Vicki Dodd v The Dieri Aboriginal Corporation

[2013] FWC 306

[2013] FWC 306

FAIR WORK COMMISSION

DECISION

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

Vicki Dodd
v
The Dieri Aboriginal Corporation
(U2012/11575)

DEPUTY PRESIDENT BARTEL ADELAIDE, 16 JANUARY 2013

Termination of Employment.

[1] Ms Vicki Dodd (the applicant) commenced employment with the Dieri Aboriginal Corporation (the respondent or DAC) in the position of Manager/Administration Officer. She was dismissed from employment on either 3 or 4 July 2012. 1 The applicant has made application to Fair Work Australia pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy.

[2] This decision deals with a jurisdictional objection filed by the respondent. DAC contends that the applicant has not served the minimum employment period and is therefore excluded from the unfair dismissal jurisdiction.

[3] It is noted that the Fair Work Amendment Act 2012 was enacted in December 2012 and a number of amendments to the Act came into force on 1 January 2013. None of the amendments impact on the claim before the Tribunal.

[4] DAC is incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and holds the native title rights and interests on behalf of the Dieri people. From time to time DAC provides employees (“Monitors”) to survey areas of land within the Dieri native title determination area that are subject to lease by mining and other resource companies. This survey work is known as Work Area Clearances (WAC’s) and is typically between 1 and 10 days’ duration.

[5] Dieri Operations Pty Ltd is a wholly owned subsidiary of DAC. It engages employees in the distribution of Foodbank food to Dieri families requiring assistance.

[6] The matter proceeded by way of written submissions. 2

The relevant provisions of the Act

[7] In order for the applicant to have access to the unfair dismissal jurisdiction, she must have served the minimum employment period at the date of dismissal. 3 In the case of a small business employer, the minimum employment period is 12 months, in the case of other employers the minimum employment period is 6 months.4

[8] The definition of a small business employer is set out in s.23 of the Act as follows:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[9] Section 12 of the Act provides that “associated entity” has the meaning given by s.50AAA of the Corporations Act 2001 (Cth). It is common ground that Dieri Operations Pty Ltd is an associated entity of DAC.

[10] The issue in dispute between the parties is the total number of employees engaged by DAC and Dieri Operations Pty Ltd as at the date of the applicant’s dismissal for the purposes of determining whether the employer is a small business employer within the meaning of the Act. The primary area of controversy is whether a number of casual Monitors are engaged on a regular and systematic basis such that they are taken into account in determining the number of employees engaged by DAC for the purposes of s.23(2) of the Act. If DAC and Dieri Operations Pty Ltd employ fewer than 15 relevant employees then the respondent is deemed to be a small business employer and the applicant has not served the minimum employment period.

The submissions

[11] Dr Michael Kidd, of counsel, filed submissions on the applicant’s behalf. It is appropriate to note that certain material was submitted by the applicant directly to the Tribunal. Only one of these documents appears to have any relevance to the issue presently before the Tribunal, being a document titled, “DAC Santos ID Number and Expiry Date 2012”. The origin of this document is unknown. It shows 138 names, 91 of whom appear to have an expired ID number. The document does not reveal what if any work was undertaken in the relevant period by any of the identified employees.

[12] Dr Kidd provided a document titled “The Dieri Aboriginal Corporation (Draft) Accounts for period 01/07/2011 to 31/12/2011” as an attachment to his submissions. This document does not pertain to the period of the applicant’s employment. It does indicate that an amount of $155,715 was paid as wages in respect to WAC’s for the six-month period. To the extent that this figure provides a general indication of the level of expenditure on wages, it does not shed any light on which Monitors were engaged during the period or the regularity of employment of the Monitors who undertook WAC’s in the period.

[13] Dr Kidd contends that the following employees were engaged on a regular and systematic basis to assist in the distribution of food to Dieri families over the relevant period:

Donna Larkins

Kym Dodd

Gerald Bendessi

Arnold Dodd

Barbara Vale (on WorkCover) 5

[14] It is submitted that Monitors are engaged by DAC and its subsidiary on a regular and systematic basis: they are regularly offered work when it is available and have come to rely on the income generated. Dr Kidd argued that consequently the Monitors should be taken into account for the purposes of determining whether the respondent was a small business employer or not.

