Skye Ilsley v Premier Hotel T/A Premier Hotel
[2018] FWC 1932
•4 APRIL 2018
| [2018] FWC 1932 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Skye Ilsley
v
Premier Hotel T/A Premier Hotel
(U2017/13356)
COMMISSIONER PLATT | ADELAIDE, 4 APRIL 2018 |
Application for relief from unfair dismissal – jurisdictional objections – applicant dismissed at the initiative of the employer – employer not a small business employer – minimum employment period of 6 months met –– jurisdictional objections dismissed.
Summary
[1] On 15 December 2017, Ms Ilsley lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer Premier Hotel T/A Premier Hotel (Premier Hotel) on 27 November 2017.
[2] On 11 January 2018 Mr Karthik Dorairaj, Director/Owner of Premier Hotel, lodged a form F3 Employer Response and form F4 Objections to Unfair Dismissal Application, and contended that Ms Ilsley was not dismissed, that Premier Hotel is a small business employer that Ms Ilsley she did not complete the applicable minimum employment period (MEP) of 12 months.
[3] A hearing to deal with the jurisdictional objections was conducted by way of telephone conference on 5 and 9 March 2018. Ms Ilsley represented herself and Mr Karthik Dorairaj represented Premier Hotel.
Is Premier Hotel a small business within the meaning of ss.383 and 384 of the Act?
[4] Mr Dorairaj submitted a list of persons employed by Premier Hotel and their earnings for each week in the year before the dismissal.1 I have made a confidentiality order pursuant to s.594 of the Act in respect of the information contained in that list including the names of persons who have been and/or are employed by Premier Hotel. For privacy reasons, employees referred to in the spreadsheet who were not present at the hearing will be referred to by their first and last initials.
[5] At the first hearing on 5 March 2018, the parties reviewed the names and gross weekly earnings for the employees listed in Exhibit R1 for period 21 June 2017 to 15 January 2018. It was agreed that JC, MC, SaC, BF, SF, AF, RJV, LK, JL, MM, EM, SMc, IM, HM, SM, KN, CO, VO, BR, SR, CS and SPW were not employed by Premier Hotel as at the date of the alleged dismissal.2 Exhibit R1 was amended and admitted as Exhibit R1A to reflect those persons excluded and was then provided to the parties. Premier Hotel was required to provide details of the number of hours worked by the remainder of the employees for each week in the period from 21 June 2017 to 27 November 2017, and the supporting timesheets. Ms Ilsley was invited to review and comment upon this data.
[6] On 8 March 2018, Premier Hotel submitted a spreadsheet which detailed the hours worked each week by each employee listed in Exhibit R1A. This document was received as Exhibit R2.
[7] The content of Exhibit R2 was reviewed at the second hearing on 9 March 2018.
[8] At the second hearing the following matters were established from evidence given by Ms Ilsley and Mr Dorairaj.
• A work roster was promulgated each week and the named casual employees were required to confirm that they could work the shifts identified. Where an employee was unable to work a shift, other employees could work additional hours and cover the shift.
• The hours worked by employees each day and over the week varied as a function of demand.
• It was agreed that three of the persons named on Exhibit R2 were fulltime employees (AB, ShC, SC).
Relevant Facts
[9] In light of the agreement by Premier Hotel that three persons named above are employees within the meaning of s.23(2)(a) of the Act, the task required is to review the work histories of the remaining employees contained in Exhibit R2 and determine if any of those employees were casual employees who did not work on a regular and systematic basis which will result in the total number of employees within the meaning of s.23(2)(a) and not excluded by s.23(2)(b) employed by Premier Hotel as at the 27 November 2017 being established.
[10] A review of the data contained in Exhibit R2 reveals that:
• For a period of 23 weeks prior to 27 November 2017, BM worked at least 5 hours each week with one exception. BM most commonly worked between 10 and 15 hours per week, on several occasions worked greater than 15 hours and on a few occasions in excess of 20 hours.
• For a period of 13 weeks prior to 27 November 2017, DC worked at least 2 hours each week with one exception. DC most commonly worked between 2 and 3 hours per week, on several occasions worked greater than 3 hours, and up to 5 hours, and on a few occasions in excess of 5 hours.
• For a period of 23 weeks prior to 27 November 2017, BC worked at least 25 hours each week with one exception. BC most commonly worked between 25 and 30 hours per week and on several occasions worked greater than 30 hours but not more than 35 hours.
• For a period of 17 weeks prior to 27 November 2017, HD worked at least 2 hours each week with two exceptions. HD most commonly worked between 2 and 6 hours per week and on several occasions worked greater than 6 hours up to 11 hours per week.
