Zali McKee v Moama Bakery Pty Ltd

[2018] FWC 4246

[2018] FWC 4246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zali McKee
v
Moama Bakery Pty Ltd
(U2018/4474)

DEPUTY PRESIDENT MASSON MELBOURNE, 24 JULY 2018

Application for an unfair dismissal remedy – jurisdictional objection - casual employee – whether engaged on a regular and systematic basis

[1] On 30 April 2018, Ms Zali McKee (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with Moama Bakery Pty Ltd (the Respondent) was unfair.

[2] The Applicant was employed as a casual employee with the Respondent from 13 July 2013 and was terminated on 10 April 2018 by the Respondent due to her unavailability for shifts. 1

[3] The Respondent objects to the application being heard on the basis that the Applicant was a casual employee and is not a person protected by the unfair dismissal provisions of the Act.

[4] Determination of the Respondent’s jurisdictional objection was set down for a hearing/conference on 13 July 2018.

[5] The Applicant was represented by Mr Miles Heffernan of Industrial Relations Claims, who was granted permission to appear pursuant to s 596 of the Act. Mr Heffernan called Ms McKee to give evidence. Mr Alexander Sheed-Finck of SMR Legal Pty Ltd appeared on behalf of the Respondent and was also granted permission to appear pursuant to s 596 of the Act.

[6] The Respondent contends that the Applicant’s period of service as a casual employee does not count towards her period of employment because she is a casual employee who was not employed on a regular and systematic basis and during her period of service as a casual employee, did not have a reasonable expectation of continuing employment on a regular and systematic basis.

[7] The Applicant contends to the contrary that, she was a casual employee who was employed on a regular and systematic basis and during her period of service as a casual employee, did have a reasonable expectation of continuing employment on a regular and systematic basis.

Statutory framework

[8] An application for an unfair dismissal remedy is made pursuant to s 394 of the Act. Section 394(1) reads as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.”

[9] As long as a person has been dismissed in terms of the Act, the Commission must then consider certain matters before proceeding to deal with the merits of an application. There is no contest that the Applicant was dismissed. Evidence of this was plain by virtue of the letter of dismissal dated 10 April 2018.

[10] The initial matters to be considered are contained in s.396 of the Act 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.

Section 396(b) requires the Commission to consider whether the person making the application is protected from unfair dismissal.”

[11] In so far as this application is concerned s 382(a) of the Act addresses this 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.”

[12] A “period of employment” is defined in s 384 of the Act which provides:

“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.”

[13] The “minimum employment period” is defined in 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.

The “minimum employment period” is one year for a small business or 6 months for an employer which is not a small business.”

[14] The Applicant and the Respondent agree that the application was made within the required 21 days and that the Applicant was employed as a casual employee. The employer does not claim to be a small business employer and there is no dispute as to the date that the Applicant commenced casual employment with the Respondent, being 22 August 2012.

[15] I must therefore consider whether any of the service of the Applicant as a casual employee can be counted in the Applicant’s period of employment. To do so, I must consider whether the Applicant was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis. If I find in the affirmative for all or any of her service, I must consider whether this service amounted to a period of employment that is at least the minimum employment period of six months.

Case for the Respondent

[16] The Respondent furnished evidence of the Applicant’s employment history by way of pay slips for the period 17 July 2013 to 4 April 2018. 2 An analysis of the timesheets reveals that over that period of approximately 4 years and 8 months (246 weeks), the Applicant worked 212 weeks out of the 246 weeks. While not necessary to reproduce the details of all of the pay periods, it is useful to reproduce the records for the 12 month period immediately preceding the Applicant’s termination of employment with the Respondent on 10 April 2018.

[17] The Applicant’s pattern of employment for the 12 month period ending 10 April 2018 is as follows:

Week	Period	Hours	Gross Earnings $
1	12/4/17	9.5	$355.59
2	18/4/17	0	0
3	26/4/17	21.5	$374.56
4	3/5/17	22	$460.59
5	10/5/17	11.5	$206.50
6	17/5/17	20	$391.25
7	24/5/17	22	$374.22
8	31/5/17	0	0
9	7/6/17	24	$500.80
10	14/6/17	12	$280.70
11	21/6/17	20	$432.09
12	28/6/17	13	$229.29
13	5/7/17	12	$297.33
14	12/7/17	13	$272.37
15	19/7/17	24.5	$503.41
16	26/7/18	18	$454.79
17	2/8/17	0	0
18	9/8/17	28	$642.82
19	16/8/17	20.5	$491.35
20	23/8/17	16.5	$344.29
21	30/8/17	6.5	$140.99
22	6/9/17	16	$417.84
23	13/9/17	25	$512.66
24	20/9/17	30.5	$715.55
25	27/9/17	16	$393.72
26	4/10/17	18.5	$382.87
27	11/10/17	19.5	$489.93
28	18/10/17	12.5	$260.73
29	25/10/17	20	$438.76
30	1/11/17	6	$188.04
31	8/11/17	0	0
32	15/11/17	6	$188.04
33	22/11/17	6	$188.04
34	29/11/17	0	0
35	6/12/17	7	$219.38
36	13/12/17	4	$80.36
37	20/12/17	12	$253.88
38	27/12/17	7	$151.83
39	3/1/18	3.5	$75.92
40	10/1/18	7	$151.83
41	17/1/18	0	0
42	24/1/18	2	62.88
43	31/1/18	0	0
44	7/2/18	12	$337.48
45	14/2/18	3	$60.27
46	21/2/18	14	$281.26
47	28/2/18	22	$532.05
48	7/3/18	13	$381.71
49	14/3/18	15	$314.26
50	21/3/18	8	$160.72
51	29/3/18	18	$723.24
52	4/4/18	7	$219.44

[18] The Respondent submitted that the pattern of casual engagement revealed by the pay slips failed to disclose a “regular and systematic” basis of engagement. The Respondent pointed to the variability in days and hours worked per week which ranged between four days per week and as little as two hours per week. Further, at no stage did the Applicant’s hours of work approximate those of a full time employee.

