Rowan Barr v Melba Support Services Incorporated
[2022] FWC 1898
•27 JULY 2022
| [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 employer which is not a small business employer, that the “minimum employment period” is 6 months ending at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal. It is not in dispute that Melba was not at the time of the dismissal a small business employer. Section 384(1) provides that an employee’s “period of employment” with an employer is the period of continuous service the employee has completed with the employer.
It was not in dispute that Ms Barr worked as a casual employee of Melba from 4 August 2021 until 28 November 2021, a period of approximately 4 months. She then, without a break in service, commenced work as a part-time employee on 29 November 2021 until her dismissal on 16 March 2022. Melba contends that the period of 4 August 2021 to 28 November 2021 does not count towards Ms Barr’s period of continuous employment because her employment for this period was not on a regular and systematic basis, and she did not have a reasonable expectation of continuing employment by the employer on a regular and systematic basis. Melba contends that Ms Barr only worked on a regular and systematic basis for the period of 29 November 2021 to 16 March 2022. As this is a period of a total of 3 months and 16 days, Melba contend that the Applicant does not meet the minimum employment period.
The law to be applied
The minimum employment period is dealt with in s.383 of the Act 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.”
As stated above, it is not in dispute that the Respondent is not a small business employer and therefore the relevant minimum employment period is 6 months.
Section 384 sets out the meaning of period of employment:
“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;
…”
The Evidence
Ms Bindra provided a copy of the Applicant’s employment contract as a casual disability support worker.[1] The contract accepted by Ms Barr includes the following clauses that are relevant to the consideration in this matter:
· Clause 4 – Wages states that:
“As a casual employee, you will be paid a casual loading instead of the paid leave entitlements accrued by full-time and part-time employees”
· Clause 7 – Location states that:
“Work will be performed at a number of service sites as directed by Melba”
· Clause 9 – Hours of work states that:
“Your employment is casual and there are no fixed hours”
· Clause 14 – Termination states that:
“We may stop offering you shifts, and you may stop accepting shifts, at any time”[2]
The evidence of Ms Bindra is that casual employees of the Respondent are not provided with a roster and are instead offered and accept (or decline) shifts on a shift-by-shift basis.
Between 4 August 2021 to 28 November 2021, Ms Barr accepted shifts in two service areas offered by the Respondent. Namely, Supported Independent Living (SIL) at a group home at 4 Defelice Place, Mooroolbark (Defelice), and ad hoc Individual Support Arrangements (ISA), at a number of locations, individually supporting six (6) different supported people.[3] Ms Bindra’s evidence is that:
“Once a roster is set based on supported people needs in a house or a service location, the aim is to fill the shifts with permanent full-time or part-time employees. If a vacant line occurs due to a resignation or is created due to a roster review, it is advertised internally as an ongoing job by an expression of interest process advertised and available to all employees, casual and ongoing. Consistent with Clause 12.3 (g) of the Enterprise Agreement that applies to the Respondent and employees (Melba Support Services Incorporated Enterprise Agreement 2020 to 2023) permanent part time staff get first opportunity to apply to work vacant shifts. The remaining vacant shifts are then offered to casual staff.
The methods for offering casual employee’s shifts are different in the two service areas where Ms Barr performed her causal shifts. The service areas are operated by different managers.”[4]
The evidence of Ms Bindra is that for staffing at a SIL group home, casual employees may be offered work via the following means:
· Group texts to casuals on a distribution list with the shift dates and times and locations.
· Directly to individual casuals who work at the house or in a program.
· Through self-nomination via a roster diary at the house.
