Phillip McClelland v International Parking Group Pty Ltd T/A Metro Parking Management Pty Ltd

[2015] FWC 3708

[2015] FWC 3708

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillip McClelland
v
International Parking Group Pty Ltd T/A Metro Parking Management Pty Ltd
(U2015/895)

DEPUTY PRESIDENT BOOTH SYDNEY, 2 JUNE 2015

Application for relief from unfair dismissal - jurisdictional objection - minimum employment period - whether dismissed - application dismissed

[1] Mr Phillip McClelland worked for Metro Parking Management Pty Ltd as a casual car park attendant. In February 2015 he came to the conclusion that he had been dismissed and he made an application to the Fair Work Commission for an unfair dismissal remedy. Metro says that Mr McClelland was a casual employee whose service with Metro does not count towards the minimum employment period that allows Mr McClelland to be protected from unfair dismissal. They also say that Mr McClelland was not dismissed, rather, that there were no shifts available at the time.

[2] For the reasons set out below I have decided that Mr McClelland was dismissed but he was a casual employee whose service does not count towards the minimum employment period so his application is dismissed.

[3] Metro manages car parks under contract to major hospitals throughout Australia. It manages four car parks in metropolitan Sydney - Prince of Wales Hospital (referred to as Randwick Hospital in the evidence before the Commission), St George Hospital, Canterbury Hospital and Sydney Eye Hospital. Until October 2014 it also managed the Liverpool Hospital car park where Mr McClelland was first based when he was employed in May 2014.

[4] The NSW State Manager is Mr Warren Shuttleworth and the Operations Manager is Mr Robert Costa. Mr Costa is responsible for recruitment, training, rostering, performance managing and dismissing employees along with other operations activities. Mr Costa reports to Mr Shuttleworth who approves any decisions made by Mr Costa to dismiss an employee. Most of Metro’s 76 employees, including 23 based in NSW, are permanent rather than casual employees.

[5] Mr McClelland was recruited in May 2014. Metro say he was recruited to fill a gap in the personnel at Liverpool Hospital that existed because of the long term illness of a permanent employee. Metro provided the Commission with a letter of appointment addressed to Mr McClelland in which this purpose is stated. This purpose was also affirmed by Mr Shuttleworth in his evidence. Mr Costa said that he anticipated that his supervisor would have provided Mr McClelland with this letter and told him that he was replacing the employee PC. Mr McClelland says that this letter was never given to him and he was not told he was replacing PC. He says he was never aware that he was employed for this purpose.

[6] I accept Mr Costa’s and Mr Shuttleworth’s evidence that Metro’s intention was to employ Mr McClelland to fill a gap in the staffing of the Liverpool Hospital car park. There was no direct evidence that the letter was given to Mr McClelland but the credibility of Mr McClelland’s denial of ever having seen his letter of appointment was shaken by his acknowledgement that he received a range of material from Metro upon employment that he didn’t read. In the case of the enterprise agreement, he denied seeing that until it was brought to his attention under cross examination. He accepted that he was working the hours on the roster at Liverpool Hospital in the name of PC before a new roster with his name on it was produced and acknowledged that he was surplus to requirements when PC returned from sick leave. It is implausible that at least by the time he had worked at the Liverpool Hospital car park for some time he was not aware of the purpose of his employment.

[7] PC returned to work at Liverpool Hospital car park in September 2014. Mr McClelland was transferred to the St George Hospital where another employee was on extended sick leave. He recalls being told that he would be transferred from Liverpool Hospital to St George Hospital and that the supervisor said he was the luckiest employee at the site because he would still have a job when the Metro contract expired, whilst other employees would be redundant. He said that he was not told he was being redeployed to St George Hospital to replace another sick employee but when he arrived he became aware that there was a permanent employee who was absent on sick leave. It was also clear from the roster that was provided to the Commission that Mr McClelland was filling another employee’s roster position. If he had not become aware of the purpose of his employment whilst at Liverpool Hospital he could have been under no illusions by the time of this transfer.

[8] The sick employee returned to work in November 2015 and Mr McClelland was transferred to Randwick Hospital to fill a gap created by another employee who was absent due to a serious illness. Mr McClelland explained his understanding of his move from St George as being because “Lindsay was returning… we had more staff. The effect of that was that we were all either going to do less hours… or someone had to move on.” 1 Mr Costa gave evidence that he telephoned Mr McClelland and specifically told him that he would be moving to Randwick to replace another sick employee but Mr McClelland denied this phone call occurred. Mr Shuttleworth’s evidence was that he was told by Mr Costa that he had told Mr McClelland the reason for his transfer to Randwick. I prefer the evidence of Mr Costa and Mr Shuttleworth over Mr McClelland on this point.

[9] The sick employee from Randwick was so ill that he resigned just before Mr McClelland arrived and Mr McClelland filled his role while Metro made up its mind how the permanent role would be filled. Mr Costa said that in February 2014 they decided to move a permanent employee from St George Hospital to fill the role vacated by the sick employee and Mr McClelland was no longer required at Randwick Hospital.

