Pauline Italia v Viva Life Photography Pty Ltd T/A Viva Life Photography Frankston
[2019] FWC 3613
•6 JUNE 2019
| [2019] FWC 3613 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pauline Italia
v
Viva Life Photography Pty Ltd T/A Viva Life Photography - Frankston
(U2019/2294)
COMMISSIONER WILSON | MELBOURNE, 6 JUNE 2019 |
Application for an unfair dismissal remedy.
[1] Pauline Italia has made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Viva Life Photography Pty Ltd T/A Viva Life Photography – Frankston (Viva Life Photography Frankston) which was lodged in the Commission on 2 March 2019.
[2] Until 20 February 2019, Ms Italia worked as a casual employee for Viva Life Photography Frankston.
[3] The matters requiring determination in this decision are whether at the time Ms Italia’s employment ended she was a person protected from unfair dismissal, with it being argued by the Respondent that she was not, for reason that she had not completed the minimum employment period.
[4] For the reason that the parties were self-represented, the matter proceeded before me by way of a determinative conference. Ms Italia and her husband, Derrick den Hollander, a former Studio Manager of Viva Life Photography Frankston gave evidence on her behalf, as did another former employee, Madison Field. The Respondent’s current Studio Manager, Ben Cox, was the only person to give evidence on its behalf.
[5] At the core of the Respondent’s submissions are two arguments. Firstly, it is submitted that Viva Life Photography Frankston is a small business employer for the purposes of the Act, meaning that the relevant minimum employment period is one year and not six months. Secondly, it is submitted that much or all of Ms Italia’s service was as a casual employee and should be discounted from determination of her continuous service since her engagement as a casual employee was not regular and systematic with a reasonable expectation of continuing employment.
[6] Despite the contest between the parties on the question of the meaning of her service, there is agreement between them that Ms Italia performed work for the Respondent over the period from 25 October 2016 until her last engagement on 20 February 2019. She was engaged by the business by her husband, Derrick den Hollander, who was the Respondent’s Studio Manager for about 32 months from 5 January 2016, until approximately September 2018. 1 The nature of the Respondent’s business includes that it markets itself to the community through a range of activities including advertising, telephone contact and leaflet drops. It also undertakes the business of portrait photography which includes both styling of clients as well as the taking and finalisation of photographs.
[7] Ms Italia came into the business in order to aid in a broad range of activities. Some of those necessitated her undertaking the marketing activities both within and outside of the company’s premises. Some of them required her to be physically in the premises, including for the purposes of assisting with receiving and processing customers. In this regard it appears that part of the Respondent method of operation when undertaking client photography was to ensure that there were always two staff members on the premises. 2
[8] Determination of the Respondent’s objection requires consideration firstly of its status as a small business employer, which will in turn define the minimum employment period, and secondly the nature of Ms Italia’s engagement with Viva Life Photography Frankston and in particular whether periods of casual employment should be counted towards the Commission’s determination of her period of employment
[9] Consideration of whether an employer at the relevant time is a small business employer requires application of s.23 of the Act. While an employer is a small business employer if at a particular time it employs fewer than 15 employees, consideration also needs to be given to whether the employing entity has associated entities, with s.23(3) providing that “associated entities are taken to be one entity”.
Whether Associated Entities
[10] The operation of the Respondent’s business from its premises in Frankston is part of a franchising arrangement operating across at least Victoria and Western Australia. In Victoria there are franchisees operating under the name Viva Life Photography both in Frankston and Moonee Ponds. In West Australia there are franchisees operating in several locations. Ordinarily five people would be employed in each of the stores and Mr Cox’s evidence on the subject is that at the relevant time, being that of the date of termination of Ms Italia’s employment, on 20 February 2019, there were 10 employees in total of the entity running the Frankston store, including Ms Italia. 3 Five of those were engaged in the Frankston store and five at the Joondalup store.4 Mr Cox also conceded that there were four people employed in the Moonee Ponds store at the relevant time, which would be consistent with the standard business operation of other franchises, although gave evidence that it was owned by a separate entity to that operating Frankston and Joondalup named Gembay Pty Ltd.5
[11] While Mr den Hollander led evidence that there were also four employees featured in the payroll materials provided by Mr Cox which were not listed in the Respondent’s evidence, Mr Cox’s evidence was that these employees were no longer working at Viva Photography Joondalup at the time of Ms Italia’s dismissal and were therefore not included in the count of employees.
