Patricia Lyons v Elegant Image

[2021] FWC 4998

[2021] FWC 4998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patricia Lyons
v
Elegant Image
(U2021/4742)

DEPUTY PRESIDENT DEAN CANBERRA, 16 AUGUST 2021

Application for an unfair dismissal remedy – minimum employment period not served – application dismissed.

[1] Ms Patricia Lyons has made an application pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy with respect to the termination of her employment with Elegant Image (Respondent). The Respondent operates a beauty salon and day spa in Greenway, ACT. At all relevant times, Ms Lyons was employed as a beauty therapist on a casual basis.

[2] The Respondent objects to the application on the grounds that Ms Lyons has not served the minimum employment period and is therefore not able to bring an unfair dismissal claim.

[3] The Respondent also raises a further jurisdictional objection on the ground that Ms Lyons was not in fact dismissed. It claims that due to a downturn of business it became necessary to reduce expenditure. As a result, a decision was made not to offer Ms Lyons any further shifts until business conditions improved.

[4] The application was listed for a jurisdictional hearing on 13 August 2021. Ms Lyons appeared on her own behalf and gave evidence. Mr Leonard Beacham appeared and gave evidence for the Respondent and called evidence from Ms Keryn Franklin and Ms Melissa Percival.

Relevant legislation and principles

[5] Section 382 of the Act provides that a person is protected from unfair dismissal only if the required minimum employment period has been completed.

[6] Sections 383 and 384 of the Act provide:

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.

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; …”

[7] Continuous service is defined in s.22 of the Act and relevantly 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 underPart 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.”

[8] Section384(2) of the Act states that 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 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…”

[9] In Shortland v Smiths Snackfood Co Ltd 1(Shortland) the Full Bench made the following observations in relation to s.384(2):

“[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 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).”

Background

[10] It is not in dispute that the Respondent is a small business. Therefore, to be a person protected from unfair dismissal, Ms Lyons must have completed a minimum employment period of one year.

[11] Ms Lyons commenced casual employment with the Respondent on or about 2 January 2020.

[12] The Respondent contends that Ms Lyons was made redundant after her last shift on 25 March 2020 when it was required to close the business due to the COVID-19 restrictions. It says that she was re-engaged on 30 May 2020 after the business reopened. Her second period of employment, between 30 May 2020 and 17 May 2021, fell short of 12 months and therefore she had not served the minimum employment period.

[13] Ms Lyon disputes that she was dismissed at any time during the lockdown period and maintains that her employment spanned over 15 consecutive months. On that basis she says that the required minimum employment period has been met.

Has the minimum employment period been served?

[14] In determining whether Ms Lyons had completed the minimum employment period, the period in dispute and requiring particular consideration is the period from 25 March 2021 to 30 May 2021 when the business was closed and during which the Respondent contends Ms Lyons was not employed.

[15] For the reasons below, I am satisfied that Ms Lyons has not met the minimum employment period.

[16] There is no dispute that Ms Lyons was employed on a casual basis. It is clear on the evidence and I am satisfied that Ms Lyons did not perform any paid work for the Respondent between 26 March and 29 May 2020. During this period, she participated in some online training but on her own evidence her attendance at this training was unpaid and voluntary. It follows that this period does not count towards the length of her continuous service (s.22(2) and (3)).

[17] Based on the principles confirmed in Shortland, Ms Lyons’ period of service from 2 January 2020 until her last shift on 25 March 2020 can be counted towards her period of employment only if the employment was on a regular and systematic basis (384(2)(a)(i)) and that she had a reasonable expectation of continuing employment by the employer on a regular and systematic basis (s.384(2)(a)(ii)).

[18] Ms Lyons’ first period of employment was just under three months before it ceased due to the COVID lockdown. I am not satisfied that during this brief period of casual employment it can be objectively established that she was employed on a regular and systematic basis. Specifically, I am not satisfied that in the circumstances of uncertainty associated with the pandemic, Ms Lyons had a reasonable expectation of continuing employment on a regular and systematic basis.

[19] Ms Lyons gave evidence that she was reassured by the Respondent during the lockdown that her employment was secure. In this regard I prefer the evidence of Ms Percival and Mr Beecham that such reassurance was not given. In support of her claim Ms Lyons relied on messages posted in a chat group created by Ms Franklin who is a casual employee of the Respondent. On my assessment of the screenshots provided by Ms Lyons containing the messages posted in the chat, I find that none of the messages demonstrate the purported assurance of ongoing employment given by the Respondent. Further, it is unlikely that an employer would guarantee ongoing employment to a casual employee when its business was forced to close due to the COVID lockdown restrictions.

[20] I therefore find that Ms Lyons’ period of service with the Respondent between 2 January and 25 March 2020 does not count towards her period of employment (s.384(2)(a)).

[21] Between 30 May 2020 and 17 May 2021 (being the last shift she worked) Ms Lyons had an uninterrupted period of employment with the Respondent. I accept that this period of employment was on a regular and systematic basis and Ms Lyons had a reasonable expectation that her employment was ongoing. However, this period falls short of one year.

[22] There is some dispute as to whether Ms Lyons’ employment was terminated and if so, when she was given notice of termination. Ms Lyons says in her application that she was dismissed on 29 May 2021. Even if this is the case, the relevant time period is still short of one year.

[23] I am satisfied on the evidence, however, that Ms Lyons employment did end at the conclusion of her last shift on 17 May 2021. Accordingly, the prerequisite as to the minimum employment period is not met.

Conclusion

[24] For the above reasons, I find that Ms Lyons had not completed the minimum employment period required to be protected from unfair dismissal, and accordingly her application is dismissed.

DEPUTY PRESIDENT

Appearances:

P Lyons on her own behalf.
L Beecham for Elegant Image.

Hearing details:

2021.
Canberra (By telephone):
August 13.

Printed by authority of the Commonwealth Government Printer

<PR732798>

 1   [2010] FWAFB 5709.