Samantha Guillerme v N. F. Grey Pty Ltd t/a Eat Live Fresh

[2020] FWC 4360

[2020] FWC 4360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha Guillerme
v
N. F. Grey Pty Ltd t/a Eat Live Fresh
(U2020/8635)

DEPUTY PRESIDENT COLMAN MELBOURNE, 19 AUGUST 2020

Unfair dismissal application – minimum employment period – application dismissed

[1] This decision concerns an application by Ms Samantha Guillerme for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). From 5 June 2019 until her dismissal on 4 June 2020, Ms Guillerme was employed on a casual basis as a barista by N. F. Grey Pty Ltd (company), which operates a café in Trafalgar in West Gippsland, Victoria. The company dismissed Ms Guillerme after it became aware that she was the subject of a police investigation. It also considered that Ms Guillerme was unreliable and that she often failed to attend for work.

[2] Ms Guillerme contends that her dismissal was unfair. She says that the police investigation had concluded in May 2020 and that she was not charged with any offence. She denies that she was unreliable. Ms Guillerme says that there was no valid reason for her dismissal. She seeks compensation.

[3] The company objects to the application on the jurisdictional ground that Ms Guillerme has not served the minimum employment period, which, because the company is a small business, is one year. It says that Ms Guillerme did not work any shifts after 22 March 2020, when the café closed due to the restrictions implemented by government in response to the COVID-19 pandemic. It further contends that Ms Guillerme’s casual employment prior to 22 March 2020 was not on a regular and systematic basis, and that during this period she did not have a reasonable expectation of ongoing employment. Therefore, the company says that none of Ms Guillerme’s period of casual service can count towards her period of employment, and that she has not served the required one year period that would enable her to bring an unfair dismissal application. The company also raises the further jurisdictional objection that Ms Guillerme was dismissed in accordance with the Small Business Fair Dismissal Code (Code).

[4] Ms Guillerme’s unfair dismissal application was listed for a jurisdictional hearing before me on 14 August 2020. Ms Guillerme appeared and gave evidence for herself. Ms Nicole Grey, the owner of the company, appeared and gave evidence for the company.

Minimum employment period

[5] To establish whether Ms Guillerme has served the minimum employment period, two questions must be answered. First, what is the minimum employment period in this case? Secondly, has Ms Guillerme served that period?

[6] The minimum employment period that a person must have served with an employer in order to be able to bring an unfair dismissal application is six months, or, where the employer is a small business employer, one year (s 383). Section 23 of the Act defines a small business employer as one which, at the relevant time, employs fewer than 15 employees. This number includes casual employees employed on a regular and systematic basis. It also includes the person who has been dismissed, as well as the employees of any associated entity.

[7] Ms Grey gave evidence that at the time of Ms Guillerme’s dismissal the company employed three employees, including Ms Guillerme. Ms Grey also said that the company did not have any associated entities. Ms Guillerme did not contest Ms Grey’s evidence about these matters, and I accept it.

[8] I find that the company was a small business employer at the time of Ms Guillerme’s dismissal and that the minimum employment period that Ms Guillerme must have served in order to bring her unfair dismissal application is one year.

[9] Ms Guillerme commenced working as a casual on 5 June 2019. On 4 June 2020, Ms Grey sent Ms Guillerme a text stating that it was best that she not work anymore in light of the police investigation. This was the notification of dismissal. Mr Guillerme contended that the dismissal only took effect the following day. But the text message does not say that. I conclude that the date of dismissal was 4 June 2020. This was the date on which the employment relationship between Ms Guillerme and the company ended.

[10] Ms Guillerme was a casual employee. Section384 of the Act states that 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 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…”

[11] Ms Guillerme’s evidence was that, during her casual employment with the company, she considered her work to have been regular and systematic. She said that she had an expectation, which she considered to be reasonable, of ongoing employment. From June 2019 until 22 March 2020 she worked 20 hours a week. She said that on 22 March 2020, when the café closed, she was stood down, and did not work any casual shifts until 1 June 2020, when she attended the café to assist in preparations to reopen. She also said that in late May she undertook certain voluntary work for the café, preparing and sending through price lists and staff procedures. Ms Guillerme said that from March to June 2020 she continued to expect that she would have ongoing employment with the company because Ms Grey remained in touch with her and involved her in the preparations to reopen the café in late May and June. She said that this confirms that her expectation of ongoing employment was reasonable.

[12] Ms Grey acknowledged that Ms Guillerme worked 20 hours a week from June 2019 to March 2020 but does not concede that her casual employment during this time was on a regular and systematic basis. She said that Ms Guillerme was not asked to work in late May or on 1 June 2020, however she agrees that on 1 June Ms Guillerme attended the café and was involved in activities to prepare for reopening. Ms Grey said that when she closed the café on 22 March 2020, she was uncertain when or if the café would reopen.

