Read the full decision here.

Introduction and background

In this application for appeal against a decision of Deputy President Mansini, who ruled against an ex-employee of a company that determined that the ex-employee was not a person protected from unfair dismissal because she had not completed the minimum employment period, and accordingly dismissed her application for want of jurisdiction.

Statutory hurdles

Pt 3-2 of the Fair Work Act 200  (FW Act) are as follows:

  • Section 390(1)(a) provides that the Commission must, relevantly, be satisfied that a person was “protected from unfair dismissal” at the time of being dismissed before it may make an order in the person’s favour for an unfair dismissal remedy (reinstatement or the payment of compensation).
  • Section 382(a) provides that the first of the two requirements that must be satisfied in order for a person to be “protected from unfair dismissal” is that the person in an employee who has completed a “period of employment” with the relevant employer of at least the “minimum employment period”.
  • Section 383(a) provides, in respect of an employer which is not a small business employer, that the “minimum employment period” is 6 months ending at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal. The company, in this instance, was not at the time of the dismissal a small business employer.
  • Section 384(1) provides that an employee’s “period of employment” with an employer is the period of continuous service the employee has completed with the employer. Relevant to this application, section 384(2)(a) provides:

“(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…”

The ex-employee worked her first shift as a casual employee with the company on 25 June 2018 and worked her last shift 8 months and 3 days later on 28 February 2019. However the company contended that this did not count towards the ex-employee’s period of employment or satisfy the minimum employment period requirement because her employment was not on a regular and systematic basis and she did not have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

The decision-in-chief

The evidence concerning the pattern of the ex-employee’s casual engagement over the period of her employment upon which the Deputy President principally relied in reaching the conclusion that she did is the company’s record of the calendar days, daily hours and weekly hours worked by the ex-employee in each week from Thursday 5 July 2018 through to her last shift on Thursday 28 February 2019. The Deputy President also relied upon the ex-employee’s fortnightly wages data.

On the basis of this material, the Deputy President stated the following conclusion relevant to s 384(2)(a)(i):

“[19] I find [the company’s evidence] the most reliable and relevant source of evidence in this respect. An objective analysis of [the company’s evidence], taking into account ex-employee’s identified discrepancies, reveals no regularity of the ex-employee’s engagements over the period. Whilst the ex-employee worked at least 3 days each week, [the company’s evidence] shows the number of days worked each week, the days of the week worked and the duration of the shift on each occasion varied significantly such that no pattern is able to be identified.

“[20] The fortnightly wages data does not assist in identifying regularity or a system of engagements, providing a more general overview than the detail depicted by [the company’s evidence]. The evidence of other employees’ hours worked also does not assist in determining regularity or system of Ex-employee’s engagements.”

The Deputy President also relied upon an email from her to the company dated 27 February 2019:

“With regards to rostering I understand that ALL casuals do not have guaranteed hours as well as casuals have a right to refuse any shift given the nature of the casual position without retribution.”

And:

“[25] Further, the objective documentary evidence including employment contract, position description, workplace policies, rosters prepared in advance when compared with actual hours worked and pay advices does not support a finding that the ex-employee had a reasonable expectation of ongoing employment.”

On the basis of the above findings, the Deputy President concluded that the ex-employee had not served the minimum employment period and for this reason was not a person protected from unfair dismissal, and accordingly dismissed her application.

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The Appeal

The ex-employee submitted that the Deputy President erred in reaching this conclusion because:

  • The Deputy President did not take into account that the ex-employee, as part of a predominantly casual workforce, worked shifts allocated to her on a monthly roster based on prior indications of her availability for the month;
  • The roster planned in advance for each month indicated that the employment was on a regular and systematic basis, with all casual shifts planned in advance except for some occasional additional shifts offered to cover for unreliable employees;
  • The Deputy President also did not take into account that the ex-employee had an ongoing contract of employment with the company;
  • The records tendered by the company showed that the ex-employee worked 3-4 shifts each week for 32 weeks with no break taken;
  • The company engaged many longstanding casual employees on a regular and systematic basis with the expectation of ongoing employment;
  • The ex-employee’s email of 27 February 2019 was taken out of context;
  • While the hours and days were varied, the employment itself was regular and systematic, but the Deputy President did not take this into account; and
  • The rostering system and regularity of employment meant that the ex-employee had an expectation of ongoing employment.

