Sonia Amuli v Claro Disability Services Pty Ltd
[2024] FWC 1328
•21 MAY 2024
| [2024] FWC 1328 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Sonia Amuli
v
Claro Disability Services Pty Ltd
(U2023/11985)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 21 MAY 2024 |
Application for an unfair dismissal remedy – jurisdiction – minimum employment period – aged care support worker – employed six months and three weeks – whether “regular casual” – not rostered in first six weeks of employment – training day – employed for more than six months but not as a regular casual – minimum employment period not met – jurisdictional objection upheld – application dismissed
On 3 December 2023 Sonia Amuli (Ms Amuli or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by Rehabilitation Care Solutions Pty Ltd trading as Claro Care & Disability Services (Claro, the employer or the respondent).
She claims to have been unfairly dismissed on 15 November 2023.
Claro oppose the application and raise a jurisdictional issue.[1] It submits that Ms Amuli was not a person protected from unfair dismissal under the FW Act because she had not completed the minimum employment period (of six months) required by ss 382(a) and 383. It says that Ms Amuli was not a regular casual (as defined) and did not have a reasonable expectation of ongoing employment on a regular and systematic basis.
In response, Ms Amuli submits that she was a regular casual and that she had a reasonable expectation of ongoing employment on that basis.
I issued directions on 28 March. I heard the jurisdictional issue by in-person determinative conference on 13 May 2024. Both parties were self-represented, Ms Amuli with the assistance of her husband, and Claro by its Head of Legal Ms Aliotta.
This decision deals only with the minimum employment period issue.
Evidence
I received evidence from:
· Sonia Amuli (applicant); and
· Tammy Mutch (Senior People and Culture Adviser, Claro).
Most, but not all, facts are not in dispute. In dispute is a significant factual matter, whether Ms Amuli worked according to a pre-determined roster or whether she worked only as and when required or available. I make findings on this question in the body of this decision.
Facts
I make the following findings.
Claro is a national business providing community care services. Amongst others, it employs support workers to care for clients in residential homes and community facilities. One such facility is Gawler House at Gawler East in Adelaide’s north.
Ms Amuli was a casual employee. She was employed under a contract dated 20 April 2023.[2] Her employment was award governed.[3] In respect of hours of work, the contract stated:[4]
“As a casual employee, you are called for duty only when required and each time is a separate engagement. As a casual employee you may be offered engagements from time to time on an hourly basis. The terms and conditions set out in this agreement apply to any such engagement unless varied or replaced in writing. There are no guaranteed hours of work and you agree that you have no expectation of ongoing employment. Nothing in this Agreement gives rise to any express or implied right to ongoing employment.”
In addition to stating that the “effective date” of the contract was 20 April 2023, the contract stated an “Effective Service Date” to be “20 April 2023”.[5]
Ms Amuli was aware that she would be required to undertake on-line training before commencing care for clients.
Ms Amuli was not rostered for the six weeks that followed 20 April 2023. Claro was awaiting the transfer of a Client (A) from a hospital to Gawler House before allocating Ms Amuli rostered shifts to care for that client.
The transfer did not occur until on or about 31 May 2023.
Ms Amuli’s first rostered shift was on 31 May 2023 when she undertook in-house training upon the transfer of Client A.
However, by email on 8 May 2023 Claro sent Ms Amuli a link to an on-line training module comprising seven topics for her to complete before commencing work.[6] Each topic was expected to take between 40-60 minutes to complete. According to her evidence, which I accept, Ms Amuli completed that module during a single day between 13 May and 31 May 2023. She did not otherwise work in that period. Ms Amuli was paid by Claro for one day for the day she completed the on-line module.
Aside from payment for completing the on-line module, Ms Amuli was not rostered, did not work and was not paid between 20 April and 31 May 2023.
After 31 May 2023 Ms Amuli worked regularly at the Gawler East site. When rostered, she cared primarily for Client A but not exclusively so. From time to time she assisted with the care of other clients.
Working hours were allocated by Claro’s rostering managers and communicated via an on-line workforce management system, Care Link. Generally, rostering was advised fortnightly, consistent with a fortnightly pay period. Rostering changes or additional hours on offer were also communicated via Care Link.
From the time Ms Amuli started working rostered hours at Gawler House (31 May 2023), and from time to time thereafter, casual support workers such as Ms Amuli were asked to indicate days of the week when they would be regularly available to be rostered, or periods of unavailability. Ms Amuli did so.
