Robinson v Grandviews Bowling and Recreation Club
[2016] FWC 1463
•11 March 2016
[2016] FWC 1463
DECISION
Fair Work Act 2009 s.394—Unfair dismissal Brett Robinson v Grandviews Bowling & Recreation Club T/A Club Grandviews (U2015/13927) COMMISSIONER JOHNS SYDNEY, 11 MARCH 2016 Application for relief from unfair dismissal – jurisdictional objection – not dismissed -
minimum period of employment – casual employee – whether employment was ‘regular and
systematic’ – jurisdictional objection upheld – application dismissed.
[1] Introduction
On 28 October 2015 Mr Brett Robinson (Applicant) made an application for remedy from
unfair dismissal to the Fair Work Commission (Commission) pursuant to s.394 of the Fair
Work Act 2009 (Act). Mr Robinson named Grandviews Bowling and Recreation Club T/A
Club Grandviews (Grandviews/ the Respondent) is the Respondent to the application.
[2] In its response to the Commission filed on 26 November 2015, the Respondent raised
two jurisdictional objections. The first jurisdictional objection was that the Applicant had not
been dismissed. The second jurisdictional objection was that the Applicant was a casual
employee not engaged on a ‘regular and systemic’ basis and therefore, the Applicant did not
satisfy the minimum period of employment as prescribed under s.383 of the Act.
[3] As a consequence of the jurisdictional objections raised by the Respondent, the matter
was set down for a jurisdictional hearing on 19 February 2016.
The hearing
[4] At a jurisdictional hearing of the matter at Sydney on 19 February 2016, the Applicant
represented himself with the assistance of a pro-bono ‘duty’ solicitor, Mr K. Yee. The
Respondent was represented by Mr C. Langton from the Registered Clubs Association of
New South Wales.
[5] Mr P. Nicholls, General Manager of Grandviews gave evidence for the Respondent.
[6] Mr Robinson gave evidence on his own behalf. Mr Robinson also adduced evidence
from Ms J Reweti, a Supervisor at Grandviews, who gave evidence via telephone.
Background
[2016] FWC 1463[7] The Applicant claims that his employment was terminated by the Respondent on 14
October 2015.
[8] At the time of his alleged dismissal, the Applicant was employed as a casual
‘courtesy’ bus driver by Grandviews. The Respondent submitted that the Applicant was
1
initially engaged to perform “casual cellar duties” before being employed as a bus driver in 2
August 2014.
[9] There was some variance between the parties as to when the Applicant commenced
employment with the Respondent. In his Form F2 application, the Applicant had nominated
his starting date with the Respondent as December 2013. In its submissions and evidence the
3
Respondent identified the Applicant as commencing employment from 22 January 2014.
4
[10] During the proceedings the Applicant adduced a PAYG payment summary issued by the Australian Taxation Office demonstrating that Grandviews had made payments to him
throughout the financial year ending 30 June 2013. Under cross-examination Mr Nicholls
conceded that Respondent must have employed the Applicant at some point during the 2013
5
year.
6
[11] It was submitted by the Applicant and further supported by payment records relied on 7
by the Respondent, that in early 2014 the Applicant fell ill and took a lengthy absence from work. The payment records demonstrated a significant period from at least 4 March 2014 until
26 August 2014 in which the Applicant was absent from work and not paid by the
Respondent.
[12] Following this period of illness the Applicant resumed casual work duties with the
Respondent from approximately 28 August 2014 as a casual bus driver.
[13] The break in service between March and August 2014 during which time the
Applicant was not on paid or approved leave broke any continuity of service that may have
existed prior to 28 August 2014. Consequently, I find that, for present purposes, the
employment relationship commenced on 28 August 2014.
Protection from Unfair Dismissal
[14] An order for reinstatement or compensation may only be issued where I am satisfied
the Applicant was protected from unfair dismissal at the time of the dismissal.
