Ms Romana Galbraith v Wilmar Sugar Pty Ltd T/A Wilmar Sugar

[2017] FWC 4410

[2017] FWC 4410

FAIR WORK COMMISSION

DECISION

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

Ms Romana Galbraith
v
Wilmar Sugar Pty Ltd T/A Wilmar Sugar
(U2017/5460)

COMMISSIONER SPENCER BRISBANE, 7 DECEMBER 2017

Application for an unfair dismissal remedy – jurisdictional objections – not an employee and not dismissed.

INTRODUCTION

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Ms Romana Galbraith (the Applicant), alleging that the termination of her employment from Wilmar Sugar Pty Ltd T/A Wilmar Sugar (the Respondent) was harsh, unjust and or unreasonable.

[2] The Respondent raised two jurisdictional objections to the application pursuant to ss.382, 385 and 386 of the Act, alleging that the Applicant was a seasonal employee, not an employee of the Respondent at the time of the alleged dismissal, and that the Applicant was not dismissed from her employment.

[3] Directions were set for the filing of material in relation to the jurisdictional objections and the merits of the application. The matter was listed for hearing in Townsville, however the parties subsequently reached a consent position and sought for the jurisdictional objections to be determined first, on the papers.

[4] Further Directions were set by consent for the filing of supplementary material in relation to the jurisdictional objections.

[5] The Applicant was represented by Mr James O’Donnell of James O’Donnell & Associates and the Respondent was represented by Mr Maurice Swan of the Australian Industry Group. Given the complexity of the jurisdictional objections, both parties were granted permission to appear pursuant to s.596 of the Act.

[6] Whilst not all of the submissions and evidence are referred to in this Decision, all of such have been considered.

BACKGROUND

[7] The Applicant commenced working for the Respondent on 4 June 2008. The Applicant was engaged as a seasonal employee for the duration of each crushing season.

[8] The Applicant had worked for the Respondent for each of the crushing seasons from 2008 – 2014 and the 2016 crushing season. 1 The Applicant did not work the 2015 crushing season, as a result of a workplace injury. The Applicant had sustained an injury to her wrist and was paid workers compensation for the duration of her absence.2 During this seasonal engagement, the Applicant had worked as a, “Juice Analyst,” at the Respondent’s Kalamia Mill in Ayr, Queensland.

[9] The material provided sets out that, on the morning of 5 December 2016, the Applicant’s partner took the Applicant on a, “surprise,” trip to Brisbane. 3 The Applicant stated she had felt unwell. However, the Applicant undertook the travel by car, from Ayr to Mackay and then flew to Brisbane. The Applicant was rostered to work at the mill in Ayr at 6:30 pm later that day. The Applicant attended an appointment with a doctor in Loganlea (approximately half way between Brisbane and the Gold Coast). The doctor provided a medical certificate, stating that she was unfit to work on 5 and 6 December 2016.4

[10] The Applicant telephoned the Respondent and informed them that she would be unable to work on 5 and 6 December 2016. The Applicant stated that she provided a copy of her medical certificate to the Respondent on 9 December 2016.

[11] The Applicant returned to work on 9 December 2016. On 19 December 2016, the Applicant attended a meeting with Mr Brendan Rich, Production Superintendent of the Respondent, in which she was allegedly, “stood down,” because the concentration of lead in her blood was above acceptable levels. The Applicant stated that she was paid in full for the two days on which she had been stood down. 5

[12] The Applicant stated that working in the Respondent’s chemical lab, required her to handle a solution containing lead, used to assess the quality of sugar cane. The Applicant was required to undertake regular testing to ensure that the concentration of lead in her blood remained at an acceptable level. In early 2016, as a result of the Respondent’s testing, the Applicant became aware that the concentration of lead in her blood was abnormally high.

[13] The Applicant had previously raised concerns about the safety procedures at the laboratory. In particular, the Applicant was concerned that drinking water was not available in the laboratory (allegedly to reduce the risk of contamination), that the air conditioning ducts in the laboratory were, “decrepit,” and that the crib room (where employees were able to eat and drink), was in the same vicinity and shared the same air conditioning ducts, as the laboratory. 6 On or around 15 December 2016, the Applicant filed a formal incident report with the Respondent, some four days before she was, “stood down.”7 However, the Applicant stated that she did not believe that the report was logged.8

[14] The Respondent disputed these safety matters. 9 It is noted that the evidence in relation to these matters, was due to be tested at a hearing of the substantive matter. It is not necessary to make a determination on these matters, for the purposes of determining the jurisdictional objection.