The ex-employee contended that the grant of permission to appeal would be in the public interest because the decision affected the rights of over 1700 casual employees engaged by the company and the decision was contrary to many previous decisions of the Commission concerning the circumstances in which casual employees could be characterised as working on a regular and systematic basis.

The company, on the other hand, unsurprisingly submitted the polar opposite to the ex-employee’s grounds for appeal.

Consideration

The Full Bench led straight off with:

“It is apparent on the face of the decision that the Deputy President’s determination as to whether [the e-x-employee’s casual employment was regular and systematic was attended by a significant error of principle. In her application of s 384(2)(a) to the facts of the case, the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic. We do not consider this to be the correct approach. In Yaraka Holdings Pty Ltd v Giljevic, the Court of Appeal of the ACT gave consideration to the proper construction of s 11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as workers for the purpose of that Act casual workers if their “engagement, under the contract or similar contracts, has been on a regular and systematic basis” taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work. Crispin P and Gray J observed that the concept of employment on a regular and systematic basis was drawn from the Workplace Relations Act 1996, and went on to say…

It should be noted that it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent’.

“Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.

“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…”

“Similarly, Madgwick J said…

“…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.

The Full Bench emphasising that (in my words) that Yaraka Holdings is the “golden standard” in determining the concept of casual employment on a regular and systematic basis in the FW Act. [And not forgetting WorkPac Pty Ltd v Skene] the Federal Court Full Court also favoured the Yaraka Holdings position.

The Full Bench concluding

The FB finding:

“We conclude…that [the ex-employee’s] employment as a casual employee was on a regular and systematic basis. That it was regular in the sense of being frequent is amply demonstrated by the [the company’s records]. This shows that [the ex-employee] was employed in every week…until the termination of her employment, and in 30 of those weeks she was employed for 3 or 4 shifts in the week. The employment can also be characterised as systematic that is, arranged pursuant to an identifiable system – for two fundamental reasons. The first is that, unusually, [the ex-employee’s] casual employment was the subject of a single and ongoing written contract executed on 15 June 2018″.

Contract of employment

The FB determining that:

“The terms of the contract demonstrate that [the ex-employee] was employed to work in a particular position in [the company’s] operational structure in accordance with a pre-established and ongoing framework of legal obligations. The second reason is that the evidence demonstrated that, for the most part, [the ex-employee’s] employment was the subject of a monthly roster system involving her having to indicate in advance her availability to work for the month in question and then working shifts in accordance with the roster that was subsequently prepared and posted. The copies of the monthly rosters which [the ex-employee] provided to the Commission clearly demonstrate that this was a system which applied to her and the other casual employees at the store at which she worked.

“…during her period of service with [the company] as a casual employee, [the ex-employee] had a reasonable expectation of continuing employment on a regular and systematic basis. That expectation was engendered by:

(1) the ongoing contract of employment which established a legal framework for the allocation of work to [the ex-employee] in a particular position, effectively required her to hold herself available to work during “blackout periods”, and continued until a prescribed termination event occurred;

(2) a monthly roster system, under which a roster was posted in advance of each month setting out the shifts that were allocated to [the ex-employee] during the course of the month based on her prior indication of availability to work; and

(3) the frequency and amount of work that was allocated to [the ex-employee] over the course of her employment”.

Decision

The FB decided:

  • Permission to appeal is granted.
  • The appeal is upheld.
  • The decision-in-chief is quashed.
  • The ex-employee’s unfair dismissal remedy application be referred back to the Unfair Dismissal Case Management Team for allocation to and final determination by a Commission member “on the basis of our finding that [the ex-employee] is a person protected from unfair dismissal…”.

Commentary

The hiring of a casual employee has become overly complicated and problematic. Whilst this decision serves as a useful guide (in the employment of casuals), it is descriptive of a need for a legal definition of what a casual employee is.

In my opinion, this issue is not helped with the requirement to pay permanent part-time employees overtime if they work in excess of their core hours. Overtime should be applied in the same principles as a full-time employee.