[15] Relevantly for present purposes section 382 sets out the circumstances that must exist
for the Applicant to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
[2016] FWC 1463
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with
his or her employer of at least the minimum employment period; and
…
[16] In discerning the minimum employment period, s.383 of Act prescribes 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
[17] In the present matter the respondent is not a small business. Consequently, the minimum employment period that the applicant must satisfy is 6 months. It is to be noted that
there are nearly 14 months between 28 August 2014 and 14 October 2015 (i.e. a period
greater than the 6 month minimum employment applicable to non-small businesses) however,
that is not the end of the matter.
[18] Casual employees must satisfy additional criteria in order to qualify for the minimum
employment period. Section 384 of the Act, as below, sets out the additional requirements for
casual employees;
“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:
[2016] FWC 1463
(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.”
[19] Further elucidation as to the terms of ‘regular’ and ‘systematic’ have been enunciated
9
in the decision of Yaraka Holdings Pty Ltd v Giljevic (Giljevic), a decision cited numerous times in cases before this Commission. In the decision of Giljevic, Crispin P and Gray J of the
Australian Capital Territory Court of Appeal made the following observations;
“68. The term “regular” should be construed liberally. It may be accepted, as the
Magistrate did, that it is intended to imply some form of repetitive pattern rather than
being used as a synonym for “frequent” or “often”. However, equally, it is not used in
the section as a synonym for words such as “uniform” or “constant”.”
“69.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. In
the present case, the systematic nature of the engagement is evident from the constant
pattern that was maintained over the years, the fact that payments were not made at the
completion of each job but left until the respondent needed money or it was otherwise
convenient, and the appellant’s ongoing reliance upon him as evidenced by such
matters as his authorisation to buy goods on the appellant’s behalf and the provision of
10
Christmas bonuses.”
[20] In Giljevic, Madgwick J made the following comments;
“89. 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.”
“91. 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,
rd 11
revised 3 ed, 2001).”
12
[21] In Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic
Commissioner Roe engaged in a further detailed analysis of s.384 of the Act;
[2016] FWC 1463
“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. That is an expectation that this pattern
13
of when work will continue to be offered and be accepted will continue.”
[22] In the present matter there is a dispute about whether the Applicant has completed the
minimum employment period. The Applicant says he has. The Respondent says he has not
because his period of casual employment was not regular and systematic and should not be
counted.
Was the employment of the Applicant as a casual regular and systematic?
The position of the Respondent
[23] The Respondent submitted that in August 2014, following the Applicant’s lengthy
period of illness and absence from work, it had approached the Applicant with the view of
engaging him as a ‘relief bus driver’ in a period in which the availability of another Bus
driver, Mr Candarakis, was uncertain. In this regard, the Respondent submitted that;
“12) From 28 August 2014 the Applicant undertook work as a relief employee only,
which was made clear to him by the Respondent prior to the commencement of any
bus driver shifts. The Applicant also understood that the Wednesday Member’s Badge
Draw promotion and the related bus driving shift was a trial that would be reviewed at
a later date.
13) The Respondent was required to plan weekly staff rosters to a degree to ensure at
all times when the courtesy bus was operational, that an employee was rostered to
perform the shift. The shifts performed by the Applicant varied from week to week.
The Applicant was never guaranteed shifts on a particular day, any number of hours
per week or any amount of pay per week. There was no regular pattern.
14) The Applicant’s roster was regularly varied after it was posted by management. As
the Applicant was a casual relief employee, he was often required to fill shifts at late
notice when either Mr Candarakis or Ms James could not perform the shift. Such
changes also led to the Applicant relinquishing rostered shifts if an employee’s
availability changed, or taking on an extra shift that was not rostered.
[2016] FWC 1463
15) To further illustrate the irregular nature and pattern of the Applicant’s
employment, between 22 January 2014 and 14 October 2015:
a) The Applicant was not provided with any formal letter or verbal advice at any time throughout his employment with the Respondent regarding the regularity or
duration of future work. The Applicant was never guaranteed any shifts and was
never guaranteed any earnings by the Respondent.
b) There were regular gaps of one or more weeks between the Applicant’s shifts. The largest gap between the Applicant’s shifts was 26 weeks.
c) The Applicant worked shifts in only 43 weeks out of 90 weeks in total. d) The Applicant received a total of $10,612.42 payment gross for all work performed. The Applicant earned between $52.66 and $663.66 per week he was
rostered.
e) While the Applicant was typically rostered to perform relief bus driving shifts, on one occasion in roster week ending 30 June 2015, the Applicant was rostered for
three cellar shifts, however due to late roster changes, performed only one cellar
shift.