· Via Workforce Hub for emergency shifts or shifts that become available outside of business hours.[5]
Ms Bindra’s evidence is that she was advised by the House Outcomes Lead, Ms Adele Castles, that Ms Barr was mostly offered and accepted shifts via group texts or offered shifts directly by Ms Castles.[6]
The evidence of Ms Bindra is that for ISA shifts the ISA Rostering Manager contacts casual staff via group texts or direct calls. If a last-minute shift vacancy arises after hours due to absences, sickness, unplanned leave or temporary additional needs, shifts are referred to the Melba central rostering team (Work Force Hub). Usually shifts are filled on a “first come first served” basis. This occurs on an as needs basis.[7]
Ms Bindra provided a shift history report extract which provides shift details of casual shifts worked by Ms Barr from 4 August 2021 to 28 November 2021:
Period of fortnight ending 22 August 2021
Total 19.5 hours paid
Monday 02/08/21 – 8 hours worked - CL DeFelice, Mooroolbark
Tuesday 03/08/21 – 8 hours worked - CL DeFelice, Mooroolbark
Wednesday 04/08/21 – 3.5 hours worked - EAST Training, LilydalePeriod of fortnight ending 5 September 2021
Total 19 hours paid
Monday 23/08/21 – 4 hours worked - CL DeFelice, Mooroolbark
Tuesday 07/09/21 – 4 hours worked - CL DeFelice, Mooroolbark
Monday 30/08/21 – 3 hours worked - CL DeFelice, Mooroolbark
Sunday 05/09/21 – 8 hours worked - CL DeFelice, MooroolbarkPeriod of fortnight ending 19 September 2021
Total 37.5 hours paid
Monday 06/09/21 – 4 hours worked - CL DeFelice, Mooroolbark
Tuesday 07/09/21 – 6 hours worked - A, K
Sunday 19/09/21 – 7.5 hours worked - CL DeFelice, Mooroolbark
Monday 13/09/21 – 6 hours worked - M, D
Tuesday 14/09/21 – 6 hours worked - M, D
Saturday 18/09/21 – 8 hours worked - CL DeFelice, MooroolbarkPeriod of fortnight ending 3 October 2021
Total 48.5 hours paid
Monday 20/09/21 – 6 hours worked - CL DeFelice, Mooroolbark
Tuesday 21/09/22 – 7 hours worked - CL DeFelice, Mooroolbark
Saturday 25/09/21 – 8 hours worked - CL DeFelice, Mooroolbark
Monday 27/09/21 – 7.5 hours worked - CL DeFelice, Mooroolbark
Tuesday 28/09/21 – 4 hours worked - CL DeFelice, Mooroolbark
Friday 01/10/21 – 8 hours worked - CL DeFelice, Mooroolbark
Saturday – 02/10/21 – 8 hours worked - CL DeFelice, MooroolbarkPeriod of fortnight ending 17 October 2021
Total 21 hours paid
Monday 11/10/21 – 7 hours worked - CL DeFelice, Mooroolbark
Tuesday 12/10/21 – 6 hours worked - H-H, K
Saturday 16/10/21 – 8 hours worked - CL DeFelice, MooroolbarkPeriod of fortnight ending 31 October 2021
Total 45 hours paid
Tuesday 19/10/21 – 6 hours worked - B, K
Thursday 21/10/21 – 7 hours worked - CL DeFelice, Mooroolbark
Saturday 23/10/21 – 6.5 hours worked - CL DeFelice, Mooroolbark
Sunday 24/10/21 – 6 hours worked - CL DeFelice, Mooroolbark
Tuesday 26/10/21 6.5 hours worked - CL DeFelice, Mooroolbark
Thursday 28/10/21 – 5 hours worked - CL DeFelice, Mooroolbark
Saturday 20/10/21 – 8 hours worked - CL DeFelice, MooroolbarkPeriod of fortnight ending 14 November 2021
Total 36.25 hours paid
Thursday 04/11/2/1 – 7 hours worked - CL DeFelice, Mooroolbark
Saturday 06/11/21 – 6 hours worked - S, C
Monday 08/11/21 – 3 hours worked - L, A
Tuesday 09/11/21 – 3 hours worked - L, A
Tuesday 09/11/21 – 2.25 hours worked - CL DeFelice, Mooroolbark
Thursday 11/11/21 – 7 hours worked - CL DeFelice, Mooroolbark
Saturday 13/11/21 – 8 hours worked - CL DeFelice, MooroolbarkPeriod of fortnight ending 28 November 2021
Total 7 hours paid
Monday 15/11/21- 3hours worked - L, A
Tuesday 16/11/21- 3hours worked - L, A
Wednesday 17/11/21 – 1 hour worked - EAST Training, Lilydale[8]
A summary of the number of casual hours in each of the fortnightly periods worked by Ms Barr as a casual was also provided by Ms Bindra:
