Tetyana Pikunova v Mcdonald's T/A Jatam Pty Ltd

[2015] FWC 1059

[2015] FWC 1059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tetyana Pikunova
v
Mcdonald’s T/A Jatam Pty Ltd
(U2014/9560)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 16 FEBRUARY 2015

Application for relief from unfair dismissal- reduction in hours owing to seasonal conditions - refusal to offer additional hours - casual engagement lapsed owing to refusal to accept offer - s.385

[1] This decision concerns an application by Ms Tetyana Pikunova under s.394 of the Fair Work Act 2009 (“the Act”). Since September 2011 Ms Pikunova had performed various duties as a casual employee (in receipt of a casual loading). On 28 September 2014 Ms Pikunova alleges that she was dismissed from her position as a casual employee from the Mareeba Mcdonald’s franchise (“the employer”) when she received an automated email referring to her as a “past crew member” and cited an “exit interview”.

[2] Ms Pikunova also argued, in a somewhat undeveloped alternative submission, that she was constructively dismissed as she was unable to accept the minimum hours shift she was offered by her employer and was forced to resign for that reason.

[3] Ms Pikunova argued further that she was unfairly dismissed (either directly or constructively) because she was unable to accept the minimum hours offered by her employer (who was obliged to offer her additional hours or who had acted in a discriminatory manner in not offering her those hours).

[4] Notwithstanding these various constructions, Ms Pikunova now seeks a remedy in relation to her alleged dismissal by the employer.

Background

[5] Up until November 2014, Ms Pikunova had resided in the Queensland town of Mareeba, some 60 km North of Cairns. There Ms Pikunova appears to have been employed in various capacities including with the McDonald’s franchise as a casual employee and with Coles supermarkets as a full time employee.

[6] Whilst a casual employee with McDonald’s Ms Pikunova gave evidence that she worked between 3 and 12 hours a week, depending on the season or whether it was in what she called “the quiet period”. Ms Pikunova described the quiet period as being that period of the year when she had only worked between 3 to 4 hours a week.

[7] Ms Pikunova appears to have never been comfortable with the notion of working a minimum hours shift while other employees, including part-time and full-time employees, worked longer hours.

[8] It appears at previous times she had indicated that she believed her employer was discriminating against her by not extending her hours or making her a part-time or full-time employee. The evidence in this matter did not focus to any great degree on these prior matters and instead focused on the circumstances that arose between November 2013 and September 2014, with which I will deal below. It is sufficient to note at this point that there had been a meeting with Ms Pikunova and the HR manager for McDonald’s in August of 2013 in which her concerns were discussed.

[9] The correspondence tendered in these proceedings indicated that it was explained to Ms Pikunova that her employer could not offer her expanded hours on her preferred days for reasons of her limited availability (which arose from the fact she was working full-time at Coles in Mareeba at that time). It was further explained to the Applicant, amongst other matters, that as a casual employee she could not be guaranteed any set number of hours.

[10] In what appears to be November 2014, Ms Pikunova relocated to Cairns. There she was employed as a team leader in the delicatessen on a full-time basis in a Coles supermarket.

[11] Thereafter Ms Pikunova only had availability on Tuesdays and Wednesdays but sought nonetheless to retain her hours in the Mareeba McDonald’s store (which required a quite lengthy bus trip). The employer obliged, and provided her with two 3 and a half hour shifts on the two designated days as requested. But as the summer season took effect her hours were reduced once again to a minimum shift of 3 hours on one day only.

[12] Ms Pikunova contended that the minimum hours shift was unsustainable as it meant that she could not afford to pay for the return bus trip and she requested her employer provide her a minimum of 8-10 hours to make the employment viable for her.

[13] Her employer was unable to satisfy her request in this regard. Mr Jason Bertha, the director of the franchisee (Jatam Pty Ltd) gave evidence that in order to increase the Applicant’s shift he would have to reduce other employees’ hours work, and he was not prepared to do so. Mr Bertha claimed that the changes in the pattern of hours worked over the summer period was a seasonal occurrence which resulted in the lower sales periods of the year, had affected the Applicant in the past, and was reflected across many businesses in the region (that were affected by the demand in the tourist trade).

[14] It appears there were a number of e-mail exchanges and meetings between Ms Pikunova and representatives of her employer.

[15] On 21 January 2014 the Applicant indicated to her employer that she was unavailable “to take 3 hours shifts in Mareeba anymore.”

[16] The employer sought confirmation of Ms Pikunova’s willingness to attend to her shifts and warned her about not attending for work. Ms Pikunova held to her view that:

I can’t afford [to] pay for bus [...] to get to Mareeba that work 3 hours. I have been working for you 2.5 years the same term as you.

You have never needed me in your Store as all my negotiations with all of you about increasing my hours, giving me part-time or full time were negative.

