Ms Zoey Organ v Bushmans Bakery Pty Ltd

[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,…

CaseChat Overview and Summary

In the case of Ms Zoey Organ v Bushmans Bakery Pty Ltd, the Fair Work Commission was called upon to determine whether Ms Organ, a part-time employee of the bakery, was entitled to a redundancy payment upon her termination. Ms Organ claimed that she was entitled to redundancy pay, arguing that her employment was regular and systematic, whereas the bakery argued that her employment was casual and therefore not eligible for such payments. The central issue before the Commission was whether Ms Organ's employment met the criteria for being classified as regular and systematic, which would entitle her to redundancy pay under the Fair Work Act.

The Commission examined the nature and pattern of Ms Organ's work to ascertain whether her employment was regular and systematic. Factors considered included the frequency and predictability of her shifts, the duration of her employment, and the circumstances surrounding her termination. The bakery submitted evidence suggesting that Ms Organ's shifts were irregular and varied in frequency, which would typically indicate a casual employment relationship. Conversely, Ms Organ presented evidence highlighting patterns in her work schedule, suggesting a degree of regularity. After evaluating the evidence, the Commission concluded that while Ms Organ's shifts were not entirely unpredictable, they did not meet the threshold for regularity and systematicity required to classify her employment as regular and systematic.

Consequently, the Commission found that Ms Organ's employment was casual in nature, and she was not entitled to a redundancy payment. The decision hinged on the nuanced interpretation of what constitutes regular and systematic employment and the specific circumstances of Ms Organ's work arrangement. The Commission's ruling was based on the detailed examination of the employment relationship, underscoring the importance of precise documentation and evidence in such cases.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established