Paul Dirkis v Staffing and Office Solutions Pty Ltd T/A SOS Recruitment

[2020] FWC 4684

[2020] FWC 4684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Dirkis
v
Staffing and Office Solutions Pty Ltd T/A SOS Recruitment
(U2020/2942)

COMMISSIONER MCKENNA SYDNEY, 30 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] Paul Dirkis (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), in which he seeks an unfair dismissal remedy. The applicant was formerly employed by Staffing and Office Solutions Pty Ltd T/A SOS Recruitment (“the respondent”). The respondent raised various jurisdictional objections to the application. The matter of the jurisdictional objections was the subject of a hearing before Kovacic DP and a decision was reserved. The file has been reallocated to me for the determination of the jurisdictional objections following the untimely death of my colleague.

Background

[2] The respondent is a labour hire company. The applicant was employed by the respondent, notionally pursuant to the terms set out in a contract of employment (“the Agreement”), although the applicant did not, for his own reasons, sign that document. The first placement of the applicant by the respondent officially commenced in May 2019 (albeit the applicant submitted an earlier date was relevant relating to the commencement of the employment with the respondent). The applicant was placed with a host employer, namely the Department of Veterans’ Affairs (“DVA”), in a data analyst role. The employment of the applicant with the respondent ceased effective 26 or 28 February 2020 in conjunction with a decision made by DVA that it no longer required the applicant’s services. To contextualise matters, the applicant had been informed by a representative of DVA that his placement would be ceasing due to funding issues in conjunction with the provision of two weeks’ notice; there was then a supervening allegation which resulted in him being required immediately to leave the DVA premises on 26 February 2020; two days later, on 28 February 2020, the applicant received written confirmation from the respondent about the termination of the employment with it.

[3] Given the only matter before Kovacic DP pursuant to the directions issued on 1 May 2020, and hence now before me, is the determination of jurisdictional objections, it is unnecessary to recount the bases on which the applicant contends the termination of his employment was an unfair dismissal. It is also unnecessary to address in this decision the raft of other matters raised in the applicant’s materials including, but not limited to, what I might broadly characterise as irregularities alleged by the applicant concerning various matters in connection with arrangements (the work order, the deed, funding issues, etc) involving DVA and the respondent in relation to his working arrangements.

[4] In its Form F3 – Employer Response to unfair dismissal application, the following matters were recorded:

•  the applicant’s wage or salary at the time of the dismissal was $208,000 ($100 an hour, 40 hours per week);

•  the applicant was dismissed because the respondent’s client, DVA, where the applicant was placed, no longer wanted the applicant to perform work;

•  as the applicant was a casual labour-hire employee, and the respondent did not have any alternative positions for him to fill with another client, his employment came to an end.

[5] Directions were issued by Kovacic DP concerning the respondent’s jurisdictional objections in anticipation of a hearing listed for 30 June 2020. In addition to the evidence and submissions that were filed pursuant to the directions, the applicant also filed additional evidence and supplementary outlines of submissions in advance of that hearing. In the hearing, evidence was the subject of cross-examination and oral submissions, including certain submissions from the respondent which constituted amendments to the position described in its original written submissions.

The respondent’s jurisdictional objections

[6] In its written outline of submissions, the respondent summarised its objections as follows:

“2. The Respondent in this matter, was the Applicant’s employer.

3. The Respondent had a labour hire arrangement with the Department of Veterans’ Affairs (DVA) which enabled DVA to terminate their contract with the Respondent at will.

4. The Applicant was engaged consistent with the Respondent’s contractual arrangement with DVA.

5. In these circumstances, the Respondent raises the following jurisdictional objections to the Application:

(a) that the Applicant was not dismissed under section 385 of the Act; and

(b) the Applicant is not a person protected from unfair dismissal under section 382 of the Act as:

(i) the Applicant has not completed a period of employment of at least the minimum employment period; and

(ii) in the alternative, the Applicant:

(A) was not covered by an award or enterprise agreement; and

(B) had an average annual rate of earnings that exceeded the high-income threshold.

6. The Application should be dismissed.”

[7] I turn now to the parties’ submissions concerning the jurisdictional objections.

Respondent’s jurisdictional submissions

[8] The respondent submitted it had a labour hire arrangement with DVA which enabled DVA to terminate its contract with the respondent at will. The applicant’s engagement was consistent with the respondent’s contractual arrangement with DVA. The respondent’s jurisdictional objections were identified in summary form as being:

•  the applicant was not dismissed on the initiative of the employer (s.386 of the Act); and

•  the applicant is not a person protected from unfair dismissal under s.382 of the Act as the applicant had not completed a period of employment of at least the minimum employment period; and/or, in the alternative, the applicant (a) was not covered by an award or enterprise agreement; and (b) had an average annual rate of earnings that exceeded the high income threshold.

[9] The respondent set out a brief chronology of the relevant background to the applicant’s employment with it. That chronology included the following:

•  The respondent was contracted by DVA to supply a data analyst to work in its Data and Analytics Work Stream on a casual labour-hire basis.

•  Following the advertisement of the position, the applicant contacted the respondent and was ultimately successful in obtaining the DVA position.

•  The applicant was made aware that his temporary assignment with DVA was a casual appointment that would last until approximately 30 June 2020 (with the possibility of an extension); and there was no guarantee as to the duration of any temporary work as it was dependent on DVA’s operational requirements, funding and the applicant’s work performance. The applicant commenced employment with the respondent and his temporary assignment with DVA on that basis.

•  On 26 February 2020, the respondent was informed that DVA had provided two weeks’ notice of termination of the assignment prior to 26 February 2020 on the basis of budgetary reasons; and DVA had ended the applicant’s temporary assignment immediately on 26 February 2020 (for reasons which are unnecessary to repeat in this decision).

[10] The respondent’s submissions dealt with its jurisdictional objections in two broad groupings, namely: (a) that there had been no dismissal on the initiative of the respondent; and (b) the applicant was not a person who was protected from unfair dismissal. These matters were elaborated as follows.