[24] 16) The Applicant last performed a shift with the Respondent on Saturday, 19
September 2015.Despite this, the Applicant made the Application citing 14 October 2015 as
the day on which his employment was terminated. A period of 25 days passed between the
Applicant’s last shift and the purported date of his dismissal. As previously mentioned, the
Applicant did not receive shifts each week and a gap of 25 days between the Applicant’s
shifts was not unusual.”
14
The Respondent relied on a table displaying the employment records of the Applicant. The table showed the weeks and days worked by the Applicant, commencing from the week
ending 28 January 2014 until the week ending 22 September 2015. The table also displayed
the weekly earnings of the Applicant and whether the Applicant had incurred a roster change
for each recorded week. The Applicant did not object to, nor challenge, the veracity of the
15
contents of that table.
[25] Under cross-examination, Mr Nicholls described the employment situation of the
Applicant as solely contingent upon the unavailability of Mr Candarakis for bus driving
duties. Mr Nicholls comments are set out below;
“Yes, Mr Kandarakis was our main bus driver and he was approached first of all in
regards to the shifts and he advised that he would be available from time to time, but
he did actually make it quite clear that he would not be able to do it every Wednesday
and that is hence why we then moved to get a replacement or part-time casual to fulfil
that Wednesday shift when Mr Kandarakis was unavailable to do so.
He also made it quite clear that, you know, when he was available that he would get
first preference to those shifts. I clearly remember him saying to me, you know, he
was concerned with somebody else coming on that he may start to lose some of his
other shifts. So he put it to me that he wanted clarification that he was the number one
[2016] FWC 1463choice for any bus shifts, which I assured him he was. That is why he was employed to
drive the courtesy bus and as the matrix or the spreadsheet here shows, there were
quite a number of Wednesdays that you yourself, Mr Robinson, did do.
There were also quite a number of Wednesdays that Leon – Mr Kandarakis – would
actually opt in essentially for that shift and make himself available for that shift. And
as per our previous discussions, it was never a decision as to who got that shift if Mr
Kandarakis was available and he made us aware that he was available for that shift and
16
he would receive that shift.”
The position of the Applicant
[26] The Applicant’s argument was premised on the basis that after resuming casual work
as a bus driver in August 2014, his employment became of a ‘regular and systematic’ nature
when filling shifts for Mr Candarakis. In this regard, the Applicant asserted that it was from
approximately March 2015 in which he assumed consistent bus driving duties every
Wednesday in lieu of Mr Candarakis;
“There started with the bare minimum of working the Wednesday, then I may swap a
17
shift, I may gain an extra shift, but that Wednesday was always there.”
and,
“Through the use of rosters it was established that Mr Robinson was employed over 23
of the last 26 weeks. Nineteen of the 26 weeks were on a Wednesday. As mentioned,
on occasion roster changes occurred, of the 23 weeks worked, some Wednesdays may
18
have been swapped for other days.”
[27] The Applicant also relied on an extract from Mr Nicholls’ diary dated Saturday 25
19
October 2014. Mr Robinson placed particular emphasis on Mr Nicholls’ notes which read as follows; “Leon having a gig – Helensburg Fair.
Jenny Replacing shift. - No Jenny is not. Paul had covered the shift already. Jenny was
not confirmed as the Bus driver for today.
Brett Robinson will be covering the shift.”
[28] The Applicant asserted that these hand written notes demonstrated that when Mr
20
Candarakis was unavailable, he was ‘the first choice’ as a substitute bus driver for the Respondent. [29] Mr Candarakis was not called to give evidence.
Consideration
[2016] FWC 1463[30] Given the prescriptive nature of s.396 of the Act, I am required to first deal with the
jurisdictional objection concerning whether the Applicant’s casual employment satisfies the
minimum employment period. A reading of s.385 of the Act would indicate that any
evaluation of the second jurisdictional objection (pertaining to whether the Applicant was
dismissed at the initiative of the Respondent) can only arise once the criteria in s.396 has been
satisfied.