[12] Evidence before the Commission shows that the Frankston store is operated by The Viva Family Trust, ABN 54 537 607 673. The trust operates another store at Joondalup in Western Australia.
[13] The Viva Life franchise at Moonee Ponds was, until on or around 1 December 2018 operated by Gembay Pty Ltd 6 but is now operated by The Viva Australia Group, as trustee for The Natoli Stores Family Trust, ABN 27 906 181 931. The Group also operates three other stores in Western Australia.7
[14] While there appear to be some common beneficiaries between the trusts, ultimately the question of whether the two are associated entities requires a finding that the circumstances provided for within s.50AAA of the Corporations Act 2001 (Cth) have been met. Mr Cox’s evidence on the subject of the operating and ownership structure included;
• that the operating entity of the Frankston and Joondalup stores, the Viva Family Trust “has two trustees which is Joanna Bettegacci and her - although it says Natoli, that's her maiden name - and her husband Tony Bettegacci”; and
• that, in relation to the operations of the Moonee Ponds and the other WA stores the “owners, or the directors of Viva Australia Group as attested to by the ASIC printout, are referred to, are Vittorio Natoli and Maria Natoli” who are the parents of Joanna Bettegacci. 8
[15] Section 50AAA of the Corporations Act 2001 (Cth) provides:
“Associated entities
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b) the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(c) the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(c) the interest is material to the principal.
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”
[16] The Applicant contends there is a relationship of the requisite nature between the two entities and the number of persons employed by each ought to be taken into account in assessment of whether the Respondent is a small business employer. In particular, Ms Italia points to the work undertaken by Mr Cox, the current Viva Life Frankston Studio Manager, for the Viva Life Moonee Ponds franchise after he moved to the Frankston store. Evidence was led that between December 2018 to January 2019 Mr Cox spent 50% of his time at the Frankston store and 50% at the Moonee Ponds Store, assisting the Moonee Ponds store with ‘a tough time’; that Mr Cox continued to use log-in details for Moonee Ponds and be on the phone to the Moonee Ponds store consistently at the time of Ms Italia’s dismissal in February 2019; 9 and that Mr Cox was seeking access to the Moonee Ponds PaySmart account which is used by the store to produce payments for clients who could not pay up front (i.e. a loan system).10
[17] Mr Cox had been employed by Viva Life Moonee Ponds for some time and moved to Viva Life Frankston in late October 2018. His evidence on the subject includes that he helped out the Moonee Ponds store with certain work in the months after his move to Frankston and that he also was directly on the roster for the Moonee Ponds store for about three weeks in late January/early February 2019, while also undertaking work in the Frankston store. Mr Cox gave evidence that this came about because Moonee Ponds had one of their employees on holiday and that he presumed the work he performed for Moonee Ponds would be invoiced by the owners of the Frankston store to the Moonee Ponds store, but that he is not aware of whether that actually occurred. 11
[18] The evidence before the Commission on the subject of whether there are associated entities to be taken into account in assessing whether Viva Life Frankston is a small business employer is not extensive and does not adequately deal with the matters set out within s.50AAA of the Corporations Act 2001. In particular, the Commission is unable to establish either that the two trusts are related bodies corporate; that either controls the other or that the operations, resources or affairs of one entity is material to the other; that there may be a qualifying investment from one to the other, with or without significant influence and material interest between them; or that a third entity controls both. Findings on those matters would require considerably more evidence on the corporate structures and the matters of resourcing and control than presently before me. The evidence available in this matter including the trust deeds of the trusts referred to and the evidence of Mr Cox and Ms Italia and Mr den Hollander shows only that there are the structures referred to, and that there is a business relationship between them, but does not go so far as to establish the greater, more formal arrangements contemplated under s.50AAA. The mere facts of family connections and familial ownership, business or contractual relationships are not sufficient for the findings that would be necessary under that section in order to establish there are associated entities.
[19] As a result, I make no finding that there are associated entities to be taken into account in assessment of the number of employees employed by the Respondent.
Whether small business employer
[20] I accept the evidence of Mr Cox to the effect that there were, at the relevant time, 10 employees of the Respondent. It follows that I find the Respondent was a small business employer at the time Ms Italia’s employment ended which in turn leads to a finding that the relevant minimum employment period was one year (s.383(b)).
