Robert Kay v G a Quality Chickens

[2017] FWC 4675

[2017] FWC 4675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Kay
v
G A Quality Chickens
(U2017/4751)

DEPUTY PRESIDENT DEAN SYDNEY, 22 SEPTEMBER 2017

Application for an unfair dismissal remedy – minimum employment period – transfer of business – service as a casual employee

[1] On 3 May 2017, Mr Robert Kay made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Kay advised that he had commenced employment with G A Quality Chickens (the Respondent) on 5 December 2016 and that his dismissal took effect on 19 April 2017, a period of approximately five months and two weeks.

[3] The Respondent filed an objection to Mr Kay’s unfair dismissal application on the basis that Mr Kay was not employed for the minimum employment period, which in this case was one year given the Respondent was a small business.

Issue for determination

[4] This Decision is solely concerned with the question of whether Mr Kay had completed the minimum employment period at the time of his dismissal on 19 April 2017. In particular:

(a) Did Mr Kay’s service with the prior owner of the Respondent’s business count as service with the Respondent; and

(b) Did any or all of Mr Kay’s period of service as a casual employee (i) with the prior owner of the Respondent’s business and/or (ii) the Respondent, count towards his period of employment.

Background

[1] On 16 June 2017, the Commission wrote to Mr Kay confirming that based on the information contained in his application and the objection of the Respondent, it appeared that he had not served the minimum employment period. The correspondence required Mr Kay to file in the Commission a statement to support his claim of having served the minimum employment period.

[2] Mr Kay responded on 25 June 2017 with the following statement:

“I understand that I have not been employed by the current owner of the business formerly known as Chickenman Centro and now named GA Quality chickens for a minimum 6 month period having being dismissed without notice or recompense two weeks prior to the 6 month anniversary of their purchasing the business.

I do contend however that I have been continuously employed by the business for a period of over 5 years. To prove the length of my service and the permanent basis of my employment I attach a letter from the former business owners stating the permanent nature of my tenure-ship and the quality of my work and my business acumen and product knowledge.

I can also demonstrate through bank statements that my weekly wage shows a consistent weekly pay with fluctuations in wages due to the business not willing to pay me to work on public holidays.

I contend that though I was named a casual employee the fact that I worked a static roster of 6 am to 2 pm Monday to Friday (40 hours per week) for a period of 5 months and 2 weeks that I should be classified as a full time permanent employee. I had also on several occasions asked for a confirmation of my status of employment seeking to be named as either permanent part time or permanent full time only to be ignored by the new owners.”

[3] The Commission wrote to the Respondent on 21 July 2017 and asked whether, in light of Mr Kay’s submissions, it continued to press its jurisdictional objection. The Respondent confirmed the next day that it did.

[4] This matter was set down for a jurisdictional hearing in Canberra on 5 September 2017. Mr Power, owner of the Respondent, did not attend and the hearing was adjourned until 21 September 2017.

[5] On the morning of the hearing on 21 September 2017, Mr Power advised the Commission by email that he was unable to attend the hearing as he needed to work. He confirmed he understood that the hearing would proceed without him. The Commission contacted Mr Power and offered that he could participate by telephone if he were able to be in a quiet location, however he did not wish to take up this offer.

[6] The hearing proceeded in the absence of the Respondent to determine whether Mr Kay had completed the minimum employment period at the time of his dismissal. Mr Kay gave evidence on his own behalf.

Jurisdictional hearing

[7] I am satisfied on the evidence that:

(a) The Respondent was a small business employer at the time of Mr Kay’s dismissal and the minimum employment period necessary for Mr Kay to be able to proceed with his unfair dismissal application is one year.

(b) The Respondent purchased a retail chicken shop (the business) on or around 5 December 2016 from Mr and Mrs Gillings, owners of Delibread Pty Ltd trading as Chickenman Centro (the prior owners). In the sale, the assets of the prior owners were transferred to the Respondent.

(c) Mr Kay was employed on a casual basis with the prior owners from November 2013 to December 2016. He said for the period between December 2015 and December 2016, he worked on a regular and systematic basis each week the following work pattern:

i. from 6am to 2pm on Monday, Tuesday and Wednesday;
ii. from 7am to 5pm on Saturday; and
iii. from 7am to 4pm on Sunday.

(d) When Mr Power acquired the business, it was re-named G & A Quality Chickens.

(e) During his period of employment with the Respondent, Mr Kay worked Monday to Friday each week.