Ms Barr submits that during this period where she was employed as a casual, she was employed on a regular and systematic basis. Ms Barr submits that she worked regularly and systematically on Mondays and Tuesdays and a Saturday and/or a Sunday. Ms Barr submits that this resulted from a conversation with her manager about her availability for ongoing shifts on Mondays and Tuesdays and a Saturday and/or a Sunday, as staff were required for these days.[9] Due to a change in her schedule, Ms Barr could no longer work Saturday mornings. It was suggested that she worked Saturday afternoons and Ms Barr’s manager would book these pre-discussed shifts ahead of time so that she knew what her roster would look like in advance.[10]
Ms Barr submits that the shifts were a mix of being planned ahead of time and others were ad hoc and casual in nature. Ms Barr needed to have some degree of knowledge as to when she would work as she is a single parent of young children and would need to make care arrangements around her employment patterns. Ms Barr claims she had provided her availability to the Manager of Defelice after her ‘buddy shifts’ were completed. She accepts that the shifts she worked outside of what she characterised as the regular and systematic Monday, Tuesday and Saturday and/or Sunday shifts were random and that she accepted those shifts if her scheduling could accommodate these shifts.
Ms Barr submits that her continuous periods of employment during her casual employment at Defelice Place Residential Care Facility included:
“• Mondays and Tuesdays between 7am and 4pm.
· Saturday and Sunday mornings – between 6:30am and 3pm. Usually 7am to 3:30pm On Saturdays.
· Thursdays each month x3 3pm to 10:30pm shits and 1 x 4pm – 9pm shift each month.”[11]
Ms Barr believes that employment with the business changed over time. Initially she was required to work in Community Connections Day Centre, but due to COVID-19 related lockdowns, completed her buddy shifts in residential care where she gained regular and ongoing casual employment on Mondays, Tuesdays, Saturdays and some Sundays.
Ms Barr also provided a roster which she claims shows that she was regularly and systematically engaged during her last two weeks of employment as a casual. This roster is not dated, however there is a handwritten date of 29/11 next to the Monday at the start to week 3 of the four-week roster. The section where the date is to be inserted is blank. In any event, the Applicant did not work on any of the dates set out in the roster from 15 November to 28 November 2021. The dates she worked in that period are set out in the roster provided by Ms Bindra.[12] They do not align at all with the purported roster provided by the Applicant. The Applicant’s explanation as to why she did not work any of those shifts that she claims she was rostered for was not plausible as it involved initial speculation as to a number of events impacting on childcare arrangements that “could have happened”. She then claimed that these events did in fact occur.[13] That same series of events was said to have happened again in respect to a second shift.[14] There was no explanation for the other three shifts.[15] This evidence was not credible, and I do not accept it. There is no evidence that the Applicant was on a roster as a casual as she suggests. Ultimately, the Applicant conceded that there was likely insufficient evidence to support that proposition.[16]
The Applicant’s period of permanent part-time employment
On 29 November 2021, Ms Barr was offered a permanent part-time contract which specified the working hours of 25.5 hours per 28-day period roster based at the group home in Defelice. The contract was accepted by Ms Barr on 6 December 2021.[17]
Melba submitted Ms Barr’s Defelice SIL Roster dated 13 December 2021, which they submit shows a distinct difference in work pattern. The location of her employment, hours, days and times are fixed, which is different to her previous casual arrangement which was irregular and not systematic.
Ms Barr’s employment was terminated on 16 March 2022, three and a half months after she started working on the part-time contract. Her employment was terminated within her probation period.