• In the 18 weeks prior to 27 November 2017, DE worked at least 4 hours each week except for 3 weeks prior to 27 November 2017 where no hours were worked. DE most commonly worked between 4 and 8 hours each week, worked in excess of 8 hours and up to 11 hours per week on a few occasions. This person did not appear to work beyond 7 November 2017.
• In the 15 weeks prior to 2 October 2017, SF worked at least 15 hours each week. SF most commonly worked between 15 and 30 hours per week and on several occasions worked greater than 30 hours and up to 40 hours per week, sometimes up to 45 hours per week. In the week of 26 September 2017 it was recorded that SF took 38 hours annual leave and post 2 October 2017 was on ‘salary’ and paid $771.23 each week thereafter.
• In the 23 weeks prior to 27 November 2017, MH worked at least 1 hour each week with the exception of 4 weeks where no hours were worked. MH most commonly worked between 1 and 3 hours per week, on several occasions worked greater than 3 and up to 6 hours per week and on a few occasions up to 7 hours per week.
• In the 23 week period prior to 27 November 2017, SG worked at least 17.5 hours each week. SG most commonly worked between 15 and 20 hours per week, on several occasions worked greater than 20 hours, and up to 25 hours per week, and on a few occasions up to 36 hours per week.
• In the 17 week period prior to 27 November 2017, KH worked at least 2 hours each week. KH most commonly worked between 2 and 4 hours per week, on several occasions worked greater than 4 hours, and up to 8 hours per week, and on a few occasions up to 12 hours per week.
• In the 26 week period prior to 27 November 2017, Ms Skye Ilsley worked at least 9 hours each week. Ms Ilsley most commonly worked between 9 and 22 hours per week, on several occasions worked greater than 22 hours, and up to 30 hours per week, and on a few occasions up to 38 hours per week.
• In the 23 week period prior to 27 November 2017, AL worked at least 19.5 hours each week. AL most commonly worked between 19.5 and 25 hours per week, on several occasions worked greater than 25 hours, and up to 35 hours per week, and on a few occasions up to 46 hours per week.
• In the 23 week period prior to 27 November 2017, MC worked at least 9 hours each week. MC most commonly worked between 9 and 17 hours per week, on several occasions worked greater than 17 hours, and up to 25 hours per week, and on a few occasions up to 30 hours per week.
• In the 9 week period prior to 27 November 2017, KMc worked at least 12.5 hours each week. KMc most commonly worked between 10 and 15 hours per week, on several occasions worked greater than 15 hours, and up to 20 hours per week, and on a few occasions up to 28 hours per week.
• In the 23 week period prior to 27 November 2017, KMi worked at least 8 hours each week. KMi most commonly worked between 15 and 22 hours per week, on several occasions worked greater than 22 hours, and up to 30 hours per week, and on a few occasions up to 36 hours per week.
• In the 15 week period prior to 27 November 2017, NO worked at least 4 hours each week (other than two weeks where no hours were worked). NO most commonly worked between 5 and 12.5 hours per week, on several occasions worked greater than 12.5 hours, and up to 17.5 per week, and on a few occasions up to 32 hours per week.
• In the 13 week period prior to 27 November 2017, MP worked at least 10 hours each week. MP most commonly worked between 10 and 20 hours per week, on several occasions worked greater than 20 hours, and up to 30 hours per week, and on a few occasions up to 48 hours per week.
• SR worked for 10.75 hours in the week commencing 16 August 2017 and 17 hours in the following week, the records then noted that SR was paid a salary of $917.85 each week thereafter.
• In the 3 week period prior to 27 November 2017, TR worked 3 hours in the first week, 28.5 hours in the second week and 50.25 hours in the last week.
• In the 23 week period prior to 27 November 2017, SA worked at least 10 hours each week (with the exception of two weeks where no work was performed). SA most commonly worked between 10 and 15 hours per week, on several occasions worked greater than 15 hours, and up to 20 hours per week, and on a few occasions up to 32 hours per week.
[11] Ms Ilsley contended there were some persons missing from the list including Mr Wayne Stewart (who was alleged to have dismissed her) and his partner Mrs Rochelle Stewart. Mr Dorairaj contended that Mr and Mrs Stewart were contractors and agreed to supply documentary evidence to support this contention. After the hearing, Mr Dorairaj submitted a handwritten document from a tax invoice/statement booklet dated 27 November 2017 which appears to be an invoice from W&R Hospitality for 144 hours of ‘hospitality work’ performed in the week before 27 November 2017. An ACN number of 207 844 956 was quoted but could not be found in the ASIC register. Mr Dorairaj also advised that these services were first provided from 20 November 2017. No witness statement was received from the proprietors of W&R Hospitality.
Relevant Law
[12] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period:
“382 When a person is protected from unfair dismissal
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
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[13] Section 383 of the Act sets out the minimum employment period:
“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.”
[14] Section 384 of the Act sets out an employee’s 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; 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 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.”
