Paige O'Donovan v Live Fashion Group Pty Ltd ATF the Live Fashion Unit Trust

[2021] FWC 6304

[2021] FWC 6304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paige O’Donovan
v
Live Fashion Group Pty Ltd ATF The Live Fashion Unit Trust
(U2021/5656)

DEPUTY PRESIDENT BINET PERTH, 23 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] On 28 June 2021 Ms Paige O’Donovan (Ms O’Donovan) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Live Clothing Pty Ltd trading as Live Clothing.

[2] On 7 July 2021, Live Clothing Pty Ltd filed a Form F3 Employer Response raising two jurisdictional objections. Live Clothing assert that:

a. Live Clothing is a small business employer who has complied with the Small Business Fair Dismissal Code in effecting the dismissal of Ms O’Donovan (First Jurisdictional Objection); and

b. Ms O’Donovan has not completed her minimum employment period (Second Jurisdictional Objection)

[3] Live Clothing declined to participate in conciliation with a staff conciliator and the Application was allocated to my Chambers for determination.

Interlocutory Matters

[4] On 16 August 2021 Chambers requested that Live Clothing provide evidence that it was a small business employer for the purposes of the FW Act. Live Clothing provided evidence in the form of a statutory declarations by:

a. Mr Shannon Micheal Coleman (Mr S Coleman)

b. Mr Jay Coleman (Mr J Coleman).

[5] On 23 August 2021 Ms O’Donovan was directed to file materials in response to the First Jurisdictional Objection by 30 August 2021. On 27 August 2021 she forwarded an email which contained a mixture of submissions and evidence.

[6] Based on the materials then before me and taking into account the parties wishes and circumstances I determined that a Hearing would be the most effective and efficient way to determine the First Jurisdictional Objection.

[7] Directions were issued to the parties on 31 August 2021 which required the filing of signed and dated witness statements, documentary evidence, authorities and submissions in relation to the First Jurisdictional Objection (Directions).

[8] The Directions required Ms O’Donovan to file her materials by 4pm (AEST) Thursday 9 September 2021. Ms O’Donovan failed to file her materials by this date. She was granted an extension until 4pm (AESDT) 13 September 2021 to file her materials. She eventually filed her materials including a witness statement setting out her evidence in chief on 14 September 2021.

[9] On 13 September 2021 Ms O’Donovan requested Live Clothing Pty Ltd provide specified time and wages records.

[10] On 20 September 2021 Live Clothing Pty Ltd filed its materials. On 22 September 2021 Live Clothing Pty Ltd filed further submissions.

[11] On 29 September 2021, in the absence of the production of the records requested by Ms O’Donovan on 13 September 2021, Ms O’Donovan made an application for an order for the production of various time and wages records. The application for the order to produce was opposed by Live Clothing Pty Ltd. An initial Order issued on 4 October 2021 in Print PR734537 was subsequently revoked and an Order was issued on 7 October 2021 in PR734630 requiring production of various of the records requested by Ms O’Donovan (Production Order). The Production Order required the relevant documents to be produced by 21 October 2021. The documents were eventually produced on 22 October 2021.

[12] On 7 October 2021 the name of the Respondent to these proceedings was amended by consent to Live Fashion Group Pty Ltd as trustee for The Live Fashion Unit Trust (Live Clothing).

[13] On 11 October 2021 orders were issued in PR734779 directing that the evidence filed by Live Clothing in these proceedings in accordance with directions or orders of the FWC shall be used only for the purposes of these proceedings and may not be published or used for any other purpose (Confidentiality Orders).

[14] The Application was listed for a Hearing in Perth on 10 November 2021 to determine the First Jurisdictional Objection (Hearing).

Permission to be represented

[15] Neither party sought leave to be represented by a paid agent or lawyer at the Hearing.At the Hearing Ms O’Donovan represented herself and Mr J Coleman represented Live Clothing.

Evidence

[16] The Directions required the parties to file their witness evidence in chief in advance of the Hearing.

[17] In accordance with the Directions Ms O’Donovan filed a witness statement setting out her evidence in chief in advance of the Hearing. At the Hearing she gave further evidence in chief orally and was cross examined by Mr J Coleman.

