37
1/3/19	27/2/19	Wednesday	7.30 – 19.30	12
28/2/19	Thursday	7.30 – 19.30	12
24	24

[10] The Applicant’s employment was terminated by the Respondent on 2 August 2019. The Applicant received a week’s pay in lieu of notice. The stated reason for the dismissal was confirmed by Mr McFarlane as follows in a letter dated 9 August 2019;

“…..

I confirm that we have decided not to continue your employment beyond your minimum employment period due to performance and conduct reasons.

……..” 6

[11] The Applicant was covered by the following enterprise agreements during his employment with the Respondent;

•  Steel Cement (Yarraville) Enterprise Agreement 2016 7(the 2016 Agreement) which was terminated by the Commission pursuant to a s. 222 application, such termination taking effect from1 March 2019.8

•  Steel Cement (Yarraville) Enterprise Agreement 2019-2022 9(the 2019 Agreement) which commenced operation on 1 March 2019.

Statutory framework

[12] An application for an unfair dismissal remedy is made pursuant to s 394 of the Act. Section 394(1) reads as follows:

“394 Application for unfair dismissal remedy

A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.”

[13] If a person has been dismissed in terms of the Act, the Commission must then consider certain matters before proceeding to deal with the merits of an application. There is no contest that the Applicant was dismissed. Evidence of this was plain by virtue of the letter of dismissal dated 9 August 2019.

[14] The initial matters to be considered are contained in s.396 of the Act as follows:

“396 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 396(b) requires the Commission to consider whether the person making the application is protected from unfair dismissal.”

[15] In so far as this application is concerned s 382(a) of the Act addresses this 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.”

[16] A “period of employment” is defined in s 384 of the Act which provides:

“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.”

[17] The “minimum employment period” is defined in s 383 of the 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 “minimum employment period” is one year for a small business or 6 months for an employer which is not a small business.”

[18] It is not contested, and I am satisfied that the application was made within the required 21 days, and that the Applicant was employed as a casual employee prior to his employment on a permanent full-time basis which commenced on 1 March 2019. The Respondent does not claim to be, and I am satisfied that it is not a small business employer and there is no dispute as to the date that the Applicant commenced casual employment with the Respondent being 14 November 2018.

[19] I must therefore consider whether any of the service of the Applicant as a casual employee in the period from 14 November 2018 to 28 February 2019 can be counted in the Applicant’s period of employment. To do so, I must consider whether the Applicant was employed on a regular and systematic basis and whether during that period of service as a casual employee, had a reasonable expectation of continuing employment on a regular and systematic basis.

[20] If I find in the affirmative for all or any of his service, I must consider then whether the period of service as casual employee when aggregated with Applicant’s period of service as a permanent employee, amounted to a period of employment that is at least the minimum employment period of six months.

Case for the Respondent

Evidence of Mr Andrew McFarlane

[21] Mr McFarlane is the Site Manager for the Respondent at the Yarraville site. He states that the Applicant was engaged on a casual basis as an Operator Maintainer for approximately 16 weeks prior to his accepting an offer of permanent employment as an Operator Maintainer commencing on 1 March 2019. During his period of casual employment he was normally rostered to work Wednesday-Friday of each week on a 12-hour shift basis between the hours of 7.30am and 7.30pm. 10 On commencement as a casual employee, the Applicant was required to undertake training for approximately 9 weeks which involved him being paired up with a more experienced operator. In addition to his standard rostered shifts of Wednesday-Friday he also picked up additional shifts from time to time.11

[22] Mr McFarlane also states that the Yarraville site shuts down for approximately 3 weeks over the Christmas-New Year period each year during which shutdown period maintenance work is undertaken. 12 The plant was shut down from 27 December 2018 until 13 January 2019 during which period the Applicant worked additional shifts and some different hours.13

[23] Mr McFarlane states that from mid-January 2019 following the Christmas-New Year shutdown the Applicant started to inquire about securing permanent full-time employment and approached Mr McFarlane on a number of occasions. Mr McFarlane states that he advised the Applicant in response to his inquiries that the Respondent would not be able to offer permanent employment to current casuals until approval of the 2019 Agreement which, while lodged on 21 January 2019, was yet to be approved by the Commission. 14

