Sotiria Kontouli v Counting Clouds Pty Ltd
[2023] FWC 643
•22 MARCH 2023
| [2023] FWC 643 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sotiria Kontouli
v
Counting Clouds Pty Ltd
(U2022/12033)
| COMMISSIONER BISSETT | MELBOURNE, 22 MARCH 2023 |
Application for an unfair dismissal remedy – minimum employment period – applicant found to be employed on a regular and systematic basis – applicant found to have reasonable expectation of ongoing employment – period of service – authorised unpaid absence not counted as period of service – minimum employment period not completed
Ms Sotiria Kontouli (the Applicant) has made an application in which she seeks a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant was employed by Counting Clouds Pty Ltd (the Respondent) on a casual basis as a bookkeeper.
The Respondent objects to the application on two grounds. Firstly, it says that the Applicant was not engaged on a regular and systematic basis. Second, it says that the Applicant has not been employed for the minimum employment period necessary to make the application as the Respondent is a small business.
Section 396 of the FW Act sets out those matter that must be determined prior to the consideration of the merits of an application. Section 396 states:
396 Initial matters to be considered before merits
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy
Whether a person is protected from unfair dismissal (s.396(b)) is set out in s.382 of the FW Act and, relevant to this matter, s383 and s.384 of the FW Act. These state that:
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.”
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.
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) …
The Applicant represented herself in the hearing of the matter and gave evidence on her own behalf. The Respondent was represented by Ms Line Paras who also gave evidence for the Respondent. After hearing from the parties I determined that the matter should be dealt with by determinative conference.
Prior to the hearing of the objections to the unfair dismissal application an electronic court book was prepared by my chambers. This was provided to the parties and accepted by each as a full record of the original application and objections of the parties and submissions and evidence filed in accordance with the directions of the Commission.
The matter proceeded by determinative conference.
The working arrangements
Prior to considering if the Applicant is eligible to make an application for unfair dismissal it is necessary to set out the working arrangements and pattern of work of the Applicant, most of which is not in contention.
On 26 May 2022 the Applicant received an offer of employment from the Respondent.[1] The letter of appointment provided that:
· The Applicant was employed as a Bookkeeper
· The Applicant would commence employment on 6 June 2022
· The Applicant would be employed on a casual basis
· The Applicant’s “nominal hours” were “approximately” 3 days per week
The letter of offer was signed by Ms Paras for the Respondent and the Applicant on 27 May 2022.
At the time the Applicant was offered employment the Respondent knew and agreed that she was travelling to Greece in June and Qatar later in the year.[2] The Applicant says that it was agreed she would still complete her tasks online while she was away.[3]
The Applicant was given responsibility for Key Client 1[4] on her commencement and then, later, for Key Client 2 in addition to Key Client 1.
From 28 June 2022 – 8 August 2022 the Applicant was in Greece. The Applicant undertook work for the Respondent while in Greece under an agreed arrangement. Although they were in different time zones Ms Paras said the parties managed to make things work and that “it worked really well”.[5]
The Applicant had an approved absence from 20 November 2022 – 6 December 2022 to travel to Qatar to undertake work (not for the Respondent) associated with the FIFA World Cup. Up until that time the Applicant says her hours did not fluctuate and, until 27 November 2022, she continued to perform tasks in relation her Key Clients 1 and 2 at times that aligned with the needs of the clients in Australia (although the timesheet report of the Respondent and hours worked document of the Applicant do not disclose any time worked in the week ending 27 November 2022 – see paragraph 19 below). The Respondent does not dispute that the Applicant’s time in Qatar (at least for the period 20 November 2022 – 6 December 2022) was an approved absence.[6] The Respondent says, however, that the Applicant travelled to Qatar in September 2022. She was expected to return shortly thereafter prior to returning for the World Cup itself. However, the Applicant did not return but continued to perform work for the Respondent while in Qatar and prior to the commencement of the approved absence.
The Applicant says that on 6 December 2022 she was in contact with the Respondent’s Operations Manager who asked when she would be back online. The Applicant replied that she would be online on Thursday 7 and Friday 8 December 2022 (sic).[7] The Applicant says that she did go online and attempted to catch up with “two weeks of emails incoming, inboxes and emails sent…”[8]
The Applicant agrees that the Operations Manager asked her to put a message into Slack to indicate that she was online even if this was outside working hours in Australia. The Applicant agrees that she did not do this.[9]
The Applicant says that she flew out of Qatar on 10 December 2022, arriving in Australia on 11 December 2022.