No dismissal on the initiative of the respondent

[11] The respondent referred to the provisions of s.386 of the Act in submitting that the applicant was not dismissed within the meaning of s.386(1) of the Act as his employment automatically terminated under the terms of the employment agreement when the temporary assignment was ended by DVA. In so submitting, the respondent referred to various clauses of the Agreement. The clauses read:

Clause 15

“If the client tells SOS Recruitment that it does not want you to perform work for its benefit anymore in relation to an assignment after a particular date:

(a) SOS Recruitment will tell you that this is what the client has told SOS Recruitment (including what the particular date is)

(b) Your employment with SOS Recruitment will terminate by operation of contract on that date

If the client terminates its contract or other arrangement with SOS Recruitment under which your labour is hired by us to the client in relation to an assignment:

(a) SOS Recruitment will tell you the date when the termination of that contract of arrangement takes effect

(b) Your employment with SOS Recruitment will terminate by operation of contract on that date.”

Clause 16(a)

“Your employment ending in either of the above two situations is not a dismissal or otherwise a termination of your employment at the initiative of SOS Recruitment”.

[12] The respondent referred to a number of cases concerning termination “on the employer’s initiative”, including by reference to the comment in P O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 that there is a requirement for “there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.”The respondent also submitted that a contract that terminates by the operation of law will not be considered a termination on the initiative of the employer: Taylor v Metro Velda Pty Ltd [2001] AIRC 966. As to the circumstances of the applicant, the respondent submitted that the employment relationship terminated by operation of the contract/Agreement when DVA determined it no longer required the applicant’s services; and, at the same time, DVA terminated its arrangement with the respondent. This, the respondent submitted, is consistent with the Agreement as well as the applicant’s conduct following the termination by DVA. At no stage did the applicant discuss any further opportunities for work with the respondent; rather, the applicant indicated he would be looking to take legal action against DVA. Both parties proceeded as though the employment relationship had been terminated in accordance with the terms of the Agreement.

Applicant not protected from unfair dismissal – minimum employment period

[13] The respondent submitted the applicant did not have six months’ continuous service under s.383 of the Act because the applicant’s employment was not regular or systematic and he did not have a reasonable expectation of continued employment; and in these circumstances, s.384 of the Act provides that the applicant’s service does not count towards the employee’s period of employment.

[14] In support of its contention that the applicant was not employed on a regular and systematic basis, the respondent submitted, including by reference to authorities, that in determining whether an employee is employed on a regular and systematic basis, the requirement is applied to the employment itself, rather than the hours worked pursuant to such employment. The outcome, the submissions continued, will depend on the circumstances of each case but can involve consideration of a range of matters including the contractual terms and all associated circumstances, the period of engagement, the frequency of work, the number of hours and the normal arrangements for someone engaged to perform that type of work.

[15] The applicant was engaged on a temporary labour hire assignment in which his work was entirely at the discretion of DVA, and this was evidenced by cl.9 of the Agreement which reads: “I understand that during my temporary assignments I am under the daily supervision of SOS Recruitment’s client who will define the duties and work arrangements”. Consistent with this engagement, the applicant’s hours of work varied depending on the operational requirements of DVA.

[16] While the respondent acknowledged that there were some periods of continuous work from 29 May 2019 to 22 September 2019, and between 20 October 2019 and 19 January 2020, the respondent submitted a repetitive pattern was not disclosed; the pattern of employment in this period does not disclose an ongoing reliance by the respondent on the applicant’s services and fails to disclose any method or plan. The applicant did not work for lengthy periods of time during his temporary assignment that exceed any leave entitlements as well as the variation in the applicant’s hours of work.

[17] The respondent submitted the applicant was on notice that his assignment with DVA, and his employment with the respondent, was temporary and there was no reasonable expectation of continuing employment. The respondent referred to aspects of the evidence in such respects, including correspondence to the applicant concerning the employment, clauses of the Agreement, aspects of the applicant’s own email correspondence and aspects of the work order which outlined the agreement between DVA and the respondent. Drawing upon these matters, the respondent submitted it “had gone to great lengths in order to ensure the Applicant was aware of the temporary nature of his engagement”, and “there can be no doubt” that the applicant had no reasonable expectation of continuing employment with the respondent at the time of his dismissal.

[18] In these circumstances, the respondent submitted, even if the applicant’s employment was on a regular and systematic basis (which was denied), the applicant would not meet the requirements of s.384(2) of the Act which requires both (a) employment on regular and systematic basis and (b) a reasonable expectation of continuing employment. If the applicant fails to satisfy either (a) or (b) of that sub-section, the service will not count towards the period of employment. As a result, the applicant had not met the minimum employment period and was not protected from unfair dismissal under s.382(a) of the Act.

Applicant not protected from unfair dismissal – No award coverage and high income threshold

[19] The respondent submitted that the applicant had an annual rate of earnings that exceeded the high income threshold and his employment was not otherwise covered by a modern award and an enterprise agreement did not apply to him.

[20] The respondent submitted that (notwithstanding the terms of the Agreement) at the time of dismissal the applicant was not covered by the Clerks - Private Sector Award (“the Clerks Award”) or any other modern award (and there was no relevant enterprise agreement). The respondent referred to s.48(1) of the Act (which provides that an employee is covered by a modern award when it is expressed to cover the employee) and the text of the Clerks Award concerning its coverage and definition of clerical work. Following reference to a number of authorities, the respondent submitted that the applicant was not covered by the Clerks Award, on the basis that the position was not “wholly or principally in clerical work”; the principal purpose for which the applicant was employed was to undertake and perform data analytics duties for the respondent as requested by the DVA – being duties and responsibilities of a professional nature rather than of a clerical nature. The respondent submitted that the applicant did not personally perform clerical duties, but, if he did perform any administrative or clerical duties, they were ancillary or incidental to the applicant’s core duties of being a Data Analyst.

[21] Against the background of the submissions there was no relevant award or enterprise agreement, the respondent noted that the then relevant high income threshold was $148,700. In oral submissions, the respondent relied on Cross v Bechtel Construction (Australia) Pty Ltd[2015] FWC 3639 at [8] where it was said that “The annual rate of earnings is to be assessed as at the time of dismissal. It is not an assessment of the actual earnings in the 12 months immediately prior to the dismissal.”

[22] The respondent submitted that if, contrary to its submissions, the Commission accepted the applicant was a regular and systematic employee (which was denied), the applicant’s working pattern consisted of approximately 40 hours a week on an average basis at a rate of $100 an hour and, on this basis, the applicant’s average annual rate of earnings at the time of dismissal would have been $208,000 and thereby well in excess of the high income threshold.