Whether casual service does not count
[21] Section 384 of the Act provides that the period of employment to be taken into account in determination of the minimum employment period is the period of continuous service the person’s had with the employer but that certain casual employment is to be excluded. The section provides the following, so far as is relevant:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
(3) …”
[22] Determination of the matters within s.386 requires an examination of the basis of a person’s employment, with it being accepted that “[i]t is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic”. 12 Further:
“[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:
• The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and
• •Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.
[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis.” 13
[23] The ascertainment of whether there was regular and systematic employment was considered in Yaraka Holdings Pty Limited v Giljevic:
“It is clear from the examples that a ‘regular ... basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all…
Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001).” 14
[24] Yaraka also held that it is the engagement of a casual employee that must be regular and systematic, not the hours worked pursuant to such engagement; that the term ‘regularly’ should be construed liberally, and that ‘systematic’ does not mean predictable. 15 While so, “it is important to note that the Court did not say or suggest that the hours of work are analytically unimportant. Clearly, the days on which a person works and the hours worked on those days are relevant to the consideration of whether casual employment is regular and systematic, and whether the person has a reasonable expectation of ongoing employment”.16
[25] The subject of the ascertainment of regular and systematic employment was explained further by the Full Bench in Shortland v Smiths Snackfood Co Ltd, 17 (Shortland) which analysed in careful detail the provisions of the legislation ultimately requiring application. In that matter, the Full Bench acknowledged that within the overall period of employment there may parts unable to be counted toward the minimum period for the reason they are excluded casual periods. An excluded period will, of course, be a period of casual employment in which the employee does not have BOTH regular and systematic employment AND a reasonable expectation of continuing employment by the employer on a regular and systematic basis. The employee in question had first started working for the Respondent company in July 2006, but had switched to casual employment in 2009. Taking the view that the provisions of s.384 had been misconceived, the Full Bench records the following first instance findings:
“[6] The Commissioner held:
“[32] From the evidence, I have to conclude that from June 2009 the Applicant’s engagement was intermittent until September 2009. During that period, it would have to be described as irregular in terms of weeks and hours of engagement. In terms of a system, there appears to be no evidence on which to say that the employment was systematic.
[33] From September 2009 to January 2010, there was simply no employment of the Applicant.
[34] From 17 June 2009, in my view, the Applicant’s employment was not regular and systematic in accordance with s.384(2)(i) nor had he any reasonable expectation of continuing employment in conformity with s.384(2)(ii). Consequently, at the time of his dismissal, the Applicant was not protected from unfair dismissal.””
[26] After recording that the relevant requirement for jurisdiction is whether the minimum employment period has been completed and that in the case in question the period was 6 months, considered the different terms employed within s.384, the Full Bench held as follows:
“[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.
[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).
[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.
[14] The Commissioner did not find that Mr Shortland’s employment was not continuous and correctly so. Prior to June 2009 Mr Shortland worked almost every week. There were a total of 4 isolated weeks in the period of almost three years prior to June 2009 when Mr Shortland performed no work. Those breaks should not be treated as a discontinuity in Mr Shortland’s employment such that periods of service before them should be discounted. The pattern of work disclosed by the evidence suggests that Mr Shortland’s employment in the period was regular and systematic. On any view, Mr Shortland had a reasonable expectation of continuing employment on a regular and systematic basis. In June 2009 Mr Shortland ceased work as a result of an injury that he claimed was work-related and for which he has now lodged a claim for workers compensation. Smiths has disputed that claim on the basis of causation. Mr Shortland’s absence from work from June 2009 was due to that injury and incapacity.
[15] A letter from Smiths dated 22 September 2009 informed Mr Shortland:
“. . . Please be aware that given you are unable to undertake your full duties, we are unable to roster you for any shifts as a casual packer.
Should a medical practitioner declare you fully fit for work again, please advise us and provide a copy of the certificate so that we are able to roster you for work where required.”
[16] It is clear from subsequent events that Smiths took the view that Mr Shortland was still a casual employee but he was not being allocated work because he was not fully fit for work.
[17] On the evidence before the Commissioner, Mr Shortland had a period of continuous service within the meaning of s.384 that commenced in July 2006 and continued until his employment was terminated by Smiths’ letter of 11 January 2010.
[18] For these reasons we find that the Commissioner erred in finding that the requirement in s.382(a) was not met and that consequently Mr Shortland was not protected from unfair dismissal within the meaning of s.382”.