[24] Mr McFarlane also states that another reason why the Applicant was not offered permanent employment sooner was because of concerns he held regarding the Applicant’s work performance based on feedback he received from the Applicant’s direct supervisor Mr Vernon Brilliant who is the Shift Supervisor at Yarraville. 15 Those concerns were raised in an email exchange with Ms Rowley on 15 & 16 January 201916 but were not raised with the Applicant.17

[25] Separate decisions were issued by the Commission on 11 February 2019 which terminated the 2016 Agreement and approved the 2019 Agreement, both decisions taking effect from 1 March 2019. Following those Commission decisions Mr McFarlane offered permanent employment to another casual employee, Mr Rob Hall, on or around 15 February 2019 and subsequently offered the Applicant permanent employment on 27 February 2019, despite some concerns he claims to have still held with respect to the Applicant. 18

[26] During his examination in chief and cross-examination Mr McFarlane gave the following evidence;

•  That he didn’t recall using the term ‘full time position requirements’ as claimed by the Applicant when describing the casual role being filled during the interview of the Applicant on 11 October 2018.

•  He asked the Applicant during the job interview why he was leaving his current role to which the Applicant responded that he was experiencing issues with his current role and employer.

•  Acknowledged that he had a conversation with the Applicant on 25 January 2019 regarding when the 2019 Agreement would come into operation but denied that he advised him at that point that the 2019 Agreement would come into operation on 1 March 2019. This was because at that stage the Agreement had not been approved by the Commission.

•  Confirmed that the Applicant filled one of 8 required Operator Maintainer positions during his period of casual employment.

•  He further outlined that prior to the 2019 Agreement coming into operation on 1 March 2019, 7-day operations coverage was achieved through a combination of ordinary rostered hours over 5 days per week and overtime on the other two days. This working arrangement was due to the rostering limitations of the 2016 Agreement that were subsequently remedied in the 2019 Agreement, which provided for 24 hours per day 7 days per week rostering of ordinary hours of work.

•  Confirmed that the main barrier to the Applicant’s employment on a permanent basis when he commenced as a casual employee was that the 2019 Agreement had not been finalised and approved by the Commission.

•  Confirmed the Applicant’s evidence 19 that a roster attached to an email from Mr McFarlane20 was provided to all 8 of the Operator Maintainers on 18 February 2019 with advice that the roster would come into operation on 1 March 2019.

•  Provision of the roster on 18 February 2019 followed approval of the 2019 Agreement by the Commission on 11 February 2019. Mr McFarlane confirmed to the 8 Operator Maintainers in his email that the hours of work would be rostered on the basis of 7 days on 7 days off 7 nights 7 days off (7D7O7N7O). Mr McFarlane denied that the provision of the roster projected out over a 3-year period constituted a guarantee of employment to the Applicant.

Evidence of Ms Sarah Rowley

[27] Ms Rowley is the Organisational Development Manager for Independent Cement and Lime P/L (ICL) which is the parent company of the Respondent. She confirmed that the ICL group of companies employs 96 employees in total including those employed by the Respondent at the Yarraville site. 21 Ms Rowley gave evidence as to her involvement in the employment of the Applicant which may be summarised as follows;

•  She first met the Applicant on or around 11 October 2019 prior to an interview involving Mr McFarlane and Mr Brilliant. 22

•  Prior to that interview she had spoken with the Applicant by telephone and had repeatedly advised him that the Operator Maintainer position was only available on a casual basis. 23

•  She also advised the Applicant during the above-referred telephone conversation that the Respondent was in the middle of negotiations for a new enterprise agreement, which contained significant changes to shift rosters that would enable continuous 24 hours a day, 7 days a week operations. 24

•  On 17 October 2019 Ms Rowley telephoned the Applicant and offered him the casual Operator Maintainer position and advised him that he would initially be required to work Wednesday to Friday on 12-hour shifts. 25

•  The casual employment offer was sent to the Applicant on 17 October 2018.

