Stanley Trotter v QSR Pty Ltd
[2024] FWC 789
•27 MARCH 2024
| [2024] FWC 789 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stanley Trotter
v
QSR Pty Ltd
(U2023/12045)
| DEPUTY PRESIDENT EASTON | SYDNEY, 27 MARCH 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – is the applicant a person who has been dismissed – casual employment – employee performed higher duties for a period of time – no implied variation of contract – employer decided not to offer further work at higher duties – employment continued – no demotion – no termination of the employment relationship or contract of employment – application dismissed.
Mr Stanley Trotter commenced casual employment with QSR Pty Ltd on 15 March 2023. Mr Trotter is still a casual employee of QSR but claims to have been dismissed on 13 November 2023 when QSR told him that he would not be offered any more shifts in a higher graded position. On 4 December 2023 Mr Trotter made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth), alleging that he had been unfairly dismissed from his employment.
For the reasons that follow I have found that Mr Trotter was not dismissed on 13 November 2023 as alleged and therefore that his unfair dismissal claim cannot continue.
Background
The relevant facts are not controversial. Mr Trotter worked at QSR’s Taco Bell store in Bathurst. Mr Trotter signed a Letter of Engagement in January 2023 and started work in March 2023 as a “Team Member”.
The Letter of Engagement identifies the employment as casual. In the classification structure of the Taco Bell Team Members Enterprise Agreement 2020 (the Enterprise Agreement) Team Members are graded at Level 1.
The Letter of Engagement referred to Mr Trotter as a “Team Member” and did not specify any particular rate of pay other than to state that Mr Trotter “will be paid an hourly rate for all ordinary hours worked” and provided a cross reference to the hourly rates in the Enterprise Agreement.
From July 2023 Mr Trotter worked as a Shift Supervisor, which is a level 2 position under the Enterprise Agreement.
Between July and November 2023, the Bathurst store did not have a Restaurant Manager or Assistant Manager. In November 2023 QSR hired a new Manager and Assistant Manager. QSR’s evidence was that Shift Supervisor duties are allocated as a temporary relief measure when Assistant Managers or Managers are not available.
On or around 13 November 2023 QSR decided not to offer Mr Trotter any further work as a Shift Supervisor - partly because of concerns about Mr Trotter’s conduct and partly because QSR did not need to roster Shift Supervisors on the shifts that the new Manager and Assistant Manager worked.
The specific concerns about Mr Trotter’s conduct are not relevant to present considerations and do not need to be recorded in this decision. However, it is relevant to my decision to note that QSR readily accepted in the proceedings that it had decided not to offer Mr Trotter further work as a Shift Supervisor for reasons beyond the availability of the new managers.
Since November 2023 Mr Trotter has continued to work as a Team Member (Level 1).
The Submissions
QSR argued that Mr Trotter was not dismissed, and submitted the following:
(a) Mr Trotter was employed on a casual basis;
(b) there was no firm advance commitment to offer Mr Trotter particular hours of work, work as a team member or work as a Shift Supervisor;
(c) the change of work hours, including a change in the work offered, conforms with the terms of the contract;
(d) between July and November 2023 Mr Trotter was offered (and he worked) higher duties, which conformed with the higher duties provisions of the Enterprise Agreement;
(e) Mr Trotter was not ever promoted to the position of Shift Supervisor, but was only offered hours on the roster in that role;
(f) Mr Trotter was not demoted in November 2023 when QSR decided not to continue to offer him work as a Shift Supervisor;
(g) the central question to be determined is whether Mr Trotter was performing higher duties in accordance with the Enterprise Agreement higher duties arrangements, or whether he had been appointed to the new and more senior position of Shift Supervisor (and then, arguably, demoted from that position in November 2023);
(h) the secondary question to be determined is whether there was a binding obligation on the part of QSR to give Mr Trotter duties as a Shift Leader[MW1] and to pay his as such;
QSR argued that Mr Trotter’s contract of employment was not varied when he began performing shifts as a Shift Supervisor, primarily because such conduct is contemplated and permitted within the original contract; and
(j) while Mr Trotter may have expected to continue to be offered work as a Shift Leader, his expectations, whether reasonable or not, fall short of a binding contractual obligation.
