Mrs Julie Massey-Ross v Richmond Fellowship Tasmania Inc
[2014] FWC 5372
•7 AUGUST 2014
| [2014] FWC 5372 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Julie Massey-Ross
v
Richmond Fellowship Tasmania Inc.
(U2014/5615)
DEPUTY PRESIDENT WELLS | HOBART, 7 AUGUST 2014 |
Application for relief from unfair dismissal - jurisdiction – minimum employment period – employment as a casual employee on a regular and systematic basic – reasonable expectation of continuing employment.
Introduction
[1] Ms Julie Massey-Ross (the Applicant) was employed by Richmond Fellowship Tasmania Inc (the Employer) as a casual and subsequently a permanent part-time Community Service Worker (CSW) from 2 July 2013 until the termination of her employment on 26 February 2014.
[2] Mr Cameron, representing the Employer, submitted that the Applicant is precluded from jurisdiction by Division 2 of the Fair Work Act 2009 (the Act), which requires a minimum of six months employment (s.383(a)); and that a period of her employment does not count toward the minimum period of employment because she was in casual employment that was not work carried out on a regular and systematic basis.
[3] It was accepted by the parties that the Applicant was employed on a permanent part-time basis from 1 October 2013 to 26 February 2014 when her employment was terminated.
[4] It was also accepted by the parties that the employer is not a small business employer and therefore the minimum employment period applicable under the Act is six months.
[5] Mr Cameron relied upon his submission that the Applicant’s casual employment from 2 July to 30 September 2013 (the relevant period) was not regular and systematic and, when added to a period of permanent employment from 1 October to the date of termination, the employment did not satisfy the six month qualifying period.
[6] The relevant sections of the Act are:
“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
...
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
…
(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; and …
Evidence
[7] Two witnesses gave evidence for the Employer, Ms Susan Butterworth, Human Resources (HR) Manager and Ms Theresa Watts-Hampton, Southern Regional Manager and former Team Leader for the Employer’s Hobart site. Their evidence provided that the Employer does not have set casual shifts or lines on their roster; that casual staff are only used to fill the roster when all opportunities have been exhausted to have permanent staff fill any vacancies; that Team Leaders have discretion over which casuals are approached to fill roster vacancies; that casual staff are advised that there is no guarantee of work and that such work may be intermittent; and that there were 10 other casuals in the casual pool during the relevant period.
[8] Ms Watts-Hampton said both she a another Team Leader, Mr Jeff Phillips, clearly stated to the Applicant that she was being offered a casual role and that she was free to decline any shift offered. 1
[9] Ms Butterworth stated that only the HR Manager and the Employer’s CEO has the authority to appoint permanent staff, and that Team Leaders were authorised to appoint casual staff and allocate them to shifts on the roster.
[10] It was Ms Butterworth’s evidence was that during the relevant period there was an unusually high level of shifts offered to the Applicant due to a number of staffing events at the Employer’s southern region sites which included an employee being stood down and later terminated, employee work placements, secondment of another employee for a fixed term, an employee resignation and two part-time employees being appointed to full-time positions. 2 Ms Butterworth also recalled, during her oral evidence an example of one further staffing issue.
[11] Ms Butterworth also provided in her statement 3 that the Applicant was made aware that she would not maintain the volume of hours once the staffing matters were resolved, stating in her oral evidence that she was advised of this by the Team Leaders.
[12] Ms Watts-Hampton gave oral evidence that she did not have discussions with the Applicant about the Employer’s staffing events which had increased the availability of work.
[13] Ms Butterworth confirmed the applicant was appointed to a part-time position on 1 October 2013 and was dismissed on 26 February 2014. Ms Butterworth also indicated that the Applicant did not make a formal application to her at the time of advertising positions in August, but that she was aware the Applicant was still interested in being made permanent part-time due to discussions with Mr Phillips, the Team Leader at the Glenorchy site.
[14] During cross-examination Ms Butterworth confirmed an email exchange 4 with the Applicant’s representative regarding provision of shift rosters for the period relevant to the Applicant’s employment. Ms Butterworth confirmed she was unable to obtain copies of all of those rosters and relevantly August 2013 was not locatable. A number of copies of Glenorchy site rosters5 were provided by Ms Butterworth which included the September 2013 roster. Ms Butterworth confirmed that the Applicant was placed on the September roster in the part-time line which had previously been filled by an employee who had been terminated in mid-July 2013.