[15] In support of this submission Dr Kidd summarised various features of the working patterns of casuals where Fair Work Australia has held that employment was regular and systematic.

The respondent’s submissions

[16] Ms Emma Riggs, of counsel, represents the respondent. Ms Riggs argues that the Monitors are engaged on an occasional and irregular basis. Data attached to the respondent’s submissions indicates that in the period of the applicant’s employment, DAC and its subsidiary employed 19 Monitors to undertake 9 WAC’s over 54 survey days. The data shows that three or four monitors were engaged on each WAC. Of the 54 survey days available:

● 1 employee worked 28 days on 4 WAC’s
● 3 employees worked between 18 and 22 days on 3 WAC’s
● 4 employees worked between 10 and 15 days on 2 WAC’s
● 11 employees worked between 1 and 11 days on 1 WAC

[17] The respondent accepts that the following Foodbank employees were engaged on a regular and systematic basis:

Donna Larkins

Kym Dodd

Gerald Bendessi

[18] It is submitted that Arnold Dodd was engaged on three occasions to assist Gerald Bendessi and Kym Dodd, for a total of 16 hours over 3 pay periods in the relevant period. The respondent acknowledged that Barbara Vale was on WorkCover payments throughout the period of the applicant’s employment. It is the respondent’s contention that neither of these employees should be included since their work was not regular or systematic. Ms Riggs therefore submitted that only 4 employees, including the applicant, were engaged on a regular and systematic basis over the period of her employment.

Consideration

[19] Based on the information provided by the parties and excluding employees engaged as Monitors, it is apparent that the applicant, Donna Larkins, Kym Dodd, and Gerald Bendessi were engaged on a regular basis. Barbara Vale appears to have received fortnightly payments over the relevant period but no information has been provided in relation to the hours she worked and/or the hours she was contracted to work prior to her injury/illness.

[20] The information provided by the parties in relation to Monitors was inadequate to make the necessary findings to resolve the jurisdictional issue. Given the nature and infrequency of WAC’s I formed the view that it was necessary to look at a broader period of time in order to assess whether Monitors were employed on a regular and systematic basis. The information was however sufficient to conclude that that only the 19 Monitors that performed WAC’s in the 6-7 month period of the applicant’s employment should be the subject of further consideration.

[21] Consequently the respondent was directed to file, and subsequently provided further details of the employment of the 19 monitors over the period 12 December 2009 to 3 July 2012. 6 This information included payroll data and a summary of days worked over this period by each of the 19 Monitors.

[22] The following table summarises the number of days employed and the number of engagements (WAC’s) over which the days were worked.

DATA PROVIDED BY RESPONDENT

FOR THE PERIOD 12 DECEMBER 2009 - 3 JULY 2012

NAME	YEAR AND DAYS ENGAGED	NO. OF ENGAGE-MENTS	SOURCE DATA	COMMENTS
WILLIAM DAWSON	2010 - 11 2011 - 33 2012 - 5	1 3 1	12/12 EMAIL
ARNOLD DODD	2010 - 0 2011 - 16 2012 - 13	- 3 2	“
DWAYNE KEMP	2010 - 28 2011 - 44 2012 - 9	4 4 2	“
NEIL STEWART	2010 -14 2011 - 45 2012 - 5	1 7 1	“
TAMLYN WARREN	2010 - 3 2011 - 19.25 hrs 2012 - 12.5 hrs	2	“	2011 and 2012 hours relate to Foodbank program
ROBERT WAYE-HILL	2009 - 14 2010 - 6 2011 - 39 2012 - 39	1 2 5 5	“
RICHARD EDGE	2010 - 8 2011 - 32 2012 - 7	1 5 1	10/12 EMAIL
LAUREL DODD	2010 - 0 2011 - 20 2012 - 17	- 3 3	“
RHONDA GEPP	2010 - 5 2011 - 28 2012 - 0	1 5 -	“
JEFFREY KENNEDY	2010 - 0 2011 - 45 2012 - 9	- 5 1	“
NATALIE KENNEDY	2010 - 0 2011 - 12 2012 - 0	- 1 -	“
JENNIFER NAYLON	2010 - 25 2011 - 65 2012 - 38	4 7 1	“	2012 days reflect 38 day period 14/5 to 20/6
EDWARD STEWART	2010 - 39 2011 - 39 2012 - 38	4 6 1	“	2012 days reflect 38 day period 14/5 to 20/6
DESMA WARREN	2010 - 0 2011 - 15 2012 - 4	- 4 1	“
MARJORIE WARREN	2010 - 9 2011 - 17 2012 - 49	2 3 3	“	2012 days include 38 day period 14/5 to 20/6
RAELENE WARREN	2010 - 18 2011 - 0 2012 - 5	2 - 1	“
DAVID WAYE-HILL	2009 - 14 2010 - 6 2011 - 0 2012 - 5	1 2 - 1	“
PATRICIA WAYE-HILL	2010 - 4 2011 - 15 2012 - 13	1 3 1	“
RUSSELL WAYE-HILL	2010 - 2 2011 - 4 2012 - 17	1 1 2	“

