Tony Jiayin Wang v Sex Worker Outreach Project (SWOP)

[2015] FWC 1332

[2015] FWC 1332

FAIR WORK COMMISSION

DECISION

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

Tony Jiayin Wang
v
Sex Worker Outreach Project (SWOP)
(U2014/13426)

DEPUTY PRESIDENT SAMS SYDNEY, 6 MARCH 2015

Application for relief from unfair dismissal - period of employment - minimum period of employment - casual employee - whether employment was ‘regular and systematic’- minimum period of employment not met - jurisdictional objection upheld - application dismissed.

INTRODUCTION

[1] This decision arises from an application for relief from unfair dismissal, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Mr Tony Jiayin Wang (the ‘applicant’) claims he was dismissed from his employment with the Sex Worker Outreach Project (‘SWOP’) (the ‘respondent’) on 4 October 2014. The applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 23 October 2014.

[2] Pursuant to s 396 of the Act, there are a number of matters about which I must be satisfied before considering the merits of an unfair dismissal application. These are:

‘(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.’

Firstly, the application was filed within the 21 statutory time limit. Secondly, this is not a matter where the Small Business Fair Dismissal Code is relevant and thirdly, this is not a case of genuine redundancy. The respondent raised a jurisdictional objection, arguing that the applicant did not satisfy s 396 (b) of the Act, as he was not a person protected from unfair dismissal (s 382).

[3] The applicant’s employment with the respondent commenced on a casual basis in July 2012. His letter of appointment was expressed as follows:

‘Dear Tony,

I am pleased to confirm our offer of appointment as a casual employee with ACON Health limited commencing 25 June 2012.

In this position your supervisor will be Manager, SWOP Outreach and Community Services.

The position is offered on the following terms:

1. The appointment is subject to ongoing funding.
2. Your hours of work are casual, to be worked as required by the above manager.
3. You will be paid an hourly rate of $21.98 - ACON Grade Operational 1. This includes 24.6% casual loading.
4. A superannuation contribution of 9% of your total earnings will be effective once your earnings exceed $450.00 gross in a one month period.
5. Other conditions of employment will be as set out in ACON’s Enterprise Agreement in force at the relevant time. A copy of the current ACON enterprise agreement is attached.
6. This letter is not a commitment by ACON that you will receive consistent or ongoing work.

Congratulations on your successful application to this position.

Please confirm your willingness to accept this position, and acknowledge that you have received a copy of the ACON Enterprise Agreement 2008-2010, by signing the ‘copy’ of this letter, and the attached Confidentiality Agreement, and returning them to Human Resources in the enclosed envelope.

We look forward to working with you.’

[4] The applicant remained casually employed with the respondent until he was informed by the respondent on 4 October 2014 that he ‘will no longer be required as a casual employee at SWOP’. The reason appeared to relate to allegations of misconduct. The respondent’s jurisdictional objection has a number of limbs. It was said that the applicant’s employment could not be regarded as a ‘period of employment’ within the meaning of the Act, as it was not casual employment which was ‘regular and systematic’. It followed from this, that the applicant did not meet the minimum employment period as set out in s 382(a) of the Act.

[5] On Friday 6 February 2015, I conducted a hearing of the jurisdictional objection. The applicant appeared on his own behalf. I granted permission, pursuant to s 596 of the Act, for Ms Lopes, Solicitor, to appear on behalf of the respondent. In determining the objection, the Commission has had regard to the Form F2 Application for Unfair Dismissal and the Form F3 Employer’s Response. The Commission has also had regard to the submissions and witness statements filed by both parties and the evidence adduced in the proceedings. Having considered all the evidence before me, I find that the applicant was not engaged in a ‘period of employment’ that was ‘regular and systematic’ and he is therefore not a person protected from unfair dismissal. What follows are my reasons for upholding the respondent’s objection.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
[6] The respondent argued that the Commission did not have jurisdiction to entertain the merits of the applicant’s unfair dismissal application, as the applicant was not a person protected from unfair dismissal in accordance with s 396(b). A person is protected from unfair dismissal if the following criteria, set out in s 382, are satisfied:

‘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; 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.’

[7] The respondent argued that the applicant did not satisfy s 382(a) of the Act as he had not completed a ‘period of employment’, as defined in the Act. The definition of ‘minimum employment period’ is set out at s 383 of the Act, as follows:

‘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.’

[8] The respondent further contended that the applicant’s periods of casual employment did not meet the test of being ‘regular and systematic’, within the meaning s 384(2) of the Act. Section 384 of the Act 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.’

