Stefanie King v Sodexo Australia Pty Ltd

[2019] FWC 4375

[2019] FWC 4375

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stefanie King
v
Sodexo Australia Pty Ltd
(U2018/13220)

COMMISSIONER WILLIAMS PERTH, 27 JUNE 2019

Application for an unfair dismissal remedy - jurisdiction.

[1] This matter involves an application made on 19 December 2018 (Application) by Ms Stefanie King (Ms King or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Sodexo Australia Pty Ltd (the Respondent).

[2] The Respondent filed a Form F3-Employer’s Response to Unfair Dismissal Application (the Employer’s Response) on 7 February 2019.

[3] The Employer’s Response raised three jurisdictional objections being that: the Application was made out of time, having been lodged more than 21 days after the dismissal took effect, that the Applicant was not dismissed; and finally that the Applicant’s employment does not meet the minimum employment.

[4] The Application was the subject of a conciliation conference conducted by a Fair Work Commission Conciliator, however the matter was not resolved and has been referred to myself for determination.

[5] Consequently, the Commission wrote to the parties directing them to provide information by way of witness statements or submissions regarding the Respondent’s objection that Ms King had not completed the required minimum employment period as specified in section 384(2) of the Act. The correspondence advised that it was proposed that the objection be determined on the papers however if necessary, a hearing would be held.

[6] Compliant with the Commission’s direction the Respondent provided materials including a detailed submission, a statutory declaration sworn by Ms Amanda McGregor, Sodexo’s Workforce Optimisation Manager and supporting documentation. Ms King in response provided her submissions incorporating emails and other supporting documents.

[7] This decision concerns only whether Ms King had completed the requisite minimum period of employment.

The legislation

[8] Not all employees are protected from unfair dismissal and able to make an unfair dismissal remedy application.

[9] Section 382 of the Act states that a person is only protected from unfair dismissal if, amongst other things:

…“the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period.”

[10] Section 383 of the Act states that the minimum employment period, if the employer is not a small business employer, is six months.

[11] I am satisfied that Sodexo is not a small business employer and so in this case six months is the applicable minimum period of employment.

[12] Importantly in this case, section 384(2) of the Act prescribes when casual employment counts towards the minimum period of employment. This section is set out below.

“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.”

[13] Relevantly in this case the effect of the legislation is that periods of service as a casual employee do not count towards the minimum employment period unless both of the following conditions are satisfied:

•  the casual employee was employed on a regular and systematic basis, and

•  the casual employee had a reasonable expectation of ongoing employment on a regular and systematic basis.

Factual findings

[14] Sodexo is a contract services organisation that provides catering services and soft and hard facility management solutions to the mining, oil and Gas, Health Care, Corporate, Justice, Government, Hospitality, and Education segments.

[15] Such services are provided at sites such as Varanus Island, Origin Voila, ENSCO 107, ENSCO 5006, Shell Prelude, Noble Tom Prosser, and the Stag platform.

[16] Ms King only worked on ENSCO 107, Shell Prelude, and Noble Tom Prosser.

[17] On 29 November 2017, Ms King was offered an employment contract by IFM Services Pty Ltd (a subsidiary of Sodexo) as a casual Service Attendant for the purposes of providing her services across various client's oil and gas locations and contingent upon the various client's operational requirements.

[18] Schedule A of that Contract includes the following:

“Client Contract Various

"Primary Place of Work Oil and Gas- Various locations subject to operational requirements

"Employment Status Casual

"Duration of Employment You are not guaranteed regular or ongoing employment with Sodexo and nothing in this contract is to be construed as giving rise to a reasonable expectation of regular or ongoing employment."

"Hours of Work As required

"Any Other Terms In recognition of your position as a casual employee will be entitled to a 25% casual loading in addition to your base rate of pay as compensation for annual leave, personal/carers leave, notice of termination, redundancy benefits and other entitlements of full-time or part-time employment in accordance with the provisions of the applicable industrial instrument as identified above as Wages.”

[19] The contract identified that the IFM Service Enterprise Agreement 2016 (the Agreement) applied to Ms King’s employment.

[20] Subclause 14.5.3 states that:

“A casual employee must be paid at the termination of each engagement, which can be at the end of the next pay cycle.”

[21] Ms King nominated 8 November 2018, as the date of her dismissal although she says that she was confused because she was waiting for a phone call to confirm her employment.

[22] Ms King's casual engagements between 30 November 2017 and 8 November 2018 were with three different clients.

[23] Ms King was offered and accepted four casual engagements each at a different client's site and was paid at a different hourly rate of pay. Each of the engagements provided Ms King with a different number of swings and with different swing lengths. 1

[24] Casual engagements are unpredictable and are not regular as demonstrated by the fact that they are offered to employees often with only 24-hour’s notice.

[25] On 16 October 2018, a Sodexo Operations Scheduler emailed Ms King asking as follows:

“Hi Ensco 107 needs someone tomorrow are you able to go tomorrow urgently

Thankyou

Leo”

[26] Ms King's engagement was always on short notice and the basis of her engagement was ad hoc or unmethodical and was completely reliant on the demands of Sodexo’s clients to support their temporary and sporadic spikes in persons on board, or for unpredictable absenteeism of Sodexo’s permanent full-time staff. Given the unpredictable nature of the client's business, there could not be and there was not a commitment of regularity or a duration of future work, nor could her work be predetermined by a roster.

[27] A casual employee such as Ms King may, at any time, refuse any casual engagement offered or may nominate periods that they are unavailable or they may elect to prioritise personal circumstances over work offered without adverse effects to the business or the employees' employment. This occurred in practice with respect to Ms King as set out in the instances below:

a) The Camp Boss of Shell Prelude 107, emailed Ms McGregor stating that during Ms King's last swing at Shell Prelude she told him and the Camp Boss ENSCO 5006, that she did not want to work at Shell Prelude again and her preference was to work on other sites. The workforce scheduling team recorded Ms king's request in the spreadsheet and they did not deploy her to Shell Prelude again.

b) On 2 May 2018, Ms King emailed the workforce scheduling team stating:

“I can be available to work about the 23rd may onwards, if anything changes let me know as I'm in the middle of moving etc.”

c) Ms King notified the workforce schedule team that she was taking a holiday in Darwin from 5 November 2018.

Consideration

[28] Under the legislation, service as a casual employee does not count towards the prerequisite minimum employment period unless the casual employee was employed both on a regular and systematic basis and had a reasonable expectation of ongoing employment on a regular and systematic basis.

[29] Considering Ms King’s service with Sodexo it is clear that her employment was as a casual employee.

[30] The evidence is that Ms King’s employment was not on a regular and systematic basis. There was no clear pattern of employment, there was no repetitive roster for her employment. The facts are that Ms King’s employment was irregular, it was ad hoc.

[31] The terms of the contract and the Agreement in this case preclude Ms King having a reasonable expectation of continuing employment on a regular and systematic basis. Separately the facts of what occurred, which involved employment of an occasional and irregular nature, could not have created a reasonable expectation of continuing employment on a regular and systematic basis.

[32] My decision is that Ms King’s service with Sodexo as a casual employee does not count towards her period of employment and consequently Ms King has not completed the minimum employment period of six months, which is a necessary prerequisite prescribed in section 382 of the Act, for her to be protected from unfair dismissal. Consequently, her Application must be dismissed and an Order to that effect will now be issued.

Printed by authority of the Commonwealth Government Printer

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 1   Statutory Declaration of Ms McGregor at [34]-[44].