Sofia Tsakiridou v The Community of Cypriots of the Northern Suburbs of Melbourne Inc T/A Grace of Mary - [2017] FWC 2562

[2017] FWC 2562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sofia Tsakiridou

The Community of Cypriots of The Northern Suburbs of Melbourne Inc T/A Grace of Mary

(U2017/1448)

Commissioner Harper-Greenwell

MELBOURNE, 10 MAY 2017

Application for an unfair dismissal remedy – minimum employment period – regular and systematic casual.

On 10 February 2017, Mrs Sofia Tsakiridou (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of her dismissal by The Community of Cypriots of The Northern Suburbs of Melbourne Inc T/A Grace of Mary (Grace of Mary) (the Respondent).

Mrs Tsakiridou commenced employment with Grace of Mary on 29 February 2016 as a casual personal care assistant.

Mrs Tsakiridou was dismissed from her employment at the initiative of her employer on 20 January 2017.

Procedural Background

This matter was listed for conciliation on 20 March 2017. On 21 February 2017, the Respondent filed their Form F3 and raised the jurisdictional objection that Mrs Tsakiridou had not met the minimum employment period as her employment was as a casual and she was not employed to work on a regular and systematic basis.

The Respondent requested that their jurisdictional objection be dealt with in the first instance, consequently the conciliation was cancelled and the jurisdictional objection referred to me for determination.

A hearing was held before me in Melbourne on 24 March 2017. Mrs Tsakiridou attended and gave evidence on her own behalf.

To assist the Commission in dealing with the matter more efficiently, the Respondent was granted permission to be represented by Mr Rahilly, Lawyer.
Mrs Tsakiridou’s representative, Daniel Kozijevic of Unfair Dismissals Australia, was not in attendance at the commencement of the hearing. The hearing was adjourned whilst my Associate tried to contact Mr Kozijevic to ascertain if it was his intention to attend the hearing.

Mr Kozijevic did not respond and at the request of the applicant the hearing proceeded in his absence. Mrs Tsakiridou was represented by her husband, Mr Giannios.

Relevant Legislative Provisions

Section 382 of the Act sets out the circumstances that must exist for Mrs Tsakiridou to be protected from unfair dismissal:

“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.”

Section 384 of the Act provides as…

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.

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Details

AGLC: Sofia Tsakiridou v The Community of Cypriots of the Northern Suburbs of Melbourne Inc T/A Grace of Mary [2017] FWC 2562
Case: [2017] FWC 2562
Decision Date: 10 MAY 2017

CaseChat Overview and Summary

The case involved Sofia Tsakiridou, an employee, and The Community of Cypriots of the Northern Suburbs of Melbourne Inc trading as Grace of Mary, her employer. The matter was heard in the Fair Work Commission, where the applicant sought relief for an alleged unfair dismissal. The central issue in this dispute was whether the applicant had completed the minimum employment period required to bring an unfair dismissal claim, given that she had been engaged as a casual employee. This hinged on whether her employment was classified as regular and systematic casual employment.

The tribunal needed to determine if the applicant's employment was regular and systematic casual, which would mean that she had completed the necessary qualifying period for unfair dismissal claims. This classification would require a pattern of engagements that could reasonably be expected to continue indefinitely. The tribunal examined the nature of the applicant's engagements, the employer's expectations, and the applicant's own expectations regarding future work. It considered factors such as the frequency of work, the duration of engagements, and the stability of the employment arrangements.

The tribunal concluded that the applicant's engagements did not meet the criteria for regular and systematic casual employment. The pattern of engagements did not demonstrate a reasonable expectation of ongoing work, and there was no evidence that the applicant could reasonably expect further work. Consequently, the tribunal found that the applicant had not completed the required minimum employment period, and her claim for unfair dismissal was dismissed. The tribunal's decision was based on a detailed analysis of the evidence presented and the specific circumstances of the applicant's engagements with the employer.

Orders