Murray v Zinctech Cladding and Roofing
[2016] FWC 2098
•5 April 2016
[2016] FWC 2098
DECISION
| Fair Work Act 2009 |
| s.394—Unfair dismissal |
| Ryan Murray |
| v |
| Zinctech Cladding and Roofing |
| (U2016/4856) |
| SENIOR DEPUTY PRESIDENT |
ADELAIDE, 4 APRIL 2016
O’CALLAGHAN
Application for relief from unfair dismissal – jurisdiction – regular and systematic casual
employment – genuine redundancy.
[1] On 25 February 2016 Mr Murray lodged an application, pursuant to s.394 of the Fair
Work Act 2009 (the FW Act), in which he asserted that the termination of his employment
with Zinctech Cladding and Roofing (Zinctech) was unfair.
[2] Zinctech lodged an objection to the application in which it asserted that Mr Murray
was not a person who was protected from unfair dismissal because he was a casual employee
who worked on an irregular basis. In the alternative, Zinctech argued that any termination of
Mr Murray’s employment could not be considered unfair because it was a case of genuine
redundancy.
[3] These two jurisdictional issues were the subject of a determinative conference
convened on 31 March 2016. In this conference Mr Murray represented himself and Zinctech
was represented by its Director, Mr Hewitt. This decision sets out my conclusions with
respect to both of these issues.
[4] The basis for the two jurisdictional objections can be simply set out. Firstly, s.382
describes the persons who are protected from unfair dismissal in the following terms:
“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;
[2016] FWC 2098
(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.”
[5] Section 383 defines the minimum employment period in the following terms:
“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.”
[6] Section 384 deals with the recognition of casual employment for the purposes of
considering the minimum employment period. This section states:
“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
[2016] FWC 2098
(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.”
[7] Consequently, to be a person protected from unfair dismissal, Mr Murray has to have
completed that minimum period of employment. To the extent that he was employed on a
casual basis this must have been on a regular and systematic basis with a reasonable
expectation of similar on-going employment.
[8] Secondly, even if Mr Murray was a person who was protected from unfair dismissal,
the termination of his employment cannot be unfair if that dismissal met the definition of a
genuine redundancy. Section 385 states:
“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.”
[9] A genuine redundancy is defined in s.389 in the following terms:
“389 Meaning of genuine redundancy (1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. [2016] FWC 2098
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or (b) the enterprise of an associated entity of the employer.”
[10] I have initially considered the extent to which Mr Murray was a person protected from
unfair dismissal.
[11] Mr Murray undertook roofing work for Zinctech. He commenced that employment on
1
| 7 January 2015. He was engaged under the terms of a contract. | The effect of this contract and |
its standing in terms of defining the nature of Mr Murray’s employment is disputed.
Mr Murray generally worked between 28 and 40 hours each week. He was paid an hourly rate
of pay. Over the period 7 January 2015 to 5 February 2016 he generally worked each week.
No pay records have been provided with respect to eight single weeks and a three week period
in September and October 2015. Mr Murray’s evidence was that he may have lost a number
of pay advices, that two of these periods were likely to reflect shortages of work, one reflected
a week he had off work and two weeks applied to the Easter and Christmas periods.
[12] In terms of the nature of the employment arrangement, Mr Hewitt’s evidence was that
Mr Murray was employed under the terms of a casual employment agreement which he
signed and endorsed. Mr Hewitt advised that Mr Murray was given no guarantee of work, that
he was offered work on a project by project basis and that he was able to refuse work offers at
his discretion. Mr Hewitt provided a copy of this employment agreement. Mr Hewitt also
provided a copy of a text message chain in which he advised Mr Murray that work for a
period in July 2015 was not available. Mr Hewitt agreed that Mr Murray was expected to
advise him in advance of absences from work but that, apart from occasions when he advised
that work was not available, he expected him to attend at a specified time and site.
[13] Mr Murray’s evidence was that he was required to work on a generally consistent
basis and to notify Zinctech of any absences from work. He advised that he generally worked
each week and provided payment records in support of his position that he was engaged on a
regular and systematic basis.
2
| [14] | In Shortland v The Smiths Snackfood Co Ltd | a Full Bench of the Commission made |
the following observations:
“[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a
separate engagement pursuant to a separate contract of employment. Casual employees
may be engaged from week to week, day to day, shift to shift, hour to hour or for any
other agreed short period. 4 In this sense no casual employee has a continuous period
of employment beyond any single engagement. Moreover, it is common for a casual
employee to transition between a period in which their engagements with a particular
employer are intermittent and a period in which their engagements are regular and
systematic and vice versa. It is against that background that s.384 must be construed.
[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the
basis that a casual employee’s period of employment for the purposes of the unfair
[2016] FWC 2098
dismissal remedy starts and ends with each engagement as understood in the common
law of employment.
[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an
employee’s period of employment is calculated for the purposes of s.382(a). Section
384(2) draws a distinction between a period of service and a period of employment. It
also draws a distinction between a period of continuous service and a period of
service: a period of continuous service can be made up of a series of periods of
service, some of which count towards the period of continuous service (ie. where the
conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one
of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of
s.384(2) that an employee may have series of contiguous periods of service with an
employer that may count towards a single period of employment with that employer.