Consideration
While much of the evidence is not in contest, there is some conflict as to the method by which the Applicant was engaged to work as a casual. In the circumstances, it is necessary to consider the credit of the witnesses. I found Ms Bindra to be a most credible witness who spoke with candour throughout the proceedings. In contrast, I found Ms Barr to be often evasive. Moreover, her evidence was not consistent with the documentary evidence tendered, including her own evidence in the case of the alleged casual roster.[18] To the extent there is a conflict on the evidence, I prefer the evidence of Ms Bindra.
The concept of employment on a regular and systematic basis was considered by a Full Bench of the Commission in Angele Chandler v Bed Bath n Table (Chandler).[19] In that matter, the Full Bench reaffirmed the reasoning in Yaraka Holdings Pty Ltd v Giljevic[20] to be the correct approach.[21] Applying that reasoning, it is necessary to look at a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work and the normal arrangements for someone to perform that type of work.
Dealing firstly with the frequency of work, the number of hours worked and the type of work, the evidence shows that the Applicant was engaged for some shifts in every fortnightly period from 4 August 2021 until 28 November 2021. However, the number of hours worked varied significantly in each fortnightly period ranging from as little as 7 hours, and up to 48.5 hours. There is certainly no pattern to the number of hours worked per fortnight. The Applicant was engaged to work at a number of locations. The majority of engagements were at Defelice, although there were also many at the ISA facilities at various locations.
As set out earlier, the Applicant accepts that shifts outside of those on Mondays, Tuesdays and Saturdays were provided on an ad hoc basis, however she maintains she was regularly engaged on Mondays/Tuesdays and Saturdays. Starting with Saturday engagements, the evidence shows that the Applicant was engaged for 7 Saturdays out of the 16-week period she was engaged as a casual. Most of those engagements were for an 8-hour shift, although 2 of the engagements were for a shorter period. Working less than half of the Saturdays in the 16-week period does not suggest that the engagements on a Saturday were regular.
In respect to Mondays, the Applicant was engaged for 10 Mondays over the 16 weeks. Most of those engagements were at Defelice, although 3 of them were at ISA. Many of the shifts were approximately 8 hours and worked somewhere between 7am and 3pm, though those hours varied. Some of the shifts on a Monday were as short as 3 hours. Tuesdays were worked on 11 of the 16 weeks. They were worked at both Defelice and ISA and the hours varied, although there are a number of 9am to 3pm shifts.
There was clearly no regularity to the pattern of work on Thursdays, with only 4 worked during the period, with irregular hours. While there was a short period of regular work on Thursdays, however this falls short of what I would consider to be regular and systematic employment. Similarly, there was only 3 Sunday shifts worked in the period.
Looked at objectively, the record of the hours worked by the Applicant shows that, overall, the frequency of, the number of hours worked and the days on which work is performed are highly variable and not suggestive of the Applicant having been employed on a regular and systematic basis.
The evidence as to the hours of work and the pattern of work, or rather lack of pattern, is consistent with the evidence as to the method of engagement as set out by Ms Bindra. The Applicant was engaged for the most part via the methods referred to by Ms Bindra. That is, at Defelice via group texts or directly offered the shifts by Ms Castles. Those offers were for vacant shifts that were not taken up by permanent staff. Similarly for the ISA shifts, these were vacant shifts for which the ISA rostering team contact casual staff. There is no evidence to support the proposition that the Applicant was placed on a roster and knew in advance as to what her shifts would be. While the Applicant advised her supervisor of her availability, she was not required to do so. There was no commitment to engage her regularly on any particular shift. This is reflected in an email dated 28 August 2021 from the Applicant to Ms Amanda Hitchens, HR Coordinator:
“Dear Amanda,
I completed two buddy shifts last week at DeFelice and it was fine. Adele has asked me to come in for a three hour shift this Monday 30th August from 8 to 11am. She would like to show me the hoist for a supported person.