[23] The respondent submitted in conclusion the application should be dismissed on the grounds that the applicant was not dismissed on the initiative of the respondent and/or the applicant was not protected from unfair dismissal.

Applicant’s submissions

[24] The applicant described himself as “a 35-year veteran of the Australian Public Service a subject matter expert with respect to Administrative Law, the operation of Commonwealth Deeds, and conduct under the Australian Public Service Code of conduct” and various aspects of his submissions were predicated on, for example, what he described as his own understanding of matters involving recruitment, funding and the like.

[25] The applicant outlined a brief chronology of the employment including direct or indirect reference to merits-related matters. In relation to the respondent’s jurisdictional objections, the applicant addressed matters in the following way.

•  13 April 2019 – The parties agreed that the applicant represent the respondent to the exclusion of others. There is sufficient certainty to assume an agreement for employment with a condition that the respondent secured the project was crystallised at this point in time.

•  23 April 2019 – The applicant undertook work on behalf of the respondent at DVA premises. There is sufficient certainty to assume an agreement for employment with a condition that the respondent secured the project was crystallised at this point in time.

•  11 May 2019 – The applicant and respondent affirmed the previous agreement at DVA premises.

•  13 May 2019 – The respondent signed a contract with DVA binding the respondent and applicant.

•  28 May 2019 – The respondent sent a post-contract welcoming letter advising of an assignment with DVA on the following bases: (a) the applicant would be employed under the Clerks Award; (b) the appointment that would last until 30 June 2020, with the possibility of an extension; and (c) the termination was dependent on DVA’s operational requirements, funding and the applicant’s work performance.

•  29 May 2019 – A DVA representative indicated to the applicant that his funding was from a certain project that was to run for four years and if funding “dried up” there would be further work in the transformation project.

•  29 May 2019 – An employee of DVA took on the role of a de facto representative of the respondent as the applicant was required to follow his directions.

•  June 2019 – The applicant was sent on ten days’ technical training.

•  Late August 2019 – The applicant became aware of a restraint of trade clause in a contract DVA had with another entity which was to last for four years.

•  20 February 2020 – The applicant was informed that the contract with the respondent would be terminated in two weeks for budgetary reasons.

•  24 February 2020 – The project team leader indicated to the applicant there had been no funding cut to the project. The applicant then pressed upon that team leader that: “DVA needed follow procedural fairness and to compensate the applicant for the restraint of trade; and (b) even if DVA released him from the restraint of trade, MHS would become suspicious of DVA intention to honour the contract, if they were letting go of a key resource for funding reasons.”

•  26 February 2020 - The applicant was informed the work order was being terminated on the grounds he had potentially divulged sensitive information to a third party. The applicant denied the claim and also informed a DVA representative that it was unlawful. The applicant’s access to the DVA workplace was revoked.

•  26 February 2020 – Upon being contacted by the respondent, the applicant denied the ground and set out reasons why that and other potential grounds were unlawful. The applicant suggested that the respondent take action pursuant to the contact/work order; the respondent refused.

•  28 February 2020 – The respondent sent the applicant an email notifying him of the dismissal and back-dating the dismissal to 26 February 2020.

[26] Under a section heading in the applicant’s submissions titled “CONTRACT FORMATION AND THE AMBUSH DOCUMENT”, the applicant submitted that the contract of employment with the respondent was formed at the following points in time.

“(a) 13 April 2019, when Respondent requested the Applicant to attend the office their client; if not then

(b) 23 April 2019, when the above-mentioned attendance occurred; if not then

(c) 10 May 2019, when with confirmation that the tender was successful; if not then

(d) 13 May 2019 when the respondent signed a binding work order with the client”.

[27] The applicant submitted the respondent’s reliance on the Agreement/binding contract should be rejected due to the following defects (as written):

“(a) It comes too late; a binding contact already been has formed;

(b) In para 4 of the respondent’s submission they state “Applicant was engaged consistent with the Respondent’s contractual arrangement with DVA” this document bares very little resemblance the contractual arrangements;

(c) The respondent, failed to follow up weather the document had been returned or sign, indicating that it was of very little import;

(d) There is no place for the respondent to counter sign the document, no contract length, pay rates are not mentioned, and no consideration;

(e) It contains no elements of lawful agreement;

(f) Page 2 Para 3 of the documents states “Failure to return the Agreement may result in termination of your employment.” Which implies that the applicant’s employment had began before the signing it and it was not an absolute precondition, via the use of the word “may”;

(g) Clause 1, the respondent claims the applicant would be cover by modern award, then comes to the commission to argue the opposite;

(h) Clause 15, part 1 “I understand that SOS Recruitment has no control over the duration of any assignment. I accept that SOS Recruitment may indicate the possible length of an assignment with a client in good faith”.

[28] The applicant submitted this contradicts the reality of a work order and, after referring to that part of the Agreement which reads “This Contract will commence on the Contract Start Date specified in the table below and expires on the end date specified in the table below unless it is terminated earlier in accordance with the Contract”, the applicant submitted that the respondent “has total control via enforcing the terms of the contract” (bold in original). The applicant submitted that the clause contradicts the work order and is “Clearly Intended to mislead”.

[29] The applicant referred to cll.17, 18 and 19 of the Agreement, which read:

“17. If I am not satisfied with a temporary assignment, I will call SOS Recruitment immediately to discuss the placement.

18. I will not leave the assignment without contacting SOS Recruitment in advance to discuss possible options.

19. I will make every effort to see all assignments through to completion.”

[30] These clauses, the applicant submitted, (as written) “make it quite clear it is not temporary, not casual” and if the employment was a “truly transient arrangement, the applicant would not be required to see the project to completion, let along discuss anything with the respondent.” The applicant’s submissions continued that the Agreement “is a mere shopping list of false and misleading statements by the respondent intended to mislead, in breach of S18 of the ACL” and that “the only purpose of the ambush document was to oust the jurisdiction of the FWC to deal with alleged unfair dismissals and inconsistent with the legislation relied upon, as per FWC in [2014] FWC 5383 WA Nesbitt v Dragon Mountain Gold Limited found.”

[31] Under a section heading titled “Casual Employment, The work order & Operational Requirements”, the applicant’s submissions referred to a description of casual employment said to be contained on the Commission’s website (but which appears to be taken from the website of the Fair Work Ombudsman). That text reads (with the bold and underlining added in the applicant’s submissions to the original text):

“A casual employee does not have a firm commitment in advance from an employer about how long they will be employed for, or the days (or hours) they will work. A casual employee also does not commit to all work an employer might offer.”