•  On or around the 19 October 2018 the Applicant provided a tax file number declaration in which he ‘checked’ the casual employment box. 26

•  Ms Rowley confirmed the email chain between herself and Mr McFarlane that occurred on 15 & 16 January 2019 in which Mr McFarlane raised some concerns about the Applicant. 27

•  In mid-January 2019 the Applicant contacted Ms Rowley and asked whether he would be offered ongoing or permanent employment to which she responded that the Respondent was still finalising the new enterprise agreement and that a decision on his employment was a matter for Mr McFarlane. 28

•  Ms Rowley participated in a meeting on or around 22 February 2019 at which Mr McFarlane advised that he had decided to offer the Applicant permanent full-time employment with the Respondent. 29

[28] Ms Rowley also states that in preparing the casual employment letter for the Applicant she made an error in referring to ‘engagement on a full-time basis’, which she attributed to her use of a template document previously used to prepare a permanent full-time offer of employment. She further states that she made that same error in preparing an employment offer for another casual employee, Mr Rob Hall, who was offered casual employment just prior to the Applicant. 30

[29] During her examination in chief and cross-examination Ms Rowley gave the following further evidence;

•  Confirms that the position initially advertised, to which the Applicant applied, was that of a permanent position of Operator Maintainer to be rostered on a rotating 7-day basis (i.e. 7D7O7N7O). The Company realised it was unable to move forward at that stage with a permanent position due to the new enterprise agreement not having been finalised. Consequently, Ms Rowley contacted 4 persons, including the Applicant, who had applied for the position to advise them the position would only be offered on a causal basis rather than permanent. She states that the Applicant confirmed his understanding of this and his continued interest in the role.

•  Denies having told the Applicant on commencement of his employment that he would only be a casual employee for a ‘couple of weeks’ while the Respondent was finalising the new enterprise agreement.

•  Can’t recall stating to the Applicant that ‘we all want this to be a long term partnership’, as claimed by the Applicant, when she was explaining the 6-month probationary period to the Applicant.

•  Denies having told the Applicant that his leave would accrue from commencement of his employment as a casual employee, and states that the annual leave accrual of 5.3 days as at 15 March 2019 shown on a payslip of the Applicant dated 28 March 2019, was a payroll error that was corrected when the Applicant was terminated.

•  States that when asked by her for the reasons why he was wanting to leave his current job, the Applicant advised her that there were ‘a few internal dramas/politics’ and that he was ‘walking away before it gets out of control’. Ms Rowley refers to a calendar invite 31 sent to Mr McFarland and Mr Brilliant for the interview with the Applicant on 11 October 2018 that included reference to those reasons for the Applicant wanting to leave his current job.

•  Confirmed that the main barrier to the Applicant’s employment on a permanent basis was that of the necessary finalisation and approval of the 2019 Agreement.

Respondent submission

[30] The Respondent accepts that the Applicant’s period of service of approximately 5 months as a permanent employee from 1 March 2019 until his dismissal on 2 August 2019 counts as service towards establishing whether the Applicant has met the minimum employment period of 6 months. The Respondent also concedes that the 16-week period of the Applicants casual employment reveals a regular and systematic basis of engagement.

[31] The Respondent contends however that the Applicant’s period of service as a casual employee does not count as service when considering whether he has met the minimum employment period of 6 months. The Respondent submits that the whole, or if that is not accepted the great majority of the Applicant’s employment on a casual basis, does not count as service for the purpose of considering whether the Applicant has met the MEP of 6 months, as the Applicant could not have had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[32] The Respondent makes the following points as to why the Applicant could not have had a reasonable expectation of continuing employment by the employer on a regular and systematic basis during his period of casual engagement;

•  The Applicant’s evidence that he would not have left a secure job for an insecure job should not be accepted having regard to the Respondent’s witness evidence as to the real motivation for the Applicant wishing to leave his previous job. This undermines the Applicant’s evidence as to his expectation of gaining a permanent role on commencement of his casual employment with the Respondent.

