Sarah Johnstone v Ray White Bundaberg City 4670 Investments
[2023] FWC 1717
•13 JULY 2023
| [2023] FWC 1717 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sarah Johnstone
v
Ray White Bundaberg City - 4670 Investments
(U2023/2649)
| COMMISSIONER SIMPSON | BRISBANE, 13 JULY 2023 |
Application for Unfair Dismissal Remedy – Jurisdictional objection – Minimum Employment Period satisfied – Objection dismissed.
On 23 December 2022, Ms Sarah Johnstone (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against Ray White Bundaberg City - 4670 Investments (the Respondent).
In its Form F3, the Respondent raised the jurisdictional objection that the Applicant was employed on a non-regular basis and there was no ongoing expectation of employment, and consequently that the Applicant did not meet the Minimum Employment Period.
The matter was listed for jurisdictional hearing on 28 June 2023 by video via Microsoft Teams. The Applicant represented herself and the Respondent was granted permission to be represented by Mr Brett Heath of Carter Newell Lawyers.
The Respondent accepted it was not a small business and the minimum employment period for the Applicant is six months.
The Applicant identified missing time sheets in the material filed by the Applicant. The Applicant filed a statement dated 21 June 2023.[1] Mr Hitzke provided a statement for the Respondent dated 15 January 2023.[2] The Respondent also filed written submissions on 15 June 2023.
Mr Hitzke gave evidence that the Applicants hours of work fluctuated according to the amount of assistance required by the property management team and himself. Mr Hitzke said that most weeks the Applicant worked Tuesday, Wednesday and Thursday, however she was entitled to and did choose her own hours of work.
The Applicant was employed as a casual employee by the Respondent on 21 April 2022, until her dismissal on 8 March 2023, a period approximating 10 months. It was apparent from the evidence that the period of employment between 21 April and 19 July 2022 was not regular and systematic casual employment, and I do not intend to take this period into account for the purposes of assessing whether the Applicant had satisfied the minimum employment period. 20 and 21 July 2022 were paid in the pay week for 22 July to 28 July 2022.
The Applicant referred to a screenshot of a text message exchange of 11 July 2022 to support her claim that a meeting occurred on 12 July 2022 involving herself, Ms Candice Leo, and Mr Hitzke, where it was agreed that the Applicant would commence regular, ongoing, and systematic days and hours being Tuesday 8.30am to 5pm, Wednesday 8.30am to 5.00pm and Thursday 8.30am to 5.00pm.
It was put to the Applicant no agreement had been made as claimed by the Applicant. The Applicant maintained such an agreement had been made. It was put to the Applicant that her hours from 20 July were not regular and systematic.
Mr Hitzke was asked about the meeting that the Applicant claimed occurred on 12 July and his evidence was to the effect that he is involved in many meetings, it was some time ago and he could not confirm whether the meeting did or did not take place. Further, he said he could not confirm or deny the claim that they had agreed the Applicant would work a regular Tuesday, Wednesday and Thursday, however he went on to say he did not believe there was a discussion that she would regularly work those days. Mr Hitzke said what he understood the days suited the Applicant and her other arrangements.
The evidence indicates the Applicant did move to a working arrangement from Wednesday 20 July 2022 consistent with what she claimed had been discussed with representatives of the Respondent, being that she would be paid 24 hours a week on Tuesday, Wednesday and Thursday. It is clear from the payslip summary document provided by the Respondent that the pattern of hours is generally regular and systematic with a few occasions where the Applicant worked more hours and a few cases where the Applicant worked less.
It was put to the Applicant that she chose her own hours on the basis of her evidence at paragraph 14 of her statement that she would leave half and hour early if she worked through her lunch break.
The Applicant also said a further discussion occurred on 30 November 2022 with the Respondent, from which it was agreed that her casual employment would convert from casual employment to full time permanent employment upon returning from leave in January 2023. The Applicant put to Mr Hitzke that this was discussed on 30 November. Mr Hitzke’s evidence was to the effect that he did not remember if such a meeting occurred, or if a discussion occurred about the Applicant’s employment converting from casual to permanent.
It is clear the Applicant worked on 15 December 2022 and returned to work on 6 January 2023. The Applicant said she spoke to Mr Hitzke about taking leave during this period. The Applicant rejected the proposition that she did not tell Mr Hitzke when she would be returning from leave. Mr Hitzke was asked by the Applicant whether she spoke to him about taking leave over the Christmas period. Mr Hitzke accepted that the Applicant did come to him and ask for this leave.
It was put to Mr Hitzke that discussions occurred between the Applicant and himself about the Respondent paying for the Applicant to obtain a real estate licence in order to become a full-time employee of the Respondent. Mr Hitzke’s evidence was to the effect that he did not recall such discussions.
The Applicant returned to work after the Christmas and New Year period, and worked in the weeks from 6 January to 19 January 2023, and then the Applicant had a bereavement in her family and had a period of leave including to assist in making arrangements for her father’s funeral. The Applicant agreed that Mr Hitzke had told her at the time that she could take as much leave as she liked. The Applicant agreed she did not make a specific time for return to work in the circumstances, however returned 7 February 2023.