[15] It was the Applicant’s evidence that she obtained employment with the Employer after meeting Ms Watts-Hampton following a referral by a colleague. The Applicant said Ms Watts-Hampton indicated that she could do a two hour induction and start work immediately; that after her first shift Ms Watts-Hampton asked me to note my upcoming holiday on the calendar and fill in any shifts on the rosters print out that I would be available for. She said she was advised by Ms Watts-Hampton, at least on two occasions, to fill out as many shifts as she could.
[16] The Applicant gave evidence, which appears to be supported to the evidence of Ms Watts-Hampton, that a ‘tug of war’ ensued between the team leaders for her services at the Employer’s Hobart, Glenorchy and Rokeby sites.
[17] The Applicant stated that on 26 July 2013 the Glenorchy Team Leader, Mr Phillips, emailed 6 Ms Butterworth advising he wanted to fill the “recently vacated part time line in Glenorchy roster.” The Applicant said that from this date she worked the part-time roster line at the Glenorchy site7, save for some shifts she had already committed to at the Hobart site. The Applicant said she understood that Mr Phillips wanted to make her permanent to secure her services ahead of the Team Leaders at the other sites. She said it was some time before she was provided with her permanent appointment8 and that she had to remind Mr Phillips about the paperwork.
[18] The Applicant stated she only ever turned down two shifts that were offered to her by Ms Watts-Hampton because she was rostered to work at the Glenorchy site.
[19] It was the Applicant’s evidence that her fortnightly hours of work during the relevant period were 53.50, 67, 52, 59, 55 and 71. She stated that in September 2013 she worked nine shifts in a row, twice working three sleepovers in a row.
[20] The Applicant refuted any suggestion that the process of selecting casuals to fill the roster was somehow by chance; and that she was given free choice as to her shifts well in advance. The Applicant stated she was unaware of any staffing events that meant that there were additional shifts available or that she was made aware that casual hours would reduce. However, she confirmed she was aware of an employee having his employment terminated and this was the part-time line on the roster which she filled at Glenorchy.
[21] The Applicant stated that she had a “very secure belief” 9 that her casual employment would be ongoing because of the volume of work offered and that Mr Phillips had placed her on the part-time roster.
Submissions & Case Law
[22] Both parties sought to rely on and made considerable submissions on two decisions, namely Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic[2010] FWA 2078 (Ponce) and Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6 (Yaraka). Both of these matters dealt with, inter alia, the test of ‘regular and systematic’ work and the ‘reasonable expectation of continuing employment’.
[23] Mr Cameron for the Employer submitted that the Applicant’s period of part-time permanent employment was from 1 October 2013 to 26 February 2014, a period of less than 5 months; and further that the Applicant’s period of casual employment does not count towards her total employment period as her casual employment was not regular and systematic. Mr Cameron said there could be no expectation of the casual employment being ongoing as a casual employee was only engaged by the Employer to undertake a shift which was originally assigned to a permanent employee and a permanent employee cannot undertake those hours.
[24] It was submitted by Mr Cameron that as the Applicant was part of the southern casual pool, and coupled with the Team Leader’s discretion of which casual employee would be offered the vacant shifts, it could not be said that the Applicant’s casual employment was regular and systematic. Mr Cameron stated the large number of shifts available to the Applicant during her casual employment were unusual and elevated due to the staffing events described in the evidence by Ms Butterworth.
[25] In closing submissions Mr Cameron stated that this matter came down to a mathematical calculation to meet the 6 month requirement contained in s.384 of the Act. He submitted that counting back from the date of dismissal, that being 26 February 2014, there must have been regular and systematic employment from 26 August 2013.
[26] Further, Mr Cameron stated that a three week period from 29 October to 15 November 2013, when the Applicant took advantage of leave without pay, could not be counted in the period of employment as provided in s.22 of the Act. Therefore, the relevant date for proving regular and systematic employment was from 5 August 2013.