[18] On 9 November 2021 (the day prior to the Hearing) Ms O’Donovan filed a witness statement by Mr Gideon van Niekerk (Mr van Niekerk). Mr Van Niekerk indicated that his qualifications and professional affiliations referred to in his statement were acquired overseas. He conceded that his pictorial analysis of the time and wages records produced by Live Clothing although described as plotting hours of work actually plotted rostered rather than worked hours. As he accepted at the Hearing his conclusions with respect to the data were his opinion only. His statement and its attachments were marked Exhibit A1.

[19] In accordance with the Directions Live Clothing filed witness statements setting out the evidence in chief of the following witnesses:

a. Mr J Coleman;

b. Mr Dominic Carlos Zurro (Mr Zurro); and

c. Mr Lachlan Wells (Mr Wells).

[20] A Digital Court Book containing the evidence and submissions of the parties was admitted at the Hearing as an exhibit and marked DCB1.

[21] During the Hearing, at my request, Live Clothing produced:

a. A copy of the job advertisement for casual employees hosted on Facebook which was marked as Exhibit R1.

b. A copy of the job advertisement for casual employees from the Live Clothing website which was marked as Exhibit R2.

c. A sample of the contracts of employment of its employees which was marked as Exhibit R3.

[22] During the Hearing Live Clothing also produced:

a. A compilation of the time and wages records for those casual employees employed by Live Clothing as at 9 June 2021 which was marked Exhibit R4.

b. A table listing the employment type and start date of each of its employees which was marked Exhibit R5.

[23] In reaching my decision I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Background

[24] Live Clothing is a fashion retailer with stores in Morley Galleria, Westfield Whitford City, Westfield Garden City, Westfield Carousel, and Lakeside Joondalup.

[25] Ms O’Donovan commenced employment with Live Clothing as an Assistant Buyer on 29 June 2020 on a part time basis pursuant to a contract of employment dated 19 June 2020. 1

[26] Mr Coleman says that during her half yearly performance review held on 18 February 2021 Ms O’Donovan was advised of a number of performance deficiencies. He says that these deficiencies were raised again with her on 9 March 2021.

[27] On 5 May 2021 she was issued with a written warning in relation to her performance.

[28] On 26 May 2021 she was informed that her employment would be terminated for poor performance. The Letter of Termination states that she would be provided with an additional week of notice on an ex-gratia basis and her dismissal would take effect on 9 June 2021. 2

[29] On 27 May 2021 Ms O’Donovan provide a medical certificate to her employer certifying her unfit for work. She did not return to work during her notice period. 3

[30] Ms O’Donovan asserts that she has completed the minimum employment period and that her dismissal was unfair. She seeks an order for compensation.

Consideration

[31] Section 390 of the FW Act provides that the FWC may only make an order for reinstatement or compensation if the applicant was protected from unfair dismissal at the time of his or her dismissal.

[32] Section 382 of the FW Act provides that a person is not protected from unfair dismissal unless at the time of being dismissed the person is an employee who has completed a period of employment with his or her employer of at least the ‘minimum employment period’.

[33] Ms O’Donovan has completed eleven months, one week and four days employment.

[34] The term ‘minimum employment period’ is defined in section 383 of the FW Act as follows:

“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.”

[35] Live Clothing submit that it is a small business employer for the purposes of section 383 of the FW Act. Ms O’Donovan disputes this.

[36] The term “small business employer’ is defined in section 23 of the FW Act as follows:

“s.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, the employee is a regular casual employee of the employer.

(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.”

[37] Ms O’Donovan asserts that Live Clothing employed the following individuals as at the date she was dismissed:

Name/Description	Role
Mr J Coleman	Managing Director
Co-owner of Live Clothing
Mr D Ortiz	Inventory Lead
Ms A Lewis	Regional Manager
Ms O Weck	Team Lead Morley
Ms S Armani	Retail Sales Carousel
Ms L Zoric	Retail Sales – Whitfords
Ms K Capuyan	Retail Sales
‘Lachlan’	Optimising website
‘Juan’	Updating website images located overseas

[38] Ms O’Donovan asserts the business also employs:

“Carousel Store – Team lead plus 1-2 store staff

Garden City – Team lead plus 1 store staff (2 on weekends and Thursdays late trade)

Whitfords - Team lead plus 1 store staff (2 on weekends and Thursdays late trade)

Morley - Team lead plus 1 store staff (2 on weekends and Thursdays late trade)”

[39] Mr J Coleman gave evidence at the Hearing that he was a shareholder and director of Live Clothing but not an employee. He was cross examined by Ms O’Donovan at the Haring.

