Sofia Tsakiridou v The Community of Cypriots of the Northern Suburbs of Melbourne Inc T/A Grace of Mary
[2017] FWC 2562
•10 MAY 2017
| [2017] FWC 2562 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sofia Tsakiridou
v
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 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 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.”
There is no dispute between the parties that Mrs Tsakiridou was a casual employee. Therefore, in order to have met the minimum employment period required to be a person protected from unfair dismissal, she must have worked on a regular and systematic basis with a reasonable expectation of similar ongoing employment.
Regular and Systematic Casual
The determination as to whether an employee was employed on a regular and systematic basis is an objective one having regard to the evidence.[1]
In Commissioner Roe’s decision in Ponce v DJT Staff Management Services Pty Ltd[2] (Ponce), Roe C undertook an analysis of regular and systematic employment and concluded 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. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or 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.
[67] In my view, full-time and part-time work must be regarded as meeting the definition of regular and systematic. This is one reason why regular and systematic casual work meets the jurisdictional hurdle and why it is distinguished from irregular, occasional or non-systematic casual work for the purposes of a range of entitlements under the Act and Awards as discussed above. Legislators have deemed it fair to give regular and systematic casuals the same entitlements as other workers because they are engaged regularly and systematically, like full and part-time employees (in respect to matters such as parental leave and unfair dismissal jurisdiction).” (endnotes not reproduced)
Vice President Lawler in his decision of Burke v Marist Brothers St Joseph’s College,[3] whilst adopting the approach of Roe C in Ponce, provides the following note of caution:
“[18] … one must not treat the summary of Roe C as a substitute for the language of the statute: the ultimate question always remains whether the employment was “regular and systematic” within the meaning of section s.384(2)(a) and care must be taken not to invert the test to one which asks the question whether the employment was “occasional or irregular”.”
I have adopted the approach of Roe C in Ponce, in that to determine if a casual is a regular and systematic casual, there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established.
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.
However, I note that the Commission cannot strain or strive to find system, but rather, it must be apparent on the evidence that some system has been adopted in the allocation of work in the course of an Applicant’s employment.[4]
Grace of Mary provided to the Commission a table of the shifts worked by the Applicant over her 47 weeks of employment.[5]
Grace of Mary submitted that a review of this table demonstrated that the Applicant had no regular shifts, nor did she work on regular days each week. Further, they submitted that the total hours worked by the Applicant each week showed significant variations throughout her period of employment.[6]
Mrs Tsakiridou’s written submissions stated that she was regularly offered and accepted work, that there was a clear pattern of employment established and that, save for two weeks of her employment, she worked shifts in each of the 47 weeks that she worked for Grace of Mary.[7]
Whilst the table of shifts provided by the Respondent may have appeared to demonstrate some correlation between the hours worked each week, Mrs Tsakiridou gave evidence at the hearing that she rarely knew in advance when she would be working each week as she would be notified by phone whether the Respondent required her to work each day.
She advised that, whilst Grace of Mary would produce rosters, the shifts were not fixed and she would often be called by the Respondent, sometimes shortly before the commencement of a shift, advising whether she was required to attend that day or at a different time.
Mrs Tsakiridou also gave evidence that she would sometimes attend for one of her rostered shifts only to be told that she was not required, and further was not advised that she would have any guaranteed hours each week.
The evidence provided by Mrs Tsakiridou at the hearing leads me to conclude that the roster was more a statement of intention of what would occur unless circumstances changed, rather than a fixed commitment by the employer to provide work and the employee to be available and undertake that work.[8]
The evidence given by Mrs Tsakiridou indicated that, whilst she may have been offered work regularly, there was no real system to her employment and she did not expect to be offered work each week, much less on a regular and systematic basis.
Work was not allocated to Mrs Tsakiridou in such a way as to engender a reasonable expectation that she had continuing employment.[9] In the circumstances, I am unable to conclude that Mrs Tsakiridou had a reasonable expectation of ongoing employment.
Conclusion
The evidence in this matter leads to a finding that Mrs Tsakiridou was not employed on a regular and systematic basis.
As such, Mrs Tsakiridou has not completed the minimum employment period required under the Act and is therefore not a person protected from unfair dismissal. The Respondent’s jurisdictional objection is upheld and Mrs Tsakiridou’s application is therefore dismissed.
An order[10] dismissing Mrs Tsakiridou’s application will accompany this decision.
COMMISSIONER
Appearances:
T Giannios on behalf of the Applicant
M Rahilly on behalf of the Respondent
Hearing details:
2017
Melbourne
24 March
[1] Harry Grives v Aura Sports Pty Ltd[2012] FWA 5552
[2] [2010] FWA 2078.
[3] [2015] FWC 7324.
[4] [2015] FWC 7324 at [19]
[5] Exhibit R2
[6] Exhibit R1, [3]
[7] Exhibit A1, [8] – [10]
[8] Ms Zoey Organ v Bushmans Bakery Pty Ltd[2012] FWA 8079
[9] [2015] FWC 7324 at [23]
[10] PR592794
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