Mr Trotter argued that he was dismissed when QSR stopped offering him work as a Shift Supervisor, submitting that:
(a) the Bathurst store remained open under the care of Shift Supervisors for 3 months, which proves that Shift Supervisors are not a temporary relief as claimed by QSR;
(b) engagement for 3 months indicates a level of competency that comes with the training involved to become a Shift Supervisor, and “completely disregards the term temporary”;
(c) the position of Shift Supervisor is a higher and distinct position from the Team Member position;
(d) higher duties provisions in industrial instruments are only intended to be a temporary fix for a short period of time, in contradistinction to a position such as Shift Supervisor that requires significant training to perform;
(e) in July 2023 he was appointed to the distinct position of Shift Supervisor and granted the title of Shift Supervisor / Shift Lead by QSR;
(f) QSR’s internal software system referred to Mr Trotter as a manager after July 2023;
(g) on 13 November 2023 he was demoted to Team Member, which was a dismissal;
(h) the removal of the title “Shift Supervisor” and consequential loss of management privileges is a demotion; and
Mr Trotter’s hourly rate fell from $26.190 + 25% casual loading to $24.740 + 25% casual loading, which is consistent with a demotion.
Consideration
The three events that are particularly relevant to the current matter are:
(a) the commencement of the employment;
(b) the commencement of working shifts as a Shift Supervisor; and
(c) QSR’s decision to no longer offer Mr Trotter work as a Shift Supervisor.
These three events must be considered by reference to the terms of the contract of employment between Mr Trotter and QSR and the competing arguments.
In short, QSR argued that the terms of the contract originally agreed between Mr Trotter and QSR in January 2023 did not change in July 2023 when Mr Trotter began working as a Shift Supervisor, nor did the terms of the contract change in November 2023 when Mr Trotter stopped working as a Shift Supervisor and returned to working as a Team Member.
In effect Mr Trotter argued that the original terms of the employment contract were varied by agreement in July 2023 when he began working as a Shift Supervisor, and the new contractual terms (including that Mr Trotter was employed as a Shift Supervisor) were unilaterally varied in November 2023 in such a way that the varied contract of employment was terminated and therefore Mr Trotter was dismissed.
The first significant event occurred in January 2023 when Mr Trotter signed a written contract of employment that recorded his employment to be on a casual basis and unambiguously stated that “there is no commitment to continuing and indefinite work or an agreed pattern of work.”
The contract of employment refers to the employment being “on the terms and conditions set out in the [Enterprise Agreement].” The Enterprise Agreement includes the following higher duties provision:
6.3 Higher duties
Any employee not appointed but required to undertake higher duties in a shift shall be paid the applicable higher rate for the time work is performed in those duties.
There are only two classifications in the Enterprise Agreement - Team Member and Shift Supervisor. Therefore clause 6.3 of the Enterprise Agreement can only be understood to apply to an employee who is “not appointed” as a Shift Supervisor but is required to undertake Shift Supervisor duties. This provision allows QSR to require team members to undertake the higher duties of a Shift Supervisor even if they have not been “appointed” to the position of a Shift Supervisor.
I am satisfied from the evidence relating to the first significant event that the initial terms of Mr Trotter’s contract of employment included the following:
(a) QSR was not required to offer any specific work to Mr Trotter, including any specific number of hours work or work at specific level under the Enterprise Agreement;
(b) Mr Trotter was not obliged to accept any specific work at any specific classification level under the Enterprise Agreement, or accept any specific hours offered to him; and
(c) QSR could require Mr Trotter to undertake the duties of a Shift Supervisor without appointing him to the position of Shift Supervisor.
The second significant event occurred when Mr Trotter began working as a Shift Supervisor in July 2023. Mr Trotter argued that when he commenced performing shifts as a Shift Supervisor he was appointed to that position.