Based on Ms Amuli’s indication of availability, a hard copy roster was prepared by Claro. This was sent to Ms Amuli and posted in client rooms at Gawler House so clients knew who was rostered to provide care on particular days and times. That roster is in evidence.[7] It shows that Ms Amuli was rostered four days a week (Monday, Wednesday, Friday and Saturday). This roster was updated and re-sent by Claro on 11 August 2023 with no material change to the roster allocated to Ms Amuli.[8]
As a support worker, Ms Amuli generally provided support to Client A with whom she developed a relationship as she became familiar with that client’s care needs. However, Ms Amuli was not exclusively employed to work with a singular client and from time to time cared for other clients at the Gawler East site.
Ms Amuli’s evidence, which I accept, was that whilst the hard copy roster existed, in practice she took her rostering hours from the Care Link app because it was via the app that roster details were more up to date as shifts could be swapped or additional shifts accepted.
The evidence is that between 31 May 2023 and 15 November 2023 Ms Amuli worked the following average number of hours:
June 202335.83 per week
July 202328.25 per week
August 2023 33.62 per week
September 2023 27.3 per week
October 2023 24 per week
November 2023 16.5 per week
Ms Amuli’s uncontroverted evidence was that the hours she worked in the first two weeks of November 2023 (before being dismissed) were lower than her previous weekly average because Client A passed away on 11 November 2023 and, at the encouragement of a supervisor, she took at least two days off work to manage emotional distress.
Ms Amuli was dismissed on 15 November 2023 when called to a meeting. She was given a letter of dismissal entitled “Cessation to offer future shifts” which read, in part:[9]
“We regret to inform you that, due to recent operational requirements, we find ourselves compelled to make certain adjustments to our workforce. Unfortunately, this means that we will be unable to offer you any future shifts with the company. Regrettably, we must inform you that… we are left with no option but to terminate your employment contract with Claro. This decision is effective immediately…”
Ms Amuli was shocked and upset by the dismissal, having thought the meeting on 15 November 2023 was called to discuss the staff’s emotional distress following the death of Client A and rostering changes consequent on the client’s passing.
Ms Amuli filed this application eighteen days later, on 3 December 2023.
Submissions
Claro
Claro submit that whilst Ms Amuli was employed from 20 April 2023 and worked a considerable number of hours, she did not commence working rostered shifts until 31 May 2023 and thus did not serve at least six months as a regular casual.
In the alternative, Claro submit that Ms Amuli was not a regular casual once rostered as her employment contract stated this to be so, and because her days of work and hours of work varied according to both her needs and business requirements.
In the further alternative, Claro submit that Ms Amuli did not have a reasonable expectation of ongoing employment on a regular and systematic basis.
Ms Amuli
Ms Amuli submits that she was a “regular casual” (as defined) because she worked according to a rostering system, worked a large number of hours, frequently on at least four days of the week as well as occasional overtime hours, and was a support worker relied upon.
Ms Amuli submits that whilst her contract states what it does, given the regularity and pattern of her work as a regular casual she had, at the time of dismissal, a reasonable expectation of continuing employment on that basis even taking into account that hours of work on offer at Gawler House may have needed to be temporarily reduced on account of Client A’s passing.
Ms Amuli submits that the period of time between 20 April and 31 May 2023 should be included in the six month count for the purposes of the minimum employment period because she was employed from 20 April 2023, her contract stated so, and she undertook one day of on-line training in May 2023 for which she was paid.
Consideration
Section 382 of the FW 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.
Section 383 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.”
Section 384 provides:
“384 Period of employment
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.
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 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.”
A “casual employee” is defined in s 15A as:
“15A Meaning of casual employee
A person is a casual employee of an employer if:
(a)an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
(b)the person accepts the offer on that basis; and
(c)the person is an employee as a result of that acceptance.
For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:
(a)whether the employer can elect to offer work and whether the person can elect to accept or reject work;
(b)whether the person will work as required according to the needs of the employer;
(c)whether the employment is described as casual employment;
(d)whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
Note: Under Division 4A of Part 2‑2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full‑time employment or part‑time employment.
To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.
A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:
(a)the employee’s employment is converted to full‑time or part‑time employment under Division 4A of Part 2‑2; or
(b)the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.”
A “regular casual employee” is defined in s 12 as:
“a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:
(a) the employee is a casual employee; and
(b) the employee has been employed by the employer on a regular and systematic basis.”
It is not disputed that Claro is a national system employer and Ms Amuli a national system employee.
There is no dispute that Ms Amuli was a casual employee within the meaning of s 15A. I so find. Paragraph (a) of the definition of “regular casual” is met.
