Nathan Belham v Kariela Pty Ltd T/A Sutterby Electrical
[2020] FWC 2677
•22 MAY 2020
| [2020] FWC 2677 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.394—Unfair dismissal
Nathan Belham
v
Kariela PTY LTD T/A Sutterby Electrical
(U2020/2202)
COMMISSIONER PLATT | ADELAIDE, 22 MAY 2020 |
Application for an unfair dismissal remedy.
Summary
[1] On 26 February 2020, Mr Nathan Belham lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Kariela Pty Ltd T/A Sutterby Electrical (Sutterby Electrical) on 12 February 2020.
[2] The Form F2 Unfair Dismissal Application indicated that Mr Belham commenced employment on 8 April 2019.
[3] On 4 March 2020, Mr Karl Beer, Director of Sutterby Electrical, lodged a Form F3 Employer Response and contended that Sutterby Electrical is a small business employer and that Mr Belham did not complete the applicable minimum employment period (MEP) of 6 months. The Form F3 indicated that Mr Belham commenced employment on 8 April 2019 and that the employment ceased on 12 February 2020.
[4] Directions were issued in respect of the jurisdictional objection.
[5] By 8 May 2020 Sutterby Electrical filed (and provided to Mr Belham except where advised) redacted copies of the following material:
• A copy of a payroll activity report for the month of February 2020.
• A copy of a letter of resignation from Mr Darryl Moyse which identified that the resignation took effect on 21 January 2020. The letter contained a handwritten note that Mr Moyse would stay on until the end of the month.
• A redacted copy of pay advices for Mr Moyse which indicated that on 6 February 2020 he was paid wages for working in the week 27 January to 2 February 2020, and that on 13 February 2020 he was paid his accrued annual leave entitlements and unused RDOs.
• A copy of timesheets for Ms Kathleen Beer for the period 11 December 2019 to 16 March 2020 and an analysis of that document submitting that Ms Kathleen Beer was engaged as a casual employee and that her hours of work were consistent with her employment status.
• A letter dated 27 April 2020 from Denyel Jordan from PEER containing the names of a number of Apprentices who were currently placed by PEER with Sutterby Electrical (this document was not provided to the Applicant).
• A statement from Ms Gabriella Beer that she is a shareholder in the Beer Family Trust and was not an employee of Sutterby Electrical (this document was also not provided to the Applicant).
• A submission dated 4 May 2020 that Sutterby Electrical employed 13 persons plus an irregular casual employee on the day of the dismissal and was a small business and that Mr Belham had not been employed for the minimum employment period of 12 months.
[6] I have received unredacted versions of the documents on a confidential basis and order that they remain confidential in accordance with s.594 of the Act. It is not necessary to disclose the earnings of individual employees in order to determine this matter.
[7] Mr Belham did not file any material in accordance with the Directions. On 18 May 2020 Mr Belham was invited to respond to the material filed by Sutterby Electrical which indicated that as at the time of his dismissal 14 or less persons were employed. No response was received.
[8] A hearing to deal with the jurisdictional objection was listed at 10.00am on 19 May 2020. On the day of the hearing, Mr Belham advised by email that he was unable to attend.
[9] Sutterby Electrical submitted two sets of material. One set contained a number of redactions as to confidential data and was provided to Mr Belham. I was provided with an unredacted set. Unfortunately, the two sets of material were not identical. I am concerned that Mr Belham may not have had an opportunity to respond to all of the relevant material presented to me.
[10] In order to ensure procedural fairness, I propose to detail the relevant material, give some preliminary consideration to that material in accordance with the relevant law, draw some preliminary conclusions and allow Mr Belham a further opportunity to provide evidence and/or submissions in writing before I finally determine the matter.
Relevant Law
[11] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period:
“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;
(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.”
[12] Section 383 of the Act sets out the minimum employment period:
“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.”
[13] Section 384 of the Act sets out an employee’s period of employment:
“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
(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.”
[14] Section 23 of the Act sets out the definition for small business employer:
“23 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.”
[15] The key decision on the meaning of “regular and systematic” is Yaraka Holdings Pty Ltd v Giljevic1 with the following principles flowing from that decision (unless otherwise referenced):
• The term “regular” implies a repetitive pattern and does not mean frequent, often, uniform or constant.2 A “regular” basis may, however, be constituted by frequent though unpredictable engagements.