Ms Paras says that she had expected the Applicant to return to work on 6 December 2022. When the Applicant did not return that day she was asked if she required a further day. The Applicant said she did require a further day and confirmed she would be available on 7 and 8 December 2022.[10]
Ms Paras says that the Applicant did not log in to its systems again until Monday 12 December 2022.[11] When the Applicant did log in Ms Paras called her and terminated her employment.
Ms Paras provided the Commission with the timesheet report for the Applicant.[12] That record indicates the hours per day paid to the applicant. The information below is extracted from that table as follows:
Week ending Number of days worked Total hours worked 12 Jun 2022 4 14.00 19 Jun 2022 3 22.80 26 Jun 2022 3 20.20 03 Jul 2022 3 17.60 10 Jul 2022 3 15.00 17 Jul 2022 3 22.80 24 Jul 2022 3 16.70 31 Jul 2022 3 18.00 07 Aug 2022 5 18.00 14 Aug 2022 4 23.20 21 Aug 2022 5 28.15 28 Aug 2022 5 28.25 04 Sep 2022 5 22.00 11 Sep 2022 5 18.00 18 Sep 2022 5 17.00 25 Sep 2022 5 12.25 02 Oct 2022 5 18.25 09 Oct 2022 5 23.00 16 Oct 2022 5 18.00 23 Oct 2022 4 12.00 30 Oct 2022 5 11.00 06 Nov 2022 3 5.00 13 Nov 2022 3 6.00 20 Nov 2022 2 6.00
Was the Applicant employed on a regular and systematic basis?
The Respondent submits that the Applicant was not a regular and systematic casual employee because:
· Her hours fluctuated between 5 and 28 hours per week
· Her approach to work was to be available when it suited her which reflects the fluctuation in her weekly hours[13]
· It was a struggle to communicate with her on a regular basis[14]
· The Respondent had other casual employees who logged on at the same time each day and always communicated when they started work for the day[15]
· It was agreed the Applicant’s employment could come to an immediate end by making a payment in lieu of notice[16]
The Applicant submits that she was a regular and systematic casual employee because:
· She was initially assigned Key Client 1 – a large employer operating across multiple countries with a substantial turnover. The management of this account required a minimum of 3 days per week on a regular and on-going basis which she initially did on Monday, Tuesday and Thursday with scheduled payments on Tuesday and Thursday[17]
· On 19 August 2022 she was also assigned Key Client 2 with the role involving account management, customer relations, budgeting and forecasting[18]
· For the period 20 November 2022 – 6 December 2022 she was on authorised leave
A regular casual employee[19] is a casual employee employed on a regular and systematic basis.
“Regular and systematic” is not defined in the FW Act Act. In Yaraka Holdings Pty Ltd v Giljevic[20] (Yaraka Holdings) the ACT Court of Appeal was considering an appeal in relation to whether the respondent was a “worker” employed pursuant to the Workers Compensation Act 1951 (ACT). An issue in that appeal was if the Respondent was engaged on a “regular and systematic” basis. Crispin P and Gray J observed:
64. It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulation under the Workplace Relations Act 1996…
65. It should be noted that it is the “engagement” which must be regular and systematic; not the hours of work pursuant to such engagement…
…
67. Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily, weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.”
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”…
69. Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged in.
In the same case Madgwick J added to this and concluded:
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…
Applying the principles in Yaraka Holdings to the facts before me, I am satisfied that the Applicant was employed on a regular and systematic basis. The evidence of the Applicant – not disputed by the Respondent – was that she had regular tasks to complete for Key Client 1 and Key Client 2. Further, her letter of employment indicated that she would work 3 days per week. These terms, on their face, imply a regular and systematic engagement.
It is apparent from the detailed timesheet record provided by the Respondent, in conjunction with the two clients the Applicant worked for that the Applicant did work on a regular and systematic basis. That she may have completed the work more quickly than anticipated by the Respondent or that the work was spread over 3 or 5 days does not change the character of the engagement of the Applicant by the Respondent.
I am therefore satisfied that the Applicant was employed on a regular and systematic basis.