21
[31] The employment records of the Applicant demonstrated that prior to 28 August 2014, he had only been engaged for a minimal amount of shifts. This negligible amount of
work was then followed by a lengthy period of absence from work due to an illness suffered
by the Applicant. Subsequently if the Applicant’s casual employment were to be deemed
‘regular and systematic’, such a finding could only arise from an analysis of his employment
after 28 August 2014, at which point the Applicant resumed working for the Respondent.
[32] The evidence overwhelming suggests that the Applicant received more bus driving
duties as a consequence of Mr Candarakis’s unavailability. However, it does not transpire that
the increased frequency of these shifts transformed the nature of the Applicant’s employment
into something that could be described as ‘regular and systematic’ within the meaning of the
Act.
[33] Although the Applicant’s casual employment became more frequent, particularly after
22
March 2015, the employment record as relied on by the Respondent illustrates that the Applicant was ‘sporadically’ engaged as a bus driver. The employment record shows that on
some weeks the Applicant received no work, whilst in other weeks he received work for days
other than a Wednesday. Detrimentally to the Applicant’s case, no clear pattern of casual
engagement can be discerned. Rather, the character of the casual employment exhibits as
frequent yet ad hoc in nature.
[34] In some instances, the evidence propounded by the Applicant furthered the idea that
his employment was irregular and unsystematic. In particular, the extract from Mr Nicholls’
23
diary strongly suggests that the Applicant was a substitute means of employment only in circumstances where Mr Candarakis was unavailable. The Applicant’s engagement as a
casual bus driver was wholly contingent upon Mr Candarakis’ unavailability.
Despite having formed the view that the Applicant’s employment was not regular and not
systematic, I wish to make some comments relating to the application of the second limb of
the test as prescribed under s.384(2)(ii) of the Act. Even in the event that the Applicant’s
employment was found to be ‘regular and systematic’, the evidence casts doubt on whether
the Applicant could have had any expectation of that employment becoming ‘on-going’. The
Respondent submitted that the Applicant was only replacing shifts in Mr Candarakis’
24 25 26
absence. The diary extract and testimony of Mr Nicholls adds support to the notion that the Applicant’s frequency of bus driving duties was the product of a temporary arrangement
put in place by the Respondent to cover the unpredictable and indefinite absenteeism of Mr
Candarkis.
[2016] FWC 1463
Was the applicant dismissed?
[35] Having determined that the Applicant did not meet the minimum employment period
and is therefore not protected from unfair dismissal, it is technically unnecessary for me to
determine the second jurisdictional objection that the Applicant was not dismissed.
[36] However, in the event that I am wrong about the minimum employment period
jurisdictional objection, for completeness, I have decided to also determine the issue of
whether the applicant was dismissed.
[37] Section 385 of the Act prescribes a number of cumulative criteria that must be
satisfied in order to establish that an Applicant has been unfairly dismissed. Section 385 is set
out below;
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[38] The meaning of dismissal is defined in s.386 of the Act 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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of
time, for a specified task, or for the duration of a specified season, and the
employment has terminated at the end of the period, on completion of the task, or at
the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason,
limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or
duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the person
under a contract of that kind is, or was at the time of the person’s employment, to
avoid the employer’s obligations under this Part.”
[2016] FWC 1463
[39] The Applicant asserted that he had been dismissed because his name had been
27
removed from the roster after 14 October 2015. The Applicant claimed that he had attempted to raise the issue of the removal of his name from the roster with Mr Nicholls but to
28
no avail. The Applicant further contended that he was the only employee to have his name 29
removed from the roster.
30
[40] The Respondent claimed that the Applicant had not been dismissed and was only 31
employed in a relief capacity. The Respondent stated that it did not require the services of the Applicant during the three weeks prior to the alleged date of dismissal and therefore, it
had not placed the Applicant on the roster. Furthermore, the Respondent asserted that prior to
the alleged dismissal it had placed the Applicant on a First Aid Training Course and
subsequently, a dismissal of the Applicant would, given these circumstances, be
32
counterintuitive. During cross-examination, Mr Nicholls explained that the names of other
33
employees in similar circumstances to the Applicant had also been removed from the roster.