You do not give me enough hours to survive with you, I have got my budget as well and I can’t overflow it.

I reside in Cairns not in Mareeba.[ ...]

And remember I am not going to confirm any small shifts as this is bring me more damage that you cannot imagine. (sic)

[17] On Thursday 23 January 2014 Ms Pikunova wrote to her employer in the following terms:

Toni what I recommend you is put me in a long-term holidays, until you will be ready to give me decent hours. Regardless I can’t help you to fix rosters made by you... Just like my name down weekly on every Tuesday and Wednesday into Unavailability book. (sic)

[18] Notwithstanding the above correspondence, the employer continued in its efforts to explain to Ms Pikunova it was not in a position to offer her increased hours. In the meeting on 28 March 2014 Mr Berther explained the implications of the regular seasonal downturn that had affected Ms Pikunova’s hours in previous years and explained his reluctance to reduce crew hours to accommodate her. It was also explained to her that the business was committed to its long-term staff as well as staff who had full availability.

[19] No guarantees were given to Ms Pikunova about future hours other than there might be a prospect of an increase in hours should trade improve at a subsequent point, and that her availability and skill level reflected the demands of the business. There appears to have been some discussion about the prospect of a transfer to another Mcdonald’s outlet near to Cairns but that was impracticable, seemingly for the same reasons outlined above.

[20] There appears to have been effectively no interaction between the Mareeba store and Ms Pikunova from March 2014 until 26 September 2014. Ms Pikunova did not change her position in relation to the communication of 23 January 2014. Nor did the employer’s position change.

[21] On 26 September 2014 a system cleanup of the Mareeba store employee files caused a computer-generated message to be sent to Ms Pikunova. This was because Ms Pikunova had not worked for the store for over six months and the software package utilised by the store assumed she was no longer relevant to its data requirements.

[22] It was receipt of this computer-generated e-mail referred to earlier that led Ms Pikunova to conclude that her employment had been terminated at the initiative of the employer on that day.

Consideration

[23] Ms Pikunova was employed as a casual employee and paid as such. Her employment came to an end at the conclusion of each engagement, only to be reinstated upon a further engagement, when an offer of work was accepted.

[24] The Full Bench in Shortland v Smiths Snackfood Co Ltd[2010] FWAFB 5709 considered the matter this way in a common law context:

As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period.4 In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa.

[25] In January 2014 Ms Pikunova was offered work on a minimum hours shift at the time which reflected her window of availability. Ms Pikunova undoubtedly would have preferred longer hours.

[26] The hours offered by the employer were incompatible with Ms Pikunova’s travel costs arising from her voluntary change in her place of residence (from Mareeba to Cairns).

[27] But the employer’s decision-making in relation to the reduction of her hours was a customary practice reflecting the seasonal requirements of the business in a tourism-based regional economy.

[28] On 23 January 2014 Ms Pikunova directed her employer to place her on an indefinite basis, in the “unavailability book” and had also indicated she would not accept the offer of hours as they were.

[29] From that time the employer was reasonably placed to presume that Ms Pikunova no longer sought for it to offer her work on the current terms. No further work was offered to Ms Pikunova and Ms Pikunova’s view about accepting work did not change (at least in so far as she generated no further communication on this issue for a six-month period (and only then did she respond to receipt of a computer-generated message from her previous employer)).

[30] Section 385 of the Act provides as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[31] Section 386 of the Act relevantly sets out the meaning of a “dismissal” for the purposes of s.385 of the Act and provides as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

[32] In my view the facts of this case demonstrate that Ms Pikunova ceased to be engaged as a casual employee by her employer on 23 January 2014 (if not before) when she declined to accept the offer of work reasonably put to her by her employer.

[33] Ms Pikunova acted on her own initiative in this regard and on the basis of her assessment of her commercial and logistical circumstances. Ms Pikunova’s employer was not obliged to offer her any more work than it did in the circumstances. Ms Pikunova was not dismissed at the initiative of her employer nor was she constructively dismissed. The contrary is the case: Ms Pikunova had foregone the opportunity of accepting further engagements with the employer and was not a person who was dismissed, either directly or constructively, from her employment.

[34] This, therefore, is not a case in which an employee can be said to have been dismissed from his or her employment at the initiative of the employer for the purposes of s. 385 of the Act. Consequently, the application is not jurisdictionally competent and cannot proceed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms T.Pikunova, the Applicant

Ms J Lennox, of McDonald’s T/A Jatam Pty Ltd, for the Respondent

Ms M Hegerty, of McDonald’s T/A Jatam Pty Ltd, for the Respondent

Mr J Bertha, of McDonald’s T/A Jatam Pty Ltd, for the Respondent

Hearing details:

2015

Brisbane

12 February 2014

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