[15] On 1 February 2017, Mr Damien Mines, Human Resources Business Partner of the Respondent, became aware that there may have been an issue, regarding the Applicant’s whereabouts on 5 and 6 December 2017. 10 On 28 February 2017, Mr Rich telephoned the Applicant to discuss her absence from the workplace on 5 and 6 December 2016. Mr Rich stated that he was on leave until 18 January 2017, and that this had been a contributing factor for the delay in contacting the Applicant.11 During the conversation, Mr Mines asked the Applicant to provide evidence of her travel arrangements on 5 December 2016, to confirm that she had intended to present for her shift that day.12 Mr Mines told the Applicant that until that information was provided, she would not be provided with an expression of interest letter for the 2017 crushing season. Mr Mines stated that this matter, “was considered and dealt with in complete isolation from the safety concerns from the previous season that related to blood level issues.”13

[16] The Applicant submitted that she was unsure of the date that her dismissal took effect as her, “work is seasonal work which usually commences on the end of May.” 14 The Applicant later submitted that the dismissal took effect on 8 May 2017, the date on which she was notified by the Respondent that she would not be reengaged for the 2017 crushing season. The written notification provided to the Applicant on 8 May 2017, stated:

“…During our discussion between you, Damien and I on the 28th February, you were asked to provide information in relation to how you intended to attend your rostered shift in Ayr on 5th and 6th December before you became ill. In particular you were asked to provide evidence of the planned flight as you were located in Brisbane at that time.

You requested one week to provide this information because the person who booked flights was away at the time we called you to which we agreed.

You contacted me via text message on the Monday 6th March about an itinerary possibly being provided by Thursday. To date we haven’t received any information.

Based on the lack of information provided, we regret to advise that you will not be reengaged this upcoming season…” 15

[17] The Respondent submitted that the Applicant’s employment ended on 23 December 2016, at the end of the 2016 crushing season. 16 The Respondent referred to the Applicant’s contract of employment, as set out:

“Your commencement date will be 06.06.2016. This commencement date may change due to extenuating circumstances (e.g. wet weather). Should this be the case, you will be notified of a revised commencement date.

The current ordinary time rate of pay for this position is $996.70 per week.

You will be paid weekly via electronic funds transfer.

This engagement is for the 2016 crushing season.

Unless terminated earlier, the end date of this seasonal engagement will be determined in accordance with the applicable enterprise agreement.

Except to the extent varied by this document, the terms and conditions of your existing contract of employment continue to apply. As a seasonal employee, the provisions of the applicable enterprise agreement that apply to seasonal employees will also apply to your employment…” 17

RELEVANT LEGISLATION

[18] Pursuant to s.385 of the Act:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[19] Further, ss.362 and 386 of the Act relevantly provide:

“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

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer’s obligations under this Part.” [emphasis added]

[20] Relevantly, s.384 of the Act 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; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[21] The Industrial Relations Act 2016 (Qld) provides that seasonal employees in the sugar industry are entitled to accrue long service leave, as set out:

“106 Application of subdivision

This subdivision applies to the following seasonal employees—

(a) an employee employed in seasonal employment in the sugar industry;

(b) an employee employed in or about meat works in seasonal employment by the meat works owner.

107 Entitlement to long service leave

(1) The employee is entitled to long service leave on full pay of at least the number of weeks worked out using the following formula—

Entitlement * (actual service / 10)

where—

entitlement means the entitlement to long service leave of an employee under section 95.

service means actual service expressed as a part of a year

(2) In working out the length of the employee’s continuous service—

(a) service with the employer of the employee engaged in harvesting sugar cane or farm work in the sugar industry before 23 June 1990 must not be taken into account; and

(b) a period between seasons when the employee is not employed by the employer must be taken into account if—

(i) in 1 season—the employee’s service with the employer continued until the end of the season or until an earlier day when the employee’s employment was terminated by the employer; and

(ii) in the next season—the employee’s service with the same employer started on the season’s opening or on a later day in the season when the employer required the employee to start employment.

(3) If the employee is employed by the employer between seasons, the part of the period between seasons when the employee is employed must be taken into account in working out the length of the employee’s actual service.

(4) If the employee is entitled to long service leave other than under this Act, the employee is entitled to leave that is at least as favourable as the entitlement under this section.