(f) Mr Kay was not provided with a written offer of employment by the Respondent, nor did the Respondent inform Mr Kay in writing, before or after the commencement of his employment with the Respondent, that his period of service with the prior owners would not be recognised by the Respondent.

(g) Mr Kay said that the nature of the business and the work he performed was substantially unchanged between the previous owners and the Respondent.

[8] The relevant provisions of the Act are as follows:

22 Meanings of service and continuous service

......

When service with one employer counts as service with another employer

(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer(taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.

Note: For example:

(a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and

(b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.

Meaning of transfer of employment etc.

(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a) the following conditions are satisfied:

(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:

(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

(8) A transfer of employment:

(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and

(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.

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.”

[9] Based on the evidence before me, I am satisfied that there was a transfer of business between non-associated entities in accordance with Section 22(8). It is clear that upon transfer of the business, the nature of the business and many of the assets were unchanged. There is a transfer of employment in accordance with Section 22(7)(b). Mr Kay was employed in the business before the transfer between non-associated entities and after the transfer.

[10] Section 384(2)(b) provides that the period of service with the old employer does not count if the new employer informed the employee in writing before the new employment started that the period of service will not be recognised.

[11] Mr Power, for the Respondent, noted in an email to the Commission that as a small business owner, he was not aware that he had to formally inform staff that their service with the previous business would not count towards service with him, because he had been assured that “all staff were casual and no liabilities could be incurred”.

[12] Further, Mr Kay gave evidence that he was not provided with anything in writing from the Respondent at the time he began working for the Respondent, and his employment continued unchanged (albeit the days on which he worked differed) after the business was acquired by the Respondent.

Service as a casual employee

[13] It is the employment that must be on a regular and systematic basis, not the hours worked. 1 However, a clear pattern or roster of hours is strong evidence of regular and systematic employment.2

[14] The absence of any contractual requirement for the employee to work at set times or of any assumption that the employee be present on a daily, weekly or monthly basis unless told otherwise does not preclude a finding that the employee’s engagements were regular and systematic. 3

[15] The term “regular” should be construed liberally. 4 It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant.5 Employment on a “regular” basis may be constituted by frequent though unpredictable engagements.6

[16] The term “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”. 7 The concept of engagement on a “systematic” basis does not require the employee 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 on the employee’s services as an incident of the business by which he or she is engaged.8

[17] The statement from Kay Gillings, Director/Secretary of Delibread, tendered by Mr Kay demonstrates that he worked an average of 32 hours per week during their ownership:

“Robert Kay worked for Delibread Pty Ltd T/as Chickenman Centro from November 2013 to December 2016.

Delibread bought the business in November 2013. Robert was a permanent part-time staff member who was working with the previous owners. He worked an average of 32 hours per week during our period of ownership.”

[18] Mr Kay also gave evidence as to his working pattern with the prior owner which is set out earlier.

[19] On the basis of the evidence tendered and submissions made I am satisfied that Mr Kay’s employment as a casual employee throughout the periods from November 2013 to December 2016 and 5 December 2016 to 19 April 2017 was on a regular and systematic basis.

[20] Mr Kay also gave evidence that he had a reasonable expectation of continuing employment given his length of service with the business (over 3 owners) and the regularity of the hours he worked. I accept his evidence in this regard.

[21] It follows that Mr Kay’s period of service as a casual employee in the periods from November 2013 to December 2016 with the previous owners, and 5 December 2016 to 19 April 2017 with the Respondent, count towards his period of employment. These periods combine to exceed one year.

Conclusion

[22] For the reasons set out above, I am satisfied and find that Mr Kay completed a period of employment with the Respondent of at least the minimum employment period at time of his dismissal. The jurisdictional objection of the Respondent is dismissed. An Order to this effect will be issued shortly.

[23] The matter will be allocated to another Member of the Fair Work Commission to hear the Arbitration.

DEPUTY PRESIDENT

Appearances:

R Kay on his own behalf

No appearance for G A Quality Chickens

Hearing details:

2017.

Canberra.

September 21.

 1   Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 399 (Yaraka) at [65]; cited in Ponce v DJT Staff Management Services Pty Ltd t/a Daly’s Traffic[2010] FWA 2078 (Ponce)

 2   Ibid

 3   Yakara at [67]

 4   Yaraka at [68]

 5   Yaraka at [68]; cited in Grives v Aura Sports Pty Ltd[2012] FWA 5552 at [32]

 6   Yaraka at [89]

 7   Yaraka at [68]

 8   Yaraka at [69]

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