[32] The applicant submitted that the “second leg contradicts the requirements set out in cl 17-19 of the ambush document, and page two of the on boarding letter” which relevantly reads: “If you are not able to attend work for any reason please contact your direct manager by 9am on the day. If your absence will be longer than 3 days please contact SOS Recruitment as well”.

[33] The applicant submitted (as written, with underlining in the original):

“The Work order is a firm commitment between DVA and Respondent. Otherwise the relationship could never work. There is an expectation that the assignee will attend. Could one imagine the respondent saying to a client who is desperate the assignee to turn up to work, “Oh he is casual and that means it doesn’t commit him to all the work I offer him, and as there is not right of substitution I can’t provide another skill at the skill level, and even If I could they have no corporate/content knowledge and oh its takes 10 Days to get a police clearance, ”? Its not like replacing one 16-year-old at McDonalds with another. Another example is the “casual” shop assistant who is tasked with opening a shop and doesn’t turn up and owner doesn’t find out till 1 pm.”

[34] The applicant submitted that “DVA using the DEED, would have to go through a whole new tender process, which could take up to two months and they don’t want to be doing that, due the lack of mutability of obligation” and also submitted he was aware that “DVA and other users of the DEED, when they source a resource, there is a contractual expectation that it is not delivered via “casual” employment arrangement with employers like the Respondent.”

[35] Against the background of these matters, the applicant submitted “therefore … the relationship between the applicant and the respondent is not casual.”

[36] Under a section heading titled “Casual Employment, Exclusivity, Restraint of trade, Conflict of Interest, & Commercial Confidentiality” the applicant’s submissions read (as written, with bold and underlining in the original):

“I am not too sure whether the Commission has put it mind to the intersection of these obligations and the determination of casual work. I understand in the legal profession they accept and struggle with “obligation to client” in particular small jurisdiction like the ACT, or Legal Aid Services where they can’t represent (past) both sides of the dispute. The question is can you impose these obligations on a person while not having a firm commitment to offer them any hours of employment. That doesn’t sound like a bargain for a bargain or an obligation for an obligation. For example, it would prevent a 16-year working for McDonalds and Hungry Jacks over the same period of time despite being offered NO hours by McDonalds, or a Barista from working in two coffee shops in the same mall.”

[37] The applicant next submitted “that these attributes are truly attributes of only permanent full-time employment” and “that imposing one or more of these obligations are an attribute “non-casual” employment, and would go as far as suggesting there is an obligation to provide a minimum number of hours amounting to living wage.” As both the respondent and DVA “impose such obligations on the applicant, therefore the employment is not casual”.

[38] Under a section heading titled “Training”, the applicant submitted he “received some 9 days of highly valuable professional technical training over 3 weeks, which was required for his immediate task, but of use for future tasks”. The applicant submitted that the training is an “indicator of a mutual obligation” and to suggest the applicant “can get the training and in week 4 get a job elsewhere is interesting and would produce an interesting reaction from the client.” Considering these training-related matters, the applicant therefore submitted the relationship between the applicant and the respondent is not casual.

[39] As to the respondent’s submission there had not been a dismissal at the initiative of the respondent, the applicant rejected that submission on the following grounds:

•  as “relying on an Ambush document described as an employment agreement as that document has no effect as it formed no part of employment agreement”;

•  the reliance on “the Ambush document purporting to be agreement and purporting to be consistent with the DVA Deed and work order as a contract that terminates by the operation of law not being considered a termination on the initiative of the employer” should be rejected for the reasons earlier outlined.

[40] The applicant submitted that if the Commission chooses “to give the Ambush document some weight as an agreement, it should be limited to its consistency with the DEED and work order, and implied procedural fairness and model litigant constraints”.

[41] The applicant also made further miscellaneous submissions, including (as written):

•  that s.386(1) of the Act “is meant to deal with the issues where there has been no active “your fired”, but when an employee has been forced to abandon the employment due to the actions of the employer and their agents, like a demotion or bullied resignation or end date has passed. It is read expansively”;

•  the reliance on words “subject to funding” as an indicator that the contract coming to a natural end was misplaced; the respondent acknowledges that a particular individual was its agent, with attention drawn to paragraphs “9 and 13 of the Ambush document”;

•  the applicant understands that during his temporary assignments he is under the daily direct supervision of the respondent’s client(s) who will define the duties and work arrangement;

[42] The applicant submitted that the person who advised him that the DVA placement was terminated “is the agent of the respondent and his conduct is that of respondent” and, therefore, his acts of removing the applicant from the DVA workplace were acts at the employer’s initiative for the purpose of s.386(1) of the Act.

[43] The applicant submitted that if the Commission rejects his agency relationship submissions, and the respondent argues the acts of DVA are beyond its control and therefore there cannot be a termination of employment “on the employer’s initiative”, that proposition was contrary to what was said in Mahony v Dr Daniel J White T/A Catholic Education Office Sydney [2015] FWC 1593 and that decision supports the applicant’s submission his dismissal was on the respondent’s initiative.

[44] The applicant submitted that “on the issue of control, if there was no agency, the respondent had control via the DEED and Work order, and chose to abandon those controls, for fear of being excluded from their special relationship with DVA.”

[45] The applicant submitted that one or more of the following three acts amounted to dismissal at the initiative of the respondent: (a) removal from the DVA workplace, by the agent; (b) failure to enforce the work order; and/or (c) email notice terminating the employment.

Applicant’s submissions – minimum employment period

[46] In response to the respondent’s minimum employment period objection, the applicant submitted the employment was regular and systematic and he did have a reasonable expectation of continued employment.

[47] Under a heading titled “Start Date for Employment”, the applicant submitted there is a distinction between starting employment with the respondent and starting an assignment. The applicant submitted that the start date for employment with the respondent was 23 April 2019, as that is the date the applicant performed work on behalf of the respondent. The applicant submitted that the Commission should reject the respondent’s contention that 29 May 2019 was the start date.