(5) In this section—

actual service means the total ordinary time in years actually worked by the employee during the employee’s period of continuous service.

108 Taking long service leave

(1) The employee may take long service leave between seasons.

(2) If the employee takes long service leave between seasons, the leave is taken to have started when the employee last ceased employment with the employer.”

[22] The Wilmar Enterprise Agreement 2015 (the Agreement) at cl.4.4.1 defines, “seasonal employee,” as:

“…an employee who has been engaged by the employer on or about the commencement of the crushing season for the purpose of performing duties directly and indirectly related to crushing season operations and whose duties are completed and employment terminated on or about the end of the mill’s crushing season.”

[23] The Sugar Industry Award 2010 (the Award) defines, “seasonal employee,” as meaning:

“seasonal employee means an employee who has been engaged by the employer on or about the commencement of the crushing season for the purpose of performing duties directly and indirectly related to crushing season operations and whose duties are completed and employment terminated on or about the end of the mill’s crushing season. For the purpose of a 38 hour week only, all employees not specifically engaged as seasonal, who are engaged after the first Monday of June in any one year and before the first Monday in June in the subsequent year, will be deemed to be seasonals until the first Monday of June in that subsequent year.”

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[24] The Respondent raised two jurisdictional objections to the application, that the Applicant was not an employee of the Respondent and that the Applicant was not dismissed. The Respondent submitted that the jurisdictional objections required consideration of two relevant issues, as set out:

“(a) Whether, at the time at which the Respondent made the decision not to reengage the Applicant for the 2017 crushing season, the Applicant was an employee of the Respondent; and

(b) Whether the termination of the Applicant’s employment on 20 December 2016 occurred because it was the end of the crushing season.” 18

[25] The Respondent referred to the Applicant’s Form F2, in which the Applicant stated that her, “work is seasonal work which usually commences on the end of May.” 19 The Respondent submitted that this constituted an admission by the Applicant that she knew that she was not a permanent employee and that her application related to the Respondent’s failure to reengage her for the 2017 crushing season, rather than the termination of her employment.20

[26] The Respondent submitted that by the Applicant signing and returning her contract of employment to the Respondent, the Commission may draw the inference that the Applicant read and understood that her employment was seasonal and would terminate at the end of the 2016 crushing season. 21

[27] The Respondent submitted that pursuant to s.386(2)(a) of the Act, “[w]here a person was employed under a contract of employment for the duration of a specified season and the employment has terminated at the end of the season, the person has not been dismissed.” 22 It was submitted that the Applicant’s employment was terminated at the end of the 2016 crushing season, in accordance with her contract of employment, and that therefore, the Applicant was not dismissed for the purposes of .s386(2)(a) of the Act.23 The Respondent submitted that there was, “no positive decision or action,” on the behalf of the Respondent that caused the employment relationship to end.24

[28] The Respondent referred to the recent decision in Dale v Hatch Pty Ltd, 25 where the Full Bench of the Commission held that:

“[8] The consideration of Ms Dale’s appeal must start with determining the meaning of the expression “contract of employment … for a specified task” in s.386(2)(a). The ordinary meaning of the word “task” is, as stated in the Decision, a piece of work to be performed or undertaken. That was the meaning assigned to the term in the decision of a Full Bench of the Australian Industrial Relations Commission (AIRC) in Qantas Airways Limited v Fetz. It must be the task of the employee, not the employer, as was pointed out by Wilcox CJ in Drury v BHP Refractories Pty Ltd in relation to the same expression then appearing in reg.30B(1)(b) of the Industrial Relations Regulations:

“The words “for a specified task” qualify the words “contract of employment”. The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words "for a specified task" have nothing to do with the employer's task, or project. This seems clear as a matter of grammar and it makes sense in policy terms. One can understand a view that the protections provided by Division 3 of Part V1A should not be available to people who undertake only a specified task. Especially after the task is completed, it would be anomalous to restrict the employer's right to terminate the contract of employment. Bearing in mind that many projects undertaken by employers continue for many years, while employees come and go, it would be equally anomalous to exclude relief under Part V1A simply because the employee was engaged in connection with a particular project.”

[9] The task must be “specified” - that is, identified in definite terms. In a written contract of employment, it could usually be expected that the task would be identified in express words, although it is not impossible to conceive of a case whereby the task might be specified as a matter of necessary implication. Further, the relevant contract of employment must be “for” the specified task, meaning that it has been entered into for the purpose of the performance and completion of that task.