[41] After considering the evidence and submissions, I am not satisfied that the Applicant
was dismissed within the meaning of the Act. The evidence demonstrated that the Applicant’s
name had been intermittently removed from the roster on occasions before the alleged date of
34
dismissal. The addition and removal of the Applicant’s name from the roster lends support to my finding that the nature of Applicant’s employment was sporadic and that his
engagement for work was entirely contingent upon the operational demands of Grandviews.
[42]
Furthermore, it is curious that the Applicant did nothing more to challenge his alleged
dismissal other than to indirectly make contact with Mr Nicholls. In circumstances where the
Applicant was unable to speak to Mr Nicholls at his office, the Applicant ought to have
communicated his concerns pertaining to his alleged dismissal to Mr Nicholls via other
means.
[43] Equally as perplexing is the Respondent’s apparent lack of willingness to allay the
concerns of the Applicant (that he had been dismissed) once those concerns were known to it.
In circumstances where the Respondent says that it did not dismiss the Applicant, it is curious
that in all the time since it became aware that the Applicant has been alleging that Grandviews
sacked him, the Respondent has not offered the Applicant a single shift. It seems that Mr
Nicholls formed the view that the lodging of the unfair dismissal application was some sort of
‘bar’ to him offering the Applicant continuing work. An unfair dismissal application does not
have that affect. The Applicant exercised a workplace right in lodging his unfair dismissal
application and it seems that the Respondent has taken adverse action against him (by not
offering him further shifts) for the operative and substantive reason that the Applicant lodged
the present claim. In this regard the Applicant may have had a better remedy pursuing a
general protections claim against the Respondent. However, he chose to pursue an unfair
[2016] FWC 1463dismissal remedy and in respect of that matter the Commission, as presently constituted, finds
that the termination of the Applicant’s employment on the date identified by the applicant was
35
not at the initiative of the Respondent.
Conclusion
[44] For the above reasons I find that the Applicant’s casual employment was not of a
‘regular and systematic’ nature. Therefore it cannot be counted for the purposes of
determining if his employment satisfied the minimum employment period. Consequently, the
Applicant’s employment has not satisfied the minimum employment period as prescribed by
s.384 of the Act.
[45] As a further consequence, the Applicant is not a person protected from unfair
dismissal under s.382 of the Act.
[46] The jurisdictional objection raised by the Respondent is upheld. The application is
dismissed.
[47] An Order is issued concurrently with this decision.
| COMMISSIONER |
| Appearances: |
| B. Robinson, on his own behalf. |
| C. Langton, Registered Clubs Association of NSW, on behalf of the Respondent. |
| Hearing details: |
| Sydney, |
| 19 February 2016. |
| Final written submissions: |
| Applicant, 26 February 2016. |
| Respondent, 26 February 2016. |
| Printed by authority of the Commonwealth Government Printer |
| <Price code C, PR577747> |
1
Exhibit ‘R1’.
2
Ibid.
3
Exhibit ‘R1’ and Exhibit ‘R2’.
4
Exhibit ‘A2’.
5
PN151.
6
PN568.
7
PN152.
8
Form F3, Employer’s Response to Unfair Dismissal Application, at 1.7
9
Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339.
10
Ibid at [68], per Crispin P and Gray J.
11
Ibid [89],[91] per Madgwick J.
12
Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic (2010) FWA 2078.
13
Ibid [76], [77].
14
Exhibit ‘R2’.
15
PN63.
16
PN187 – PN189.
17
PN361.
18
Applicant’s final Submissions.
19
Exhibit ‘A1’.
20
PN327.
21
Exhibit ‘R2’.
22
Ibid.
23
Exhibit ‘A1’.
24
Exhibit ‘R1’.
25
Exhibit ‘A1’.
26
PN197.
27
Above note 18.
28
PN290 – PN292.
29
Ibid.
30
Exhibit ‘R1’.
31
Ibid.
32
Ibid.
33
PN213.
34
PN454 – PN460.
35
Pawel v Advanced Precast Pty Ltd AIRC Print S5904 (12 May 2000) [13]
1
2
0