Rowan Barr v Melba Support Services Incorporated - [2022] FWC 1898

[2022] FWC 1898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Rowan Barr
v

Melba Support Services Incorporated

(U2022/3946)

COMMISSIONER LEE

MELBOURNE, 27 JULY 2022

Application for unfair dismissal remedy – jurisdiction – whether applicant completed the minimum employment period at the time of dismissal – held that the applicant’s period of casual service does not count towards the minimum employment period – applicant had not completed the minimum employment period at the time of dismissal – jurisdictional objection upheld – application dismissed.

Introduction and background

On 4 April 2022, Ms Rowan Barr (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act (the Act) for an unfair dismissal remedy in respect of the termination of her employment by Melba Support Services Incorporated (Melba) (the Respondent). The Respondent asserts that the Applicant is not a person protected from unfair dismissal as she was only employed by the Respondent as a permanent part-time employee from 29 November 2021 to the date of her dismissal on 16 March 2022, a period of less than 6 months. Prior to this period of employment, the Applicant worked as a casual employee from 4 August 2021 until 28 November 2021. The Respondent submits that during that period of casual employment, the Applicant was not employed on a regular and systematic basis and did not have a reasonable expectation of continuing employment on a regular and systematic basis. If this is correct, the Applicant has not completed a period of employment of at least the minimum employment period and therefore is not a person protected from unfair dismissal.

The Respondent is not a small business employer as defined in the Act at the time of dismissal, having around 690 employees. This decision deals with the Respondent’s jurisdictional objection only.

The matter was listed for Jurisdiction (Minimum Employment Period) Determinative Conference/Hearing before me on 15 July 2022. The Applicant represented herself and gave evidence on her own behalf. Ms Bindra, Employee and Industrial Relations Business Partner, gave evidence for the Respondent. Final submissions were given at a further hearing on 19 July 2022 due to some connectivity issues during the hearing on 15 July 2022.

The relevant aspects of the statutory scheme concerning unfair dismissal in the Act are as follows. Section 390(1)(a) provides that the Commission must, relevantly, be satisfied that a person was “protected from unfair dismissal” at the time of being dismissed before it may make an order in the person’s favour for an unfair dismissal remedy (reinstatement or the payment of compensation). Section 382(a) provides that the first of the two requirements that must be satisfied in order for a person to be “protected from unfair dismissal” is that the person is an employee who has completed a “period of employment” with the relevant employer of at least the “minimum employment period”. Section 383(a) provides, in respect of an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rowan Barr v Melba Support Services Incorporated

Details

AGLC: Rowan Barr v Melba Support Services Incorporated [2022] FWC 1898
Case: [2022] FWC 1898
Decision Date: 27 JULY 2022

CaseChat Overview and Summary

Rowan Barr brought an application to the Fair Work Commission (FWC) for an unfair dismissal remedy in respect of her termination of employment by Melba Support Services Incorporated. The Respondent contends that Ms Barr is not a person protected from unfair dismissal as she was only employed by the Respondent as a permanent part-time employee for less than 6 months. Prior to this period of employment, Ms Barr worked as a casual employee from 4 August 2021 until 28 November 2021. The central issue in this case is whether Ms Barr's period of casual service counts towards the minimum employment period. If it does not, then she did not complete the minimum employment period at the time of dismissal and is not protected from unfair dismissal. The FWC considered whether the casual employment was on a regular and systematic basis and whether Ms Barr had a reasonable expectation of continuing employment on a regular and systematic basis. The FWC found that Ms Barr was engaged via group texts or directly offered shifts for vacant shifts that were not taken up by permanent staff. There was no evidence to support the proposition that Ms Barr was placed on a roster and knew in advance what her shifts would be. The terms of the contract did not set out any obligation on the employer to offer shifts on any particular basis, nor for the employee to accept any particular shifts. The FWC held that the employment as a casual employee was not on a regular and systematic basis and during the period of service as a casual employee, Ms Barr did not have a reasonable expectation of continuing employment by the employer on a regular and systematic basis. Therefore, Ms Barr's period of casual employment did not count towards her period of employment. The FWC found that Ms Barr had not completed the minimum employment period at the time of dismissal, and the application for unfair dismissal remedy was dismissed.

Orders