Did the Applicant have a reasonable expectation of ongoing employment?
The Respondent submits that the Applicant could not have had a reasonable expectation of ongoing employment as she could accept work ‘as desired and as suited her personal circumstances.”[21]
The Applicant submits that she did have a reasonable expectation of ongoing employment. This was caused by the letter of appointment which indicated that she would work 3 days per week with additional hours as needed, that it was agreed she could work flexibly to meet the needs of the clients and her family responsibilities, that she had a meeting with the Respondent on 2 November 2022 to discuss her taking on more clients and that she had been asked if she was interested in working full time for the Respondent.
The expectation of the Applicant is a subjective matter to be determined by reference to the belief of the Applicant. The necessary question for the Commission is whether that expectation of the Applicant was, in the circumstances, a reasonable expectation.
In Bronze Hospitality Pty Ltd v Hansson[22] Jackson J said:
[43] What the employer tells the employee must be relevant. Counsel for Bronze accepted this. If the employee in fact has the necessary expectation, and if the employer said at the beginning of the employment was sufficient to make the expectation reasonable, and nothing in the circumstances indicated that what the employer said was unreliable, implausible or was otherwise to be disbelieved, then the criterion may be satisfied from that time. If nothing happens subsequently to show that the expectation will not be fulfilled, then it may subsist, as a reasonable expectation, throughout the entire period of service as a casual employee. There is nothing in the legislation which indicates that the employee's expectation cannot be reasonable until a pattern of and systematic employment, such as regular shifts, has in fact emerged. (Emphasis added)
In Callender v MCI Southport Properties Pty Ltd T/A Southport Day Hospital/Cosmetic Evolution[23] Deputy President Lake, said:
[20] Once continuous service is established, it is only broken in circumstances where the employer or employee makes it clear to the other party that there will be no further engagements. There was never any express communication by either party that the Applicant would no longer work for the Respondent. Although there were some months where the Applicant did not work, I am not satisfied that served to change the regular and systematic nature of her employment. The Applicant clearly considered that her relationship with the Respondent as ongoing… (Footnotes omitted)
I am satisfied that it was the Applicant’s subjective expectation that she would have ongoing employment.
I am also satisfied that, in the circumstances, the Applicant’s expectation was reasonable. The Respondent is an established business providing accounting services to an established client base. The Applicant was given responsibility for Key Client 1 and this was clearly intended to occupy a substantial part of her time. She was then also given responsibility for Key Client 2. Further, the Respondent took steps to accommodate the Applicant’s needs in terms of her trip to Greece and provided her with approved time away from work to accommodate her pre-arranged work at the World Cup. In these circumstances the Applicant’s expectation was reasonable.
I would observe that the Applicant being able to take on other work does not impact on any reasonable expectation that she may have had of ongoing employment. The Applicant was not employed to the exclusion of all other work. She was engaged to work 3 days per week. There is no reason she could not take on other work if she chose to do so. The Respondent could reasonably only be concerned that the Applicant completed the work it required of her.
For these reasons I am satisfied the Applicant was employed on a regular and systematic basis and that she had a reasonable expectation of continuing employment on a regular and systematic basis.
What was the period of employment of the Applicant?
To be eligible to make an application for unfair dismissal the Applicant must have been employed for the minimum employment period. The Applicant’s period of employment as at 12 December 2022 is her period of continuous service completed with the Respondent (s.384(1) of the FW Act).
The Respondent submits that, because the Applicant was not employed on a regular and systematic basis she does not count in determining the number of employees the Respondent had at the time she was dismissed.[24] Ms Paras gave evidence that, at the time of the Applicant’s dismissal, the Applicant was the 15th employee of the Respondent.[25] Having found the Applicant was employed on a regular and systematic basis she is counted in the Respondent’s number of employees. The Respondent, having had 15 employees at the time of the dismissal of the Applicant was, therefore, not a small business at that time.
The minimum employment period that the Applicant must therefore meet to be eligible to make an application of unfair dismissal is therefore 6 months (s.383(a)) of the FW Act).
The Applicant commenced work for the Respondent on 6 June 2022. Her employment was terminated on 12 December 2022. The Applicant gave evidence that she was on an approved absence from 20 November 2022 – 6 December 2022. The timesheet records do not disclose any work performed for the Respondent by the Applicant during this period and there is no claim that she was paid for performing work during this period.