[10] A critical element in this part of the exception in s.386(2)(a) is, we consider, that the task be sufficiently definite in its nature and delineation such that identification of when the task is completed is not a matter of doubt or speculation or contingency but is clear and predictable. We draw that inference from the fact that s.386(2)(a) requires the termination of employment to occur at the end of the completion of the task, thus requiring it to be identifiable with certainty. The context supports that inference in that the other exceptions contained in s.386(2)(a) - a contract for a specified period terminating at the end of that period, or for the duration of a specified season terminating at the end of the season - likewise involve the termination of employment occurring at an identifiable time or upon an identifiable event.” 26 [Footnotes omitted]

[29] Mr Mines provided two affidavits in these proceedings. In his first affidavit, Mr Mines made reference to the Respondent’s processes for determining the end of specified crushing seasons:

“The precise date on which the crushing season ends for any particular mill depends on a number of factors, including the weather and the volume of cane available for harvesting and crushing. When the mill management estimates that the season is likely to end in approximately 6 weeks, they place on mill notice boards and in amenities rooms a notice to all seasonal employees informing them of the date on which they anticipate their seasonal employment with Wilmar will cease…

As the end of the crushing season gets closer and it becomes possible to predict more accurately the date on which the crushing season will end for a particular mill, Wilmar management place on mill notice boards and in amenities rooms a notice to all seasonal employees at the mills further notices to the seasonal employees about the anticipated date of the end of the crushing season at each mill.” 27

[30] Annexed to Mr Mines’ second affidavit was a copy of the final notification posted on 21 December 2016, advising that, “the last cane tipped,” (that is, the end of the crushing season) would be on 23 December 2016. 28

[31] The Respondent submitted that there is no requirement for the Respondent to have identified that the contract would be for a specific time or task determinable at the commencement of the contract, as s.386(2)(a) explicitly provides that the contract may end with reference to a specific season. 29 The Respondent refuted that there was any continuity of employment between crushing seasons.30

[32] The Respondent submitted that the Agreement does not affect the operation of s.386(2)(a) and that nothing in the Agreement creates continuity of employment between crushing season or guarantees reemployment for subsequent seasons. 31 Further, it was submitted that the entitlement for seasonal workers to accumulate long service leave was a feature of the National Employment Standards and the Respondent cannot adversely affect that entitlement.32

[33] The Respondent submitted that it is irrelevant if the Applicant had worked on a, “regular and systematic basis,” for a number of seasons, as this consideration was only relevant under s.384(2)(a) of the Act, to determine periods of service for a casual employee. Therefore, it was submitted that the Applicant was not a casual employee and was not an employee of the Respondent between crushing seasons. 33

[34] Accordingly, it was submitted that the Commission’s jurisdiction was not enlivened and the application must be dismissed.

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[35] The Applicant submitted that, “whilst the [Applicant’s contract of employment] was for one season, the employment relationship was one that extended over many seasons and is supported by the Respondent’s own evidence, and regulatory instruments recognising the relationship.” 34

[36] The Applicant referred to the decision of the Full Bench of the Industrial Relations Court of Australia in Brackenridge v Toyota Motor Corporation Australia Limited, 35 where it was held that:

“…we are of the opinion that the decision by Toyota to demote Ms Brackenridge involved a termination of her contract of employment as a chef supervisor. However, for the purpose of Division 3 of Part VIA of the Industrial Relations Act, the relevant question is not whether there was a termination of the contract of employment but whether the applicant suffered “termination of his or her Employment”: see s 170EA(1) of the Act. There is a conceptual difference between the two situations: see Siagian v Sanel Pty Limited [1994] IRCA 2; (1994) 1 IRCR 1 at 13 - 20. Ordinarily, the conceptual difference does not matter: dismissal will ordinarily terminate both the particular contract of employment and the employment relationship.

