Ms Deena Ramadan v SELC Australia Pty Ltd T/A Sydney English Language Centre

[2015] FWC 3941

[2015] FWC 3941

The attached document replaces the document previously issued with the above code on 11 June 2015.

Footnotes 24 and 32 have been corrected.

Sophie Baartz

Associate to Deputy President Booth

12 June 2015

[2015] FWC 3941

FAIR WORK COMMISSION

DECISION

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

Ms Deena Ramadan
v
SELC Australia Pty Ltd T/A Sydney English Language Centre
(U2015/4805)

DEPUTY PRESIDENT BOOTH SYDNEY, 11 JUNE 2015

Application for relief from unfair dismissal - jurisdictional objection - minimum employment period – out of time - jurisdictional objections dismissed.

[1] Ms Deena Ramadan worked for SELC Australia Pty Ltd as a casual English language teacher. She was dismissed on either 27 February or 1 April 2015. On 13 April 2015 she made an application to the Fair Work Commission for an unfair dismissal remedy. SELC object to Ms Ramadan’s application on the grounds that she was not employed for the minimum employment period required for a person to be protected from unfair dismissal and that her application was lodged out of time. The onus is upon SELC to satisfy the Commission that their jurisdictional objection is made out.

[2] For the reasons set out below I have decided that SELC’s jurisdictional objection is not made out. I find that Ms Ramadan has served the minimum employment period and her application was not lodged out of time. The jurisdictional objection by SELC is dismissed and Mr Ramadan’s application can proceed to be heard on the merits. Her application will be referred to the Commission’s Unfair Dismissal Case Management Team and listed for conciliation in the first instance.

[3] SELC is an English language school based in Bondi Junction, NSW. The school conducts English language classes in four week terms throughout the year. Enrolments in the period September to February are traditionally higher than enrolments in March to August. SELC engages its teachers on either sessional contracts or as casual employees because of the cyclical nature of the business. The evidence was that casual employees are recruited for the peak period from September to February then again in the following September. Most casual staff are employed for four weeks at a time. 1

[4] Terms and conditions of employment of SELC employees are covered by the Sydney English Language Centres Australia (Teachers) Agreement 2014. 2 A feature of the enterprise agreement is clause 10.3(a)(ii) which provides that an extended Casual Teacher is a teacher engaged by the hour or the day as required for not less than four weeks. Clause 16.1(d)(ii) of the Agreement means that an extended Casual Teacher with continuous service of more than eight weeks is required to be given two weeks’ notice of termination of employment. It is not in dispute that Ms Ramadan was considered to be an extended casual teacher.

[5] The Director of Studies is Ms Lisa Cairns who has been in this position since October 2014. Prior to this role she was a teacher and co-ordinator of the Cambridge course – a English language course that is based on a particular type of examination.

[6] Ms Cairns gave evidence that two teachers are employed on each class and SELC likes one teacher to work on Monday and Tuesday and the other to work on Wednesday and Thursday and Friday morning. There are no classes on a Friday afternoon 3.

[7] Ms Ramadan first worked for SELC between 1998 to 2000. She returned to SELC in 2001 and worked until 2002 when she went overseas, and upon return, started her own business. Apart from “a few casual days” 4 in 2003 she did not work for SELC until 2008.

[8] She worked from May or June 2008 to April 2013 for between three and five days a week. Her uncontested evidence was that she received no written documentation when she commenced employment in 2008. She said “I actually called Ms Rennie to let her know I was available if they needed extra staff and she said ‘Great, can you come in tomorrow?’”

[9] During much of this period Ms Kim Rennie was the Director of Studies and Ms Hilary Denholm was the Head Teacher.

[10] Ms Ramadan gave evidence that she took annual leave in this period and this leave was applied for and granted, or otherwise, by the Director of Studies. 5

[11] Ms Ramadan became pregnant and requested maternity leave orally, followed by a letter, in February 2013. Her request was to commence maternity leave on 29 April 2013 and conclude on 11 November 2103. It is not in dispute that this request was granted.

[12] Ms Ramadan did not return to work on 11 November. Her evidence was to the effect that she could not obtain child care for the days of the week that SELC could offer her teaching work. She said, in effect, that the Director of Studies and the Head Teacher authorised the extension of her maternity leave, or in the alternative, authorised unpaid leave, on the mutual understanding that as soon as her child care coincided with SELCs requirements she would return to work.