The Applicant did not attend work on 7, 8 and 9 December 2022 or claim for any time worked across these days when it was expected that she would attend work and she had indicated she would attend for work. She next attended for work on 12 December.
The Respondent submits that, should I find the Applicant was a regular and systematic casual employee her period of continuous service was from 6 June 2022 to 20 November 2022 only.
The evidence of Ms Paras was that she knew, at the time she engaged the Applicant, that she was going to Qatar in November 2020[26] but that was a period of approved absence by the Respondent.[27]
Section 384 of the FW Act (set out in full above) states that a period of employment at a particular time is the period of continuous service with the employer.
“Service” is defined in s.22 of the FW Act.
Section 22(1) and (2) of the FW Act excludes from service any period of unauthorised absence or unpaid authorised absence. While such absences do not count towards “service” they do not break continuity of service but do not count towards the period of continuous service. It is therefore necessary to determine nay periods of unauthorised absence or unpaid authorised absence of the Applicant.
I am satisfied that the Applicant was on authorised leave from 20 November 2022 – 6 December 2022. However, this period, while authorised, was unpaid. By virtue of s.22(2)(b) this period does not count towards the Applicant’s period of continuous service.
I am satisfied that the Applicant undertook work for the Respondent from 6 June – 19 November 2022 (a period of 5 months and 13 days). This period counts towards the Applicant’s period of continuous service.
I am satisfied that the Applicant was on a period of authorised unpaid leave from 20 November 2022 – 5 December 2022 and then on 6 December 2022. This period does not count towards the Applicant’s period of continuous service.
The Applicant was due at work and expected to attend work for the period 7-9 December 2022. She was asked to sign into Slack even if it was not during normal business hours in Australia but failed to do so. On the Applicant’s own records, she did not complete any work on these days. I am therefore satisfied that for the period from 7 – 9 December 2022 the Applicant was on unauthorised unpaid leave. This period therefore does not count towards the Applicant’s period of continuous service.
The Applicant worked on 12 December 2022. This day counts towards her period of continuous service.
For these reasons the Applicants period of continuous service with the Respondent is 5 months and 14 days. She has therefore not completed the minimum employment period.
Even if I am wrong in relation to the days of 7 – 9 December 2022 and this does count to the Applicant’s period of continuous service this does not assist the Applicant as her period of continuous service would be 5 months and 19 days, still short of the minimum employment period necessary.
The Applicant has therefore not completed 6 months continuous service as at 12 December 2022 under either scenario.
Conclusion
For the reasons given above I have determined that the Applicant did not complete 6 months employment with the Respondent at the time she was dismissed as required by section 383 of the FW Act. The Applicant is not protected from unfair dismissal and I therefore order her application for a remedy for unfair dismissal is dismissed.
COMMISSIONER
Appearances:
S. Kontouli on her own behalf
L. Paras for the respondent
Hearing details:
Melbourne, by video
3 March 2023
[1] Court Book (CB) Page 36
[2] Transcript PN63
[3] Transcript PN101
[4] Identity of the clients has been anonymised
[5] Transcript PN77
[6] Transcript PN94
[7] Transcript PN105. 7 and 8 December 2022 were a Wednesday and Thursday
[8] Transcript PM105
[9] Transcript PN109
[10] Transcript PN84
[11] Witness statement of Line Paras paragraph 1`4, CB page 185
[12] CB pages 207-208
[13] Witness statement of Line Paragraph, paragraph 16, CB page 186
[14] ibid
[15] Transcript PN55
[16] Witness statement of Line Paras, paragraph 17, CB page 186
[17] Witness statement of Sotiria Kontouli, paragraph 2(v), (vii) & (viii), CB page 31
[18] Ibid, paragraph 2(x), cb page 31
[19] As the term is used in s.384(2)(a) of the FW Act
[20] [2006] ACTCA 6
[21] Submissions of Respondent, paragraph 13, CB page 181
[22] [2019] FCA 1680
[23] [2022] FWC 164
[24] Fair Work Act 2009 s.23(2)(b). Transcript PN16
[25] Fair Work Act 2009 s.23(2)(a)
[26] Transcript PN63
[27] Transcript PN94-95
Printed by authority of the Commonwealth Government Printer
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