[15] Section 23 of the Act sets out the definition for small business employer:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
[16] The key decision on the meaning of “regular and systematic” is Yaraka Holdings Pty Ltd v Giljevic3 with the following principles flowing from that decision (unless otherwise referenced):
• The term “regular” implies a repetitive pattern and does not mean frequent, often, uniform or constant.4 A “regular” basis may, however, be constituted by frequent though unpredictable engagements.
• The term “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”.5 A “systematic” basis need not involve either predictability of engagements or any assurance of work at all.
• Whilst a clear pattern or roster of hours is strong evidence of regular and systematic employment, it is the engagement that must be regular and systematic, not the hours worked pursuant to the engagement.
[17] I find that the issuance of the roster as described above by Premier Hotel was a system, method or plan.
[18] In Ponce v DJT Staff management Services Pty Ltd T/A Daly’s Traffic6 Commissioner Roe said the following:
“[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic…The previous authorities have also established that employment or engagement can be regular and systematic even…where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.” (citations omitted)
…
[75] … 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.
[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 of when work will continue to be offered and be accepted will continue. (emphasis added)
[78] If the hours worked over a lengthy period are similar to or exceed that of full-time ordinary hours then this would also be strong evidence that work is being performed when offered and that work is being offered when available at the time parties know this is practical. Hence this would also be evidence of regular and systematic employment.”
[19] In Kamanda v House With No Steps7 Commissioner Saunders observed that the employee was rostered 1-6 shifts per week, had in fact worked 2-7 shifts per week, and worked between 13-51 hours per week. Despite there not being any pattern of days or number of hours worked, Commissioner Saunders found that the work was regular and systematic as the employee was engaged on frequent but unpredictable shifts, and regularly called to fill in for other staff.
[20] Applying the law to the factual findings I made earlier concerning the hours worked by employees of Premier Hotel, I find that there were more than 15 persons employed by Premier Hotel as at 27 November 2017 including casual employees who were employed on a regular and systematic basis. In reaching this conclusion, I have excluded DE, MH and NOT on the basis that their employment was not regular and systematic.
[21] Premier Hotel has not convinced me that Mr and Mrs Stewart were not employees but the status of Mr and Mr Stewart is not determinative of this matter.
[22] In accordance with s.23 of the Act, I find that Premier Hotel was not a small business employer and applying s.383 of the Act the minimum employment period that Ms Ilsley must have been employed for is 6 months.
Did Ms Ilsley’s service meet the minimum employment period?
[23] It is not disputed that Ms Ilsley’s employment commenced on 4 January 2017 as detailed in the form F3 Employer Response submitted by Premier Hotel. I have found that Ms Ilsley was engaged on a regular and systematic basis and based on her 11 month record, and the level of employment offered by the Hotel post the dismissal, I find that Ms Ilsley would have had a reasonable expectation of ongoing employment. Accordingly I find Ms Ilsley’s casual service is to be counted towards the minimum employment period in accordance with s.384 of the Act and that the minimum employment period required by s.383 of the Act has been met.
Was Ms Ilsley dismissed?
[24] Ms Ilsley gave evidence that Mr Wayne Stewart, Operations Manager, rang her and advised she was not required for her next shift and would not be offered further work. Premier Hotel advised that Mr Stewart continued to work (or be engaged) at the Hotel but no witness statement was submitted nor was Mr Stewart called as a witness. Mr Dorairaj, on behalf of Premier Hotel, advised he was not party to the conversation held. Mr Dorairaj authorised the preparation of a Centrelink Separation Certificate 8 which detailed the last day of employment of Ms Ilsley as 27 November 2017 and that the employment ended as a result of unsatisfactory work performance. Mr Dorairaj maintained his position that Ms Ilsley had not been dismissed as she could have been offered further shifts.
[25] I prefer the evidence of Ms Ilsley over that of Mr Dorairaj and find that Ms Ilsley was dismissed on 27 November 2017 at the initiative of the employer.
Conclusion
[26] As a result of my findings, there is no jurisdictional barrier for Ms Ilsley’s application to be heard. An Order 9 to this effect will be issued and the matter will be allocated to a member of the Commission and listed for hearing of the merits.
COMMISSIONER
Appearances:
Ms S.Ilsley the Applicant.
Mr K. Dorairaj on behalf of the Respondent.
Hearing details:
2018.
Adelaide:
5 and 9 March.
<PR601704>
1 Exhibit R1
2 Exhibit R1A
3 (2006) 149 IR 399
4 Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 399 [68] cited in Grives v Aura Sports Pty Ltd [2012] FWA 5552
5 Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 399 [91]
6 [2010] FWA 2078
7 [2016] FWC 767
8 Exhibit R3
9 PR601705
Printed by authority of the Commonwealth Government Printer
3
0