•  The inherent improbability of Ms Rowley having advised the Applicant that he would only be employed on a casual basis for a few weeks in circumstances where finalisation and approval of the 2019 Agreement was likely to take much longer than that.

•  That the offer of permanent employment to another casual employee, Mr Rob Hall, on 15 February 2019, and the period of several days delay before the Applicant’s offer of permanent employment, would have caused the Applicant to doubt whether he would be employed on a continuing basis.

•  The uncertainty as to the timing of the finalisation and approval of the 2019 Agreement and that the delays routinely experienced in enterprise agreement approvals by the Commission in 2018 and early 2019 would have required a brave prediction on the part of the Respondent that the Applicant would only have been engaged on a casual basis for a short period of time.

[33] The Respondent submits that taken at its highest the earliest point at which the Applicant could have had a reasonable expectation of continuing employment on a regular and systematic basis was that of 11 February 2019, when the 2019 Agreement was approved by the Commission. Such approval allowed the Respondent to implement the desired operational roster of 7D7O7N7O on commencement of operation of the Agreement on 1 March 2019. If it were accepted by the Commission that the Applicant’s service as a casual employee from that date was included for the purpose of the Applicant’s period of employment the total period of employment from 11 February to 2 August 2019 still falls short of the required 6-month minimum employment period.

Case for the Applicant

[34] The Applicant contends that during the period from 14 November 2018 to 28 February 2019 he was a casual employee who was employed on a regular and systematic basis and during that period of service as a casual employee, did have a reasonable expectation of continuing employment on a regular and systematic basis. He further submits that period of engagement as a casual employee should be counted for the purpose of determining whether his period of employment met the required 6-month minimum employment period.

Evidence of Applicant

[35] The Applicant states that he initially applied for a permanent role as an Operator Maintainer with the Respondent on a rotating 7D7O7N7O roster, but was told the exact roster would be subject to Commission approval of a new enterprise agreement. 32 The Applicant states that when discussing the role with Ms Rowley she advised him of a 6 month probation period to which he responded that he understood that companies like to ‘try before they buy’, to which he claims Ms Rowley then responded by reassuring him that ‘we all want this to be a long term partnership’.33

[36] He further states that he was contacted by telephone by Ms Rowley on 17 October 2018 and was advised that he was successful in obtaining the full-time Operator Maintainer position, but would start on a casual basis pending approval of the new enterprise agreement. According to the Applicant Ms Rowley told him not to be concerned regarding his initial engagement on a casual basis as his probation, annual leave, sick leave etc would start accruing from his commencement as a casual employee. 34

[37] The Applicant provided a screenshot of his accrued leave entitlements obtained following his dismissal which he states shows that he accrued leave throughout his employment with the Respondent including the period of his casual employment from 14 November 2019. 35 He also refers to payslips dated 1 August 201936 and 28 March 201937 which show annual leave accruals respectively of 11.35 days as at 1 August 2019 and 5.3 days as at 28 March 2019. The Applicant states that Operator Maintainers receive 12 working days annual leave each year which means the accruals shown on the payslips included must have included annual leave accrued in the period of his casual employment.

[38] The Applicant referred in his evidence to his time sheets which reveal the regular pattern of 12-hour shifts he worked on Wednesday-Friday of each week, plus the regular overtime he worked during his period of casual employment. 38

[39] As regards his expectation of ongoing employment the Applicant states that he initially applied for the permanent role of Operator Maintainer that was advertised but was subsequently employed on a casual basis, he states, for an ‘interim period’. He also confirmed that he had approached Mr McFarlane during January 2019, to inquire about the permanent position and when the new enterprise agreement was coming into effect. He states that at no stage during his employment were any concerns regarding his performance raised with him. 39

[40] The Applicant states that he received a copy of the proposed new 7D7O7N7O roster on 18 February 2019 which showed that he was rostered on for the next three years. He further states that following Mr Hall’s receipt of an offer of permanent employment in February 2019, he also expected to receive an offer of permanent employment which he subsequently received on 27 February 2019. 40

[41] During his cross-examination the Applicant gave the following evidence;

•  Confirmed that the advice Ms Rowley gave him when initially discussing the role in October 2018 was that he would be engaged on a casual basis pending finalisation of the new agreement which would allow implementation of the 7D7O7N7O roster. He also denied that Ms Rowley suggested that because the advertised permanent position could not be progressed that he may consider withdrawal of his application.