• The term “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”.3 A “systematic” basis need not involve either predictability of engagements or any assurance of work at all.
• Whilst a clear pattern or roster of hours is strong evidence of regular and systematic employment, it is the engagement that must be regular and systematic, not the hours worked pursuant to the engagement.
[16] In Ponce v DJT Staff management Services Pty Ltd T/A Daly’s Traffic4 Commissioner Roe said the following:
“[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic…The previous authorities have also established that employment or engagement can be regular and systematic even…where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.” (citations omitted)
…
[75] … 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.
[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue. (emphasis added)
[78] If the hours worked over a lengthy period are similar to or exceed that of full-time ordinary hours then this would also be strong evidence that work is being performed when offered and that work is being offered when available at the time parties know this is practical. Hence this would also be evidence of regular and systematic employment.”
Is Sutterby Electrical a small business within the meaning of ss.383 and 384 of the Act?
[17] Mr Beer submitted a list of persons employed by Sutterby Electrical in the month in which the dismissal occurred in the form of the February 2020 Payroll Activity Report. There are 15 names on this report including Mr Darryl Moyse and Ms Kathleen Beer. There is no record of Ms Gabriella Beer receiving any income in the report.
[18] I have reviewed the earnings received by Mr Moyse in the month of February as disclosed in his payslips referred to above. The amounts that Mr Moyse received in respect of work performed in the week ending 2 February 2020 and in respect of his accrued entitlements on 13 February 2020 are consistent with the earnings revealed in the 2020 Payroll Activity Report.
[19] It appears that Mr Moyse may have worked until as late as 2 February 2020 and his accrued entitlements were paid in the following week.
[20] Based on the information at hand, I am of the preliminary view that Mr Moyse was not an employee on the date of Mr Belham’s dismissal.
[21] I have reviewed the timesheets and pay advices in respect of Ms Kathleen Beer’s engagement so as to determine if she was engaged on a regular and systematic basis as detailed in s.384(2) of the Act – in which case she would be regarded as an employee for the purposes of determining if Sutterby Electrical was a small business employer.
[22] Ms Kathleen Beer appears to have been engaged as a casual employee. In December 2019 Ms Kathleen Beer worked 3 days with the engagements ranging between 3.5 hours and 7.5 hours in duration. No work was performed by Ms Beer in January 2020. In February 2020 Ms Beer worked on 3 occasions prior to Mr Belham’s last day of employment for 7.5 hours on each occasion.
[23] It does not appear that Sutterby Electrical issued a roster in respect of Ms Kathleen Beer. There is no evidence before me on the topic of whether Ms Kathleen Beer had a reasonable expectation of ongoing employment.
[24] Band on the information available, I have formed a preliminary view that Ms Kathleen Beer was not engaged on a regular and systematic basis such that she should be counted towards the total number of employees for the purpose of determining if Sutterby Electrical is a small business employer.
[25] I have reached a preliminary view that there were 13 persons employed by Sutterby Electrical as at 12 February 2020, the date of dismissal. If this position is unchanged, Sutterby Electrical will be regarded as a small business employer within the meaning of s.23 of the Act, and as a result the applicable minimum employment period is one year.
Did Mr Belham’s service meet the minimum employment period?
[26] There is no dispute that Mr Belham’s employment commenced on 8 April 2019 and that the employment ceased on 12 February 2020.
Next steps
[27] Prior to concluding my decision in this matter, I will provide Mr Belham an opportunity to respond to the matters disclosed above and/or provide any evidence and/or submissions he wishes me to consider, by 12 noon on Thursday 28 May 2020.
[28] Absent any further material, it is likely that Mr Belham’s application will be dismissed.
COMMISSIONER
Final written submissions:
No submission received by the Applicant.
Respondent 8 May 2020.
Printed by authority of the Commonwealth Government Printer
<PR719556>
1 (2006) 149 IR 399
2 Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 399 [68] cited in Grives v Aura Sports Pty Ltd [2012] FWA 5552
3 Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 399 [91]
4 [2010] FWA 2078
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