[9] There is no definition of ‘regular and systematic’ in the Act. However, by the use of the conjunction ‘and’ it is necessary for an applicant to demonstrate his/her casual employment was both regular and systematic, not regular or systematic. In Ponce v DJT Staff Management Services Ltd t/as Daly’s Traffic[2010] FWA 2078, Roe C, said at paras [66]-[67]:

‘[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.

[67] In my view, full-time and part-time work must be regarded as meeting the definition of regular and systematic. This is one reason why regular and systematic casual work meets the jurisdictional hurdle and why it is distinguished from irregular, occasional or non-systematic casual work for the purposes of a range of entitlements under the Act and Awards as discussed above. Legislators have deemed it fair to give regular and systematic casuals the same entitlements as other workers because they are engaged regularly and systematically, like full and part-time employees (in respect to matters such as parental leave and unfair dismissal jurisdiction).’

[10] In Grives v Aura Sports Pty Ltd[2012] FWA 5552, Jones C (as she then was) said at para [29]-[35]:

‘[29] The Macquarie Dictionary meaning of ‘regular’ relevantly includes:

1. Usual; normal; customary

2. Recurring at fixed time; periodic

3. Observing fixed times or habits 

The Macquarie Dictionary meaning of ‘systematic’ relevantly includes:

1. Having, showing or involving a system, method or plan

2. Characterised by a system or method; methodical

3. Arranged in or comprising an ordered system 

[30] The Court of Appeal, Australian Capital Territory, in Yaraka Holdings Pty Ltd v Giljevic considered a deeming provision applicable to independent contractors which, in part, deemed an individual to have been employed by an employer if the engagement ‘has been on a regular and systematic basis.’ It should be noted that the deeming provision included matters which should be considered in determining whether an engagement has been on a regular and systematic basis. The following extracts from the judgements of the majority are instructive. Crispin P and Gray J noted:

It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulations under the Workplace Relations Act 1996 (Cth), particularly reg 30B, and this concept has been considered by industrial tribunals in a number of cases.

[31] Their Honours noted that:

...it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. 

[32] Relevantly, their Honours observed in relation to the meaning of ‘regular’ that:

The term “regular” should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”. 

and formed the view that the pattern of engagement of the individual in question over the years from 1995 to 2002 satisfied this description.

[33] In respect of the meaning of ‘systematic’, their Honours held:

The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses. 

[34] Madgwick J concurred with the majority. In a separate judgement, his Honour considered examples provided in the relevant statute of ‘individuals who are workers’ concluding that ‘the meaning to be ascribed to (the deeming provision) is conditioned by the examples.’ Accordingly, his Honour stated:

It is clear from the examples that a ‘regular ... basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all.

Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3^rd edn, 2001).

[35] The finding as to whether employment is regular and systematic is a discretionary one having regard to the totality of the evidence. Setting out factors which dictate a finding one way or another is to be avoided, particularly so given the Act is silent as to the matters to be considered.’

CONSIDERATION
[11] There were extensive written submissions, prepared by the applicant’s solicitor concerning the relationship between ACON and SWOP. It is unclear what relevance that relationship has to the specific jurisdictional objection as to the meaning of the phrase ‘regular and systematic’ and the minimum employment period, particularly given the entire period of employment from 23 July 2012 until 4 October 2014 has been taken into account, for the purposes of this decision.

[12] It was agreed that the applicant had been employed as a casual employee at SWOP since 23 July 2012. It therefore remained an issue of contention as to whether the applicant was employed on a ‘regular and systematic basis’ and had a ‘reasonable expectation’ of his employment continuing on that basis. The applicant addressed this issue in the hearing on 6 February, as follows:

‘I submit the evidence and establish that I was employed by ACON and then SWOP on a regular and systematic basis in that my employee (sic) had a system or plan that recurred periodically at fixed times, namely every time Ming Tzu went on annual leave and they engaged a team of casuals, which included myself, to fill in for Ming Tzu and perform his duties. Pursuant to that plan, they contacted me, offered me to work on particular days when Ming Tzu was away and requested I fill in his position, which I accepted and carried out. Accordingly, I submit my employment was on a regular and systematic basis.’

[13] When questioned further about the frequency at which he was employed by SWOP in place of Mr Tzu, the applicant stated:

‘Once a year which established the pattern when he would go on annual leave and I would be contacted to cover for his shift.’

...