(references omitted)
[27] What may be drawn from the foregoing, so far as is relevant to this matter, are the following:
• a person’s continuous employment is broken only when the employer or the employee make it clear to the other that there will be no further engagements; 18
• the gaps between individual engagements do not necessarily interrupt the employee’s continuous employment; 19
• a series of contiguous periods of service may count toward a single period of employment; 20
• contiguous periods of employment will only count toward the person’s period of employment if the conditions within s.384(2)(a)(i) and (ii) are met; 21 further, in such assessment it is the engagement that must be regular and systematic, not the hours and that ‘regularly’ should be construed liberally, and that ‘systematic’ does not mean predictable;22 however the hours of work are not unanalytically unimportant.23
[28] The Applicant’s evidence on the subject of her employment over the whole of her time from the initial engagement, in October 2016, and that of her husband, Mr den Hollander is that there was an intention for her to be engaged whenever needed on Saturdays as well as on other days during the week. Mr den Hollander’s evidence on the subject confirmed there was a long-standing arrangement that Ms Italia would come in on Saturdays, unless advised otherwise the Friday beforehand. 24 Ms Italia’s role was “entertaining clients on Saturdays; the busiest days. But also entering leads and collecting leads from coupon boxes…”25 Ms Field also confirmed in her evidence that Ms Italia was expected to work Saturdays under the same arrangement.26
[29] Viva Life Photography submits that Ms Italia had extensive absences throughout her employment and that there had been a gradual reduction in her hours noting that at the time of her dismissal there were no shifts planned for Ms Italia. 27 The Respondent also points to the changing nature of her role whereby “she had parts of her role taken away from her at various times. So, for instance she had the expo part of her role disappeared by nature of the marketing decisions of the business. She had her coupon box runs taken away due to the same thing. And certainly, from when I took over she was no longer entering leads as well” forms the basis of why Ms Italia did not have a reasonable expectation of further work.28
[30] In support of his case that Ms Italia’s period of employment is less than the Minimum Employment Period, Mr Cox also points to 21 periods in which Ms Italia did not receive any shifts. 29 In particular he gave evidence that Ms Italia’s employment was “an irregular casual worker” who had no future shifts agreed upon at the point of dismissal, further:
“Pauline had no regular shift pattern and was contacted to ask if she was available for work when she was needed by the business. If she was present at work and not needed anymore, she was sent home early” 30
[31] Overall, the Respondent argued that Ms Italia’s employment was not featured by the things necessary to establish an expectation of further work:
“Within the employment period Pauline had 21 periods of where she didn't receive shifts of 8 days or longer. Of these 11 periods were 12 days or longer and 3 periods were 18 days or longer. The longest period Pauline was given shifts without having a period of absence was 15 weeks. Pauline was employed as and when needed, according to the needs of the business. In the early part of her employment she would work around the marketing diary of the business. In the later part of the business, she was called the day before she was needed to ask if she could work. If there was a lack of work on a particular day that Pauline was working, she was sent home early.
…
Pauline's shifts were given on an 'as needed' basis by the business. She did not have an expectation of continued employment. She called up when needed and asked if she wanted to accept a shift. She even sent me an sms on 04/12/2019 saying "Hey Ben, do I still have a job at Viva?", implying that she thought her employment would not continue.” 31
[32] Within the Respondent’s materials is an identification by Mr Cox of the absences he refers to in the evidence above. Mr Cox refers to these absences as follows:
“Within the employment period Pauline had 21 periods of where she didn't receive shifts of 8 days or longer. Of these 11 periods were 12 days or longer and 3 periods were 18 days or longer. The longest period Pauline was given shifts without having a period of absence was 15 weeks. Pauline was employed as and when needed, according to the needs of the business.” 32
“During the period between Pauline’s first and final shifts at the business, she had 21 periods of eight days or longer without a shift. Of these, 11 periods were 12 days or longer. And of these, 3 periods were of 18 days or longer.
The longest period that Pauline was given shifts without an absence of at least eight days was 15 weeks.” 33
[33] With this argument, the Respondent filed a table of the days and hours that Ms Italia worked throughout the period she performed work for Viva Life Photography Frankston. The table as shown is attached to this decision as Schedule A.