[48] Under a heading titled “Not employed on a regular and systematic basis”, the applicant adverted to matters addressed in the respondent’s submissions including by reference to a number of authorities. The applicant submitted that the Commission “should reject the respondent’s false inductive reasoning that would lead to the conclusion that the work was not regular or systematic”. In such respects, the applicant described what were contended to be errors in the respondent’s submissions as follows (as written):

“(c) “Work Consistent with this engagement, the Applicant’s hours of work varied depending on the operational requirements of DVA.” Incorrect. Under the work order DVA would have paid for the applicant regardless their operational requirements. All the applicant had to do was turn-up, if there were no operational requirements the applicant could do what he liked with that time.

(d) “Applicant not working for lengthy periods … that exceed any leave entitlements” Incorrect the leave entitlements at the DVA were some 12 weeks recreation leave, 18 days long service leave and 18 personal leave. The leave taken was pre-booked before being employed and approved by the respondent’s agent.”

[49] (Before proceeding, I should interpose in this summary of the parties’ submissions to note that it is unclear to me on what basis the applicant contended, for example, that he was absent on long service leave given his casual employment and length of service with the respondent). The applicant submitted the respondent had an ongoing reliance on him due to the contractual undertaking under the work order to supply the applicant to DVA and there was no right of substitution under the work order. The applicant also submitted that the work order clearly imposed a regular and systemic pattern for 25 months on the respondent and the relationship with the applicant, as the funding is pre-committed and guaranteed for the first 25 months. The variations reflected the nature of regular and systemic patterns at DVA, which are transmitted via the work order onto the relationship between the respondent and applicant. The applicant submitted that neither DVA nor the respondent requested the variations in work patterns to indicate there was no longer an ongoing reliance on him.

[50] As to the respondent’s submissions concerning a reasonable expectation of continued employment, the applicant submitted that:

•  the onboarding letter referred to the possibility of extension and what steps should be taken if such an offer was made by DVA to the applicant;

•  the respondent’s submissions ignore cll.17-19 of the Agreement (reproduced earlier in this decision) which assert an intention by the respondent of continued employment to the completion of the project (and this project was to run over four years).

[51] The submissions also referred to “two emails, where the respondent attempts read the applicants mind”; and time sheets. The applicant submitted this method is flawed, as the respondent relies on irrelevant documents and conclusions not based on fact.

[52] The applicant submitted he relied (as written) “on the work order and the knowledge that funding was guaranteed based on the PGPA act, the extension referred to in the work order was also guaranteed under the forward commitment requirements of the PGPA act, and statements made by DVA on 23 April 2019 and again 29 May 2019 indicating that the work would continue across years, up to four years”. Therefore, the applicant submitted, he had reasonable expectation of continued employment. Moreover, the applicant took leave based on only his reasonable expectation of employment, and to do otherwise would have been irrational and foolhardy.

[53] The applicant submitted that, based on the preceding matters, his employment was on a regular and systematic basis, and he had reasonable expectation of continuing employment.

Applicant’s submissions – modern award coverage

[54] The applicant submitted the respondent was estopped from arguing that there was no modern award coverage on the grounds that it is contrary to public policy. In such respects, the applicant quoted text from the Agreement which reads: “1. I understand that I will be paid as a casual on-hire employee under the Clerks - Private Sector Award 2010 (‘the Award’) whether I am working in Government sector or the private sector. 2. If the position is in the Government sector (Commonwealth, State/Territory) I understand that SOS Recruitment may use that Department’s Enterprise Agreement pay structure to calculate my casual hourly rate but is not legally bound to do so because my salary, terms and conditions of employment fall under the award. …”.

[55] The applicant submitted the respondent’s intention was clear from this text in the Agreement. The applicant submitted that (as written) “To recant from that intention, would put the respondent in breach of S18 of the ACL (false and misleading conduct), and the tort of deceit (a fraudulent mis-representation)” and that the conduct of the respondent “would fall within Part 3.3 of the Criminal Code 2002 (ACT).”

Applicant’s submissions – Award coverage/enterprise agreement applicability

[56] The applicant submitted that the work performed by him was covered by “multiple awards”, with five identified as:

•  the Professional Employees Award;

•  the Market and Social Research Award;

•  the Clerks Award;

•  the Health Professionals and Support Services Award; and

•  the Banking, Finance and Insurance Award.

[57] The applicant elaborated in his submissions how and why each and every one of these five awards was relevant to his former employment and the question of award coverage in the context of the respondent’s high income objection. The applicant also submitted that if there was no modern award coverage the relevant instrument the applicant “should be cover[e]d” by was DVA’s enterprise agreement.

Applicant’s submissions – High income threshold

[58] The applicant rejected the respondent’s claim that he had an annual rate of earnings that exceeded the high income threshold.

[59] Proceeding on the basis that the applicant’s employment with the respondent commenced on 23 April 2019, the applicant submitted that his working pattern consisted of approximately 24.5 hours per week on an average basis; if the applicant’s employment commenced on 27 May 2019, his working pattern consisted of approximately 27 hours per week on an average basis. The applicant was paid wages at a rate of $100 per hour. The applicant submitted the multiplier to calculate the annualised rate should be 34 weeks based on the minimum working weeks available under DVA’s enterprise agreement. If a 52-week multiplier is used, the applicant’s average annual rate of earnings at the time of dismissal would have been $127,800 in the first instance and, in the second instance, $140,600 - with each figure below the high income threshold.

Respondent’s reply submissions

The Agreement

[60] The respondent submitted there is no basis to suggest that a contract of employment was formed between it and the applicant at any time prior to 28 May 2019. Prior to 28 May 2019, when a letter and the Agreement were provided to the applicant, there was no contract of employment given there was no agreement or certainty as to the terms, and no intention to create legal relations.

[61] To the extent the applicant asserted that no reliance should be placed on the Agreement between the parties prior to the commencement of employment:

•  there is no dispute that the applicant received the welcome letter and the Agreement on 28 May 2019, and reviewed its terms;

•  the terms and conditions contained in the Agreement were comprehensive; and

•  the letter and Agreement made it clear that employment between the applicant and the respondent was being offered based on express terms.

[62] The applicant made a decision not to sign the Agreement as in his view, “fundamentally it was too late, to have any effect”. As to this, the respondent submitted that in response to receiving the letter and Agreement, the applicant:

•  did not seek to question or negotiate the terms of the Agreement or his employment with the respondent;

•  proceeded to return all documents attached to the letter aside from the Agreement;

•  did not respond when an employee of the respondent followed-up in relation to the provision of the signed Agreement on 30 May 2019;

•  proceeded to comply with his obligations under the Agreement, including: (a) attending work on 29 May 2019 at the DVA’s offices and reporting to the relevant contact; (b) recording his work hours on the respondent’s timesheet and submitting that information to the respondent; (c) notifying the respondent of any absence greater than three days; and (d) providing his superannuation fund details.