In this case, however, Ms Brackenridge continued to be employed by Toyota after 3

February 1995. The employment relationship continued albeit under a new contract of employment.” 36

[37] The Applicant submitted that the present matter may be distinguished from Bosley v Kosciuszko Thredbo Pty Ltd, 37 stating that:

“…it would appear that, on the evidence given in the course of the hearing, the Applicant in that matter… was a troublesome employee and this was a factor in the Deputy President arriving at the decision to dismiss the application… It is also noted that, although Jason Bosley was a long-term employee of Kosciuszko Thredbo Pty Ltd, no mention was made in the decision in relation to his putative entitlement to accrued long service leave. It is respectfully submitted that the Bosley matter is distinguishable from the matter that is currently before the Fair Work Commission in that the Applicant, Romana Galbraith, had an entitlement to accrued long service leave as well as personal leave. Furthermore, it is respectfully submitted that her employment relationship with Wilmar Sugar, over the years, can hardly be categorised as troublesome.” 38

[38] It was submitted that the Applicant’s employment was governed by the Agreement and that the Agreement, “recognises the importance of an ongoing relationship… it distinguishes between ‘seasonals’ and ‘fixed term employees’… if the Respondent intended the relationship to be for a fixed ‘specified season’ then it could have engaged the Applicant for a ‘specified period or task’ and none of the benefits [in the Agreement] would have applied.” 39

[39] Further, the Applicant submitted that the, “importance of recognising the ongoing relationship between an employer and seasonal employees in the Queensland sugar industry,” 40 was recognised by the legislature in the Industrial Relations Act 2016 (Qld).

[40] In relation to the disciplinary allegations raised by the Respondent, the Applicant submitted that, “it is somewhat incongruous for the Respondent to simultaneously argue both tenets of the Applicant’s dismissal. In short, if she was not an employee how could disciplinary matters arise?” 41 Further, the Applicant stated that continuity of employment was a, “feature,” in the sugar industry and that her accrual of personal leave was, “clearly an indication that her employment was an ongoing working relationship albeit on a seasonal basis.”42

[41] The Applicant emphasised the distinction between the employment relationship and the contract of employment. It particular, the Applicant submitted that:

“…It is the Applicant’s contention that there existed between herself and the Respondent, an ongoing employment relationship which extended from the time of her commencement of employment in 2008 until the employer terminated that relationship on 8 May 2017.

The evidence that supports this contention is the fact that for the duration of her employment the Applicant accrued personal leave as well as pro-rated long service leave. It is also the case that the Enterprise Agreement which the Respondent and the employees of the Respondent is bound by, recognises the accrual of long service leave.

The Applicant also contends that her seasonal employment involved an understanding that seniority was a custom and practice at the Kalamia Mill, which meant that length of service for seasonal employees was a factor in selecting those employees given fulltime employment in the mill.” 43

[42] The Applicant submitted that her absence during the 2015 crushing season should not disrupt her continuity of employment as it was related to a workplace injury. 44 It was submitted that if an ongoing employment relationship was not recognised and that her employment ended as a result of the crushing season concluding, “a swag of seasonal employees would be thus disentitled.”45

CONSIDERATION

[43] The Respondent raised two jurisdictional objections to the application, alleging that the Applicant was not an employee of the Respondent at the relevant time and that the Applicant was not dismissed. The Applicant had worked a number of separate seasonal engagements.

[44] It was not in dispute that the Applicant had been engaged by the Respondent as a seasonal employee. On this basis, the Applicant considered she was a long standing employee of the Respondent and had an ongoing expectation of continuing employment. The Respondent submitted that the Applicant’s employment ended on 23 December 2016, at the end of the crushing season as per her contract of employment and the definition of a, “seasonal employee,” in the Award and the Agreement.

[45] The Explanatory Memorandum to the Fair Work Bill 2008 states that:

“1532. Paragraph 386(2)(a) reflects the common law position that termination in these circumstances would not be a dismissal. The fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season. However, if a person engaged on this sort of contract is terminated prior to the end time specified in the contract, they may seek an unfair dismissal remedy if they satisfy the other requirements.

…

1534. Season has its ordinary meaning and covers a range of things, for example:

● the part of a year when a product is best or available;

● the part of a year characterised by particular conditions of weather or temperature; or

● the part of a year marked by certain conditions, festivities or other activities.”

[46] Whilst the disciplinary matter, regarding the Applicant’s non-attendance for her shift on 5 and 6 December 2016, occurred during the Applicant’s period of employment, the Respondent stated they were not aware of this matter until 1 February 2017, after the season had ended.

[47] In the decision of Dale v Hatch Pty Ltd, 46 it was held that the, “duration of a specified season terminating at the end of the season - likewise involve the termination of employment occurring at an identifiable time or upon an identifiable event.”47 In this case, the, “specified season,” was the 2016 crushing season and was calculated with reference to the provisions in the Agreement, and communicated to employees over the course of the six weeks preceding the end of the season.