Regular casual
Was Ms Amuli “employed by the employer on a regular and systematic basis” (paragraph (b))?
For a casual to have worked “regularly and systematically” within the meaning of s 384(2) of the FW Act it is sufficient for their employment to have been “regular” in the sense of being frequent notwithstanding it being unpredictable, and “systematic” in the sense of it being part of a pattern of engagement occurring as a consequence of businesses reliance on the employee’s services notwithstanding that the precise pattern of working may not be foreseeable to the employee.[10] In short, a casual is employed on a regular and systematic basis if they work according to an established pattern or system of rostering or reliance on their services.
I am comfortably satisfied that Ms Amuli was, from 31 May 2023, employed by Claro on a regular and systematic basis.
She was rostered to work according to a rostering system and with considerable frequency. Whilst it is not necessary for a casual to work a large number of hours to be a regular casual, Ms Amuli did so. The volume of hours and the reliance the employer placed on Ms Amuli by rostering her and permitting her to work that regularity makes this conclusion irresistible.
Nor does it matter that the hours worked by Ms Amuli varied from week to week or occurred on different days of the week or that variations occurred on account of employer requirements or employee availability. What matters is whether employment occurred on a regular and systematic basis. It did and plainly so.
I reject the employer submission that this finding is not open because the employment contract stated that “there are no guaranteed hours of work”. For a casual employee to be employed on a regular and systematic basis, the FW Act does not require a contractual guarantee of hours of work or a set number of hours of work. What matters is whether work in the relevant six month period was performed on a regular and systematic basis. I have found this to have been so from 31 May 2023.
I find that Ms Amuli was, from 31 May 2023 until dismissed, a “regular casual” within the meaning of the FW Act.
Reasonable expectation
To satisfy the minimum employment period as a regular casual s 384(2) requires it to also be established that during her period of service as a casual employee Ms Amuli “had a reasonable expectation of continuing employment by the employer on a regular and systematic basis”.
This requirement is to be assessed objectively by considering all relevant circumstances.[11] The fact that an employee may have held a subjective belief to this effect; or the employer otherwise, is not sufficient to meet this test.
I reject the employer’s submission that a finding to this effect is not open because the employment contract between Claro and Ms Amuli stated that “you agree that you have no expectation of ongoing employment”. Whilst the terms of the contract are relevant, the test is whether, during the period of employment (including at the date of dismissal) Ms Amuli had a reasonable expectation of continuing employment on a regular and systematic basis.[12] The use of the word “during” in s 384 tells compellingly against a construction that the test is assessed solely by reference to the time the contract was entered into or by sole reference to the terms of the contract.
On the evidence, I comfortably make this finding. I do so having regard to the fact that Ms Amuli was a regular casual, had worked for Claro for nearly five months as such, had worked a significant number of weekly hours and across four days of the week, and had not otherwise been advised by managers or rostering staff of changed arrangements. Whilst I take the terms of the contract into account and they weigh against these factors, the fact that work was performed for nearly five months on the aforementioned basis is, in this matter, a significantly weightier consideration.
I also take into account that rostering at Gawler House was dependent on the number of clients in residence. In this respect Ms Amuli, in her evidence, accepted that some reduction in hours immediately available, at least temporarily, was expected on account of Client A’s passing away on 11 November 2023. However, Ms Amuli’s evidence was that she also provided care to other clients in the multiple buildings at the Gawler East site. This consideration is neutral.
I find that Ms Amuli had, after 31 May 2023, a reasonable expectation of continuing employment on a regular and systematic basis.
Period 20 April to 31 May
That Ms Amuli was a regular casual with a reasonable expectation of continuing employment after 31 May 2023 until being dismissed on 15 November 2023 does not mean she meets the minimum employment period. The minimum employment period is six months. This period is five months and two weeks.
For Ms Amuli to satisfy the minimum employment period it is necessary that she meets the statutory requirement of a six month period.
To do so, the period 15 May to 30 May 2023 (inclusive) needs to be assessed.
This is because this matter raises the issue whether, in the case of a casual employee, the minimum employment period required by s 386 of the FW Act requires the casual to have been a “regular casual” (as defined) for the whole of the minimum employment period or, alternatively, for only a part of the period or only at the time of dismissal.
It is not in dispute that in this period Ms Amuli was employed by Claro in the sense that she had an employment relationship with the employer as a casual employee. She had been so employed from 20 April 2023. Her employment contract stated as much.
