Stephen Gwatkin v Sai Group of Businesses Pty Ltd T/A Premier Hotel Pinjarra

[2018] FWC 1474

[2018] FWC 1474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Stephen Gwatkin
v
Sai Group of Businesses Pty Ltd T/A Premier Hotel Pinjarra
(U2017/13425)

COMMISSIONER BISSETT MELBOURNE, 15 MARCH 2018

Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – casual employee engaged on a regular and systematic basis – jurisdictional objection dismissed – matter referred for further programming.

[1] Mr Stephen Gwatkin (Applicant) has made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Fair Work Act). Mr Gwatkin was employed by SAI Group of Businesses Pty Ltd T/A Premier Hotel Pinjarra (Respondent) as a causal employee and worked as a kitchen hand and “yardie”.

[2] The Respondent objects to the application on a number of grounds. It says that:

•  The Applicant was not a regular and systematic employee, and/or

•  The Applicant has not served the minimum employment period as the Respondent is a small business, and/or

•  The Applicant was not dismissed.

[3] The matters I am required to deal with in terms of jurisdiction at this point are if the Applicant was a regular and systematic employee and, if he was, if he has served the minimum employment period. The minimum employment period is dependent on whether or not the Respondent is a small business as defined in s.23 of the Fair Work Act 2009 (FW Act). 1

[4] Should these jurisdictional matters be resolved if favour of the Applicant the question of whether the Applicant was dismissed will be determined in conjunction with the merits of his claim.

How long was the Applicant employed?

[5] The Respondent said that the Applicant was employed on a casual employment contract to work as and when required. It submits that he did not (and neither did any other casual employees) work on a regular and systematic basis. The Respondent provided payslips for the Applicant for the period 28 October 2016 to 10 December 2017.

[6] The Respondent’s pay slips for the Applicant indicate that he received payments from the Respondent weekly on 1 November 2016, 8 November 2016 15 November 2016 and 23 November 2016. In these weeks he worked between 20 and 35 hours per week.

[7] From 23 November 2016 the Applicant worked and was paid every fortnight. His first fortnightly pay was received on 6 December 2016 for the previous two weeks of work. A perusal of the payslips shows that he worked between 12.5 hours (in the last fortnight worked) and up to 57.00 hours per fortnight.

[8] As is apparent from the payslips the Applicant worked for the Respondent every fortnight for a period greater than 12 months.

[9] If the Applicant was a causal employee employed on a regular and systematic for all of this period of time then he has worked for the Respondent for more than 12 months and will have satisfied the minimum employment period regardless of the size of the business. If the Applicant was not employed on a regular and systematic basis the size of the business is not relevant as he is not eligible to make an application for relief from unfair dismissal.

Does the period as a casual employee count?

[10] Even though the Applicant was employed by the Respondent for a period of greater than 12 months he was a casual employee. Casual employment will only count towards the period of employment if it meets the requirements of s.384 of the FW Act.

[11] Section 384 states:

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.

[12] It is therefore necessary to consider if the Applicant was employed on a regular and systematic basis and if he had an expectation of continuing employment.

Was the Applicant employed on a regular and systematic basis?

[13] I need first to determine if the Applicant was a regular and systematic casual employee.

[14] The determination of this question is not dependent on what was written into the Applicant’s contract of employment. It may well be that the Respondent only ever intended to employ the Applicant as required but the determination of whether he was employed on a regular and systematic basis must be determined on the basis of his actual pattern of work and not what was intended. If the determination of whether employment was on a regular and systematic basis was based on the intention of the Respondent at the commencement of employment then there would be little for the Commission to consider. The pattern of the Applicant’s employment is a matter of fact based on a consideration of what actually happened as opposed to what might have been intended at some time in the past.

[15] In Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 2 (Ponce) Commissioner Roe carefully considered the relevant authorities and the development of the provisions of the Fair Work Act said:

[75] I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.

[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:

•  The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and

•  Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.

[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.

[16] I agree with Commissioner Roe’s conclusions and have applied the approach in Ponce to the matter before me. Whilst it may be argued in the case before me that the Applicant did not work the same hours each week or fortnight this does not mean the employment was not regular and systematic. The Respondent offered work to the Applicant when it was available and the Applicant accepted the work when it was offered. As is clear from the payslips the Applicant was offered and accepted work every fortnight.

[17] The Respondent suggests that it only offered work to the Applicant when it was aware he was available to work. The pattern of working hours would suggest the Applicant was available on a regular basis. A review of his pattern of hours shows that the Applicant worked for the Respondent on a regular basis. The number of hours worked and that they were worked every fortnight for over 12 months is testament to this.

[18] I am also satisfied the work was systematically offered to the Applicant. The offer of work was not occasional. Nor was the offer of work contingent on some other matter, for example the absence from work of another employee or some unexpected surge in work (for example a function) such that additional staff were required. The work was offered in a methodical way.

[19] In considering if work is offered systematically it would be wrong to equate this to a requirement that the work be offered for the same number of hours each week or fortnight or for the same pattern of hours and days. For the reasons given in Ponce this would defeat the purpose of the legislation. Work can be offered systematically even if there is no repeating pattern to the work.

[20] For these reasons I am satisfied that the work was regular and systematic.

Did the Applicant have a reasonable expectation of continuing employment?

[21] Being satisfied that the Applicant was engaged on a regular and systematic basis the second limb of the test is that the Applicant must have had, during his employment, a reasonable expectation of continuing employment on a regular and systematic basis.

[22] The Respondent says that the availability of work was reducing and this is evidenced by the reduced hours offered to the Applicant from late September 2017. The Respondent says that at this time a new team took over the day to day management of the business and was taking positive steps to reduce costs including a reduced use of casual employees.

[23] A perusal of the Applicant’s payslips show conclusively that the number of hours of work being offered to him did reduce in late September 2017 and this reduced offering continued until he says he was dismissed in December 2017. His hours of work appear to have reduced from 40 to 50 hours per fortnight to 20 to 30 hours per fortnight.

[24] There is, however, nothing before me to suggest that there was not continuing work for a kitchen hand (the work performed by the Applicant) or that the Applicant did not reasonably have an expectation of such continuing work. This conclusion is supported by an advertisement placed by the Respondent in January 2018 for a kitchen hand – the work the Applicant had been doing until December 2017.

[25] That the amount of work may have been reducing does not mean that the Applicant did not have a reasonable expectation that he would continue to receive work from the Respondent as he had since late October 2016.

[26] I am therefore satisfied that the Applicant had a reasonable expectation of continuing employment with the Respondent.

Conclusion

[27] For the reasons given above I am satisfied that:

1. That Applicant was a casual employee and was engaged on a regular and systematic basis; and

2. The Applicant had a reasonable expectation of continuing employment; and

3. The Applicant was employed in such a capacity for a period of more than 12 months.

[28] I am therefore satisfied that the Applicant has met the minimum employment requirements of the FW Act.

[29] As the Applicant was employed for a period of greater than 12 months it is not necessary for me to determine, for the purposes of this jurisdictional objection, if the Respondent was a small business or not. That is a matter that should, if required, be considered in conjunction with the merits of the application.

[30] The Applicant is therefore protected from unfair dismissal and the application is validly before the Commission.

[31] The file will be referred for further programming. An order 3 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

P. Mullally for the Applicant.

K. Raj and L. White for the Respondent.

Hearing details:

2018.

Melbourne (via telephone):

March 9.

<PR601099>

 1   The minimum employment period is 12 months if the business is a small business and 6 months otherwise.

 2   [2010] FWA 2078.

 3   PR601203.

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