[63] The performance of the applicant led the respondent to believe that he agreed to the terms of the letter and Agreement. If the applicant did not intend to be bound by the terms of the Agreement, the appropriate course from the applicant would have been to not commence the DVA assignment or advise the respondent of his concerns. A valid contract may still be formed where there is no signature and, here, a reasonable person would regard the conduct of the applicant as leading the respondent to believe the terms were accepted.

[64] The respondent maintained that, provided the Commission determines that the terms of the contract of employment between the applicant and respondent were set out in the Agreement, it follows that the employment relationship was terminated by the operation of law. In Singh v Labourforce Impex Personnel Pty Ltd[2017] FWC 1062 at [31], the Commission determined that there was not a dismissal at the employer’s initiative in the following circumstances:

“… The employment was terminated not because of any act of the Respondent. The employment ended because the assignment ended according to the terms of the Agreement, and the contract of employment created by the assignment to [the host employer]. The act of ending the assignment was an act of [the host employer]. The ending of the employment was the consequence of the agreed terms of the Agreement not an act of the Respondent. …”

[65] Applying the reasoning in Singh, the respondent submitted: (a) the assignment ended because DVA terminated it – this was an act of DVA, not the respondent; (b) the employment ended as a direct consequence of DVA’s decision to terminate the assignment and the express terms of the Agreement; and (c) the applicant’s employment was not terminated because of any act by the respondent, but by the operation of the Agreement. The email from an employee of the respondent on 28 February 2020 merely confirmed what the parties were already aware of; that is, that the termination had occurred (on 26 February 2020) as a result of DVA terminating the assignment and the operation of the Agreement.

[66] As to other aspects of the applicant’s submissions, the respondent submitted:

•  The respondent accepts that if the applicant’s evidence (at paragraph 74 of his first witness statement) were accepted, his employment would be regular and systematic as he was contracted to work 40 hours per week on a regular basis.

•  The Respondent maintains that the applicant did not have a reasonable expectation of continuing employment. To the extent certain matters were raised by the applicant regarding the work order and his knowledge that the funding for the project was guaranteed based on a discussion with a DVA employee it was not, for example, the respondent that had made any such representations and there is a distinction between the funding for a project being guaranteed, and the applicant having a reasonable expectation of continuing employment. Moreover, the DVA placement was the applicant’s first assignment with the respondent; the assignment was relatively short in duration and the applicant was aware of the specific temporary nature of his employment as outlined in the Agreement and letter. As well as there being no objectively reasonable expectation of continuing employment, the evidence of what was written in emails demonstrates that the applicant, in fact, did not have a subjective expectation of continuing employment.

[67] The respondent briefly outlined reasons why none of the five awards (or the Department of Veterans’ Affairs Enterprise Agreement 2019-2022) to which the applicant referred covered or applied to the applicant. The respondent also submitted that, consistent with the applicant’s evidence, his position was a senior, specialised role which is also consistent with the role not having award coverage. This is supported by the applicant’s base wage being $100.00 an hour.

[68] As to the applicant’s high income threshold submissions, the respondent submitted that the correct test for determining the annual rate of earnings for the purposes of s.332 of the Act is to determine the rate of earnings at the time of dismissal, not the actual earnings up to that time and that periods of unpaid leave are not included in the calculation of earnings. The relevant consideration, the respondent submitted, is whether the applicant would have been expected to work a 40 hour week if his employment had continued.

[69] The respondent submitted that, notwithstanding the applicant’s submissions, there is no basis to suggest the annual rate of earnings should be calculated on a multiplier of 34 weeks based on the DVA enterprise agreement, because that agreement did not apply to the applicant’s employment.

[70] The respondent submitted that if the Commission determines the applicant had a reasonable expectation of continuing employment (which was denied), it follows that the applicant’s annual rate of earnings would be calculated based on 40 hours per week, for 52 weeks; and, separately, this would be consistent with the applicant’s post-termination claim to the respondent on 17 June 2020 to entitlement to payment for annual and personal leave.

Consideration

Dismissal on the initiative of the respondent

[71] This case involves another example of the issues that may be presented in the triangular employment relationship of a labour hire employee, a labour hire company and the decision of a host employer that it no longer wants the services of a particular employee. The respondent contends the applicant was not dismissed by it and that, given the provisions of the Agreement (which had been offered and accepted, albeit not formally signed by the applicant) the Agreement precluded any contention by the applicant he had been dismissed in circumstances where it was the host employer which determined to sever the working arrangements.

[72] I should say some things about the Agreement. For his part, the applicant contended that the employment with the respondent commenced on a date earlier than when a letter setting out certain employment-related matters and the Agreement were provided to him. I do not accept this was the case. Moreover, in connection with the letter and the Agreement, the applicant took steps to attend to matters such as the provision of financial institution details for payment and presented for work at DVA in accordance with the offer and his acceptance; and those matters broadly coincided with the provision of the letter and the Agreement. To my mind, nothing of relevance turns on the fact the applicant did not sign the Agreement (which was referred to in the applicant’s submissions as the “Ambush Document”), even when followed-up about the matter of signing that document.

[73] The applicant and the respondent both, in effect, cherry-picked the parts of the Agreement in support of their respective propositions even though, for instance, the applicant submitted it did not apply to him and, on the other hand, the Agreement specified coverage by a modern award (being a matter to which I will return).

[74] The terms of the Agreement, which is replete with clauses asserting that a host employer-determined cessation of the labour hire placement means that there is agreement this does not amount to a dismissal by the respondent, do not alter the fact of the termination of the applicant’s employment at the initiative of the respondent in this case. A labour hire employer is just that; it would have been open to the respondent to retain the applicant in its employment or, put colloquially, kept him as an employee “on its books”, albeit it did not have an alternative labour hire placement available at the time. Indeed, there is no evidence to indicate that the respondent explored with the applicant whether it had or may have any alternative placement/s available or potentially available before sending correspondence on 28 February 2020 purporting to effect a termination of employment two days earlier (cf s.117(1) of the Act) and in circumstances where a dismissal does not take effect until communicated to an employee.

