Ni Sukerti v The Salvation Army Western Australia Property Trust T/A Salvos Stores

[2016] FWC 4622

[2016] FWC 4622

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ni Sukerti
v
The Salvation Army Western Australia Property Trust T/A Salvos Stores
(U2016/5607)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 JULY 2016

Application for relief from unfair dismissal.

[1] Ms Ni Sukerti was employed as a casual Sales Assistant by Salvos Stores from 16 June 2014 until her employment was terminated on 10 March 2016. Ms Sukerti has lodged an unfair dismissal application (Application). Salvos Stores has lodged an objection to the Application on the basis that Ms Sukerti was a casual employee not employed on a regular and systematic basis and is therefore not a person protected from unfair dismissal under the Act.

[2] Section 396(b) of the Fair Work Act 2009 (the Act) requires me to decide whether Ms Sukerti was protected from unfair dismissal before the merits of the Application can be considered.

Is Ms Sukerti protected from unfair dismissal?

[3] Section 382 of the Act outlines when a person is protected from unfair dismissal:

“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.”

[4] It was not disputed and I am satisfied that Ms Sukerti was covered by a modern award (s.382 (b)(i) of the Act). Therefore, the only issue I must determine in order to be satisfied that Ms Sukerti is protected from unfair dismissal is whether she has completed a period of employment with Salvos Stores of at least the minimum employment period (s.382 (a) of the Act).

[5] The “minimum period of employment” is defined in s.383 of the Act:

“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] In this case, Salvos Stores is not a small business employer, employing approximately 1,100 people. As such, the minimum employment period in the case of Ms Sukerti is six months.

[7] A “period of employment” is defined in s.384 of the Act:

“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;

…”

[8] Section 22 of the Act provides:

“22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly

…”

[9] Accordingly, under s.384(2) of the Act, I must consider whether any of Ms Sukerti’s service as a casual employee can be counted in her period of employment. This requires me to determine whether Ms Sukerti was employed on a regular and systematic basis and during the period of service, had a reasonable expectation of continuing employment on a regular and systematic basis. Should I find that any or all of Ms Sukerti’s service is counted in her period of employment, I must be satisfied this is of at least six months’ duration.

Commission Proceedings

[10] At the hearing, Ms Sukerti gave evidence, was cross examined and made submissions. Salvos Stores did not lead any evidence, making only submissions.

Evidence and Submissions of Ms Sukerti

[11] Ms Sukerti acknowledged she was engaged as a casual employee by Salvos Stores and knew she was on a ‘casual list’ which was provided to all stores so the store managers could call her if they needed her. 1

[12] Ms Sukerti said that every time she was required to work, a manager would call her. 2 She said “sometimes I [got] a lot of work, sometimes I [got] two weeks and sometimes I only [got] a few days in the weeks. It depend[ed]…if they need[ed] me.”3 When she was asked whether she would usually go into work when she was called, Ms Sukerti answered “yes I usually work[ed]. Every time they rang me, I [would] always go there on time.”4 In the Outline of Argument she filed, Ms Sukerti had recorded that she would cover manager’s rostered days off, holidays, staff shortages, busy periods and when managers were in meetings and “a lot of store managers would always book [her] on a regular basis”.5

[13] Ms Sukerti said the only time she was absent from work was when she went on a holiday and when her ex-husband passed away. 6 In her Outline of Argument, Ms Sukerti detailed absences during the periods 20 December 2015 to 10 January 2016 for the holiday and from 22 February 2016 to 27 February 2016 due to her ex-husband’s death.7 Ultimately, this was not disputed by Salvos Stores, nor did it submit there were any other periods that should be subtracted from Ms Sukerti’s period of service.

[14] Ms Sukerti said she did not work for any other employers, only Salvos Stores. 8

Submissions of Salvos Stores

[15] Salvos Stores tendered a Casual Employment Form, 9 which said her work location was “Various Salvos Stores within the Southern WA Area”, she would be paid a casual loading and her hours would be negotiated for each engagement, with the the minimum number of hours as per the General Retail Industry Award 2010.

[16] Salvos Stores submitted:

● It was explained to Ms Sukerti prior to her engagement that she was employed as a casual Sales Assistant as per the General Retail Industry Award 2010, to be used on an ad hoc basis to ensure store coverage;
● On commencing employment, Ms Sukerti was placed on a contact list for the particular area to which she was assigned (Southern Western Australia), which was then distributed to all 17 sites in the area and utilised by site managers in the instance a shift needed to be filled on an ad hoc basis; 10
● Ms Sukerti was employed continuously during her employment but evidence of her status as a casual employee was that a casual loading was paid to her and during periods of absenteeism, no annual leave was paid;
● Ms Sukerti was engaged at nine locations and worked a sporadic range of days and hours, 11 which further supported the argument that she was not engaged on a regular or systematic basis; and
● At no stage was Ms Sukerti engaged on a regular or systematic basis, which was demonstrated by her hours of work during her last six months of employment, outlined in time records it tendered. 12

Consideration

[17] The focus of Salvos Stores’ submissions was that Ms Sukerti was a casual employee, a fact which Ms Sukerti accepted. However, as Commissioner Roe indicated when deciding Ponce v DJT Staff Management Services Pty Ltd (Ponce), 13 a “number of cases established that just because a worker was engaged as a casual and was a casual employee for the purposes of an award did not mean that the worker was a casual for the purposes of the unfair dismissal jurisdiction” (footnotes omitted).14

[18] The evidence established Salvos Stores maintained a list of available Sales Assistants who could be called upon by store managers. 15 The availability of work depended on the needs of the stores in the Southern Western Australia area. In Ms Sukerti’s case, there were occasions when she was engaged for longer periods of time and there were engagements of shorter duration.