Any given period of service in such a contiguous series of periods of service will
count towards the employee’s period of employment only if the requirements in
s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining
which periods of service in such a contiguous series count toward the employee’s
period of employment with the employer for the purposes of s.382(a).
[13] 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.”
[15] The pattern of work disclosed by Mr Murray’s payment records discloses a generally
regular arrangement in that Mr Murray normally worked each day and his weekly hours were
between 28 and 40. I have accepted that his work had a high degree of regularity and certainty
associated with it but was contract dependent. I have also accepted Mr Murray’s evidence that
he was required to notify Zinctech in the event that he was unable to attend for work.
Consequently, I am satisfied that Mr Murray was employed on a regular and systematic basis
and had an expectation of continuing employment of that nature
[16] As I have noted, Mr Murray did not work for certain times. Those times cannot be
included for the purposes of establishing whether he has met the minimum employment
period but, on the approach in Shortland, they do not stop the work periods from being
collectively considered to determine the duration of Mr Murray’s continuous employment. On
this basis I have concluded that Mr Murray worked for a minimum of 44 weeks over a 56
week period of time and most likely, for 48 weeks.
[17] Mr Hewitt’s evidence was that, at the time of the termination of Mr Murray’s
employment, Zinctech had more than 15 employees. Consistent with s.383, this means that
the minimum employment period applicable to Mr Murray was six months.
[18] Consequently, Mr Murray had achieved the requisite minimum employment period
and I am satisfied that he was a person protected from unfair dismissal. This means that the
initial Zinctech jurisdictional objection must be dismissed.
[2016] FWC 2098
The Genuine Redundancy issue
[19] Mr Murray’s position is that the termination of his employment followed his absence
from work on 7 February 2016 because of his concerns about the behaviour of another
employee.
[20] Mr Hewitt’s position is that Zinctech had a number of significant projects which were
coming to a close and that this caused him to conclude, in the week before 7 February 2016,
that two employees, including Mr Murray had to be made redundant. Mr Hewitt agreed that
he engaged another employee to work on 7 February 2016, as Mr Murray declined to work on
that day, but that this employment did not continue beyond that day. Mr Hewitt also agreed
that Zinctech engaged three additional employees in the week prior to the termination of Mr
Murray’s employment but advised that this was to meet the requirements of various specific
projects. Further, Mr Hewitt disagreed with Mr Murray’s assertion that Zinctech engaged
additional employees soon after the termination of Mr Murray’s employment.
[21] There are three elements of the s.389 definition of a genuine redundancy which must
be satisfied.
[22] Firstly, I must be satisfied that the termination of Mr Murray’s employment occurred
because Zinctech no longer required that job to be done. In this regard, I am unable to
reconcile the advice that three new employees were engaged the week before Mr Murray was
dismissed, with a true redundancy situation.
[23] Secondly, s.389(1)(b) requires that Zinctech must have complied with the consultation
requirements in the relevant award or agreement. The contract between Zinctech and
Mr Murray specifies that the relevant award is the Plumbers and Gasfitters (SA ) Award. That
award has subsequently been replaced by the Plumbing and Fire Sprinklers Award 2010.
Notwithstanding this, I have concluded that, given the nature of the work undertaken by
Mr Murray, the Building and Construction General Award 2010 may also be the applicable
award. Little turns on this, as both awards provide for similar consultation requirements. Both
those award provisions required Zinctech to engage in discussions with the employees
affected by a change which could result in employment termination about the effects of the
changes proposed and measures to avert or mitigate those changes. Zinctech was required to
commence those discussions as early as possible after a definite change decision has been
made. The award provisions require Zinctech to provide written information to the employees
affected by the change.
[24] Mr Hewitt confirmed that this requisite consultation did not occur prior to the
termination of Mr Murray’s employment.
[25] Finally, s.389(2) requires that I am satisfied that redeployment was not reasonable in
the circumstances of Mr Murray’s dismissal. I have accepted Mr Hewitt’s advice that this was
not reasonable given the downturn in work available to Zinctech.
[26] Having considered each of the mandatory requirements in s.389, I am not satisfied that
the termination of Mr Murray’s employment meets all of these requirements. As a result, the
Zinctech assertion that the termination of Mr Murray’s employment was a genuine
redundancy must be refused.
[2016] FWC 2098
Conclusion
[27] The Zinctech objections to Mr Murray’s further pursuit of his application must be
dismissed. An Order (PR578674) giving effect to this decision will be issued and Mr
Murray’s application will be referred for conciliation.
| Appearances: |
| R Murray on his own behalf. |
| J Hewitt for the respondent. |
| Hearing details: |
| 2016. |
| Adelaide: |
| March 31. |
| Printed by authority of the Commonwealth Government Printer |
| <Price code C, PR578673> |
1
Exhibit R5
2
[2010] FWAFB 5709
1
0
0