[40] Mr Zurro (the individual described by Ms O’Donovan as a co-owner of Live Clothing) provided a statutory declaration stating that he is a director of Live Clothing and a number of related entities but is not employed by Live Clothing or any related entity. He explained that he is employed as the managing director and lead consultant of his own consulting business based in the ACT. He gave further evidence at the Hearing that his involvement with Live Clothing was limited and that he has never been paid a salary, wage or Director’s fee for any services rendered to Live Clothing. He was cross examined by Ms O’Donovan at the Hearing.

[41] Mr Wells (the individual described by Ms O’Donovan as ‘Lachlan’) provided a statutory declaration stating that he is not an employee of Living Clothing. He explained that he is the managing director and employee of digital marketing company based in Germany which provides marketing services to Live Clothing on an adhoc basis in the capacity of an independent contractor. At the Hearing he confirmed that his business provides similar services to other businesses and that his business is paid by Live Clothing only on the provision of invoices. He was cross examined by Ms O’Donovan at the Hearing.

[42] The Statutory Declaration of Mr S Coleman (Live Clothing’s accountant) dated 18 August 2021 which annexed payroll and Australian Taxation Records confirms that as at the date of Ms O’Donovan’s dismissal Live Clothing employed two full time employees, one part time employee (Ms O’Donovan) and 15 casual employees. Those employees, other than Ms Paige are:

Name	Employment Type
A Lewis	Full-Time
D Ortiz Parra	Full-Time
Higham	Regular Casual
Villamizar	Regular Casual
A day	Casual
A Harvey	Casual
C Godfrey	Casual
E Harrison	Casual
F Ceretta	Casual
H Mcbride	Casual
K Fido	Casual
K Capuyan	Casual
L Ward	Casual
L Zoric	Casual
M Conway-mortimer	Casual
M Torr	Casual
O Weck nee Puzey	Casual

[43] In a statutory declaration dated 19 August 2021 Mr J Coleman confirmed that the 18 employees identified in Mr S Coleman’s statutory declaration include all employees of associated entities. 4

[44] Based on the evidence before me I accept that to be the case. In particular I accept that Mr Coleman, Mr Wells and Mr Zurro are not employees of Live Clothing or any related entity.

[45] Until the Hearing Live Clothing concede that two of 15 casual employees it employed as at the date of Ms O’Donovan’s dismissal were regular casual employees for the purposes of section 23 of the FW Act. At the Hearing Live Clothing asserted that Mr Villamizar who works as a DJ for the business was not in fact a regular casual employee.

[46] The term ‘regular casual employee’ is defined in section 12 of the FW Act as follows:

"regular casual employee" : a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:

(a) the employee is a casual employee; and

(b) the employee has been employed by the employer on a regular and systematic basis.”

[47] A definition of the term ‘casual employee’ was recently inserted in the FW Act at Section 15A. Section 15A of the FW Act commenced operation from 27 March 2021 and has retrospective effect. Section 15A provides as follows:

“15A Meaning of casual employee

(1) A person is a casual employee of an employer if:

(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b) the person accepts the offer on that basis; and

(c) the person is an employee as a result of that acceptance.

(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;

(b) whether the person will work as required according to the needs of the employer;

(c) whether the employment is described as casual employment;

(d) (whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Note: Under Division 4A of Part 2‑2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full‑time employment or part‑time employment.

(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

(5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

(a) the employee’s employment is converted to full‑time or part‑time employment under Division 4A of Part 2‑2; or

(b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.”

[48] In order to determine whether any of the 14 disputed employees are ‘regular casual employees’ it is necessary to assess whether or not, at the time they were offered and accepted employment with Live Clothing, Live Clothing made a firm advance commitment that their employment would continue indefinitely with an agreed pattern of work and whether they accepted the offer of employment in the absence of such a firm advance commitment.