[34] While Ms Italia does not say the Respondent has incorrectly recorded her absences from work, she argues the reasons for the absences are misleading or at least do not take into account why she was absent. Ms Italia made the following submissions regarding the reasons for her absences:
• “18/11/2016 - 28/11/2016 Pauline approved leave to visit her son Michael Italia in Queensland
• Total 11 days
• 30/03/2016 – 05/04/2016 No work available in the period despite Pauline being available for work
• 24/04/2017 -13/05/2017 Pauline approved leave to visit her son Michael Italia in Queensland
• Total 16 days
• 31/08/2017 – 06/09/2017 No work available in the period despite Pauline being available for work
• 30/11/2017 – 06/12/2017 No work available in the period despite Pauline being available for work
• 05/03/2018 -12/03/2018 Pauline approved leave to care for sick mother-in-law’s interstate visit
• Total 8 days
• 19/04/2018 - 10/05/2018 Pauline approved leave to visit her son Michael Italia in Queensland
• Total 16 days
• 24/05/2018 – 30/05/2018 No work available in the period despite Pauline being available for work
• 14/06/2018 – 27/06/2018 No work available in the period despite Pauline being available for work
• 13/09/2018 – 19/09/2018 No work available in the period despite Pauline being available for work
• 25/10/2018 – 31/10/2018 No work available in the period despite Pauline being available for work
• 30/11/2018 – 01/12/2018 Pauline approved leave to attend Melbourne Bon Jovi concert
• Total 2 days
• 17/01/2019 – 23/01/2019 No work available in the period despite Pauline being available for work
• 31/01/2019 – 06/02/2019 Pauline unavailable to work due to back injury”
• Total 1 day” 34
[35] Examination of the circumstances now before the Commission supports the proposition that there has been continuous service since the first time Ms Italia worked for Viva Life Photography on 25 October 2016. There is no evidence before the Commission to the effect that at any stage either party intimated to the other that there would be no further engagements. 35 To the contrary, the evidence suggests that the intention of both parties, at least until February 2019, was to offer and accept work with the expectation being that the work being offered was either routinely made or when the needs of the business supported Ms Italia’s rostering. While the two-year history of employment contains several periods in which Ms Italia did not work, those periods appear to be explained either because of a lack of work and thereby no need to engage Ms Italia, or in the alternative due to decisions on the part of Ms Italia to not make herself available for shifts such as because of a need for personal or other leave. The overall effect of these circumstances are consistent with there being a succession of contiguous engagements, with “gaps between individual engagements in a sequence of engagements”.
[36] In the absence of direct evidence to the effect that there had been a decision by either party to make it clear to the other that there would be no further engagements, the foregoing analysis does not lead to a finding that continuous service was interrupted within the above periods. However, the analysis does potentially point to periods of casual service which are not to be taken into account in assessment of the overall period of employment.
[37] One view of the material in Schedule A could be that the entirety of the period is not only continuous service, but also to be counted towards the period of employment with no deductions to be made in accordance with the obligation in s.384(2)(a). Such a view would be dependent upon a finding that the obvious gaps and drifts in engagements that occurred within the overall history of employment neither avoid a finding that there was regular and systematic basis to the engagements throughout, or that such do not disturb a reasonable expectation of continuing employment on the part of Ms Italia. While there are certainly periods within the overall documentation of employment in which there were frequent and repetitive engagements analysis of the table does not suggest that that continued throughout the two and half years of the relationship. At first until April 2017, most but not all Tuesdays were worked; there are occasional Thursdays. In the remainder of 2017, there were frequent engagements across most days of the week and most, but not all weeks within the period. 2018 was featured by many Saturdays being worked in the first quarter, with other days worked as well. However, from the start of the second quarter the frequency of engagements cooled with less shifts being worked and more weeks of no work occurring; however even within the second quarter of 2018 there plainly was a relationship of some substance. In the third and fourth quarters of 2018 most Saturdays were worked, but not all of them. Occasional work was also undertaken on other days as well.
[38] Importantly, in November 2018 Ms Italia was rostered on a Thursday for the purposes of training which then continued on five following Fridays, after a two week break. Mr Cox’s evidence on the subject of the training shifts included that these were training sessions only for Ms Italia 36 and that:
“… Ms Italia, at the time was basically working some Saturdays. Essentially, greeting clients, making teas and coffees and that kind of thing. She was not making phone calls. I decided to train her to make outbound calls to clients, so her time could be more productive. I believe it was that Thursday where there was 7.5 hours. So, that was a training session for all staff.
