Natasha-Anne Werner v Clarendon Arms Pty Ltd T/A Clarendon Arms Hotel

[2018] FWC 1252

[2018] FWC 1252

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natasha-Anne Werner
v
Clarendon Arms Pty Ltd T/A Clarendon Arms Hotel
(U2018/366)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 1 MAY 2018

Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – small business – jurisdictional objection dismissed.

[1] On 11 January 2018, Ms Natasha-Anne Werner (the applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The applicant was employed by Clarendon Arms Pty Ltd T/A Clarendon Arms Hotel (the respondent) as a casual employee on a regular and systematic basis.

[2] On 22 January 2018, the respondent filed an employer response in which it objected to the application on jurisdictional grounds. The objection was made on the basis that the respondent is a small business as defined in s.23(1) of the Act and the applicant had not met the 12 month minimum employment period required of an employee of a small business under s.383(b) of the Act.

[3] The applicant commenced employment with the respondent on 17 March 2017 and was dismissed on 9 January 2018. This is not contested. The applicant’s period of service with the respondent was nine months, three weeks and two days.

[4] A hearing was held before me on 2 March 2018. Ms Bethan Frake sought permission to appear on behalf of the applicant and Ms Janette Lenthall sought permission to appear on behalf of the respondent. Pursuant to s.596 of the Act, permission was granted to assist the efficient conduct of the proceedings.

Was the respondent a small business employer within the meaning of the Act at the time of dismissal?

Respondent’s submissions

[5] The respondent submitted that at the time of the applicant’s dismissal, the respondent was a small business as defined in s.23(1) of the Act because it had 13 employees that met the purposes of s.23(2) of the Act.

[6] Section 23 of the Act provides:

Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.

[7] Section 383 of the Act provides:

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.

[8] The respondent submitted that Clarendon Arms Hotel commenced operation on 14 February 2017 and therefore none of its casual employees can be defined as long term casual employees.

[9] It is conceded by the respondent (in written submissions and at hearing) that at the time of the applicant’s dismissal, the following 13 employees were employed for the purposes of s.23(2) of the Act:

•  Nick Cashion;

•  Grace Cogger;

•  Jeremy Lee Wei-Yu;

•  Mariella Luciani;

•  Natasha Stopford;

•  Liz Leigh;

•  Danniele Jones;

•  Elizabeth Bailey;

•  Melonie Denman;

•  Catherine Muder;

•  Mel Denman;

•  Holly Young; and

•  Natasha Werner.

Applicant’s submissions

[10] The applicant claimed that in addition to the 13 employees conceded by the respondent, the following five individuals, and no more, are also employed by the respondent on a regular and systematic basis:

•  Alex Acui, who the applicant claimed worked consistently every Sunday from 12 November 2017 to 7 January 2018 (save for one week in December 2017);

•  Brad Martin, who the applicant claimed worked consistently every Sunday from 19 November 2017 to 7 January 2018 (save for one week in December 2017);

•  Dionne Pedder, who the applicant claimed worked consistently every week from 13 October 2017 to 7 January 2018 (generally working on Friday and Saturday nights and occasionally a third night);

•  Rebecca Howard, who the applicant claimed worked consistently from 21 October 2017 to 7 January 2018, working generally between one and three shifts per week on Friday, Saturday or Sunday nights (save for one week in November 2017); and

•  Tiarna Harris, who the applicant claimed worked consistently every Saturday from 14 October 2017 to 6 January 2018 (save for one week in December 2017). 1

[11] The applicant claims data provided by the respondent establishes its contentions above.

[12] The applicant submits that this establishes the respondent is not a small business for the purposes of s.23 of the Act as it actually employs 18 employees. The minimum employment period required is therefore six months pursuant to s.383 of the Act, which enlivens the Fair Work Commission’s jurisdiction to hear and determine the application for an unfair dismissal remedy.

[13] The applicant relied on Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 2 to establish the employees above were engaged on a regular and systematic basis. In that decision the Commission said:

“[66] …there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established.

