Roberto Furina v Minprovise Pty Ltd

[2016] FWC 3728

[2016] FWC 3728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roberto Furina
v
Minprovise Pty Ltd
(U2016/6630)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 JUNE 2016

Application for relief from unfair dismissal.

[1] Mr Roberto Furina alleged the termination of his employment by Minprovise Pty Ltd was unfair. In his application, he advised that he commenced employment on 24 September 2014 and his employment ended on 29 May 2016.

[2] In the employer response, Minprovise stated Mr Furina was offered a casual contract of employment on 24 September 2014 but was not offered work until approximately 25 November 2015. Mr Furina was advised on 29 April 2016 that he would not be offered further work and hence had not been employed for six months.

[3] Minprovise gave evidence that Mr Furina’s contract of employment provided as follows:

(1.1) Due to the ad hoc nature of the Employer’s project work, you will be employed on a casual basis for the duration of each engagement with the Employer.

(1.2) As a casual Employee, there is no guarantee of ongoing, systematic or regular work. Each project will be considered a separate engagement and will stand alone.

(1.3) You should be aware that each time you are engaged she will be given a start and finish date. As a casual it constitutes a separate and distinct contract of employment. At the end of each casual engagement there is no obligation on the employer to offer you further employment or obligation on you to accept any future offer.

[4] Mr Furina was then engaged on the following projects:

• 5 days, 27 November 2015 - 2 December 2015 (incl) - Hope Downs 4



• 12 days, 2 December 2015 - 13 December 2015 (incl) - Cloudbreak



• 2 days, 17 December 2015 - 18 December 2015 (incl) - Solomon



• 6 days, 4 January 2016 - 9 January 2016 (incl) - Cloudbreak



• 8 days, 13 January 2016 - 20 January 2016 (incl) - Yandi



• 4 days, 23 January 2016 - 26 January 2016 - Hope Downs 4



• 5 days, 4 February 2016 - 9 February 2016 - Solomon

[5] Mr Furina did not dispute this evidence.

[6] Mr Furina gave evidence that he was available for work from the date he signed his contract and that during this time Minprovise called for expressions of interest for positions he was qualified to fill. He gave evidence that Minprovise had, during this time, regular and systematic work he could have performed and it gave preference to other employees who were provided with regular and systematic work.

Questions to be determined.

1. Was Mr Furina employed on a regular and systematic basis with a reasonable expectation of ongoing employment on a regular and systematic basis between 24 November 2014 and 27 November 2015?

2. When did Mr Furina’s employment end?

The legislative requirements.

[7] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 provides as follows:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[8] Section 384(2) of the Act provides that a casual employees period of service does not count towards the employee’s period of service unless:

(a) the employment of a casual employee was on a regular and systematic basis; and

(b) 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.

Consideration

1. Was Mr Furina employed on a regular and systematic basis with a reasonable expectation of ongoing employment on a regular and systematic basis between 24 November 2014 and 7 November 2015?

[9] Mr Furina relies upon his contract of employment to support his claim that he has served the minimum employment period. I accept that Mr Furina was placed on the books as a casual employee from 24 September 2014 however that does not mean he commenced employment on that date. A casual employee does not commence employment until the first day of actual work. However even if this is not the case, Mr Furina needed to be employed on a regular and systematic basis and have a reasonable expectation of ongoing employment on a regular and systematic basis for six months.

[10] As Mr Furina did not commence performing work for Minprovise until 27 November 2015, I find that his employment prior to this date could not be characterised as regular and systematic. I also find that during this time he had no reasonable expectation of continuing employment by Minprovise on a regular and systematic basis. That Mr Furina was available to work or that Minprovise offered other employees regular and systematic work is not relevant to the issue of whether Mr Furina was employed on a regular and systematic basis.

2. When did Mr Furina’s employment end?

[11] A Full Bench in Shortland v The Smiths Snackfood Co Ltd 1 when deciding whether a casual employee met the minimum employment period held that “continuous service by a casual employee who has an established sequence of engagements with an employer is only broken when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements.”2

[12] A Full Bench of the Australian Industrial Relations Commission in Commonwealth of Australia (Australian Taxation Office) v Wilson 3 found that normally a dismissal could not take effect without communication4 however that case did not deal with a casual employee.

[13] In WorkPac Pty Ltd v Bambach 5 a Full Bench applied this principle to a casual employee. Mr Bambach, a casual employee, had been injured at work in 2010 and had provided medical certificates to his employer until 23 September 2011. On that day Mr Bambach provided a certificate that he was fit to return to work and on 17 October 2011 Mr Bambach received an Employment Separation Certificate advising him that his employment had ceased on 24 September 2011. The Full Bench found that “even if Employment Separation Certificate constituted the instrument which terminated Mr Bambach’s employment, it did not take effect until he received it on 17 October 2011.”6

[14] Mr Furina commenced work on 27 November 2015 and on his own evidence he was told on 29 April 2016 that his services were no longer required. On 2 May 2016, Mr Furina was provided with a letter that advised that he was not offered any work after 9 February 2016. That letter confirmed that he was told on 29 April 2016 that he would not be offered any further work.

[15] In this matter, I am satisfied that Mr Furina’s employment ended on 29 April 2016. As he did not commence employment until 27 November 2016, even if I found that he was engaged on a regular and systematic basis in this time, he was required to be employed at midnight on 26 May 2016 to have met the minimum employment period. Even if I accepted that his employment did not terminate until 2 May 2016, as contended by Mr Furina, he still was not employed for the minimum period of employment.

[16] It is therefore not necessary for me to decide if Mr Furina was after 27 November 2015 employed on a regular and systematic basis with a reasonable expectation of ongoing employment because even if he was, he did not meet the minimum employment period.

[17] In determining whether Mr Furina has served the minimum employment period, no assessment has been made about the merits of his case. The Commission has no discretion to waive the requirements of the Act.

Conclusion

[18] On the evidence before the Commission, Mr Furina has not served the minimum employment period and therefore he is not protected from unfair dismissal. Therefore his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

R. Furina on his own behalf.

E. MacRae and S. Richardson for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by video link:

8 June.

 1   [2010] FWAFB 5709

 2   Ibid at [13]

 3   PR901127

 4   Ibid at [11]

 5   [2012] FWAFB 3206

 6   Ibid at [19]

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