Because of the nature of Saturdays, I'm quite busy and I don't have any time to actually perform any training on Saturdays. So, that was a short period of two hours on Fridays was for some training, ongoing week by week, which occurred for five weeks.” 37
[39] While it could be said, as alluded to above, that the entirety of the work performed by Ms Italia is work to be counted towards the period of employment, such would not be consistent with the number and duration of the breaks within Ms Italia’s engagements, and accordingly I do not make a finding that the whole period is to be counted. Instead, certain periods must not be counted towards the period of employment. However, consideration of the table in Schedule A shows there are at least eight periods which should be counted towards the period of employment with me being satisfied that in each of these eight periods Ms Italia’s service as a casual employee was on a regular and systematic basis and that she had a reasonable expectation of continuing employment. By corollary, the dates between the eight periods are periods of service as a casual employee which do not count to Ms Italia’s period of employment. True it is that there are numerous periods within Ms Italia’s overall period of employment in which she did not work, however, for the reasons set out above, no finding may reasonably be made that those periods without work broke her continuous service. The eight periods to be counted towards Ms Italia’s period of employment are as follows:
period start | period end | |
1 | Tue, 25/10/2016 | Tue, 15/11/2016 |
2 | Thu, 1/12/2016 | Thu, 16/03/2017 |
3 | Tue, 16/05/2017 | Thu, 20/07/2017 |
4 | Tue, 1/08/2017 | Tues, 29/08/2017 |
5 | Tue, 12/09/2017 | Wed, 29/11/2017 |
6 | Fri, 8/12/2017 | Sat, 3/03/2018 |
7 | Sat, 28/07/2018 | Sat, 8/09/2018 |
8 | Thu, 1/11/2018 | Sat, 16/02/2019 |
[40] For the following reasons, each of the periods involves a period of casual employment that reasonably ought not be excluded from the period of employment:
• Period 1 (Tue, 25/10/2016 – Tue, 15/11/2016) – Ms Italia’s employment commenced on Tuesday 26 October 2016. After that date there were four engagements, each of 7.5 hours on each successive Tuesday. In addition, she worked on one Wednesday and one Thursday. After the engagement on Tuesday, 15 November 2016 there is a period of 15 days in which Ms Italia did not work. Reasonably the run of work between the start and finish of Period 1 may be regarded as employment on a regular and systematic basis. This is because work was offered when there was knowledge of Ms Italia’s availability; it was offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular; such establishes regularity and a system to employment, as well as a reasonable expectation of continuing employment on a regular and systematic basis; per Ponce [76] – [77].
• Period 2 (Thu, 1/12/2016 – Thu, 16/03/2017) – after a break of around a fortnight Ms Italia resumed work and had a run of employment in each following pay period until Thursday, 17 March 2017. In this period her work was predominantly, but not exclusively on Tuesdays. There is little question that despite the absence of a clear pattern or roster of hours and days worked or clear agreed arrangement between the parties there was nonetheless a regular offer and acceptance of work such that it could no longer be regarded as simply occasional or regular. This is because work was offered when there was knowledge of Ms Italia’s availability; it was offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular; such establishes regularity and a system to employment, as well as a reasonable expectation of continuing employment on a regular and systematic basis; per Ponce [76] – [77].
• Period 3 (Tue, 16/05/2017 – Thu, 20/07/2017) – after the conclusion of Period 2 the frequency of engagements diminished. For several weeks there was either no work offered and accepted or only sporadic employment. That situation changed in mid-May 2017 when Ms Italia was both offered and accepted work in a run of around 10 pay periods. In that period she performed work on most Thursdays and several Tuesdays, but also performed work on other days as well. Again, there is little question that despite the absence of a clear pattern or roster of hours and days worked or clear agreed arrangement between the parties there was nonetheless a regular offer and acceptance of work such that it could no longer be regarded as simply occasional or regular. This is because work was offered when there was knowledge of Ms Italia’s availability; it was offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular; such establishes regularity and a system to employment, as well as a reasonable expectation of continuing employment on a regular and systematic basis; per Ponce [76] – [77].
• Period 4 (Tue, 1/08/2017 – Tues, 29/08/2017) – at the conclusion of period 3 on 20 July 2017 there was a period of around 11 days on which work was not offered and accepted. However, the offer and acceptance of work resumed on Tuesday, 1 August 2017, continuing for a run of around five pay periods. While not working to specific shifts, the frequency of work leads to the conclusion, that despite the absence of a clear pattern or roster of hours and days worked or clear agreed arrangement between the parties there was nonetheless a regular offer and acceptance of work such that it could no longer be regarded as simply occasional or regular. This is because work was offered when there was knowledge of Ms Italia’s availability; it was offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular; such establishes regularity and a system to employment, as well as a reasonable expectation of continuing employment on a regular and systematic basis; per Ponce [76] – [77]..