[13] She gave evidence that she visited the workplace after the birth of her child to keep up communication with her colleagues and in particular Ms Rennie. Ms Cairns questioned the regularity of these visits in her evidence but conceded Ms Ramadan had visited. Ms Cairns could give no evidence as to the conversations that were conducted between Ms Ramadan and Ms Rennie and Ms Rennie was not called to give evidence.

[14] Ms Ramadan gave evidence (and produced reliable records) that she made telephone calls to either Ms Rennie or Denholm in January, April, May, June, September, October and November 2014. She said she conversed about her return to work. Ms Cairns questioned the duration of some of these calls (they ran for between 2 – 7 minutes) and whether Ms Ramadan would have had time to be transferred from reception to Ms Rennie or Ms Denholm but did not dispute that the calls were made.

[15] On 28 April 2014 Ms Ramadan emailed Ms Rennie and sought an extension to her maternity leave to August 2014. Ms Rennie replied on 1 May 2014 granting this request. 6

[16] Ms Ramadan said she emailed Ms Denholm in October to seek a further extension but could not produce that email.

[17] Her return to work in November 2014 was as a result of her speaking to Ms Denholm who sought the permission of Ms Cairns for Ms Ramadan to start work. Ms Denholm emailed Ms Ramadan on 11 November 2014 to confirm that she was on the timetable for Thursdays and Fridays from this week. There was no other written record of Ms Ramadan recommencing work and it was Ms Cairns’ evidence that payroll began to pay her because “we just record the… hours on a spreadsheet and we give it to our accounts department” 7 Ms Cairns said that at that time “everything was done verbally.”8

[18] Ms Ramadan worked from 13 November for the balance of the month one and a half days per week , one day in December and all of January and February on a Thursday and a half day on Friday.

[19] Ms Ramadan gave evidence about a conversation with Ms Cairns in mid-November in which Ms Cairns told her that student numbers would drop in December but she would “get work in January”. 9 Ms Cairns confirms that the conversation occurred but says she said it was “highly likely” rather than definite that Ms Ramadan would be employed in January.

[20] Ms Cairns says that she informed Ms Ramadan in November 2014 that her work was unlikely to continue in March 2015. Ms Ramadan refutes this.

[21] Ms Cairns gave evidence that she told all teachers in a staff meeting in January 2015 that their hours may be affected by a future drop in enrolments.

[22] Ms Cairns gave evidence that she “had a casual conversation in the staff room” 10 with Ms Ramadan on 12 February 2015 and told her that it was “highly unlikely that there would be work for her after 27 February”. She does not remember the time of the conversation. The significance of 27 February was that it was the end of a term. Ms Cairns’ evidence was that she was giving Ms Ramadan two weeks’ notice but that she gave nothing to Ms Ramadan in writing to this effect11 and Ms Ramadan cannot remember this conversation.

[23] Ms Cairns said:

“I'm aware that legally there is a – in our agreement, you have to give longer term casual staff two weeks' notice, so I do try and always be two weeks ahead and warn people that their employment is going to end when I know the numbers are going to drop.” 12

[24] Ms Ramadan taught her last class on 27 February 2015. Her evidence was that on 26 February she was told that there may not be any more work the following week. She says that on 27 February she was told by Ms Cairns that there would be no work the following week.

[25] Ms Ramadan said:

“Lisa informed me there would be no work the following week and that she would call me on Monday if there was any change.  On Thursday the 26th she - when I actually requested to perhaps teach a different course she’s - that’s when she said to me, there may not be any work the following week and that she didn’t know at this stage.  When I spoke to her in her office she asked me if I’d like to be on the relief list, at which point I said yes and informed her that she would just need to call me.” 13

[26] Ms Ramadan gave evidence that she was asked if she would like to be placed on the “relief list” and she replied that she would.

[27] Ms Ramadan gave evidence that she was having lunch with some teachers from SELC on 27 March and she was told that her name was not on the relief list. She also received a text to this effect from a colleague on 1 April. She provided the Commission with a copy of the relief list for March and April to show that her name was not on the list.

[28] Ms Ramadan said (and produced reliable records) that she called Ms Cairns twice after 27 February but before 1 April. Once on 6 March to ask for her pay slips and again on 27 March to check in and on neither occasion did Ms Cairns say she was not on the relief list.