[27] In relation to whether the Applicant had a reasonable expectation of continuing employment, Mr Cameron said the period of work undertaken of the Applicant did not provide enough clarity to establish a reasonable expectation, as was held by McCarthy DP in Leslie Holland v UGL Resources Pty Ltd T/A UGL Resources [2012] FWA 3453.
[28] Mr Eddington submitted that the Applicant, due to her filling out the rosters in the way she did, could easily foresee when her services would be required by the Employer and that if she was working in accordance to a roster system, this is strong evidence of regular and systematic employment as provided for in Ponce.
[29] Mr Eddington stated that there is no evidence the Applicant was aware of particular staffing events at the various southern sites other than the suspension and termination of an employee at the Glenorchy site; that the Employer’s actions gave her every belief that she would be given as much work as she wanted and that this would continue; that this is evident from the number of hours she worked over the relevant period and across all three southern sites. Mr Eddington stated that from 26 July 2013 the Applicant effectively worked the hours of a permanent part-time employee at Glenorchy on the roster and in September 2013 working nine shifts in a row. It was said the Applicant’s hours of work during the relevant period were between 52 and 71 hours per fortnight.
[30] It was submitted by Mr Eddington that this pattern of offer or work by the Employer and acceptance by the Applicant could not be described as informal or irregular.
[31] It was submitted by Mr Eddington that the human resources theory of the Employer did not match the on-the-ground reality, as Team Leaders made it very clear to the Applicant in advance what shifts were available and that as a casual employee she was not excluded from the roster, she was made part of the part-time roster system.
Consideration
[32] The sworn evidence of the Applicant was that she was placed on Glenorchy site roster by the Team Leader Mr Phillips, in the part-time roster line from 26 July 2013. There was no evidence led by the Employer to challenge this evidence. Further, the rosters provided by the Employer (see Exhibit R3 Attachment B and Exhibit A2) provide that the Applicant was placed onto the Glenorchy roster in the part-time line replacing the employee terminated in mid-July 2013. Whilst the Employer was unable to locate the August 2013 roster, having regard for the September roster, the email from Mr Phillips on 26 July 2013, Mr Phillips authorised discretion to appoint the Applicant to that part-time line roster, the number of hours worked by the Applicant and her sworn evidence, I am of the view that the Applicant was placed onto the Glenorchy part-time line roster on 26 July 2013.
[33] Having regard for my findings above it is difficult to accept the Employer’s submissions that the work did not have some kind of system attached to it or that it did not carry with it an expectation that the work would continue.
[34] I reject the submissions of the Employer as they relate the unusually high number of casual shifts that were offered to the Applicant as adding weight to its argument that the work could not be considered regular and systematic, or that there was not a reasonable expectation of continuing employment. The establishment of regular and systematic employment does not, of itself, require an employee to have knowledge of why the employment is being offered. The unchallenged evidence of the Applicant was that she filled out the roster with the shifts she wanted to do, and was regularly requested to, and did, undertake additional shifts.
[35] Relevantly Roe C held in Ponce at paragraphs 76 and 77:
- 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.
“[76] In situations where there is not a clear pattern of hours and days worked or a clear agreed arrangement between the employer and the employee, then the evidence of regular and systematic employment can be established where:
[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.”
[36] In the Yaraka decision at paragraphs 65 and 68, Crispin and Gray JJ held that:
“65. It should be noted that it is the “engagement” that must be regular and systematic; not the hours of work pursuant to such engagement.
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”.
[37] Also in Yaraka, Madgwick J found at paragraphs 89 and 90:
“89. 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.
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’.”
[38] Madgwick J went on in the Yaraka decision to describe a ‘systematic basis’ for employment. Having considered all the evidence in this matter, I conclude that the Applicant would exceed the test of a ‘systematic basis’ held by his Honour at paragraphs 91 and 92 of that decision. Further, Crispin and Gray JJ found at paragraph 69:
“…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 workers services as an incident of the business by which he or she is engaged.”
[39] I accept Mr Eddington’s submissions that systematic employment does not require the worker to be able to foresee or predict when his or her services may be required. The requirement as established by Yaraka is that there is a pattern of offer and acceptance of employment in such a way as the Employer is reliant on the workers services. I am satisfied that this pattern of employment existed between the Applicant and the Employer in this matter.