• Period 5 (Tue, 12/09/2017 – Wed, 29/11/2017) – at the conclusion of period 4 on 29 August 2017 there was again a period of around 13 calendar days in which work was not undertaken by Ms Italia. However, from Tuesday, 12 September 2017 until Wednesday 2017 Ms Italia worked significantly for Viva Life Photography. Examination of the period in question also leads to the conclusion that despite the absence of a clear pattern or roster of hours and days worked or clear agreed arrangement between the parties there was nonetheless a regular offer and acceptance of work such that it could no longer be regarded as simply occasional or regular. This is because work was offered when there was knowledge of Ms Italia’s availability; it was offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular; such establishes regularity and a system to employment, as well as a reasonable expectation of continuing employment on a regular and systematic basis; per Ponce [76] – [77].
• Period 6 (Fri, 8/12/2017 – Sat, 3/03/2018) – after a break of around a week Ms Italia commenced from Friday, December 2017 a period of work in which she worked every Saturday as well as three other days. During the period in question her employment as a casual employee was on a regular and systematic basis and she also had a reasonable expectation of continuing employment. This is because work was offered when there was knowledge of Ms Italia’s availability; it was offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular; such establishes regularity and a system to employment, as well as a reasonable expectation of continuing employment on a regular and systematic basis; per Ponce [76] – [77].
• Period 7 (Sat, 28/07/2018 – Sat, 8/09/2018) – it is observable that after the end of Period 6, on Saturday, 3 March 2018, there was a period of more than three months in which Ms Italia’s work for Viva Life Photography did not show any particularly consistent pattern. Examination of the weeks in question does not reasonably lead to the proposition that work was offered and accepted sufficiently often that it can no longer be regarded as simply occasional or regular. Nonetheless, from Saturday, 28 July 2018, being the commencement of Period 7, Ms Italia performed work on 7 successive Saturdays. During that period, I am satisfied that Ms Italia’s work for Viva Life Photography during that period was more than simply occasional or regular employment without there being an expectation of continuing employment. This is because work was offered when there was knowledge of Ms Italia’s availability; it was offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular; such establishes regularity and a system to employment, as well as a reasonable expectation of continuing employment on a regular and systematic basis; per Ponce [76] – [77]
• Period 8 (Thu, 1/11/2018 – Sat, 16/02/2019) – work performed by Ms Italia after 8 September 2018 in about 8 pay periods must be regarded as simply occasional or irregular, meaning that the work during that period is not to be counted towards an overall period of employment. However, from around Thursday, 1 November 2018 until the last day upon which she performed work for Viva Life Photography, Saturday, 16 February 2019, Ms Italia’s employment entered a string of engagements in which she worked all but three Saturdays. Further, she undertook a training shift on Thursday, 1 November 2018 and then undertook five further training shifts, each for two hours on Fridays. In overall context there was a regular offer and acceptance of work such that it could no longer be regarded as simply occasional or regular. This is because work was offered when there was knowledge of Ms Italia’s availability; it was offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular; such establishes regularity and a system to employment, as well as a reasonable expectation of continuing employment on a regular and systematic basis; per Ponce [76] – [77]. It is to be noted, however, that within Period 8 there are three periods in which Ms Italia did not perform work, respectively for a string of 12 days in one case and 13 days in the other two. In the scheme of the wider Period 8 the absences themselves do not disrupt the possibility of a finding that there was regular and systematic employment or that they diminished a reasonable expectation on behalf of Ms Italia to continuing employment.
[41] Following from this analysis, Ms Italia had continuous service between 25 October 2016 and 26 February 2019. Her overall continuous service comprises eight separate periods of service as a casual employee which count towards her period of employment for the reason that during each of the periods Ms Italia’s casual employment was regular and systematic with a reasonable expectation of continuing employment. These eight periods are contiguous periods of service which count towards her period of employment for the purposes of s.382(a). 38 During each of the eight periods Ms Italia had a reasonable expectation of continuing employment.