During her oral evidence, the Applicant was provided with a document prepared by the Respondent, setting out as a table summarising the payslips received by the Applicant during her employment.[3] It was apparent the document contained a number of errors, and separate examples of rows of data that were duplicates of the row above, at row 2 and row 5.
Other errors included that the table did not include weeks worked by the Applicant including on 4,5 and 6 October 2022, 28,29 and 30 November 2022 and 21,22 and 23 February 2023. This discrepancy was discovered by cross referencing the payslip summary, the pay slips and the pay records.
Mr Hitzke said some discrepancies were found in the hours the Applicant claimed and actually completed and these were required to be corrected on her payslips.
Section 384 of the Act reads as follows:
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 as a regular casual employee; 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:
(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 thew 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.
The Respondent has relied to some extent in its submissions on the definition of casual employment at section 15A of the Act. These submissions to establish that the Applicant was a casual employee, however, do not address the issue of whether the Applicant was a regular and systematic casual employment with a reasonable expectation of ongoing employment.
The Respondent submits that the hours fluctuated above and below 24 hours per week and there was no agreement that she would receive a base of 24 hours of work each week.
The Applicant submitted that the standard and regular hours she worked as per the pay records and pay slips were 24 hours per week, and it only fluctuated below that when she was sick. The fluctuations above 24 hours per week were when she was asked by the Respondent to work additional hours in certain weeks.
The Applicant submitted that during her employment she did request unpaid leave during the Christmas and New Year period, as she said other staff did. The Applicant submitted that the business closed over the Christmas period. I adjourned the matter for a brief period to resolve the issue of when the office was closed over the Christmas period as the issue had not been the subject of any evidence. It was resolved that the office was closed only for the public holidays over the period and the office remained open with a skeleton staff during the period.
The Respondent submitted that the break in work over the period during the Christmas New Year period meant the Applicant could not be said to be working on a regular and systematic basis. The Applicant submitted the period of leave was agreed with the Respondent. The Applicant similarly submitted that there was no suggestion when she took a period of two weeks leave in connection with the passing of a member of her family that her employment was not ongoing.
Conclusion
In Yaraka Holdings Pty Limited v Giljevic (Yaraka)[4] it was said as follows:
“65. It should be noted that it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work.However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent.”
Further in the decision in Yaraka it was stated as follows:
“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”. Considered in the light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.”
In relation to what is meant by systematic employment, Yaraka went on to state as follows:
“91. Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. 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, revised 3rd edn, 2001).”
In Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic[5] Commissioner Roe said the following in relation to what is meant by regular and systematic employment:
“[75] I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.
[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.”
It is apparent on the evidence that between the period of 20 July 2022 to 9 March 2023, the Applicant worked continuously, week in and week out, in a fairly consistent pattern of Tuesday, Wednesday and Thursday, with some fluctuation from working additional hours on a few occasions and working less hours in few weeks where she said she was unwell.
This fairly consistent pattern was broken for a period of requested and granted unpaid leave for the equivalent of what would have been three working weeks over the Christmas and New Year period, and a further two-week period away from work in connection with her family bereavement in late January and early February 2023.
The evidence indicates that the Applicant worked during 28 weeks in the period between 20 July 2022 and 9 March 2023.
I do not accept that Mr Hitzke decision to grant the Applicant’s a period of three weeks unpaid leave, as he confirmed he had done during his oral evidence, results in the Applicant’s employment ceasing to be able to be regarded as regular and systematic, or that she did not have a reasonable expectation of continuing employment because that leave was requested and approved.
I also do not accept that by Mr Hitzke saying to the Applicant that she could take as much time off as she liked in connection with her family bereavement, and her then taking what amounts for her to a period of two weeks away from work for that reason, amounts to the Applicant no longer being a casual employee who worked regularly and systematically, or that the Applicant no longer had a reasonable expectation of continuing employment because of that period of leave in connection with her father’s passing.
I am satisfied on the basis of the evidence that in accordance with the authorities referred to above, the Applicant has met the requirements of sections 383 and 384 of the Act, because her employment as a casual employee was as a regular casual employee, and during that period of service, she had a reasonable expectation of continuing employment by the employer on a regular and systematic basis, and that period of employment exceeded the minimum period required period.
The jurisdictional objection is dismissed, and the matter will be relisted for directions.
COMMISSIONER
Appearances:
Ms S. Johnstone appearing on her own behalf.
Mr B. Heath of Carter Newell Lawyers for the Respondent.
Hearing details:
2023
Brisbane (via Microsoft Teams Video)
28 June
[1] Exhibit 1
[2] Exhibit 3
[3] Exhibit 2
[4] [2006] ACTCA 6 (30 March 2006)
[5] [2010] FWA 2078
Printed by authority of the Commonwealth Government Printer
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