[40] Whilst I accept the Employer’s witness evidence as to how the roster system is to be implemented and filled, I am of the view that, in reality something very different occurred within the relevant period. I find that by including the Applicant in the part-time line of the Glenorchy site roster, her casual employment can only be described as regular and systematic, at least for the period of 26 July to 30 September 2013 and that the work undertaken exceeded the test as established by Ponce and Yaraka.
[41] I am not inclined to accept the submissions of Mr Cameron as they relate to the motivation of the Applicant in applying for a part-time position with the Employer. There was no evidence advanced by the Employer to suggest that the Applicant had applied for her position as a result of a newspaper advertisement, or due to any knowledge about staffing arrangements.
[42] I have also considered the decision in Holland as provided by Mr Cameron as it relates to the reasonable expectation of continuing employment. I do not accept Mr Cameron’s submissions that there was not a sufficient employment period to make any finding of a reasonable expectation. Each matter must be determined on its own merits. This matter, whilst involving a shorter period of time than that contemplated in Holland, provided a plethora of work being available to the Applicant almost immediately from the time she commenced employment on 2 July 2013.
[43] The unchallenged evidence of the Applicant was that on or around 26 July 2013 she had discussions with Mr Phillips about being made a ‘permanent employee’ and that shortly thereafter Mr Phillips indicated to her that she would be made permanent. Subsequently, the Applicant was made permanent part-time, albeit that she did not receive her letter of appointment until 24 September 2013. 10 Therefore, I accept that the Applicant did have a reasonable expectation that her work with the Employer would be continuing.
[44] I do accept Mr Cameron’s submissions as they relate to the period of unpaid leave of the Applicant from 29 October 2013 to 15 November 2013. It was confirmed in oral evidence by the Applicant that she was absent from the workplace on unpaid leave during these dates. As such, pursuant to s.22(3) the Applicant’s period of employment would not be broken by that leave, but pursuant to s.22(2)(b) does not count towards the length of continuous service.
Conclusion
[45] Having regard for the authorities listed above and all of the evidence in this matter, particularly the evidence relating to the Applicant filling the part-time roster at the Glenorchy site and the regularity with which she was also being offered additional shifts, I find that the Applicant was employed on a regular and systematic basis and accordingly the period of her casual employment, that is 2 July to 30 September 2013 is relevant in calculating the minimum employment period as contained in s.383(a) of the Act.
[46] Further, the wording of s.384(2)(a) is clear that once it is established that a period of service as a casual employee was on a regular and systematic basis and that during that service the employee had a reasonable expectation of continuing employment on that basis, such casual employment counts towards an employee’s period of employment.
[47] Accordingly, the Applicant’s period of employment was from 2 July 2013 to 26 February 2014, almost 8 months, and fulfils the minimum employment period contained within s383(a) of the Act, discounted by the 17 days during when she was on authorised unpaid leave.
[48] I note that, even if I were to conclude that the casual employment was only regular and systemic from the 26 July 2013, the date on which the Applicant was placed on the part-time line for the Glenorchy roster, this still provides for a 7 month period of employment. When discounted by the 17 day unpaid absence, the period of employment is still in excess of the 6 months required.
[49] The matter will now be referred for conciliation and/or arbitration.
DEPUTY PRESIDENT
Appearances:
Mr J Eddington, for the Applicant
Mr A Cameron, for the Respondent
Hearing details:
Hobart
2014
6 August
1 Exhibit R1 - Statement of Theresa Watts-Hampton, paragraph 12
2 Exhibit R2 - Statement of Susan Butterworth, paragraph 7
3 Exhibit R2 – paragraph 10
4 Exhibit A1 – Email exchange dated 28 July 2014
5 Exhibit A2 – Bundle of Glenorchy rosters
6 Exhibit A4 – Statement of Julie Massey-Ross, Attachment A
7 Exhibit R3 – Employer’s submissions – Attachment B
8 Exhibit A4 – Attachment B
9 Exhibit A4 - Statement of Julie Massey-Ross, paragraph 20
10 Exhibit A4 – Annexure “B”
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