[29] Ms Cairns described the “relief list” as “a back-up list of phone numbers” with names of people who could be called upon by teachers to cover their absence. She said that some of the names on the list were of people who had never been employed by SELC and being on the relief list did not “constitute employment”. 14

[30] She said that there were two “relief lists’, one that was provided to teachers at the beginning of the term and another that she and the head teacher have to use themselves when the teacher does not arrange their own relief and this second relief list is updated during the term. 15

[31] Ms Ramadan telephoned Ms Cairns on 1 April 2015 to ask why she wasn’t on the relief list for April. Ms Cairns gave evidence that she had thought Ms Ramadan was on the relief list for March and that she was on the second relief list. She says she took Ms Ramadan off the relief list for April (but not the second relief list) because she thought “that she didn’t want to work there anymore, which was also evidenced by her ringing and asking me to send on her pay slips.” 16

[32] Ms Cairns said that Ms Ramadan got “very angry, very upset” during this telephone call and she concluded the conversation thinking that although she had thought “maybe Deena would come back in September” she now thought “I felt that I wouldn’t feel comfortable working with somebody who behaves like that….she probably wouldn’t come back in September.” 17

[33] On 3 April Ms Ramadan emailed Ms Cairns saying that Ms Cairns had made it clear to her that that there was no prospect of further employment and she would like to collect her personal belongings. 18 On 7 April Ms Cairns replied to this email referring only to the logistical arrangements for the collection of Ms Ramadan’s personal belongings.19

Did Ramadan serve the minimum employment period?

[34] There is no dispute that Ms Ramadan was employed as a casual employee.

[35] There is no dispute that SELC is not a small business employer and the minimum employment period is 6 months. 20

The requirement for a minimum employment period is found in section 382 of the Act.

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.

[36] SELC contend that Ms Ramadan’s employment commenced on 13 November 2014 and ended on 27 February 2015, a period of 3 months. They say that her employment from 2008 ended in November 2013 when she did not return from maternity leave and her commencement in November 2014 was a new and separate period of employment.

[37] Ms Ramadan on the other hand contends that from 2008 she was regularly and systematically employed, and had a reasonable expectation of continuing employment on a regular and systematic basis until 1 April 2015, a period of around 6 and a half years.

How long was Ramadan’s period of employment?

[38] The answer to this question turns on whether Ms Ramadan’s employment ended when she did not return from maternity leave on 11 November 2013.

[39] The provisions of s.22 (1), (2) and (3) of the Act are relevant to a consideration of this question.

22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence,

other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

[40] SELC contend that as Ms Ramadan did not comply with the Act and request an extension to her maternity leave in writing that this supports their view that she ended the employment relationship by not returning on the expected date of return.

[41] Ms Ramadan concedes that she did not comply with the Act and request an extension to her maternity leave in writing four weeks prior to the original intended date of return. 21 Her evidence, substantiated by a copy of emails between her and Ms Kim Rennie, then Director of Studies, is that she sought and was granted an extension to her maternity leave in May 2013. She concedes it was not done in accordance with the Act’s requirements for four weeks notice. I do not need to make a finding in relation to whether her absence from November 2013 to November 2014 was maternity leave or authorised unpaid leave. If it was maternity leave s.22 of the Act does not come into play. She has continuity of service from 2008 to 2015. If it was authorised unpaid leave (I am satisfied it was authorised) then pursuant to s.22 of the Act it is an excluded period that does not break the continuity of service but is not to be counted towards the length of her continuous service.

[42] There is no substance to SELC’s contention that Ms Ramadan ended the employment relationship by not returning to work as intended in November 2013. SELC brings forward no evidence, written or oral in support of this contention. Neither do they submit that they ended the employment relationship then. Ms Cairns evidence was that she assumed that Ms Ramadan had ended the employment relationship by not returning. 22 Ms Cairns was not Director of Studies at the time that she made this assumption. She said in her evidence there were no records for her to examine when she assumed that role in October 2014. I do not doubt her honesty in coming to this conclusion but she was in no position to judge and Ms Rennie’s reply to Ms Ramadan in May 2014 that “As far as I’m concerned it is fine for you to extend your leave until the end of August...” puts the matter beyond reasonable doubt.23

[43] In Shortland v The Smiths Snackfood Co Ltd 24 the Full Bench says:

“Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”

[44] I find that Ms Ramadan’s employment was continuous form 2008 to 2015, and even if I do not count the period of one year that is in contention, her service with SELC was for a period of some 5 and a half years.

[45] Because Ms Ramadan was a casual employee it is necessary to consider whether, during this period of employment, she was employed for more than 6 months on a regular and systematic basis with a reasonable expectation of continuing employment on a regular and systematic basis.