…

[75] …that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.

[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:

•  The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and

•  Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.”

[14] In Wayne Shortland v The Smiths Snackfood Co Ltd 3a Full Bench of the Commission said:

‘[14] The Commissioner did not find that Mr Shortland’s employment was not continuous and correctly so. Prior to June 2009 Mr Shortland worked almost every week. There were a total of 4 isolated weeks in the period of almost three years prior to June 2009 when Mr Shortland performed no work. Those breaks should not be treated as a discontinuity in Mr Shortland’s employment such that periods of service before them should be discounted. The pattern of work disclosed by the evidence suggests that Mr Shortland’s employment in the period was regular and systematic. On any view, Mr Shortland had a reasonable expectation of continuing employment on a regular and systematic basis

[15] In Yaraka Holdings Pty Limited v Giljevic 4, the Full Federal Court said:

‘68. The term "regular" should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for "frequent" or "often". However, equally, it is not used in the section as a synonym for words such as "uniform" or "constant". Considered in the light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.

69. Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged.’

Evidence

[16] The applicant relied on her own Witness Statement, dated 22 February 2018. The applicant was not required for cross-examination.

[17] The respondent relied on two Statutory Declarations made by Ms Lydia Nettlefold. In her first Statutory Declaration, dated 7 February 2018, Ms Nettlefold gave evidence that the time she spends at the respondent’s businesses is on a voluntary basis. 5 In her second Statutory Declaration, dated 5 February 2018, Ms Nettlefold gave evidence that casual employees Kaleah Gathercole, Rebecca Howard, Alexandra Szolomick, Dionne Peddar, Tiarna Harris and Abigail Maynard cannot be characterised as regular or systematic employees.6 Ms Nettleford’s evidence was that this is because those employees advise the respondent when they are available to work and at that time, if work is available, it is offered to them. Ms Nettlefold gave evidence that those employees are full-time university students and therefore can only accept work as their study commitments allow, an arrangement made at their request.

[18] Further submissions were provided by the applicant and respondent. In particular, at the request of the applicant, the respondent provided the rosters for the full period of employment for the five employees in dispute, and a submission. The applicant responded to those additional submissions.

[19] Overall the submissions and witness evidence were not well organised by each side, although both sides were nevertheless entirely certain of their position and unwilling to compromise.

[20] An analysis of the rosters and evidence for the full period of employment for the five employees in question shows the following:

Alex Ascui

March – One out of three Saturday lunches. Different start and finish times, and different total hours.

April – Three out of five Sunday lunches. Two the same start and finish times and total hours, but different to March.

May – Two out of four Sunday lunches. Same start and finish times, same total hours.

June – One out of four Sunday lunches.

July – One out of five Sunday lunches.

August – One out of five Thursday lunches, one out of four Friday dinner, one out of four Saturday dinner. Mainly different times and total hours.

September – Away September/October.

November – Three out of four Sunday lunches, same start and finish times, same hours. Cancelled on one Sunday lunch.

December – Five out of five Sunday lunches, start time varied two/three, total hours varied two/three.

January – One out of one Sunday lunch.

Ms Nettlefold gave evidence that the employer submission and attachments were true and correct 7. In the summary attached to her submission, which she said was true and correct, she dealt with issues such as whether he was offered work each week, usually worked when offered, his hours were not akin to full-time hours, he did not expect to be offered work each week, he did not work as part of a set crew, and Ms Nettlefold had reasonable expectation that the casual employee would work when it was offered8. This was said to be a preponderance of indicia that he was not employed on a regular and systematic basis.

Ms Werner gave evidence that Mr Ascui would always work Sundays and occasionally other shifts 9.

Conclusion: After he came back from being away in September and October, Mr Ascui worked nearly every Sunday, with the same start and finish times to some extent. He had worked Sunday lunches in April, May, June and July, but not August or March. The employer view of the arrangement was set out in a text on 28 December; ‘Come November every Sunday we will be opening Clarendon arms outside bar again and it would be great to have you on board to staff it’. This is a suggestion of regular employment staffing that bar, and Ascui accepted for all but the 21^st. He was not an occasional or irregular employee. He was a regular and systematic employee.