[48] The submissions of the Applicant are recognised, with respect to the importance of seasonal labour and the expectation of those employees (who have been engaged on a number of separate seasonal contracts, over consecutive years), to continue to be engaged for future seasons. This expectation is incongruous with the operation of the definition of, “seasonal employee,” as set out in the Agreement and the Award.

[49] It is noted that the non-attendance at the shifts rostered for the 5 and 6 December 2016, occurred during the season and that the Respondent’s associated investigation into the allegations took place after the cessation of the season. On the Respondent’s evidence and submissions, the process of re-engaging an employee for future crushing seasons, requires the Respondent to take into account any disciplinary matters. The issue of the Applicant’s absence was an outstanding disciplinary matter and accordingly, it was reasonable for the Respondent to investigate such prior to offering the Applicant employment for the 2017 crushing season. This disciplinary matter was not resolved as, although the Applicant was provided an extension as requested, the Applicant did not provide the required information to verify that she intended to return to meet her shift commitment rostered on the nights of the 5 and 6 December 2016.

[50] The Applicant was a seasonal employee and the season ended on 23 December 2016. Accordingly, the Applicant was no longer an employee. The jurisdiction of the Commission is not enlivened. In accordance with s.386(2)(a) and for the aforementioned reasons, the application made pursuant to s.394 of the Act, is therefore dismissed.

[51] I Order accordingly.

COMMISSIONER

 1 Affidavit of Romana Galbraith sworn 4 August 2017 at [6].

 2 Ibid at [4].

 3 Ibid at [26].

 4   Ibid at Annexure RG-1.

 5 Ibid at [34].

 6   Ibid at [11] – [22].

 7 Ibid at [38].

 8 Ibid at [23].

 9   Affidavit of Kerrie Payne sworn 25 August 2017 at [15] – [26].

 10 Further Affidavit of Damien Mines sworn 25 August 2017 at [14].

 11 Affidavit of Brendan Rich sworn 25 August 2017 at [14].

 12 Further Affidavit of Damien Mines sworn 25 August 2017 at [24].

 13 Ibid at [31].

 14   Applicant’s Form F2 – Unfair dismissal application at [1.3].

 15   Affidavit of Romana Galbraith sworn 4 August 2017 at Annexure RG-2.

 16 Further Affidavit of Damien Mines sworn 25 August 2017 at [5].

 17   Affidavit of Damien Mines sworn 28 July 2017 at Annexure DLM-1.

 18 Respondent’s Submissions on Jurisdictional Objections dated 28 July 2017 at [4].

 19   Applicant’s Form F2 – Unfair dismissal application at [1.3].

 20   Respondent’s Submissions on Jurisdictional Objections dated 28 July 2017 at [7] – [8].

 21 Ibid at [13].

 22 Ibid at [12].

 23   Ibid at [14] – [15].

 24 Respondent’s Submissions on Merits and Reply on Jurisdiction dated 25 August 2017 at [18].

 25   [2016] FWCFB 922.

 26   Ibid at [8] – [10].

 27   Affidavit of Damien Mines sworn 28 July 2017 at [9], [11].

 28   Further Affidavit of Damien Mines sworn 25 August 2017 at Annexure DLM-13.

 29   Respondent’s Submissions in Reply to Applicant’s Further Submissions on Jurisdictional Objections dated 3 October 2017 at [9] – [12].

 30 Ibid at [20].

 31 Ibid at [35].

 32 Ibid at [40].

 33 Ibid at [54].

 34 Applicant's Outline of Submissions in relation to the Jurisdictional Objection dated 22 September 2017 at [6].

 35 [1996] IRCA 628.

 36   Ibid.

 37   [2017] FWC 3763.

 38   Applicant's Outline of Submissions in relation to the Jurisdictional Objection dated 22 September 2017 at [9] – [10].

 39   Ibid at [13] – [14].

 40 Ibid at [17].

 41 Ibid at [20].

 42 Ibid at [24].

 43   Applicant’s Submissions dated 8 August 2017 at [17] – [20].

 44 Applicant's Outline of Submissions in relation to the Jurisdictional Objection dated 22 September 2017 at [26].

 45 Ibid at [30].

 46   [2016] FWCFB 922.

 47 Ibid at [10].

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