[49] The factors which may be taken into account in determining whether an employer has made no firm advance commitment when offering employment to the casuals are as follows:

a. whether the employer can elect to offer work and whether the person can elect to accept or reject work;

b. whether the person will work as required according to the needs of the employer;

c. whether the employment is described as casual employment;

d. whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

[50] Mr J Coleman gave evidence that he participated in the recruitment interviews for each of the casual employees and that it was made clear to each that they were being employed as a casual strictly on an as required basis without any firm advance commitment that their employment would continue indefinitely with an agreed pattern of work.

[51] Live Clothing provided copies of the advertisements it uses to recruit casual employees via Facebook and its website and copies of the employment contracts for a sample of 7 of its casual employees. 5

[52] The advertisements clearly describe the nature of employment as casual. 6

[53] The contracts appear to be identical in terms. Mr J Coleman confirmed that the remaining employees are employed pursuant to the same template contract. Relevantly the contracts: 7

a. Describe the nature of employment as “casual basis – as required”.

b. Provide for the payment of a casual loading.

c. Provide that there is no guarantee of hours of work.

[54] By virtue of sub section 15A(5) of the FW Act a person who commences employment as a casual employee in accordance with section 15A(1), remains a casual employee of the employer until the employee’s employment is converted to full‑time or part‑time employment under Division 4A of Part 2‑2 of the FW Act or the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

[55] Division 4A of Part 2‑2 of the FW Act compels employers to make an offer of permanent employment to casual employees who inter alia have been employed for a period of 12 months of which at least the last six months they had worked a regular pattern of hours on an ongoing basis. Section 66A provides that this obligation does not apply to small business employers.

[56] Live Clothing say that none of the 14 casual employees have been eligible for conversion and none have accepted an offer of employment other than as a casual employee.

[57] All of the 14 casual employees have been employed for less than 12 months and therefore would be ineligible for casual conversion for that reason alone.

[58] To be a ‘regular casual employee’ the employee must be a casual employee and the employee must have been employed by the employer on a regular and systematic basis.

[59] Live Clothing submit that those causal employees who have been engaged for less than six months can not have been employed on a regular and systematic basis because:

a. they would not be eligible to convert to permanent employment pursuant to Division 4A of Part 2-2; and

b. would themselves not be eligible to make an unfair dismissal claim as they had not completed even the shortest measure of the minimum employment period;

[60] In addition Live Clothing submit that none of the 14 casual employees have been employed on a ‘regular and systematic basis’.

[61] The phrase ‘regular and systematic basis’ is not defined in the FW Act. It was considered by the Full Bench of the ACT Supreme Court in Yakara Holdings Pty Ltd v Giljevic 8in which the court construed the expression “engagement, on a regular and systematic basis” in relation to casual employment in s 11 of the Workers Compensation Act 1951 (ACT). The same approach has been adopted and applied by the Full Bench of the FWC to the use of that phrase in the FW Act.9

[62] The term 'regular' implies a repetitive pattern and does not mean frequent, often, uniform, or constant. 10 A ‘regular’ basis may, however, be constituted by frequent though unpredictable engagements. 11

[63] The term 'systematic' requires that the engagement be 'something that could fairly be called a system, method or plan'. 12

[64] 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. 13 Previous decisions of the FWC have 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.

[65] Where there is no clear pattern or roster, evidence of regular and systematic employment can be established where: 14

a. the employer offered suitable work when it was available at times that the employee had generally made themselves available, and

b. work was offered and accepted regularly enough that it could no longer be regarded as occasional or irregular.

[66] The longest period of service of the 14 casual is nine months. Two had been employed by Live Clothing for less than a month at that time Ms O’Donovan was dismissed. At least six of the 14 casual employees had been employed less than three months as at the date of Ms O’Donovan’s dismissal.

[67] Ms H McBride had been employed for 20 days (less than three weeks) as at 9 June 2021. She had only worked nine shifts in total for Live Clothing. She did not work the same days each week. She did not work the same number of days or shifts each week. She did not work the same number of hours in any week. She did not work the same number of hours per shift. She did not work at the same location each shift. Some shifts she worked part time and some shifts she worked full time hours.