[10] Mr McClelland made a complaint about the supervisor at Randwick on 7 January 2015 and he said that he believed that the real reason the permanent employee was moved to Randwick was to provide a pretext for dismissing him. Mr McClelland said he believed that if he hadn’t made a complaint he would still be working at Metro.

[11] Against this view Mr Costa and Mr Shuttleworth both point to the company’s preference for maintaining the employment of permanent employees and dispute the complaint playing any part in their decision making. Mr Shuttleworth, who dealt with the complaint, said he investigated it and provided his conclusion to Mr McClelland on 18 January 2015. Metro’s submission was that the matter was resolved with both the supervisor and Mr McClelland being considered to have contributed to the issue. Nothing in the evidence of Mr McClelland, Mr Costa or Mr Shuttleworth led me to believe that Mr McClelland’s apprehension was well founded.

[12] Mr Costa said that Mr McClelland’s supervisor told Mr McClelland on 9 February 2015 that no more shifts would be available at Randwick after 16 February 2015. He said that he called Mr McClelland after being told by the supervisor that Mr McClelland was upset by this news. Mr McClelland said that he called Mr Costa. Mr Costa gave evidence that he told Mr McClelland “where there are further shifts I or the supervisor would (sic) contact you, however there are none at this stage”. 2

[13] Mr McClelland said in his written submissions that he was given no explanation at all. In evidence he said he called Mr Costa and was told that 16 February would be the last shift.

[14] Mr McClelland and Mr Shuttleworth agree that they conversed on 11 February and Mr McClelland told Mr Shuttleworth that he had been, or thought he had been, “sacked”. Mr Shuttleworth’s evidence is that he said to Mr McClelland “No Phillip, you have not been sacked. There are no more shifts because John Ormsby has been placed in the job...”

[15] Mr McClelland’s evidence was that Mr Shuttleworth responded to his remark about being “sacked” with the comment “No, you haven’t”. Mr Shuttleworth said that he told Mr McClelland “when we got (sic) hours we would contact him.” 3 In support of the contention that Mr McClelland had not been dismissed, Mr Shuttleworth said that Mr Costa did not seek approval for the termination of Mr McClelland’s employment which he is required to do.

[16] Mr McClelland says in the week following he observed that there were occasions upon which employees were absent due to sick leave and because he was not offered shifts on these occasions he formed the view that he had been dismissed.

[17] He did not call Mr Costa or Mr Shuttleworth to ask them about the shifts he believed he’d missed out on.

[18] He lodged an unfair dismissal application on 3 March 2015, two weeks after his last shift on 16 February.

Did Mr McClelland serve the minimum employment period?

[19] There is no dispute that Mr McClelland was employed as a casual employee. There is no dispute that Metro is not a small business employer and the minimum employment period is 6 months. 4 There is no dispute that he commenced on 13 May 2014 and his last shift was on 16 February 2015, a period of just over 9 months. However, Metro dispute that Mr McClelland was a casual employee employed on a regular and systematic basis with a reasonable expectation of continuing employment on a regular and systematic basis. Mr McClelland’s service with Metro can only be counted towards the minimum employment period if both limbs of the test in s.384 are met.

[20] The relevant parts of s.384 are subsection (1) and (2) (a) which read as follows:

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) 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

Was Mr McClelland’s employment regular and systematic?

[21] There is no dispute that Mr McClelland was employed for 40 contiguous weeks during which his hours of work varied from 24 to 80 hours per fortnight (not including his final fortnight) as follows:

Pay fortnight	Hours worked
8-21 MAY	56 hours
22 May - 4 June	64 hours
5-18 June	32 hours
19 June - 2 July	24 hours
3-16 July	72 hours
17-30 July	72 hours
31 July - 13 August	72 hours
14-27 August	80 hours
28 August - 10 September	40 hours
11-24 September	67 hours
25 September - 8 October	44.5 hours
9-22 October	31 hours
23 October - 5 November	67 hours
6-19 November	64 hours
20 November - 3 December	80 hours
4-17 December	72 hours
18-31 December	48 hours
1-14 January	62 hours
15-28 January	48 hours
29 January – 11 February	56 hours
12-25 February	16 hours (last shift was 16 February)

[22] However Metro said that because he was filling another employee’s place on the roster his employment was not regular and systematic. I disagree. In Yakar Holdings Pty Ltd v Giljevic 5, albeit in another jurisdiction, Crispin P and Gray J said:

“The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged.”

[23] In Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 6 Commissioner Roe said:

“It is the employment which must be on a regular and systematic basis… It is clear that to establish “regular and systematic” there must be sufficient evidence that a continuing relationship between the employer and the employee has been established”.

[24] I conclude that the purpose of the casual employment is not the test for whether an employee is employed on a regular and systematic basis, rather it is the pattern of employment and Mr McClelland’s employment pattern meets that test.