Brad Martin

April – Four out of five Sunday lunches, same total hours, same start and finish times.

May – Three out of four Sunday lunches, same start and finish times, same total hours.

June – Three out of four Sunday lunches, same total hours, same start and finish times.

July – Three out of five Sunday lunches, same total hours, same start and finish times.

August – One out of four Friday lunches, three out of four Sunday lunches, same total hours, same start and finish times except for Friday.

September – Three out of five Friday lunches, one out of five Saturday lunches, three out of four Sunday lunches, Sundays same total hours and start and finish times.

October – One out of four Friday lunches, three out of five Sunday lunches, Sunday same total hours and start and finish times.

November – Two out of four Sunday lunches, same total hours, and start and finish times.

December – Four out of five Sunday lunches, same total hours, and start and finish times.

January – One out of one Sunday lunches.

Ms Nettlefold gave evidence that the employer submission and attachments were true and correct 10. In the summary attached to her submission, which she said was true and correct, she dealt with issues such as whether he was offered work each week, usually worked when offered, his hours were not akin to full-time hours, he did not expect to be offered work each week, he did not work as part of a set crew, and Ms Nettlefold had reasonable expectation that the casual employee would work when it was offered11. This was said to be a preponderance of indicia that he was not employed on a regular and systematic basis.

Ms Werner gave evidence about Mr Martin 12.

Conclusion: Mr Martin was a regular and systematic employee. He was a regular Sunday lunch worker for regular hours, although different numbers of shifts. He was not an occasional or irregular employee.

Tiana Harris

August – One out of four Friday lunches, one out of four Saturday lunches, different total hours, different start and finish times.

September – One out of five Friday dinner, four out of five Saturday lunches (same total hours and start and finish times), one out of four Sunday lunches.

October – One out of four Friday lunches, three out of four Saturday lunches (two out of three same total hours and start and finish times), one out of five Sunday lunches.

November – Four out of four Sunday lunches same total hours and start and finish times.

December – Two out of five Saturday lunches, two out of five Sunday lunches, differing hours and start and finish times.

January – One Saturday and one Sunday lunch different times.

Ms Nettlefold gave evidence that the employer submission and attachments were true and correct 13. She said that Ms Harris, Rebecca Howard, and Dionne Peddar advise the employer when they are available for work and if they have hours available at that time they are offered to them. They are full time university students who are only able to accept hours as their studies allow. This arrangement was at their request and was negotiated and agreed by the parties when employment offers were made14. In the summary attached to her submission, which she said was true and correct, she said that Ms Harris was offered work each week, usually worked when offered, her hours were not akin to full-time hours, she did not expect to be offered work each week, she did not work as part of a set crew, and Ms Nettlefold had reasonable expectation that the casual employee would work when it was offered15. This was said to be a preponderance of indicia that she was not employed on a regular and systematic basis.

Ms Werner gave evidence about Ms Harris stating she was rostered consistently 16.

Conclusion: Ms Harris worked a shift every week from the start of her engagement through to January 2018, except for weeks 32, 48 and 52. She worked constantly and regularly, although shifts varied. She was not an occasional or irregular employee. She was a regular and systematic employee.

Dionne Pedder

May – Two out of four Friday dinners, two out of five Saturday dinner, only two shifts the same in total hours and start and finish times.

June – three out of five Friday dinner, three out of four Saturday dinner, one out of four Sunday lunch, varying total hours and start and finish times.

July – Two out of four Friday dinner, three out of five Saturday dinner, one out of five Sunday lunch, four shifts same total hours and start and finish times.

August – Three out of four Friday dinner, one out of four Saturday lunch, two out of four Saturday dinner, two out of four Sunday lunch, some variations in total hours and start and finish times.

September – Two out of four Thursday lunch, three out of five Friday dinner, two out of five Saturday dinner, one out of four Sunday lunch, some variations in total hours and start and finish times.