•  Stated that Ms Rowley advised him that the casual role would only be on an interim basis for a few weeks.

•  Confirmed that he was offered the casual position pending the new enterprise agreement being approved. In doing so he resisted the proposition put to him that Ms Rowley made no representations to him as to when the 2019 Agreement would come into operation.

•  Confirmed that he spoke with Mr McFarlane on 25 January 2019 as to when the 2019 Agreement would come into operation but rejected the proposition put to him that he must have harboured doubts about securing continuing employment. The Applicant states that any doubts he held were confined to the timing of his move to permanent employment.

•  He further confirmed that he was aware that Mr Rob Hall received an offer of permanent employment on 15 February 2019 and rejected the proposition that the delay in his receiving a permanent offer of employment until 27 February 2019 caused him to doubt that he would be employed on a continuing basis. He also referred to the operational need for his full-time role to be filled and that at no stage during his period of casual employment had any concerns been raised with him regarding his work performance.

Consideration

[42] I turn now to consider whether any of the service of the Applicant as a casual employee in the period from 14 November 2018 to 28 February 2019 can be counted in the Applicant’s period of employment. To do so, I must consider whether the Applicant was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis.

[43] The meaning of the term “regular and systematic” was considered by Jones C in Harry Grives v Aura Sports Pty Ltd 41 where he stated as follows:

“[29] The Macquarie Dictionary meaning of ‘regular’ relevantly includes:

1. Usual; normal; customary

2. Recurring at fixed time; periodic

3. Observing fixed times or habits

The Macquarie Dictionary meaning of ‘systematic’ relevantly includes:

1. Having, showing or involving a system, method or plan

2. Characterised by a system or method; methodical

3. Arranged in or comprising an ordered system 

[30] The Court of Appeal, Australian Capital Territory, in Yaraka Holdings Pty Ltd v Giljevic considered a deeming provision applicable to independent contractors which, in part, deemed an individual to have been employed by an employer if the engagement ‘has been on a regular and systematic basis.’ It should be noted that the deeming provision included matters which should be considered in determining whether an engagement has been on a regular and systematic basis. The following extracts from the judgements of the majority are instructive. Crispin P and Gray J noted:

It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulations under the Workplace Relations Act 1996 (Cth), particularly reg 30B, and this concept has been considered by industrial tribunals in a number of cases.

[31] Their Honours noted that:

...it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. 

[32] Relevantly, their Honours observed in relation to the meaning of ‘regular’ that:

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”.

and formed the view that the pattern of engagement of the individual in question over the years from 1995 to 2002 satisfied this description.

[33] In respect of the meaning of ‘systematic’, their Honours held:

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. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses.

[34] Madgwick J concurred with the majority. In a separate judgement, his Honour considered examples provided in the relevant statute of ‘individuals who are workers’ concluding that ‘the meaning to be ascribed to (the deeming provision) is conditioned by the examples.’  Accordingly, his Honour stated:

It is clear from the examples that 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.

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 3^rd edn, 2001). 

[35] The finding as to whether employment is regular and systematic is a discretionary one having regard to the totality of the evidence. Setting out factors which dictate a finding one way or another is to be avoided, particularly so given the Act is silent as to the matters to be considered.” (citations removed)

[44] In the 16-week period of his engagement as a casual employee, the Applicant consistently worked a pattern of ordinary hours of 12-hour day shifts on each Wednesday, Thursday and Friday in 15 of those 16 weeks. On the one other week (that being the pay week ending 5 February 2019) he worked three 12-hours night shifts. In addition to his ordinary rostered hours the Applicant also worked overtime hours from time to time. Aside from the final pay week ending 1 March 2019 during which week he transitioned from casual to permanent employment, there was no week in which the Applicant worked less than 36 hours.