However, the fact of an employment relationship is not, of itself, sufficient to meet the statutory requirement. The requirement in s 384(2)(a)(i) is that Ms Amuli’s “employment as a casual employee was as a regular casual employee”.
I agree that the “period” for the purposes of ss 383 and 384 is the “minimum employment period” to be protected from unfair dismissal (six months or twelve months, as the case may be) and not the entire period of a person’s employment as a casual employee.
However, it is not open to construe ss 383 and 384 as only requiring the casual employee to be a regular casual employee for a part of the minimum employment period or only at the time of dismissal. Section 384(2)(a) is expressed in mandatory terms:
“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”.
The use of the phrase “does not count” and the word “unless”, when given their ordinary meaning, strongly tell against a more liberal construction. So too does the phrase “the employment as a casual employee”.
Similarly, s 384(2)(a)(ii) provides that the casual employee must have had a reasonable expectation of continuing employment by the employer on a regular and systematic basis “during the period of service as a casual employee”. No allowance exists in this language to sever portions of the minimum employment period or to limit the reasonable expectation only to the time of dismissal.
The construction I adopt is consistent with the statutory scheme. Whilst Part 3-2 is remedial legislation, clearly the legislature has decided that not all employees are protected from unfair dismissal. Minimum employment periods are set and made mandatory. In the case of casual employees, only casuals of a particular character have access to the statutory cause of action. Sections 383 and 384 specify the eligibility criteria a casual employee must satisfy in order to be so protected. For example, irregular casuals are not protected from unfair dismissal despite having an employment relationship with an employer.
I do not find that in the period 15 May 2023 to 30 May 2023 Ms Amuli was a regular casual. In this period Ms Amuli performed no rostered work and had not, prior to this period, performed any rostered work for Claro which might, in other circumstances, have differently characterised this non-rostered period.
I take into account that an employee undertaking training at the request or requirement of an employer prior to commencing rostered work (as Ms Amuli did) may, depending on the circumstances, be regarded as employed in the “service” of the employer whilst doing the training.[13] If it is “service”, a period of training can conceptually count for the purpose of the minimum employment period if other statutory requirements are met.
In this matter, Ms Amuli undertook one day of on-line training in readiness for future rostered work and for which she was paid. Even if this one day is regarded as “service” within the meaning of s 22 of the FW Act, it was a singular day of training, and not part of regular and systematic employment as a casual. As such, it cannot be included in the minimum employment period count and, even if it did, it does not bridge the gap to six months of service.
I find that regular and systematic employment by Ms Amuli did not commence until 31 May 2023 despite there being an employment relationship between Claro and Ms Amuli from 20 April 2023.
Accordingly, Ms Amuli was only a regular casual for five months and three weeks prior to being dismissed.
Conclusion
I have found that Ms Amuli:
was a casual employee for at least six months at the time of dismissal;
was a “regular casual employee” (as defined) for less than six months (five months and three weeks); and
had a reasonable expectation of continuing employment on a regular and systematic basis for less than six months (five months and three weeks).
This being so, Ms Amuli did not serve the minimum employment period required by s 382 of the FW Act (six months). She was not protected from unfair dismissal. She was not eligible to make an unfair dismissal claim.
In light of this, the jurisdictional objection by Claro is upheld. The application is dismissed.
An order giving effect to this decision is issued in conjunction with its publication.[14]
DEPUTY PRESIDENT
Appearances:
S. Amuli, with C. Acebol, on her own behalf.
D. Aliotta, with T. Mutch assisting, on behalf of Rehabilitation Care Solutions Pty Ltd
Hearing details:
2024.
Adelaide:
13 April
[1] Employer Response (F3) 18 December 2023
[2] R2 Annexure A
[3] Social, Community, Home Care and Disability Services Industry Award 2010
[4] R2 Annexure A Appendix A
[5] Ibid
[6] A8
[7] A1 Attachment 1
[8] A7
[9] R2 Annexure B
[10] Bell v Aboriginal Legal Service (NSW/ACT) Limited[2018] FWCFB 6102, [10] – [11]; Yaraka Holdings Pty Ltd v Glijevic (2006) 149 IR 399, [65] – [68] per Crispin and Gray JJ and [89] per Madgwick J
[11] Liting Gu v Geraldton Fishermen’s Co-operative Pty Ltd[2022] FWC 1342, [42]
[12] Ibid
[13] Spadaveccia v The Trustee for Modern Concrete Co Trust[2023] FWC 2747, [65]
[14] PR775196
Printed by authority of the Commonwealth Government Printer
<PR775195>
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