Regular and systematic employment

[23] Identifying the true nature of the employment requires that all the facts and circumstances bearing upon the nature of the engagement are considered, 7 including the nature of the employer’s operations. Patterns of employment as indicated in the above table would be viewed very differently in the context of a business that operated during normal trading hours throughout the year. As such, it is to be born in mind that the business of DAC in which the Monitors are engaged is driven by the resource and mining companies that are leaseholders of Dieri land. As the data indicates, the WAC’s are relatively infrequent.

[24] Decisions of this and other Tribunals on the issue of regular and systematic employment can be of assistance providing that the legislative and factual context is taken into account. The case of Yakara Holdings Pty Ltd v Giljevic 8, while decided in a different legislative contextincludes a general consideration of the concept of “regular and systematic” engagements. The majority decision expressed the following views:

It is the engagement that must be regular and systematic, not the hours worked pursuant to such engagement;

The term “regular” should be construed liberally, and may imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”; and

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 on the worker’s services as an incident of the business in which he or she is engaged. 9

[25] Having regard to the data in the table, above, it is apparent that as a minimum, there was one WAC performed in December 2009, 4 WAC’s in 2010, 7 WAC’s in 2011 and 5 WAC’s in 2012 up to 3 July. 10

[26] A number of Monitors undertook no work in 2012; undertook no work in 2011 (and worked in 2010 and 2012); have more than one year when only one WAC was undertaken; or have undertaken 5 or less WAC’s over the period December 2009 to July 2012. I accept, as submitted by Dr Kidd, that Monitors are dependent on the income from the survey work, however this is not an indicator of the nature of the employment. Having regard to the pattern of work of Monitors within these categories, it not reasonably open to conclude that there is any regularity in the engagements or that there was an ongoing reliance on these individuals by DAC to conduct the WAC’s.

Conclusion

[27] When the Monitors in the above categories are removed, the number of employees employed by the respondent at the time of the applicant’s dismissal, including casual Monitors and Foodbank employees employed on a regular and systematic basis, 11 is less than 15. Consequently, the employer is a small business employer within the meaning of s.23 of the Act.

[28] The applicant has not served the required minimum employment period of 12 months and accordingly the jurisdiction of the Tribunal is not enlivened. The application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Written submissions:

By Applicant - 28 October 20012, 16 November 2012

By Respondent - 9 November 2012

 1   The different termination dates cited by the parties is of no importance to the issue that falls for determination.

 2   Applicant’s Submission, filed 28 October 2012; Respondent’s Submission, filed 9 November 2012; Applicant’s Submissions in Reply, filed 16 November 2012.

 3   Section 383(a) of the Act.

 4   Section 383 of the Act.

 5   Two former employees of the respondent are also identified but the period of their employment is not specified.

 6   On 10 and 12 December 2012.

 7   Cetin v Ripon Pty Ltd t/As Parkview Hotel, Print PR938639 at [59].

 8 (2006) 149 IR at 339.

 9   Ibid, at paras 65, 68 and 69.

 10 This is a conservative figure based on the highest number of engagements in each year, taken from the table at para [22].

 11   I have included Ms Vale in this category.

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