Consideration

[13] It is clear that from 22 March 2020 until 1 June 2020, Ms Guillerme did not render any service as a casual employee. During this period, it was not the case that her ‘employment as a casual employee was on a regular and systematic basis’, as contemplated by s 384(2)(a). Ms Guillerme did not work any shifts in this period. Her casual employment was not just irregular, it was non-existent. A casual employee is generally employed from engagement to engagement, not between engagements. There is no evidence of any contrary arrangement in this case. And even if there had been such an arrangement, there was no regular service from late March 2020.

[14] I accept that Ms Guillerme worked a solitary casual shift on 1 June 2020. I do not consider that the voluntary work from home in late May constituted a casual engagement. These matters do not affect the analysis, however. They do not alter the fact that there was no regular and systematic casual employment from late March. And the single shift on 1 June does not re-establish any regularity in casual employment.

[15] Ms Guillerme contended that, had it not been for the COVID-19 pandemic and the government restrictions, she would have continued to be employed on a regular and systematic basis as a casual from March through to June. That may well be. But the fact that she might have worked, but for the pandemic, is irrelevant. The Act does not say that a period will count as casual service if an employee would have worked on a regular basis but for some intervening event.

[16] In addition, I consider that, from 22 March 2020 until 1 June 2020, Ms Guillerme could not have had a reasonable expectation of continuing employment by the company on a regular and systematic basis, because the café was closed indefinitely due to the COVID-19 pandemic, and Ms Grey was uncertain when it would reopen.

[17] It is well established that, for a period of service as a casual employee to count for the purpose of the minimum employment period under s 384, it is necessary that the employee be employed on a regular and systematic basis and have a reasonable expectation of ongoing employment on that basis throughout the relevant period. If during any part of the period of casual employment, one of these elements is not present, that part of the period of casual employment does not count (see Bronze Hospitality Pty Ltd v Hannson [2019] FWCFB 1099 at [29]). From 22 March 2020, none of the elements required by s 384 was present.

[18] In some situations involving a transfer of business, service with a previous employer can count towards the minimum employment period with the new employer. Ms Guillerme said that, prior to commencing work with the company, she was employed by the previous business owners of the café from late 2016 as a casual employee. However, Ms Guillerme said that she worked for the previous owners on an ‘irregular basis’, and that this work was ‘off and on’. For this reason, Ms Guillerme’s service as a casual employee with the previous owners could not count towards the minimum employment period, because it was not regular and systematic. It is therefore not necessary to determine whether Ms Guillerme was a ‘transferring employee’ for the purposes of s 22 and s 384(2)(b) such that her service with the former owners must count towards the minimum employment period. There is no relevant service with the former owner that could be counted.

[19] Following the conclusion of the hearing, Ms Guillerme sent to my chambers an email submission in which she contended that the period from 22 March 2020 until early June counts as service because she was stood down during that time. She referred to information on the website of the Fair Work Ombudsman which stated that time away from work due to COVID-19 and job keeper stand downs counts as service and that it should be included for the purpose of calculating an employee’s entitlements under the National Employment Standards. However, this statement is not relevant to Ms Guillerme’s circumstances in the present matter.

[20] Section 22(2)(b) of the Act states that any period of unpaid leave or authorised absence does not count as service, other than a period of a stand down under Part 3-5 of the Act (s 22(2)(b)(ii)). That is, the period of a stand down does count as service. However, although Ms Grey said that she stood down all employees, including Ms Guillerme, on 22 March 2020, it is clear that she did not in fact or law stand down Ms Guillerme from her employment under Part 3-5 of the Act. Ms Guillerme was a casual and there was no need to stand her down in order not to pay her. She was simply not assigned casual engagements. As noted earlier, a casual employee is not employed between engagements. Ms Guillerme was not engaged to work at all in this period, and there was therefore no employment from which she could be stood down. It should be noted that the fact that an employer uses the expression ‘stand down’ does not create a stand down when none in fact exists (see Coal and Allied Mining Services Pty Ltd v MacPherson (2010) 185 FCR 383; and CFMMEU v DP World Melbourne Limited[2020] FWC 4147 at [39]). In any event, from March 2020 any notional service as a casual was clearly not regular and systematic and was not accompanied by a reasonable expectation of ongoing employment, as s 384 requires it to be in order to count as service in an unfair dismissal context.

Conclusion

[21] Even accepting Ms Guillerme’s submissions and evidence that all of her casual service from 5 June 2019 until 22 March 2020 should count towards the minimum employment period on the basis that it was regular and systematic with a reasonable expectation of continuing employment, her period of employment was still less than one year. The period from 22 March 2020 to 4 June 2020 is not one during which Ms Guillerme rendered casual service of the kind contemplated by s 384.

[22] It is not necessary to consider the company’s further objection that Ms Guillerme was dismissed in accordance with the Code. The jurisdictional objection that Ms Guillerme has not served the minimum employment period is upheld. Ms Guillerme’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

S. Guillerme for herself
N. Grey for N. F. Grey Pty Ltd

Hearing details:

2020
Melbourne (by telephone)
14 August

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