[46] This is because as a casual employee Ms Ramadan’s service with SELC can only be counted towards the minimum employment period if both of these limbs of the test in s.384 are met.

[47] Section 384 of the Act reads as follows:

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) 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

Was Ramadan’s employment regular and systematic?

[48] Ms Ramadan’s days and hours of work for the fortnight ending 25 June 2008 to the fortnight ending 11 March 2015 are set out in tables provided by her and attached to this decision as Attachment A. These tables portray the period for which Mr Ramadan has provided pay slips to the Commission or she gives evidence that she is certain that she worked, but has misplaced the pay slips, or she was absent from work. The tables do not cover the period prior to the fortnight ending 25 June because it is her evidence that she is not certain whether she commenced in May or June 2008. Ms Cairns provided no documentary evidence that contradicted these tables. She provided no documentary evidence at all. She did not contest the accuracy the tables.

[49] In the light of my finding that Ms Ramadan’s period of leave did not break her continuity of service for the purposes of s.384 of the Act it is appropriate to examine the whole period covered by the tables when addressing this question in order to judge whether, during this period, there was a period of at least six months when Ms Ramadan’s casual employment was regular and systematic.

[50] In Yakar Holdings Pty Ltd v Giljevic 25, albeit in another jurisdiction, Crispin P and Gray J said:

“The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when her 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 she or she is engaged.”

[51] In Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 26 Commissioner Roe said:

“It is the employment which must be on a regular and systematic basis… It is clear that to establish “regular and systematic” there must be sufficient evidence that a continuing relationship between the employer and the employee has been established”. 27

[52] Of relevance to Ms Ramadan’s situation he also said:

“I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and hours worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.” 28

[53] The set of facts in this case discloses a long period of employment that can be characterised as being in three phases. In the first phase, from June 2008 to April 2013, Ms Ramadan’s median days of work were 4.59 per fortnight ranging from a median of 7 per fortnight in 2008 to 4 per fortnight in 2012. She largely worked on the same days of the week and worked contiguous weeks with the exception of annual leave periods. In the second phase, from May 2013 to November 2014 she was on maternity leave or maternity leave and authorised leave. In the third phase from November 2014 to February 2015 Ms Ramadan’s median days of work were 1.67 per fortnight ranging from 1- 3 days per fortnight and she did not work contiguous weeks for the period.

[54] Ms Ramadan’s employment in the first phase is clearly regular and systematic. On this service alone she meets the test of more than 6 months of regular and systematic employment. That Ms Ramadan’s number of days of work reduced in the third phase does not mean that her employment was not regular and systematic. This period also meets the test as stated by Crispin P and Gray J above of a pattern of engagement that occurs “as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which she or she is engaged.”

[55] An important feature of Ms Ramadan’s pattern of employment was that it met the needs of SELC which is a business that employs all its employees in a manner that suits the cyclical nature of its business.

[56] I consider that Ms Ramadan was employed on a regular and systematic basis and therefore the first limb of the test in s.384 is satisfied.

Did Ramadan have a reasonable expectation of continuing employment on a regular and systematic basis?

[57] There is no evidence before me to suggest the SELC business cycles in 2014 to 2015 were any different from 2008 to 2013. I am satisfied that she had a reasonable expectation of continuing employment on a regular and systematic basis in the first phase of her employment. But for taking maternity leave it is reasonable to assume that she would still be working the days of the week and the hours of the day that she was working then. On this service alone she meets the test of more than 6 months of regular and systematic employment with a reasonable expectation of continuing employment on a regular and systematic basis.

[58] I also consider that her employment in the third phase meets this test. The SELC submission based on Ms Cairns evidence that Ms Ramadan was told that there would be no work after February 2015 is not to the point. Ms Cairns also gave evidence that but for the acrimonious phone call between her and Mrs Ramadan in April 2015 she thought Ms Ramadan would be coming back in September (2015). That is consistent with the employment relationship between SELC and Ms Ramadan remaining intact whilst the business takes its course during the cyclical ups and downs.

[59] Therefore I conclude that for the whole period of her employment she had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[60] The second limb of the test in s.384 is satisfied.

[61] I am satisfied that Ms Ramadan served the minimum employment period and is a person protected from unfair dismissal pursuant to s.382 of the Act.

Was Ramadan’s application out of time?

[62] To be validly made, an application for an unfair dismissal remedy must be lodged within 21 days after the dismissal took effect. 29 If the date of effect of Ms Ramadan’s dismissal was 27 February, as Ms Cairns says it was, then Ms Ramadan lodged her application 24 days out of time. If the date of effect was 1 April, as Ms Ramadan says it was, then her application was lodged within time on day 12 after her dismissal.