October – One out of five Thursday lunches, four out of four Friday dinner, three out of four Saturday dinner, two out of five Sunday lunch, some variations in total hours and start and finish times.

November – Three out of four Friday dinner, three out of four Saturday dinner, one out of four Sunday lunch, some similarities in total hours and start and finish times.

December – Five out of five Friday dinner, four out of five Saturday dinner, two out of five Sunday lunch, variations in total hours and start and finish times.

January – One out of one Friday dinner, one out of one Saturday dinner, variations in total hours and start and finish times.

Ms Nettlefold gave evidence that the employer submission and attachments were true and correct 17. She said that Ms Harris, Rebecca Howard, and Dionne Peddar advise the employer when they are available for work and if they have hours available at that time they are offered to them. They are full time university students who are only able to accept hours as their studies allow. This arrangement was at their request and was negotiated and agreed by the parties when employment offers were made18. In the summary attached to her submission, which she said was true and correct,Ms.Nettlefold she dealt with issues such as whether employees were offered work each week, usually worked when offered, her hours were not akin to full-time hours, she did not expect to be offered work each week, she did not work as part of a set crew, and Ms Nettlefold had reasonable expectation that the casual employee would work when it was offered19. Ms.Peddar’s circumstances are not dealt with in that summary.

Ms Werner gave evidence about Ms Peddar saying she worked at least one shift each week 20.

Conclusion: Ms Pedder regularly worked at the business, and was a constant presence. The shifts and hours varied, but she regularly and constantly worked, and was a regular presence there for any customers. She worked every month and nearly every week, as Ms Werner said. This was acknowledged in arrangements made for her employment in the text messages sent, which included the statement on 31 October by the employer ‘…I don’t wish to overload you however two ppl have said they are not able to do their shift on Sunday 12^th and no one else is available …” The reference to her not being overloaded shows a regular pattern of her being sought by the employer. She was not an occasional or irregular employee.

Rebecca Howard

December – Many shifts, different days, shifts, total hours, start and finish times.

January- One shift.

Conclusion: Ms Howard worked every week from week 48 to 52 of 2017, every month, and week 1 of 2018. She worked approximately 11 shifts in that period, which varied in times. She was not occasional or irregular. She was a regular and systematic employee.

Overall conclusion about the five employees

Each of these employees is not a regular and systematic employee.

Conclusion

[21] For the reasons given the respondent is not a small business as defined. It does not have ‘fewer than 15 employees at that time’. The period of service required is therefore six months, and it is agreed that the applicant has served that period. The applicant is a person protected from unfair dismissal within s.383, and the respondent’s objection is dismissed. The matter will be referred for conciliation or arbitration.

DEPUTY PRESIDENT

Appearances:

Ms B. Frake appearing for the applicant.

Ms J. Lenthall appearing for the respondent.

Hearing details:

2018.

Melbourne:

March 2.

Printed by authority of the Commonwealth Government Printer

<PR600782>

 1   Exhibit W2 at [18]-[22] and Transcript PN276-288.

 2   [2010] FWA 2078.

 3   [2010] FWAFB 5709

 4 [(2006) 149 IR 399

 5   Exhibit C2.

 6   Exhibit C3.

 7   Transcript PN192-3, PN231.

 8   Summary document without a header attached to submissions, which purports to summarise indicia.

 9   Exhibit W1, paragraph 12.

 10   Transcript PN192-3, PN231.

 11   Summary document without a header attached to submissions, which purports to summarise indicia.

 12   Exhibit W1, paragraph 13.

 13   Transcript PN192-3, PN231.

 14   Exhibit C3.

 15   Summary document without a header attached to submissions, which purports to summarise indicia.

 16   Exhibit W1, paragraph 15.

 17   Transcript PN192-3, PN231.

 18   Exhibit C3.

 19   Summary document without a header attached to submissions, which purports to summarise indicia.

 20   Exhibit W1, paragraph 16.