It’s prearranged with the employee, when he was the ready. Then the employer will contact a pool of the casuals, including myself, to engage in filling in for his position. Since 2012 I was employed by SWOP until my--’ 

[14] In its submissions, the respondent argued that the applicant’s period of employment was irregular and ad hoc. In this regard, the respondent stated that:

‘...the Applicant was offered work irregularly and in fact only worked 16 weeks over a period of over 104 weeks.’

In support of these submissions, at the hearing on 6 February, Ms Lopes stated:

‘In this instance, when you look at the witness statements of the parties, you will note that the parties are in agreement with respect to the days and hours worked by Mr Wang. There is no system or pattern in which Mr Wang worked. We have included at page 53 of Ms Tattersall’s witness statement, a calendar for the periods of 2012, 2013, and 2014 which set out the hours worked by Mr Wang during his period of employment. It is clear, when one looks visually at the hours worked, that there is no pattern. He didn’t work every Friday for a period of 104 weeks. Nor are there specific periods in which he was required to cover a specific employee. In fact, his own evidence is that he, along with other casual staff, were required to cover off absences when employees were on annual leave.’

[15] I set out these casual engagements as follows:

2012
6 hours 23 July 2012
7 hours 26 July 2012
5 hours 14 August 2012
7 hours 16 August 2012
5 hours 20 August 2012
7.5 hours 21 August 2012
7 hours 27 August 2012
7 hours 15 November 2012
7 hours 20 November 2012
6 hours 27 November 2012

2013
4.5 hours 26 April 2013
5 hours 26 June 2013
7 hours 1 9 September 2013

2014
4 hours 3 March 2014
4 hours 7 March 2014
4 hours 17 March 2014
7 hours 25 March 2014
7 hours 15 May 2014
7 hours 16 May 2014
7 hours 30 September 2014
7 hours 2 October 2014
7 hours 3 October 2014

Mr Lopes’ evidence continued:

‘We, similarly, argue that there was no expectation of Mr Wang to accept shifts when they were offered and, in fact, his own evidence demonstrates that he was offered numerous shifts which he did not work, including on 18 September 2012, 2 October 2012, 3 October 2012, in mid-October 2013, 21 February 2014, 14 April 2014, July 2014 and the period in July/August 2014.’

[16] The weight of evidence clearly demonstrates that the applicant does not satisfy a ‘period of employment’, within the meaning of the Act. The applicant’s casual employment with the respondent was highly irregular and unsystematic. The witness statement of Ms Tattersall, Chief Executive Officer of SWOP, disclosed that the applicant earned $3,842.55 in wages and worked a total of only 135 hours over a two year period. The applicant did not dispute these figures. Furthermore, the applicant’s own submissions demonstrated the unpredictable nature in which he was engaged, where he stated:

‘In addition, the Applicant also received three times “last minute” SMSes from Caroline, the Respondent’s General Manager at the time, requesting he cover extra Front of House shifts.’

[17] In my view, the evidence clearly indicates that the applicant’s casual employment was sporadic, unpredictable and based almost entirely upon the unavailability of another employee, Mr Tzu. It would have been impossible to predict when Mr Tzu would be absent or when he might take annual leave. This fortifies my view, that this is one of the most obvious examples of true casual employment, which was not regular and systematic.

[18] While the applicant contended that he expected to have ongoing employment with SWOP, I find it difficult to see how that expectation could possibly be sustained. He was in a pool of other casual employees, who were also rostered around the times of Mr Tzu’s absences. The applicant was also engaged in translation services for the respondent. Moreover, in 2014, the applicant was overseas in February, June/July and August/September and obviously unavailable for any casual shifts. Such extended periods of unavailability do not sit comfortably with a person who had an expectation of ongoing employment.

[19] For the above reasons I find that the applicant is not a person protected from unfair dismissal, as the applicant was a casual employee who was not engaged on a regular and systematic basis and who could not have had a reasonable expectation of continuing employment. However, even if I am wrong about this finding, the submission of the respondent, not challenged by the applicant, was that he had only worked a total of 16 weeks over a period of 104 weeks and only 25 hours over 7 days in the last 6 months of employment. The minimum employment period cannot possibly have been satisfied in these circumstances.

CONCLUSION

[20] Pursuant to ss 382, 383, 384 and 396 of the Act, I am satisfied that the applicant was not engaged in a ‘period of employment’ that was ‘regular and systematic’. He is therefore not a person protected from unfair dismissal and the respondent’s jurisdictional objection is upheld. The application for an unfair dismissal remedy must be dismissed for want of jurisdiction. An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Mr T Wang on his own behalf

Ms K Lopes, Solicitor, for the Respondent

Hearing details:

2015

Sydney

February 6

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