Ms Zoey Organ v Bushmans Bakery Pty Ltd

[2012] FWA 8079

[2012] FWA 8079

FAIR WORK AUSTRALIA

DECISION

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

Ms Zoey Organ
v
Bushmans Bakery Pty Ltd
(U2012/10603)

DEPUTY PRESIDENT HARRISON NEWCASTLE, 18 SEPTEMBER 2012

Jurisdiction - employment not regular and systematic

[1] Ms Zoey Organ (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 January 2011 to the termination of her employment on 6 June 2012.

[2] Mr Cross of Counsel, appearing on behalf of the Employer, submitted that the Applicant is precluded from jurisdiction 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.

[3] Mr Cross submitted that the Employer was a small business as defined and accordingly the qualifying period is 12 months service and the small business code applies.

[4] This submission was not opposed, however, was not pressed by the provision of supporting evidence.

[5] Mr Cross relied upon his submission that Ms Organ’s casual employment was not regular and systematic and accordingly 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

[7] Mr Cross submitted that Ms Organ’s employment was not regular and systematic at any time during the period of employment..

[8] Mr Cross 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.

[9] Mr Cross also submitted that from January 2012, when Ms Organ put that her hours increased, the casual employment did not become regular and systematic and, in any event, was for a period of 23 weeks which is less than six months from January 2012 to the second week of June 2012.

[10] Ms Organ, appearing on her own behalf, put that she initially worked Monday to Friday, and twice per month Monday to Saturday; then in the past six months she worked forty hours per week unless she needed time off to attend medical appointments, which constituted regular and systematic casual employment such as to ground jurisdiction.

[11] A close examination of the payroll information discloses that Ms Organ was not engaged on a forty hour per week basis as asserted; moreover, that the days upon which she worked, the hours worked each day, the number of hours worked each week, and whether she worked in the morning or afternoons, varied markedly.

[12] By reference to exhibit 2, the hours worked each week by Ms Organ in 2012 were:

January 2012	7.5	6	26.5	35.5
February 2012	18	24	35.5	27
March 2012	27.5	33	27.5	24	37
April 2012	28.5	27.5	18	38.5
May 2012	29.5	24.5	17.5	31.5
June 2012	25	25

[13] Ms Organ put that a roster was posted two weeks in advance and that she was required to give two weeks notice if she was unavailable for any reason.

[14] Ms Organ conceded that the roster was always changed, leading to a conclusion that the roster was more a statement of intention of what would occur unless circumstances changed, rather than a fixed commitment by the employer to provide work and the employee to be available and undertake that work.

[15] 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.

[16] The evidence in this matter leads to a finding that Ms Organ 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

[17] The matter is dismissed for want of jurisdiction.

DEPUTY PRESIDENT

Appearances:

Ms Organ 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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