[75] It was the respondent which determined to terminate the employment relationship between itself and the applicant; the decision of DVA that it no longer required the services of the applicant did not have as its axiomatic result the dismissal by the respondent of the applicant who was its own employee and this was so notwithstanding the terms of the Agreement. I do not consider Singh v Labourforce Impex Personnel Pty Ltd[2017] FWC 1062, a decision relied on by the respondent, to be on point given it turned on its own facts which are not on all fours with the matter before me.

[76] In such respects, it is illustrative instead to consider authorities such as the decision of a Full Bench of the Commission in Tasmanian Ports Corporation Pty Ltd v Warwick Gee[2017] FWCFB 1714 (including its discussion of the earlier decision of a Full Bench of the Commission in Donald Pettifer v MODEC Management Services Pty Ltd[2016] FWCFB 5243 and a single-member decision in Kool v Adecco Industrial Pty Ltd T/A Adecco[2016] FWC 925); and Spinifex Australia Pty Ltd T/A Spinifex Recruiting v Patrice Tait[2018] FWCFB 6267 upholding the decision at first instance by Hamberger SDP. See also, particularly, the judgment of the Full Court of the Federal Court in Mahony v White [2016] FCAFC 160 including the discussion by the Court of matters including the meaning of dismissal on the initiative of the employer, albeit in a case that did not turn on labour hire-related considerations.

[77] As I do not accept the respondent’s submissions which were to the effect that the application was not competent for want of a dismissal on the initiative of the employer, I now turn to other relevant objections.

Award or enterprise agreement

[78] Section 382 of the Act identifies when a person is protected from unfair dismissal in the following terms:

“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.”

[79] Moreover, by operation of s.396 of the Act, certain preliminary matters must be determined:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a)  whether the application was made within the period required in subsection 394(2);

(b)  whether the person was protected from unfair dismissal;

(c)  whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d)  whether the dismissal was a case of genuine redundancy.”

[80] The Agreement, which is a template agreement that is or was used by the respondent concerning its employment of labour hire employees (see transcript at PN141), identified the Clerks Award as covering the employment and also referred to enterprise agreement-related considerations. That is, the Agreement read as follows:

“General Matters

1. I understand that I will be paid as a casual on-hire employee under the Clerks - Private Sector Award 2010 (‘the Award’) whether I am working in Government sector or the private sector.

2. If the position is in the Government sector (Commonwealth, State/Territory) I understand that SOS Recruitment may use that Department’s Enterprise Agreement pay structure to calculate my casual hourly rate but is not legally bound to do so because my salary, terms and conditions of employment fall under the award. …”

[81] Despite the assertions in the Agreement, the applicant was not paid as a casual on-hire employee under the Clerks Award (he was paid $100 an hour, plus superannuation). Moreover, I find the applicant was not otherwise covered by the Clerks Award for the simple reason that he was employed by the respondent to undertake data analyst duties for DVA. The duties of that position within DVA were in evidence and those duties are not of the clerical and/or administrative type envisaged in the Clerks Award.

[82] The position was described by DVA in its work order with the respondent as being “Data Analyst at an [Australian Public Service Executive Level 1] equivalent level”. The advertised duties were otherwise set out in the evidence, namely, that mandatory and/or desirable skills and qualifications included:

•  experience in preparing data for analytics purposes using existing datasets;

•  experience in visualising complex datasets using business intelligence software such as tableau or Power BI;

•  experience in using SQL and database solutions;

•  demonstrated knowledge of developing procedures for data quality check;

•  extensive experience with principles and practices of developing regular reports;

•  skills in connecting and interpreting data; and

•  experience in use of the SAS tool set;

•  proven high level of proficiency in building and developing SAS macros;

•  experience in working alongside teams within the business to establish business needs;

•  prior experience in supervising and mentoring junior staff; and

•  experience in working with the DVA system.

[83] True it is that the applicant’s remuneration, based on $100.00 an hour for a 40 hour week (calculated by the respondent as being $208,000) would exceed the high income threshold, but the contract of employment specifically stipulated that the employment falls under the Clerks Award. However, an award does not cover an employee merely because it is identified in a contract of employment, or in a written or oral agreement between an employer and employee. Here, the applicant was not employed in a clerical capacity; he was employed to undertake, and undertook, data analyst responsibilities. I accept the submissions for the respondent that the applicant was not covered by the Clerks Award.

[84] The applicant submitted he was otherwise covered by any one or more of the following awards: the Professional Employees Award; the Market and Social Research Award; the Health Professionals and Support Services Award; and/or the Banking, Finance and Insurance Award.

[85] The Professional Employees Award is an industry and occupational award and, by operation of cl.4.5, it covers “any employer which supplies on-hire employees in classifications set out in Schedule A—Classification Structure and Definitions and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee”. The work or occupations described in Schedule A of the Professional Employees Award do not, in my view, comprehend the data analyst position/work of the applicant at DVA at a level undertaken by the applicant.

[86] There is no basis upon which it could be concluded that the applicant was otherwise covered in his employment by the respondent and undertaking data analyst duties for DVA that he was covered by the Market and Social Research Award, the Health Professionals and Support Services Award or the Banking, Finance and Insurance Award; upon a reading of them, these awards are simply not apposite - and this is so notwithstanding my consideration of the applicant’s submissions concerning purported coverage.

[87] Similarly, there is no basis upon which it could be concluded that the DVA Enterprise Agreement 2019-2022 applied to the applicant. That enterprise agreement covers DVA (on behalf of the Commonwealth) and non-SES employees of DVA employed under the Public Service Act 1999.

[88] I conclude a modern award did not cover the applicant and an enterprise agreement did not apply to the applicant in relation to the employment with the respondent in his placement at DVA.

High income threshold

[89] Given my conclusion a modern award did not cover the applicant and an enterprise agreement did not apply to the applicant in relation to the employment, I next turn to consider the high income threshold.

[90] Section 382(b)(iii) of the Act provides that (absent a relevant award covering the person or an enterprise agreement applying to the employment) a person is protected from unfair dismissal at a time if, at that time, 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. The high income threshold in the period 1 July 2019 to 30 June 2020 was $148,700.00 and, hence, that was the threshold at the time of the applicant’s dismissal. The applicant’s income was identified in the evidence in the form of a letter from the respondent dated 28 May 2019 concerning the assignment at DVA, which had an anticipated duration from 29 May 2019 to 30 June 2020 (with the possibility of an extension):

“Your gross casual hourly rate will be $100.00 plus 9.5% superannuation. Your gross casual hourly rate is made up of the following: $80 plus 25% casual loading ($20) = $100.00. Your standard working week is 40 hours, if you are required to work more than 10 hours a day or 40 hours per week you must obtain your manager’s prior approval.”