[19] The days Ms Sukerti worked in her final six months were detailed in the timesheets tendered by Salvos Stores. 16 These indicate Ms Sukerti worked every week, except for those periods while on holiday in December 2015-January 2016, one week at the time of her ex-husband’s death in February 2016 and another week in February 2016. Two further weeks in September 2015 do not appear in the timesheets and are unexplained. From the timesheets, in the weeks Ms Sukerti attended work from August 2015 to March 2016, she worked on average 3 days per week, with shifts between three and eight hours duration at various stores.

[20] Consistent with the observation of Crispin P and Gray J of the Court of Appeal of the Australian Capital Territory in Yaraka Holdings Pty Ltd v Giljevic that “it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement,”  17 Commissioner Roe stated in Ponce:

“[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.” (footnotes omitted)

[21] This led Commissioner Roe to find in Ponce:

“[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.”

[22] Ultimately, the finding in Ponce wasthat “it is not necessary to establish that shifts and start and finish times are regular or rostered to establish that the employment is on a regular and systematic basis.” 18

Conclusions

[23] I am satisfied the evidence supports a conclusion that Ms Sukerti’s employment as a casual employee was on a regular and systematic basis and that during her period of service, she had a reasonable expectation of continuing employment by Salvos stores on a regular and systematic basis, because:

• Ms Sukerti was offered work regularly, on average 3 days per week of varying hours, and systematically, having been assigned to a list of available Sales Assistants who could be called upon by store managers in the Southern Western Australia area;



• Ms Sukerti generally accepted the work when it was offered. Ms Sukerti said “yes I usually work[ed]. Every time they rang me, I [would] always go there on time”; 19



• The system of employment was that Ms Sukerti could expect to be offered work each week. The amount of work varied, but it did generally happen each week. Apart from two weeks in September 2015 which are not accounted for and a further week in February 2016, it was Ms Sukerti’s uncontested evidence that the only weeks she did not work were to take a holiday and when there was a death in her family;



• There was no evidence of any issues with Ms Sukerti’s performance up until the time of the investigation into her alleged misconduct that resulted in her termination; and



• A pattern or system was established where Ms Sukerti would be offered work regularly when store managers required her and she would accept that work. The evidence of the shifts worked also supports the conclusion that there was an expectation on the part of Salvos Stores that Ms Sukerti would work when work was available.

[24] That Ms Sukerti worked at different stores was contemplated because she was assigned to the group of stores in the Southern Western Australia area and I do not consider that this precludes a finding that she was employed on a regular and systematic basis.

[25] The evidence supports the conclusion that Ms Sukerti would have had a reasonable expectation that her employment would continue, but for the findings of Salvos Stores in relation to the alleged misconduct that led to termination.

[26] Ms Sukerti was employed by Salvos Stores from 16 June 2014 to 10 March 2016, a period of approximately 21 months. Subtracting the approximately five weeks of leave Ms Sukerti took for a holiday and family reasons, the two unexplained weeks in September 2015 and the further week in February 2016, leaves a period of employment amounting to approximately 19 months (s.22(2)(b) of the Act). There was no evidence of any other, let alone any significant period of absence during Ms Sukerti’s employment which could lead to a finding the minimum employment period had not been served. Given the length of service exclusive of the periods of absence, I find Ms Sukerti has served the minimum employment period and I am satisfied that the period of continuous service extends to the point of termination.

[27] For the reasons set out above, I am satisfied Ms Sukerti was a casual employee employed by Salvos Stores on a regular and systematic basis and that during her period of service, she had a reasonable expectation of continuing regular and systematic employment. I am also satisfied Ms Sukerti’s approximately 19 month period of service counts towards her period of employment and that she has therefore served the requisite minimum period of employment.

[28] An Order [PR582633] will be issued dismissing Salvos Stores’ jurisdictional objection. The matter will now be referred to the Conciliation Unit for further programming.

DEPUTY PRESIDENT

Appearances:

N Sukerti on her own behalf.

B Robinson for the Respondent.

Hearing details:

2016.

Melbourne and Perth (video hearing):

May 16.

 1   Transcript PN153-154.

 2   Transcript PN94.

 3   Transcript PN99.

 4   Transcript PN104.

 5   Applicant’s Outline of Argument, question 2l.

 6   Transcript PN125-126.

 7   Applicant’s Outline of Argument, question 2j.

 8   Transcript PN117.

 9   Exhibit R1.

 10   Transcript PN30-31 and Respondent’s Outline of Argument, question 2g.

 11   Transcript PN49 and Respondent’s Outline of Argument, question 2g.

 12   Exhibit R2.

 13   [2010] FWA 2078.

 14 Ibid at [54].

 15   Transcript PN153-154.

 16   Exhibit R2.

 17   Yaraka Holdings Pty Ltd v Giljevic (2006) ACTCA 6 at [65].

 18   [2010] FWA 2078 at [87].

 19   Transcript PN104.

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