What was the date of effect of Ramadan’s dismissal?

[63] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 30

[64] The principle stated in the Federal Court decision Mohazab v Dick Smith Electronics Pty Ltd (No.2) 31 is that an important feature of termination at the initiative of the employer isthat “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in theemployment relationship.”

[65] A Full Bench of the Australian Industrial Relations Commission, the predecessor to the Commission, has refined the principle to “some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end”. 32 The Full Bench was guided by the Full Bench in Pawel v Advanced Precast Pty Ltd33 which said that circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee must also be examined.

[66] It is not in dispute that the employment ended at the initiative of the employer. However I do not consider that it ended on 27 February.

[67] If the conversation between Ms Cairns and Ms Ramadan occurred on 12 February, on Ms Cairn’s own evidence, the words she used could not be considered notice of dismissal. This is because she did not use the words ‘notice’ or ‘dismissal’ or any other words that a reasonable person would construe as ending employment particularly in the context of a business that typically experiences cyclical upturns and downturns. If the conversation did not occur then Ms Ramadan was not given two weeks’ notice on this day. I do not need to make a finding about the conflicting evidence because either way I come to the same conclusion. In the context of the cyclical nature of the business, Ms Ramadan’s long service and her casual employment status I think Ms Ramadan was being told there was no more work for the time being. I accept her evidence that this was her understanding. There is no objective evidence to the contrary. Taken together with her being placed on the relief list I conclude that the employment relationship did not end then.

[68] I consider that the employment relationship ended during the telephone call on 1 April. Ms Cairns gave evidence that during this telephone conversation she thought Ms Ramadan would not be returning in September, whereas prior to this conversation she thought that she would return in September. Ms Ramadan conveyed to Ms Cairns her conclusion that the relationship was at an end in her email of 3 April and Ms Cairns did not contradict this and arranged for Ms Ramadan to collect her belongings. Ms Ramadan was clearly communicating her belief that the relationship was at an end and Ms Cairns conduct was consistent with this being her belief as well. This was when the employment relationship ended, rather than on 27 February as SELC contend.

[69] Therefore I find that Ms Ramadan’s application, lodged on 13 April, was not lodged out of time.

Conclusion

[70] I conclude that Ms Ramadan was employed for at least the minimum employment period of 6 months. This is because notwithstanding that she was a casual employee, she was regularly and systematically employed with a reasonable expectation of continuing employment on a regular and systematic basis for at least 5 and a half years.

[71] I also conclude that her application was not lodged out of time because she was dismissed on 1 April and her application was lodged on 13 April.

[72] Accordingly I find that she has made a valid application and she is a person who is protected from unfair dismissal. 34 SELC’s jurisdictional objection is dismissed and I so order. This application will be referred to the Commission’s Unfair Dismissal Case Management Team and listed for conciliation in the first instance.

DEPUTY PRESIDENT

Appearances:

Mr R Seals, Independent Education Union of Australia, appearing for the Applicant

Ms L Cairns and Mr Choi, for the Respondent

Hearing details:

Sydney

2015.

22 May;

28 May.

 1   Transcript PN 109

 2   AG2014/3818

 3   Transcript PN218

 4   Transcript PN 404

 5   Transcript PN 416

 6   Annexure 4 Exhibit S1

 7   Transcript PN96

 8   Transcript PN116

 9   Exhibit S1 Statement of Deena Ramadan paragraph 18

 10   Transcript PN 68

 11   Transcript PN161

 12   Transcript PN117

 13   Transcript PN472

 14   Transcript PN 58

 15   Transcript PN 58 -59, 257- 266

 16   Transcript PN127

 17   Transcript PN 130

 18   Transcript Annexure 9 Exhibit S1

 19   (ibid)

 20 s.383 Fair Work Act 2009

 21 s.75 (3) Fair Work Act 2009

 22   Transcript PN 83

 23   Annexure 4 to Exhibit S1

 24   [2010] FWAFB 5709 paragraph 13

 25 [2006] ACTCA 6

 26   [2012] FWA 5552

 27   ibid paragraph 66

 28   ibid paragraph 75

 29 s.394 Fair Work Act 2009

 30   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 [24]

 31 (1995) 62 IR 200

 32   PR973462

 33   unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Pring S5904

 34 s.382 Fair Work Act 2009

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ATTACHMENT A