[91] Thus, at the date of the dismissal, the applicant’s income was $100.00 an hour (exclusive of superannuation) multiplied by the standard work hours specified at 40 hours a week. Thereby, as at the date of the date of the dismissal, the applicant’s income from his employment with the respondent was $4,000.00 a week or, multiplied by 52 weeks, $208,000.00 annualised. This amount exceeded the relevant high income threshold amount of $148,700.00.

[92] Given the applicant’s income exceeded the high income threshold and there was no relevant award or enterprise agreement, the applicant was not protected from unfair dismissal - and the application must therefore fail. In reaching my conclusion concerning the high income threshold objection, I am cognisant of the evidence that even though the applicant was advised that the standard working week would be 40 hours there was other evidence indicating that the applicant did not, over the course of his placement at DVA, necessarily or routinely work 40 hours a week and, for example, took periods of unpaid leave (I reiterate, it is unclear to me the basis upon which the applicant contended some of those absences were annual leave, personal/carer’s leave or long service leave). Nonetheless, as at the date of dismissal, had the applicant worked what was described as the “standard working week” and received his rate entitlement of $100.00 an hour, that took him beyond the high income threshold when annualised.

[93] As the Full Bench noted in Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia[2012] FWAFB 6108 at [9]: “… Section 382 of the Act relevantly provides that a person is protected from unfair dismissal at a time if, at that time, 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. It is clear that the time at which the annual rate of earnings must be ascertained is at the time of the termination of the person's employment. What needs to be ascertained is the annual rate of earnings at that time, not the annual earnings to that time (the amount earned in the 12 months to that time)” (bold in original). See also, for example, Darling v Bechtel Australia Pty Ltd[2015] FWC 1242 per Hatcher VP and Cross v Bechtel Construction (Australia) Pty Limited[2015] FWC 3639 per Catanzariti VP.

[94] I accept the respondent’s submission that this working pattern of 40 hours a week would, if extended over a year, produce an annual rate of earnings of $208,000.00 (unless, for example, the applicant determined, by arrangement with the respondent and/or DVA, to take unpaid leave). That the applicant may have worked fewer hours than the standard of 40 hours a week and what working pattern he might have performed if he had not been dismissed are beside the point. These matters are not relevant to ascertaining his annual rate of earnings at the date of his dismissal. As such, I conclude the applicant’s annual rate of earnings was above the high income threshold.

The respondent’s minimum employment period objection

[95] Section 382(a) of the Act provides that a person is protected from unfair dismissal at a time if, at that time, the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period. In this case, the respondent was not a small business employer (it employed approximately 13 permanent employees and 162 casual/labour hire employees) and so the minimum employment period was six months (see s.383). The Act provides the following definition concerning the 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 …”.

[96] The respondent in its written submissions initially objected to the application on the twin bases that: (a) the applicant’s employment was not on a regular and systematic basis; and (b) that, during the applicant’s period of service as a casual employee, the applicant could not have had a reasonable expectation of continuing employment by the respondent on a regular and systematic basis.

[97] In its closing oral submissions, however (at PN457), the respondent conceded, based on the material filed, there was regular and systematic employment. Given that concession, I will not further consider the evidence and submissions concerning s.384(2)(a)(i) of the Act and proceed on the basis it is common ground between the applicant and the respondent that the employment of the applicant as a casual employee was on a regular and systematic basis in the period from the first day of placement on the DVA assignment to the cessation of that placement. The respondent submitted that “critically” the Act also requires consideration of whether the applicant had a reasonable expectation of continuing employment; and that s.384(2) is “expressed in the conjunctive”.

[98] I note that the applicant was on notice from the respondent that the placement was contingent on matters including DVA’s operational requirements, funding and the applicant’s work performance. The applicant’s assignment at DVA was advised to the applicant as being one with the placement to commence on 29 May 2019 with the anticipated duration of that placement to run to 30 June 2020.

[99] The employment of the applicant by the respondent was a casual employment relationship, but the arrangements also had the characteristics of a term contract with an end-date of 30 June 2020 - albeit with qualifiers related to DVA’s operational requirements, funding and the applicant’s work performance. I conclude that the applicant had a reasonable expectation of continuing employment by the respondent in his placement at DVA on a regular and systematic basis, albeit only until 30 June 2020 and this is so notwithstanding what was written in the Agreement.

[100] The applicant could not, during the period of service as a casual employee with the respondent, have had a reasonable expectation of continuing employment by the respondent after 30 June 2020 notwithstanding the fact that the (mere) possibility of an extension beyond that date had been flagged – but I conclude he did have a reasonably-based expectation effective to that particular date given that at least part of the employment arrangements were identified as having characteristics akin to term-specified arrangements. During the applicant’s period of service as a casual employee the applicant therefore had, excepting any of the intervening/supervening circumstances of the type of which he was put on notice, a reasonable expectation of continuing casual employment by the respondent on a regular and systematic basis until 30 June 2020 – being a date which post-dated the dismissal itself in February 2020. In the circumstances, I do not accept the respondent’s objection that the applicant was not a person protected from unfair dismissal on grounds of not having met the minimum employment period and, in so concluding, have considered what was said in Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099 at [28]-[44] as against the specific and/or particular factual circumstances of the application before me.

Conclusion

[101] I have not addressed in this decision every aspect of the evidence and submissions advanced in this case, but I have considered all such matters in reaching my conclusions based on what I consider to be matters of relevance to my conclusions concerning the jurisdictional objections. In the end, while I have not accepted a number of the respondent’s objections to the application, I accept the respondent’s jurisdictional objection that the applicant’s employment was award-free and agreement-free, and that the applicant’s income otherwise exceeded the high income threshold. In the circumstances, the application cannot proceed and an order dismissing the application will issue in conjunction with these reasons.

COMMISSIONER

Appearances:

P Dirkis, applicant, on his own behalf.

R Collinson, solicitor, on behalf of the respondent.

Hearing details:

2020.

Canberra (by telephone/video):

June 30.

(and on the papers before McKenna C).

Printed by authority of the Commonwealth Government Printer

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