[45] I am satisfied that the Applicant’s hours of work as shown at [9] above disclose a pattern of engagement that is unarguably on a regular and systematic basis. While there was some variation from week to week, that was attributable to additional overtime he worked. The Applicant’s hours of work had a high degree of predictability and there was an ongoing reliance upon the Applicant’s services given the position he filled on the operational roster.

[46] I am consequently satisfied that the Applicant was engaged as a casual employee on a regular and systematic basis in the period from 14 November 2018 to 28 February 2019.

[47] Before turning to consider whether during that period of service as a casual employee the Applicant had a reasonable expectation of continuing employment on a regular and systematic basis, it is useful to lay out the timing of certain events;

•  11 October 2018 – Applicant was interviewed for the role with the Respondent.

•  17 October 2018 – Formal offer of casual employment sent to and accepted by the Applicant.

•  14 November 2018 – Applicant commenced employment on a casual basis.

•  16 January 2019 – Employees vote to approve the 2019 Agreement.

•  22 January 2019 – Application for approval of the 2019 Agreement filed in the Commission.

•  31 January 2019 – Employees vote to terminate the 2016 Agreement.

•  5 February 2019 – Application to terminate the 2016 Agreement filed in the Commission.

•  11 February 2019 – Commission approves the termination of the 2016 Agreement with effect from 1 March 2019.

•  11 February 2019 – 2019 Agreement is approved by the Commission.

•  27 February 2019 – Applicant offered permanent employment.

•  1 March 2019 – 2016 Agreement ceases to operate due to its termination by the Commission and the 2019 Agreement comes into operation.

•  1 March 2019 - Applicant commences permanent employment in accordance with the terms of the 2019 Agreement and on the new 7D7O7N7O roster.

[48] I am satisfied based on Ms Rowley’s evidence that the position initially advertised for which the Applicant applied was for a permanent Operator Maintainer position which arose from the need of the Respondent to fill one of 8 roles on its operations roster. While no explanation was provided by the Respondent as to why that permanent position was originally advertised in circumstances where on its own evidence it (the permanent position) was subject to finalisation and approval of the 2019 Agreement, it is clear that the Respondent felt unable to proceed with the permanent role at that stage and advised the Applicant accordingly. There is no contest that the Applicant subsequently received and accepted an employment offer on the 17 October 2018 for the position of Operator Maintainer and commenced on a casual basis on 14 November 2018.

[49] The Applicant’s evidence is that he accepted the casual role based on advice from Ms Rowley of it being for an interim period pending finalisation and approval of the 2019 Agreement which was under negotiation at the time. The Applicant’s evidence on this point was not challenged in my view and is to a certain extent corroborated by the evidence of both Mr McFarlane and Ms Rowley, to the effect that the key barrier to the employment of the Applicant on a permanent basis was that the new enterprise agreement needed to be finalised and approved by the Commission.

[50] There was an absence of persuasive evidence to rebut the Applicant’s version of events, that being he accepted the casual role on the understanding that it was on an interim basis pending finalisation and approval of the 2019 Agreement by the Commission. The email from Ms Rowley to the Applicant of 17 October 2019 is also telling in my view where she says as follows;

‘…..

I’ve put you in at Level 4 Casual until we move to a new Agreement. This rate will also attract all the penalties described in the Agreement including the 15% shift penalty.

……….’

[51] The agreement making process was apparently underway on commencement of the Applicant’s employment in November 2018 culminating in the vote to approve the 2019 Agreement on 16 January 2019, filing of the application for its approval by the Commission on 22 January 2019 and approval of the 2019 Agreement by the Commission on 11 February 2019. While I accept that prior to 11 February 2019 there was some doubt as to the timing of the approval and commencement of the 2019 Agreement, I am satisfied that it was clear both on commencement of the Applicant’s period of casual employment and throughout the following 16-week period that a move to permanent employment was, performance issues aside, subject to finalisation and approval of the 2019 Agreement.