Beyond this buddy shift on Monday, are you able to roster me on for ongoing shifts on Mondays and Tuesdays? And how soon would I be able to get my permanent part time contract issued for Community connections? I actually really need it to get a loan for a house.
Thanks in advance”[22]
Ms Hitchens does not agree to that request but simply indicates that the Applicant can complete an availability form and she would advise all departments as to her availability.[23] Having considered the totality of the evidence, there is nothing to support the finding that the basis of the casual engagement exhibited the characteristics of a system, method or plan.[24]
The terms of the contract signed by Ms Barr on 26 June 2021 demonstrate that she was employed to work as a disability support worker, or other such positions required in Melba’s operational structure on a casual basis. The evidence demonstrates that, for the most part, Ms Barr’s personal circumstances were accommodated for in the allocation of casual shifts, but there was no guarantee as to regular and systematic rostered shifts. The contract provided that the employment was casual and there were no fixed hours and that the company was able to stop offering shifts, and the Applicant was able to stop accepting shifts at any time. The terms of the contract do 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 factual matrix is quite distinguishable in this matter from that contemplated in Chandler where, in that matter, the applicant was required to advise of her availability on a monthly basis and she was then rostered to work in advance. There was clearly a system, method or plan. Further, the contractual terms compelled the employee to make herself available at certain times around Christmas to work shifts or risk not being offered further shifts. These are not characteristics of the contract of employment, nor the practice engaged in in this matter.
For similar reasons, I consider in respect of s.384(2)(a)(ii) that, during her period of service with Melba as a casual employee, Ms Barr did not have a reasonable expectation of continuing employment on a regular and systematic basis. That expectation was engendered by:
· the casual contract of employment which established a legal framework for the allocation of work to Ms Barr which stated that her employment is casual and there are no fixed hours;
· allocation of shifts, under which a roster was determined in advance of each month setting out the shifts that were allocated to permanent full-time or part-time employees. If vacancies presented themselves in these rosters, these vacant shifts were advertised internally as an ongoing job by an expression of interest process advertised and available to all employees, casual and ongoing; and
· the frequency and amount of work that was allocated to Ms Barr over the course of her casual employment varied significantly.
Conclusion
For the foregoing reasons, I am not satisfied that the period of employment that the Applicant was engaged in as a casual from 4 August 2021 until 28 November 2021 counts towards the employee’s period of employment. This is because the employment as a casual employee was not on a regular and systematic basis and during the period of service as a casual employee, the employee did not have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
Therefore, prior to the dismissal, the Applicant had completed a period of continuous service of 3 months and 16 days, being the period she was engaged as a part-time permanent employee. As the Applicant’s period of employment was less than 6 months, she is not a person protected from unfair dismissal having regard to s.382(a) and s.383 of the Act.
The jurisdictional objection is therefore upheld and the application for unfair dismissal remedy is dismissed. An order will be issued to this effect concurrently with this decision.
COMMISSIONER
Appearances:
R Barr on her own behalf.
R Evans on behalf of the Respondent.
Hearing details:
2022.
Melbourne (by video via Microsoft Teams)
15 and 19 July.
[1] Digital Court Book (DCB) at page 103.
[2] See DCB from page 103.
[3] DCB at page 99, [20].
[4] DCB at page 100, [24]-[25].
[5] DCB at page 100 - 101, [26].
[6] DCB at page 101, [27].
[7] DCB at page 100, [28].
[8] DCB at AB-3 and AB-4, pages 107 – 109.
[9] DCB at page 27.
[10] DCB at page 47.
[11] DCB at page 29.
[12] DCB at page 108.
[13] Transcript at PN495.
[14] Transcript at PN499.
[15] Transcript at PN492 - PN508.
[16] Transcript at PN668 and PN670.
[17] DCB at page 101.
[18] DCB at page 82.
[19] [2020] FWCFB 306.
[20] [2006] ACTCA 6, 149 IR 339.
[21] [2020] FWCFB 306, [11]-[12].
[22] DCB at page 79.
[23] Ibid.
[24] [2006] ACTCA 6, 149 IR 339 at [91].
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