[42] Other periods of casual service must be excluded from her period of employment because those periods are not featured by regular and systematic employment with a reasonable expectation of continuing employment. I note that many of the periods in question coincide with the explanations of absence given by Ms Italia and set out above:
• Falling between Periods 1 and 2 is the period of leave between 18 November 2016 and 28 November 2016;
• Falling between Periods 2 and 3 are the periods in which no work was available between 30 March 2016 and 5 April 2016 and the leave Ms Italia took between 24 April 2017 and 13 May 2017;
• Following between Periods 4 and 5 is the period in which no work was available between 31 August 2017 and 6 September 2017;
• Falling between Periods 5 and 6 is the period in which no work was available between 30 November 2017 and 6 December 2017;
• Falling between Periods 6 and 7 are four periods of absence; between 5 March 2018 and 12 March 2018 when Ms Italia took leave to care for her mother-in-law; between 19 April 2018 and 10 May 2018 there was leave associated with a visit to Ms Italia’s son; and there were two periods in which no work was available, being 24 May 2018 to 30 May 2018 and 14 June 2018 to 27 June 2018;
• Falling between Periods 7 and 8 are the period of 25 October 2018 to 31 October 2018 in which no work was available; and a period of 30 November 2018 to 1 December 2018 in which Ms Italia attended a concert;
• Within Period 8 is a period between 17 January 2019 and 23 January 2019 in which no work was available and a further period between 31 January 2019 and 6 February 2019 in which Ms Italia was unavailable due to an injury. While noting these periods, I am not satisfied on the evidence before me that either would lead to a finding that the absence means the period should be discounted as service counting towards the period of employment. In the scheme of the wider Period 8 the absences themselves do not disrupt the possibility of a finding there was regular and systematic employment or that they diminished a reasonable expectation on behalf of Ms Italia to continuing employment.
[43] In aggregate, the total of the eight periods of work that should not be excluded from consideration of Ms Italia’s period of employment account for 534 days, or roughly 17 months of employment. Period 1 was a period of 22 days; Period 2 was 106 days; Period 3 was 66 days; Period 4 was 24 days; Period 5 was 79 days; Period 6 was 86 days; Period 7 was 43 days; Period 8 was 108 days. If Period 8 were to be excluded because of the breaks referred to above, the overall period of employment reduces to an aggregate of 426 days, or more than 13 months, which is obviously still a period greater than the applicable minimum employment period.
[44] After consideration of the Respondent’s objection, I find that Ms Italia had completed the minimum employment period at the time her employment ended and that she is consequently a person protected from unfair dismissal. Accordingly, the Respondent’s objection is dismissed, and Ms Italia’s application will return to the Commission’s unfair dismissal case management team for progression in the usual manner.
COMMISSIONER
Appearances:
P. Italia on her own behalf.
B. Cox on behalf of the Respondent.
Hearing details:
2019.
Melbourne:
20 May.
Printed by authority of the Commonwealth Government Printer
<PR708680>
Schedule A
1 Exhibit A5, Witness Statement Derrick den Hollander, dated 2 May 2019, pp. 13.
2 Transcript PN 162.
3 Exhibit R1, Respondent’s Outline of Argument: Objections, dated 15 April 2019, Q.2v.
4 Transcript PN 355.
5 Ibid, PN 309.
6 Ibid, PN 307; see also Monee Ponds Purchase Contract dated 26 November 2018.
7 See Monee Ponds Purchase Contract dated 26 November 2018.
8 Transcript, PN 286, 309, 336.
9 Transcript, PN 375.
10 Ibid, PN 376.
11 Ibid, PN 241.
12 Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic[2010] FWA 2078, [66].
13 Ibid.
14 [2006] ACTCA 6, [89] – [91], [(2006) 149 IR 399].
15 Ibid, [65] – [69]; adopted by the Full Bench in Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099, [24].
16 Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099, [24].
17 [2010] FWAFB 5709.
18 Shortland, [13].
19 Ibid.
20 Ibid, [12].
21 Ibid.
22 Ibid, [65] – [69]; adopted by the Full Bench in Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099, [24].
23 Bronze Hospitality Pty Ltd v Janell Hansson[2019] FWCFB 1099, [24].
24 Transcript, PN 137.
25 Ibid, PN 173.
26 Ibid, PN 234.
27 Ibid, PN 58.
28 Ibid, PN 420.
29 Exhibit R1, 2(i).
30 Exhibit R2, Witness Statement of Ben Cox.
31 Exhibit R1, items 2(g) and 2(h).
32 Ibid, 2(g).
33 Ibid.
34 Exhibit A1, Applicant Outline of Argument: objections, dated 2 May 2019.
35 per Shortland [2010] FWAFB 5709, [13].
36 Transcript, PN 85 – 88.
37 Ibid, PN 82 – 83.
38 per Shortland [2010] FWAFB 5709, [12].
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