[19] As regards to whether the Applicant could have held a reasonable expectation of ongoing employment, the Respondent referred to the Applicant’s unavailability for shifts when contacted on 11, 23, 25 and 30 March 2018 and 1 April 2018. The Respondent relied on a screen shot of the shift roster 3 for the Applicant which indicated that shifts on the above-referred dares had been “deleted”. No evidence was adduced by the Respondent to support its submission that the rostered shifts were cancelled at the initiative of the Applicant.

Case for the Applicant

[20] The Applicant gave evidence that she was rostered to work nearly every Saturday and at least two Sundays per month as well as regular weekday shifts. She stated that her availability to work for the Respondent was Monday, Wednesday, Friday and both days of the weekend. The Applicant also referred to the rostering arrangements, which prior to January 2018, involved the preparation and forwarding of a copy of the fortnightly roster to each employee including herself. 4 Since January, the Respondent had implemented a new roster notification process through the use of a mobile telephone Application called “Ento”, a screen shot of which was produced in evidence.5

[21] The Applicant gave unchallenged evidence that she was routinely contacted once or twice a fortnight to work additional shifts beyond the regular rostered shifts and that she would also be contacted regarding the cancellation of shifts at least twice per month. 6 The Applicant claimed that having worked a consistent pattern of hours over several years and not having received any written or verbal warnings, she had an expectation that her role would continue.

Consideration

[22] The meaning of the term “regular and systematic” was considered by Jones C in Harry Grives v Aura Sports Pty Ltd 7 where he stated as follows:

“[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.” (citations removed)

[23] It is clear that the Applicant’s hours did vary somewhat from week to week. However, that does not lead to an inevitable conclusion that that the Applicant’s casual employment was not regular or systematic. In Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 8(Ponce) Roe C stated as follows:

“[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.”

[24] While the Applicant’s hours of work may have varied from week to week the pattern of work did have the following features:

•  She was rostered to work on either a Saturday and/or Sunday of most weeks plus she worked additional hours during the week from time to time. In the 12 month period immediately prior to her termination of employment she worked on Saturday and/or Sunday on 39 of the 52 weekends in that period.

•  There was clearly an ongoing reliance of the Respondent on the Applicant as evidenced by her being regularly rostered to work, notice of which was provided in advance.

•  The Respondent offered work to the Applicant generally and such offers of work were routinely accepted.

[25] The pattern of engagement could not, in my view, be described as irregular or occasional even though the actual days and hours worked each week varied. The fact that her hours fluctuated and did not approximate the hours of a full-time employee, is not fatal for the purpose of establishing a “regular and systematic” pattern.

[26] I have found it unnecessary to consider in detail the entire period of casual engagement of the Applicant for the purpose of establishing “regular and systematic” engagement, although the entire period serves to reinforce the pattern of regular weekend work that I have described above. I am satisfied that the Applicant was clearly engaged as a casual employee on a “regular and systematic” basis.

[27] In relation to whether the Applicant had a reasonable expectation of continuing employment, I note that the Respondent makes submissions that the Applicant regularly declined offered shifts which the Respondent contends would lead to a conclusion that the Applicant could not have had a reasonable expectation of continuing employment. The Respondent failed to adduce evidence to support this claim. I am consequently not persuaded in relation to that submission.

[28] The full period of casual employment of 4 years and 8 months is particularly relevant in considering whether the Applicant could have had a reasonable expectation of continuing employment. That period during which she maintained her casual employment, combined with the “regular and systematic” nature of her employment and the absence of any performance issues, would in my view lead to an entirely reasonable expectation on the part of the Applicant of continuing employment.

[29] In all the circumstances, I conclude that the Applicant was a casual employee who was employed on a “regular and systematic” basis and that during her period of service as a casual employee, had a reasonable expectation of continuing employment. The period of the Applicant’s employment was in excess of the minimum period of employment of six months at the time of her dismissal as required by s 382 of the Act.

[30] The jurisdictional objection of the Respondent is dismissed. The application will be referred for further programming by the Commission.

DEPUTY PRESIDENT

Appearances:

M Heffernan on behalf of the Applicant.

A Sheed-Finck on behalf of the Respondent.

Hearing details:

2018.

Melbourne (via telephone).

July 13.

Printed by authority of the Commonwealth Government Printer

<PR609111>

 1   Exhibit R2, Letter of termination.

 2   Exhibit R1, Pay Slips.

 3   Exhibit R2, Screen shot of roster.

 4   Exhibit A5, Summary of Employee Roster.

 5   Exhibit A3, Screen shot Moama Bakery Roster.

 6   Exhibit A1, Witness Statement of Ms Zali McKee, dated 27 June 2018, Paragraphs [7] – [12].

 7   [2012] FWA 5552.

 8   [2010] FWA 2078.