[52] The Respondent raises the uncertainty of the timing of Commission approval of the 2019 Agreement in challenging whether the Applicant could have held a reasonable expectation of continuing employment on a regular and systematic basis. That uncertainty however is not significant in my view as the issue was, on the evidence before me, more one of if not when the Applicant would move to permanent employment. I found the Applicant’s evidence convincing and to be preferred on this point as was his rejection of the proposition put to him during cross-examination that he must have held doubts about his continuing employment. I am not persuaded that the uncertainty of the timing of approval of the 2019 Agreement, to which the Applicant’s move to permanent employment was clearly linked, diminished the expectation the Applicant reasonably held of continuing employment on a regular and systematic basis pending permanent employment being offered.

[53] In the above circumstances, given both the information provided to the Applicant on commencement of his casual employment and the progressive finalisation and approval of the 2019 Agreement, I am satisfied that the Applicant held a reasonable expectation of continuing employment on a regular and systematic basis pending his move to permanent employment subject to approval of the 2019 Agreement. Furthermore, I am satisfied that the Applicant’s reasonable expectation was held throughout the period of his engagement as a casual employee.

[54] My findings in respect of the reasonable expectation held by the Applicant is fortified by the following;

•  The Applicant was initially engaged on a full-time casual basis and filled a required position on the operational roster during his period of casual engagement.

•  The casual role on the ‘interim’ roster was not a super numeri position, but a required operational position, one of 8 positions that would continue to be required under the proposed new 7D7O7N7O roster that was ultimately implemented on 1 March 2019.

•  The Applicant undertook a period of 9 weeks on the job training on commencement of his casual employment.

•  He was not spoken to regarding any performance concerns held by the Respondent during his 16-week period of casual employment.

•  He received a copy of the proposed new 7D7O7N7O roster on 18 February 2019 following approval by the Commission of the 2019 Agreement on 11 February 2019. It was stated that the new roster, on which the Applicant was identified, would commence on 1 March 2019.

•  Feedback from Mr McFarlane to the Applicant from mid-January 2019 in response to the Applicant’s inquiries that the Respondent would be unable to offer permanent employment to current casual employees until the 2019 Agreement was approved.

•  Ms Rowley’s lack of recollection as to a key statement attributed to her by the Applicant that was made during discussions about the Applicant’s probationary period when she is said to have commented to the Applicant ‘we all want this to be a long term partnership’.

[55] As regards the Respondent’s submission that I should take into account the evidence of Mr McFarlane and Ms Rowley as to the motivation of the Applicant in wanting to leave his former job in reaching a finding that the Applicant could not have had a reasonable expectation of continuing employment I make the following comments.

[56] I accept that the evidence reveals that the Applicant was motivated to leave his previous job because of a ‘few internal dramas/politics’ he was experiencing. It does not however provide evidence that those issues were so significant as to motivate the Applicant to sacrifice a stable secure role for an insecure role with little or no certainty with the Respondent. The Applicant resisted such a proposition and reaffirmed his evidence, which I accept, that he took the casual role with the Respondent on the understanding that it was for an interim period pending finalisation and Commission approval of the 2019 Agreement

[57] At this point I would make some short observations regarding certain evidence of the Respondent that I found unsatisfactory or unconvincing.

[58] As regards the drafting error referred to by Ms Rowley in respect of the Applicant’s initial employment contract dated 17 October 2018, in which she described the casual engagement as on a ‘full-time basis’ and which error was also reflected in the casual employment offer provided to Mr Rob Hall, I found the explanation unconvincing and unhelpful. The reality is that the hours of work for which the Applicant was initially rostered, albeit while engaged as a casual employee, were in fact on a full-time basis as made clear by the hours analysis summarised at paragraph [9] above.

[59] Ms Rowley also claimed that an error had been made in relation to the annual leave accrual for the Applicant’s period of casual employment which she states was corrected on termination of the Applicant’s employment. While the opportunity was clearly available, no documentary evidence was presented by Ms Rowley to confirm the quantum of the correction claimed to have been made. In any case Ms Rowley’s evidence is unhelpful to the Respondent because, if such a correction was made, it occurred at the end of the Applicant’s employment. It does not assist the Respondent rebut the Applicant’s evidence as to what his reasonable expectation of continuing employment on a regular and systematic basis may have been on commencement and during his period of casual employment.