The necessary consequence of this appointment, if it was made, was that the terms of Mr Trotter’s contract of employment was altered so that QSR was obliged to allocate him work as a Shift Supervisor. The employment remained casual and there was still no commitment to continuing and indefinite work or an agreed pattern of work as per the original contract, however Mr Trotter would have been entitled to be paid at least the rate of pay for a Shift Supervisor when he did work.
Mr Trotter did not lead any evidence about this appointment in July 2023 and there was otherwise no evidence at all about any discussion between Mr Trotter and QSR regarding his contract of employment. The only evidence before the Commission about this relevant event is the fact that Mr Trotter was trained and then offered work as a Shift Supervisor.
In essence Mr Trotter asked the Commission to imply that he was appointed to the position of Shift Supervisor by the fact that he was allocated shifts in that role. That is, Mr Trotter necessarily argued that he and QSR agreed to vary his contract of employment even though nothing was said between them about a variation to the terms of employment and no such agreement was recorded in writing.
It is well recognised that employment contracts may be made with a minimum of formality and that courts and tribunals are sometimes prepared to fill in the gaps by supplying the criterion of reasonableness (see The Modern Contract of Employment, Second Edition, Neil & Chin at [3.101]). It follows that employment contracts may also be varied with a minimum of formality.
I cannot find on the evidence that Mr Trotter and QSR agreed by implication to permanently vary the terms of Mr Trotter’s employment in July 2023. There were no extraneous circumstances that support the proposition that QSR committed to only ever offering Mr Trotter work as a Shift Supervisor and not as a Team Member. There was nothing said by QSR that could have caused Mr Trotter to reasonably believe that the terms of his employment had permanently changed. Clause 6.3 of the Enterprise Agreement allowed QSR to offer work as a Shift Supervisor without committing to a permanent appointment and there is no evidence to suggest that QSR was doing anything other than what it was entitled to do under the Enterprise Agreement.
For completeness, the contractual terms Mr Trotter argued were implied are inconsistent with the express terms of the written contract, are not necessary to give business efficacy to the contract and are not so obvious as to ‘go without saying’ (per BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283, Byrne & Frewv Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 422-3, Ikin v Danish Club Dennebrog Inc [2001] VSCA 123 at [17], (2001) 140 IR 101 at 105).
As QSR submitted, Mr Trotter may have expected to continue to be offered work as a Shift Leader from July 2023 onwards, but there was no binding contractual obligation on QSR to do so.
The third significant event is the alleged dismissal in November 2023 when QSR told Mr Trotter that he would no longer be allocated work as a Shift Supervisor. Mr Trotter said that this was a demotion from the higher position of Shift Supervisor.
As the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A Manly Fast Ferry [2018] FWCFB 7224 observed:
“[20] A casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer. Irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability are the usual manifestations of an absence of a firm advance commitment.”
[Footnotes omitted]
Having found that the terms of Mr Trotter’s contract were not varied in July 2023 it necessarily follows that the employment contract applicable in November 2023 allowed QSR to only offer work to Mr Trotter as a Team Member. As such there was no demotion and no termination of either the employment relationship or the contract of employment in November 2023.
Conclusion
At the time he lodged his unfair dismissal application Mr Trotter was not a “person [who] has been dismissed” for the purposes of sections 385(a) and 386 of the Fair Work Act 2009. As such his unfair dismissal claim cannot continue. I will make a separate order dismissing Mr Trotter’s application.
DEPUTY PRESIDENT
Appearances:
S Trotter, Applicant
B Pendlebury for QSR Pty Ltd
Hearing details:
2024.
Sydney (By Video using Microsoft teams)
21 February.
Printed by authority of the Commonwealth Government Printer
<PR772789>
[MW1]Had to check the DCB to be sure - the R uses Shift Lead and Shift Supervisor interchangeably. May I suggest for clarity that we insert ‘/Shift Lead’ into [6] or change them all to Shift Supervisor for consistency.
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