Ms Suzanne Fitness v Bushmans Bakery Pty Ltd
[2012] FWA 8041
•18 SEPTEMBER 2012
[2012] FWA 8041 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Suzanne Fitness
v
Bushmans Bakery Pty Ltd
(U2012/10620)
DEPUTY PRESIDENT HARRISON | NEWCASTLE, 18 SEPTEMBER 2012 |
Jurisdiction - employment not regular and systematic
[1] Ms Suzanne Fitness (the Applicant) was employed by Rondall Pty Ltd T/A Bushman’s Bakery (the Employer) as a casual shop assistant at the Wingham Bakery from the opening of the business in January 2011 to the termination of her employment on 6 June 2012.
[2] Ms Fitness was working whilst attending high school throughout 2011. Ms Fitness continued her casual employment after leaving school at the end of 2011.
[3] The employer lodged a Form F4 Objection to the Application on the basis that the Applicant is precluded by Division 2 of the Fair Work Act 2009 which requires a minimum of six months employment (s383(a)); and that casual employment does not count toward the minimum period of employment unless that casual employment is on a regular and systematic basis.
[4] 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
[5] The Employer’s detailed grounds of objection outlined in the Form F4 Objection are:
1. The applicant was offered employment on a casual basis with Rondall Pty Ltd t/as Bushman's Bakery, Wingham ("Bushman's Bakery") in January 2011.
2. When the applicant was offered and accepted work, she was advised that the days and hours she would work would vary depending upon the operational requirements of the business and the availability of other staff.
3. The work roster was drawn up on either a weekly basis or a fortnightly basis, as the Respondent's operational requirements dictated.
4. The applicant commenced work on 10 January 2011 as a casual employee while she was still a student at Wingham High School.
[6] The Employer submitted that Ms Fitness’ employment was not regular and systematic.
[7] Mr Cross of Counsel, appearing on behalf of the Employer, relied upon time sheets for the period 9 January 2011 to 30 May 2012 (Exhibit 1) and Payroll advices for the same period (Exhibit 2). Mr Cross referred me to the Decision of Hamilton DP in Nathan Leane v Federal Hotel 1 [2011] FWA 5959.
[8] Ms Fitness, appearing on her own behalf, put that she consistently worked Tuesdays and Thursdays, which constituted regular and systematic casual employment such as to ground jurisdiction.
[9] A close examination of the payroll information discloses that Ms Fitness was not engaged on a Tuesday and Thursday basis as asserted; moreover, that the days upon which she worked, the hours worked each day, and the number of hours worked each week varied markedly with a diminution in hours worked towards the end of her employment.
[10] By reference to exhibit 2, the hours worked each week by Ms Fitness in 2012 after leaving school varied:
January 2012 | 20.5 | 0 | 8.5 | 8.5 | |
February 2012 | 16.0 | 10.0 | 4.5 | 16.5 | |
March 2012 | 15.0 | 6.0 | 17.0 | 14.0 | 9.5 |
April 2012 | 16.0 | 3.5 | 9.0 | 8.0 | |
May 2012 | 8.0 | 4.0 | 6.0 | 6.0 | |
June 2012 | 0.5 |
[11] In his Decision in Leane Hamilton DP said 2:
[21] The time and wages records filed by the Federal Hotel provide more evidence that the employment was not regular and systematic. They confirm the evidence of Mr Leane’s bank records that the wages earned by Mr Leane usually varied each week. In addition they indicate that the wages were usually earned on different days, usually one day a week but sometimes more, and the hours worked were different. The only regularity was that Mr Leane often, but not always, worked one day a week. There were no regular hours or patterns of work or rosters: Robert James Power v. Rupe. I note that there are some minor differences between Mr Leane’s bank records and the time and wages records which record net pay, but most correlate, and reinforce the accuracy of the records.
[22] Taking Mr Leane’s evidence at its highest I am unable to find that he was regularly and systematically employed as a casual for the period October 2010 to March 2011. Mr Leane’s application therefore does not meet the requirements of s.382(a) of the Fair Work Act 2009 because he was not employed for the minimum employment period within that section. I am therefore required to dismiss his application.
[12] The evidence in this matter leads to a finding that Ms Fitness was not employed on a regular and systematic basis and accordingly is excluded from the provisions of Part 3.2 Unfair Dismissal, as she was not employed for the minimum period required by s.382(a) of the Fair Work Act 2009
[13] The matter is dismissed for want of jurisdiction.
DEPUTY PRESIDENT
Appearances:
Ms Fitness the Applicant
Mr B Cross of Counsel (for Respondent)
Mr G Farland, Solicitor, Paton Hooke
Hearing details:
2012
September 11
Taree Court House
1 [2011] FWA 5959
2 at page 6
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