[25] Metro also say each engagement at each site was separate and so I cannot conclude that the employment was regular and systematic. I disagree. There was a continuing employment relationship and Mr McClelland was moved between sites during that employment relationship. While he was needed to cover for employees who were absent his employment was regular and systematic.

[26] Therefore the first limb of the test in s.384 is satisfied.

Did Mr McClelland have a reasonable expectation of continuing employment?

[27] Metro contend that because they employed Mr McClelland to fill gaps in staffing created by the temporary absence of permanent employees that he did not have a reasonable expectation of continuing employment. I accept that this was the reason for Mr McClelland’s recruitment and that he was, at least by the time he was moved from Liverpool Hospital to St George Hospital, aware of this rationale. It was his evidence that he expected to be made “permanent” after a year or so. There is no support in the evidence for this being a reasonable expectation, although I accept that he hoped that this would happen.

[28] He discloses his appreciation of the reason for his employment in his submissions where he says: 7

“It became apparent that I would not be contacted “when shifts became available” when I discovered that there had been several shifts available (due to sick leave) immediately after my last shift and I had not been contacted to fill in.”

[29] In evidence he disagreed that this is a reasonable inference to draw from his submission. But taken together with the conclusion I have come to about his awareness that he was filling a place on the roster of a sick employee, I think his submission can be taken as being consistent with his awareness of the reason for his employment. His continuing employment was contingent upon there being such a staffing gap.

[30] I think that by the time he had been moved twice to cover employees who were absent on long term illness he had a reasonable basis for expecting that he would remain in the employment relationship so long as he was needed to cover employees who were absent on long term illness. There is nothing in the evidence, his or Metro’s, to suggest that he could have reasonably expected to have been retained in employment in the absence of a staffing gap. His continuing employment was contingent upon there being such a staffing gap.

[31] Therefore I conclude that he did not have a reasonable expectation of continuing employment by the employer on a regular and systematic basis and the second limb of the test in s.384 is not satisfied.

Was Mr McClelland dismissed?

[32] Section 385 of the Act makes it clear that an employee cannot be unfairly dismissed if they have not been dismissed. The meaning of dismissed is set out in s.386 as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[33] Mr McClelland did not resign so the question to be considered is whether his employment was terminated at Metro’s initiative?

[34] The principle stated in the Federal Court decision Mohazab v Dick Smith Electronics Pty Ltd (No.2) 8 is that an important feature of termination at the initiative of the employer isthat “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in theemployment relationship.”

[35] A Full Bench of the Australian Industrial Relations Commission, the predecessor to this Commission, has refined the principle to “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”. 9 This Full Bench was guided by the Full Bench in Pawel v Advanced Precast Pty Ltd10 which said that circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee must also be examined.

[36] Mr McClelland was told on 11 February 2015 that he was not being dismissed. He came to his own opposite conclusion on the strength of his belief that his complaint had made him unpopular and he was not offered shifts to cover occasions that individuals were absent in the week following his last shift. Mr Costa gave evidence that those occasions “might have been just short-term, one-day illnesses” 11 and the circumstances where he would have called Mr McClelland would have included another employee being absent due to long-term illness.

[37] By 3 March when Mr McClelland lodged an application in the Commission he had not been called to fill in for an employee on long-term sick leave. The question that arises is how long is it reasonable for a casual employee to wait without an offer of a shift before the employee considers that the employment relationship has been brought to an end by the employer? The answer is probably that it depends on the nature of the casual employment. If shifts are provided on a regular and systematic basis then it is when the employer elects not to provide the shifts anymore. This is what happened to Mr McClelland. The reason for his employment in the first place had evaporated and Metro did not know whether they would need Mr McClelland again in the future. It was Metro’s decision not to offer Mr McClelland any more shifts and it was Metro’s decision to advise him of this. Notwithstanding their remark that he was not dismissed I think the employment relationship ended at the initiative of the employer.

Conclusion

[38] I have concluded that Mr McClelland was dismissed, however he was not an employee whose service counted towards the minimum employment period. This is because although he had regular and systematic employment he did not have a reasonable expectation of continuing employment on a regular and systematic basis. In this circumstance he is not a person who is protected from unfair dismissal. 12 Mr McClelland’s application for an unfair dismissal remedy is dismissed. An order will issue with this decision.

DEPUTY PRESIDENT

Appearances:

The Applicant, Mr McClelland, appeared for himself

Mr D Marshall of Ai Group appeared for the Respondent

Hearing details:

Sydney

2015

15 May

 1   Transcript PN501

 2   Transcript PN216

 3   Transcript PN459

 4 s.383 Fair Work Act 2009

 5 [2006] ACTCA 6

 6   [2012] FWA 5552

 7   Applicant’s Response to Jurisdictional Objection 11 May 2015

 8 (1995) 62 IR 200

 9   O’Meara v Stanley Works Pty Ltd [2006] AIRC 496

 10   unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Pring S5904

 11   transcript PN220

 12 s.382 Fair Work Act 2009

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