[68] Ms E Harrison had been employed for 25 days (just over three weeks) as at 9 June 2021. She had worked a total of 18 shifts for Live Clothing. She did not work the same days each week. She did not work the same number of days or shifts each week. She did not work the same number of hours in any week. She did not work the same number of hours per shift. Some shifts she worked part time and some shifts she worked full time hours.

[69] Mr L Ward had been employed for 33 days (just over a month) as at 9 June 2021. He had worked a total of 16 shifts for Live Clothing. He did not work the same days each week. He did not work at the same location each shift. He did not work the same number of days or shifts each week. He did not work the same number of hours in any week. He did not work the same number of hours per shift. Some shifts he worked part time and some shifts he worked full time hours.

[70] A Day had been employed for 71 days (roughly 2.5 months) as at 9 June 2021. She had performed on 19 shifts for Live Clothing. During this period she did not work every week. She did not work the same days each week. She did not work the same number of days or shifts each week. She did not work at the same location each shift. She did not work the same number of hours each week. She did not work the same number of hours per shift. Some shifts she worked part time and some shifts she worked full time hours.

[71] K Fido had been employed for 72 days (roughly 2.5 months) as at 9 June 2021. She did not work the same days each week. She did not work the same number of days or shifts each week. She did not work the same number of hours in any week. She did not work the same number of hours per shift. Some shifts she worked part time and some shifts she worked full time hours.

[72] A Harvey had been employed for 73 days (roughly 2.5 months) as at 9 June 2021. During this period she did not work every week. She did not work the same days each week. She did not work the same number of days or shifts each week. She did not work the same number of hours each week. She did not work the same number of hours per shift. She did not work at the same location each week. Some shifts she worked part time and some shifts she worked full time hours.

[73] The evidence of Mr J Coleman was that the casual employees were allocated work on an as needs weekly basis but had the capacity to alter their availability at will via an application on their mobile telephones. The lack of consistent hours of work is evident by the fact that all the above six casuals worked at different stores from shift to shift.

[74] That only one Live Clothing casual employee had been employed for greater than nine months and that most were employed for less than six months is consistent with Mr J Coleman’s evidence that the engagements were of a genuine casual nature typical of the retail clothing industry and that employees understood ongoing employment was not a certainty.

[75] Given the evidence before me including the manner in which their engagements were allocated, the variability in their days and hours worked per shift and per week and the variability in the location of their work I am not satisfied that the six casual employees employed for less than three months had been offered and accepted work regularly enough prior to 9 June 2021 that their employment could no longer be regarded as occasional or irregular.

[76] It is not necessary for me to determine whether each of the remaining casual employees were employed on a regular and systematic basis given that a conclusion that any four of the above casual employees were not ‘regular casual employees’ will result in a finding that Live Clothing employed fewer than 15 employees at that time of Ms O’Donovan’s dismissal. However, having reviewed the evidence in relation to those employees I am not satisfied that all of them were employed on a regular and systematic basis.

[77] Based on the evidence before me, I am not satisfied that Ms O’Donovan has completed the relevant minimum employment period necessary to be eligible to seek a remedy for unfair dismissal.

[78] The Application is, therefore, dismissed. An order 15 to this effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Ms P O’Donovan for the Applicant.
Mr J Coleman for the Respondent.

Hearing details:

2021
Perth
10 November

Printed by authority of the Commonwealth Government Printer

<PR735628>

 1   Digital Court Book at pages 6, 36, 54-55.

 2   Digital Court Book at pages 6, 36.

 3   Digital Court Book at page 45.

 4   Digital Court Book at pages 90-93.

 5   Exhibits R2 and R3.

 6   Exhibits R1 and R2

 7   Exhibit R1, R2 and R3

 8 [2006] ACTCA 6, 149 IR 339.

 9   Chandler v Bed Bath N’Table[2020] FWCFB 306, 295 IR 1.

 10   Yaraka Holdings Pty Limited v Giljevic 2006 149 IR 399 cited in Grives v Aura Sports Pty Ltd[2012] FWA 5552 at [32]

 11   Ibid.

 12   Ibid.

 13   Ibid.

 14   Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic[2010] FWA 2078.

 15   PR735629.