[60] Whether the Applicant’s annual leave accrual was corrected on termination or not, it is plainly apparent that the Applicant’s payslips reveal that annual leave accrued during his period of casual employment. This supports the Applicant’s evidence as to what Ms Rowley stated to him on commencement of his casual employment with respect to leave accruals. This further supports my conclusion regarding the reasonable expectation that the Applicant held of continuing employment on a regular and systematic basis pending permanent employment being offered.

[61] I am satisfied based on the above that, the Applicant had a reasonable expectation during his 16-week period of service as a casual employee of continuing employment on a regular and systematic basis pending his move to permanent employment. That period of service as a casual employee must therefore be considered in determining whether the total period of service of the Applicant amounted to a period of employment that is at least the minimum employment period of six months.

Conclusion

[62] In all the circumstances, I conclude that the Applicant was engaged as a casual employee on a regular and systematic basis in the period from 14 November 2018 to 28 February 2019 and that during his period of service as a casual employee, had a reasonable expectation of continuing employment on a regular and systematic basis.

[63] When the Applicants 16-week period of service on a casual basis is aggregated with his 5-month period of service as a permanent employee, the period of employment is in excess of 8 months, that being from 14 November 2018 to 2 August 2019. The period of the Applicant’s employment was therefore in excess of the minimum period of employment of six months at the time of his dismissal as required by s 382 of the Act.

[64] The jurisdictional objection of the Respondent is dismissed. The application will be referred for further programming by the Commission

DEPUTY PRESIDENT

Appearances:

S. Imrie on his own behalf.

S. Eichenbaum on behalf of the Respondent.

Hearing details:

2019
Melbourne

October 11

Printed by authority of the Commonwealth Government Printer

<PR713146>

 1   Exhibit R2, SEEK Advertisement for Maintenance Fitter – Cement Materials

 2   Exhibit R1, Witness Statement of Ms Sarah Rowley, dated 20 September 2019, Annexure SR2

 3   Ibid, Annexure SR5, Email from Ms S Rowley to Mr Scott Imrie dated 17 October 2019 - Casual employment offer

 4   Ibid, Annexure SR3

 5   Exhibit R4, Witness Statement of Mr Andrew McFarlane, dated 23 September 2019, Annexure AM1

 6   Exhibit R8, Scott Imrie Termination of Employment, dated 9 August 2019

 7   PR585772

 8   [2019] FWC821

 9   PR704800

 10   Exhibit R4 at paragraph [16]

 11   Ibid at paragraph [21]

 12   Ibid at paragraph [22]

 13   Ibid at paragraph [26]

 14   Ibid at paragraphs [29] – [31]

 15   Ibid at paragraph [33]-[34]

 16   Ibid, Annexure AM2

 17   Ibid at paragraph [35]-[37]

 18   Ibid at paragraphs [38]-[42]

 19   Exhibit A1, Witness Statement of Mr Scott Imrie, dated 2 October 2019, paragraph [11]

 20   Exhibit R6, New proposed 7-day roster

 21   Exhibit R1, paragraph [5]-[7]

 22   Ibid at paragraph [12]

 23   Ibid at paragraph [13]

 24   Ibid

 25   Ibid at paragraph [14]

 26   Ibid at paragraph [15]

 27   Ibid at paragraphs [32]-[33]

 28   Ibid at paragraph [30]-[31]

 29   Ibid at paragraph [35]

 30   Ibid at paragraphs [17]-[18]

 31   Exhibit R5, Calendar Invite dated 11 October 2018.

 32   Exhibit A1, paragraph [2]

 33   Ibid at paragraph [3]

 34   Ibid at paragraph [4]

 35   Ibid, Annexure SI6, Screenshot of Leave Summary

 36   Ibid, Annexure SI7, Payslip dated 1 August 2019

 37   Ibid, Annexure SI8, Payslip dated 28 March 2019

 38   Ibid at paragraph [7]

 39   Ibid at paragraph [11]

 40   Ibid

 41   [2012] FWA 5552.