Stephen Lambley v Jetpets Animal Transport Pty Ltd

[2013] FWC 10004

[2013] FWC 10004

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Lambley
v
Jetpets Animal Transport Pty Ltd
(U2013/13733)

DEPUTY PRESIDENT BOOTH SYDNEY, 19 DECEMBER 2013

Termination of employment - alleged unfair dismissal - minimum employment period.

[1] After 30 years as a stevedore Mr Stephen Lambley (the Applicant) obtained employment through the good offices of a friend who was a local branch manager of Jetpets Animal Transport Pty Ltd (Jetpets). His job was to transport pets to the airport for their onward journeys by plane to their final destination and from the airport to their final destination after their plane trip.

[2] Jetpets employed the Applicant as a casual employee on 10 December 2012. He was offered a permanent role on 19 June 2013 and commenced as a permanent employee on 24 June. He was dismissed 11 weeks later, on 6 September 2013, on the grounds that he was within his probationary period and was unsuitable for the position. The Applicant disputes his dismissal and lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) on 19 September 2013. Jetpets lodged a jurisdictional objection to this application on 12 November 2013 on the grounds that the Applicant had not served the minimum employment period. Jetpets has 100 employees and the minimum employment period is 6 months.

[3] The Applicant contends that all or some of his 29 weeks of employment as a casual employee should be counted in calculating his period of service because his employment as a casual employee was on a regular and systematic basis and he had a reasonable expectation of continuing employment on a regular and systematic basis.

[4] There is no disagreement between the parties about the essential facts of the Applicant’s employment. The date he commenced as a casual employee, the date he became a permanent employee and the date he was dismissed are all uncontroversial, as are the dates and hours he worked during that period of his employment. The difference between the parties is whether some or all of his 29 weeks of employment as a casual employee displayed the characteristics that are essential to his ability to invoke the exception in s. 384 of the Act that would allow some or all of it to be counted in the minimum employment period. There is no disagreement about the 11 weeks of permanent employment being counted.

[5] Jetpets’s jurisdictional obligation was heard before me on 13 December 2013. The Applicant was given permission pursuant to s.596 of the Act to be represented by Ms Doust of counsel and Jetpets was represented by Ms Berry, Human Resources Manager and Mr Penny, Strategic Development Manager. The Applicant gave evidence on his own behalf.

[6] I dismissed Jetpets’s application and advised the parties that I would provide written reasons for that decision at a later time. These are those reasons.

Statutory framework

[7] The Fair Work Commission (the Commission) exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 Unfair Dismissal of the Act.

[8] Before the Commission considers the merits of an application made pursuant to s.394 of the Act consideration must be given to the matters contained in s.396 of the Act which reads as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(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 the person was protected from unfair dismissal

[9] An inquiry into whether the Applicant was protected from unfair dismissal requires the Commission to consider the Applicant’s circumstances against the criteria set out in s.382 of the Act which reads as follows:

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; (my emphasis) 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.

Note: High income threshold indexed to $129,300 from 1 July 2013

[10] Section 383, reproduced below, defines 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.

[11] In this matter the Applicant’s employment history must be tested against s.384 of the Act which reads as follows:

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.

The Applicant’s employment history

[12] The Applicant commenced on 3 December 2012. The material provided by Jetpets, and accepted by the Applicant as accurate, discloses the following employment history as a casual employee:

Week 1. Worked 45.25 hours over 5 days

Week 2. Worked 48.5 hours over 5 days

Week 3. Worked 48.5 hours over 5 days

Week 4. Did not work

Week 5. Did not work

Week 6. Did not work

Week 7. Did not work

Week 8. Did not work

Week 9. Did not work

Week 10. Worked 39.5 hours over 5 days

Week 11. Worked 29 hours over 4 days

Week 12. Worked 24.5 hours over 3 days

Week 13. Worked 43.75 hours over 5 days

Week 14. Worked 19.5 hours over 2 days

Week 15. Worked 24.5 hours over 3 days

Week 16. Worked 14.25 hours over 2 days

Week 17. Worked 27.25 hours over 4 days

Week 18. Worked 24 hours over 3 days

Week 19. Worked 48.25 hours over 5 days

Week 20. Worked 24 hours over 3 days

Week 21. Did not work

Week 22. Worked 25.75 hours over 4 days

Week 23. Worked 17.75 hours over 3 days

Week 24. Worked 13.5 hours over 2 days

Week 25. Worked 24.25 hours over 3 days

Week 26. Worked 21.5 hours over 4 days

Week 27. Worked 23.25 hours over 3 days

Week 28. Worked 31 hours over hours over 4 days

Week 29. Worked 43.25 hours over 5 days

[13] After working for 3 weeks the Applicant was absent for 6 weeks which he contended was by agreement with the branch manager for the purpose of a pre-booked holiday. Jetpets accepted that this was the case. 1 Jetpets said that the current branch manager has told them that he was “pretty much directed” to call the Applicant first out of all the casuals when a casual shift was required.2 The Applicant then continued to work each week, except for week 21 in which he was not offered any shifts, until week 29, when he was offered permanent employment. From week 30 until week 40 inclusive he was employed as a permanent employee.

Consideration

[14] Jetpets contended that the Applicant’s employment history did not display the characteristics of regular and systematic employment. I disagree. His employment was regular, as it was recurring and systematic as there was an ordered weekly system. His employment as a casual employee, at least from week 10, was regular and systematic as understood from the decision of Roe C in Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daley’s Traffic 3 and the decision of Jones C in Harry Grives v Aura Sports Pty Ltd4 and his service was continuous as understood from Shortland v The Smiths Snackfood Co Ltd (the Shortland decision).5

[15] The Applicant gave uncontested evidence that he worked exclusively for Jetpets and never rejected a shift that was offered. He also gave evidence that he had an expectation of continuing employment.

[16] Jetpets did not contest this evidence but said that he may well have had an expectation of continuing employment but it was an unrealistic expectation because there was no guarantee of continuing employment. They said that the Applicant’s average hours worked were less than full time and the Applicant was largely employed to cover gaps in the roster which arose due to other employees taking annual leave or personal leave.

[17] I do not doubt the Applicant’s subjective beliefs, however, I do not rely on them as it is objectively clear on the face of the employment history that the Applicant had a reasonable expectation of continuing employment. His employment was, in fact, continued on a regular and systematic basis until it was converted to permanent employment.

[18] The operational purpose of his employment and his hours of work are not relevant to my consideration.

[19] It is not necessary to find that a guarantee of employment existed to sustain the characterisation necessary for s.384(2)(a)(i) and (ii). Rather it is necessary to find a reasonable expectation of continuing employment on a regular and systematic basis and this is established in this case by an objective examination of the employment record.

Conclusion

[20] Even if the Applicant’s service from week 1-9 is excluded (which on the basis of the Shortland decision I do not think it should be) he still has 30 weeks combined continuous service as a permanent employee and a casual of the kind subject to the exclusion in s.384(2)(a)(i) and (ii) of the Act. As such he has served more than the minimum employment period of 6 months and is a person protected from unfair dismissal pursuant to s.382 of the Act. Accordingly, Jetpets’s jurisdictional objection is dismissed and the Applicant’s unfair dismissal application may proceed to be heard on its merits.

DEPUTY PRESIDENT

Appearances:

L Doust, of Counsel, for Stephen Lambley

J Berry and D Penny for Jetpets Animal Transport Pty Ltd

Hearing details:

2013.

Sydney:

December 13.

 1   Transcript PN71

 2   Ibid. PN63

 3   [2010] FWA 2078

 4   [2012] FWA 5552

 5   [2010] FWAFB 5709

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