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

Mr John Attard
v
Port Phillip City Council
(U2022/2128)

Application for an unfair dismissal remedy – jurisdictional objection that minimum employment period not met – minimum employment period met – jurisdictional objection dismissed

[1] On 18 February 2022, Mr John Attard made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy (Application), alleging that he had been unfairly dismissed from his employment with Port Phillip City Council (Respondent).

[2] The Respondent objected to the Application on the basis that Mr Attard had not been employed for the minimum employment period within the meaning of section 383 of the Act (Jurisdictional Objection) and therefore was not a person protected from unfair dismissal pursuant to section 382 of the Act.

Hearing

[3] The Jurisdictional Objection was listed for hearing before me on 15 June 2022.

[4] Directions were issued on 5 May 2022 for the filing of material by the parties in relation to the Jurisdictional Objection. In accordance with the Directions, the Respondent filed its material by 25 May 2022 and Mr Attard filed his materials by 8 June 2022. Pursuant to directions made on 16 June 2022, the Respondent filed further submissions and materials on 17 June 2022 and Mr Attard filed further submissions and materials on 20 June 2022.

[5] Mr Attard represented himself and appeared on his own behalf. Ms Eva Corifeo, former Acting Team Leader for the Respondent, gave evidence for Mr Attard. Ms Corifeo is no longer employed by the Respondent.

[6] Pursuant to section 596 of the Act Mr Duggal of Moray & Agnew Lawyers was granted permission to represent the Respondent. Mr Tony Kennan, General Manager, Community and Wellbeing and Inclusion, gave evidence for the Respondent.

Minimum Employment Period

[7] Section 382 of the Act, relevantly, provides as follows:

“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;

…”

[8] Section 383 of the Act sets out the minimum employment period, and provides 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.”

[9] It is uncontested that the Respondent is not a small business employer for the purposes of section 383(b) of the Act. Accordingly, to be protected from unfair dismissal Mr Attard must have completed 6 months employment with the Respondent as provided for in section 383(a) of the Act.

[10] Section 384 of the Act, relevantly, provides as follows:

“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 as a regular casual employee; 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;

…”

[11] Section 12 defines a regular casual employee as follows:

“regular casual employee: a national system employee of a national system employer is a regular casual employee at a particular time, if at that time:

(a) the employee is a casual employee; and

(b) the employee has been employed by the employer on a regular and systematic basis.”

[12] Section 22 defines service and continuous service, relevantly, as follows:

“General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period ) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee's contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee's continuous service with his or her national system employer, but does not count towards the length of the employee's continuous service.”

Background and factual findings

[13] It is uncontested that Mr Attard commenced employment with the Respondent as a casual employee on 10 April 2018, pursuant to a written offer of employment dated 4 April 2018 (Contract). 1 Mr Attard was engaged in the position of Adventure Playground Worker, reporting to the Team Leader.2 The Contract provides that “no undertaking either express or implied has been given that this employment will be permanent in any form.”

[14] Mr Attard’s evidence is that until he was absent from the Respondent’s workplace in April 2020 he had “on going regular work” 3 His oral evidence was that he worked three days per week.4 Ms Corifeo’s evidence was that prior to 2020 Mr Attard had quite regular shifts and was relied upon to attend those shifts to meet staff ratios for the Respondent’s programs.5 On 18 November 2018 the Respondent wrote to Mr Attard offering him the opportunity to convert his casual employment to permanent part-time employment. That letter states that the offer of conversion is because Mr Attard had “worked regularly and systematically since your commencement as a casual employee on 10 April 2018.”6 Mr Attard declined the offer of conversion and elected to remain a casual employee.7 At hearing the Respondent conceded that in the period 10 April 2018 to April 2020 Mr Attard was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis.8

[15] On or about 5 December 2019 Mr Attard sustained an injury to his knee whilst working for another employer 9 (Second Employer). On or about 23 January 2020 Mr Attard exacerbated this injury whilst working for the Respondent. A workers’ compensation claim was lodged with the Second Employer in respect of this injury.10

[16] Between 24 January 2020 and 31 March 2020 Mr Attard continued to work for the Respondent. 11

[17] On 31 March 2020 the Victorian Government ordered Melbourne into lockdown and the Adventure Playground (APG) closed and did not reopen until the lockdown ended on 12 May 2020. 12 Accordingly, no work was required at the APG and Mr Attard did not work during the period of the lockdown.13

[18] Mr Attard required surgery on his knee, 14 which occurred in about June 202015 and rendered him unable to undertake any work either for the Respondent or the Second Employer.

[19] Ms Corifeo’s evidence is that following Mr Attard’s knee surgery and his subsequent absence she was advised that Mr Attard remained employed but that he would need to provide medical certification before he could return to work. 16 Mr Attard’s evidence is that due to lockdown his rehabilitation took longer than expected.17 Mr Attard’s oral evidence under cross examination was that he had many conversations with Ms Schaefer-Rivilla, Co-ordinator Middle Years and Youth Services, about returning to work, starting in August 2020 when he was in a moon boot,18 and that she tried to have Mr Attard return on light duties but that was rejected by the Respondent.19 On 19 November 2020 Ms Corifeo advised Mr Attard by text that he would need to have his doctor complete “some forms” before he could return to work. The text message provides that Ms Corifeo would get the necessary forms and provide them to Mr Attard.20 It appears this occurred, as around 18 December 2020 Mr Attard advised Ms Corifeo by text that his doctor had not certified him as fit as he could not reach under objects or undertake all of his usual duties.21

[20] It is uncontested that Mr Attard did not perform any work for the Respondent from April 2020 until July 2021, due to his knee injury and subsequent incapacity for work and lockdowns declared in Melbourne throughout 2020 and 2021. It is also uncontested that during this period he was not offered work by the Respondent nor included in the APG roster.

[21] On 4 June 2021 Mr Attard sent a text to Ms Schaefer-Rivilla advising her that “I’m officially all cleared and can return” and saying that “the all clear starts from the 14^th”. 22 Ms Schaefer-Rivilla replied saying “That’s great to hear” and asking him to call Ms Corifeo. On 8 June 2021 Mr Attard provided Ms Corifeo with a certificate of capacity and a letter from his treating medical practitioner certifying him as fully fit to work without any restrictions from 14 June 2021. On 8 June 2021 Ms Corifeo sent these documents by email to Ms Schaefer-Rivilla concluding her email by saying “I’ll wait to hear back from you before putting John on the next roster/scheduling re-induction.”23

[22] Ms Schaefer-Rivilla forwarded these by email to Mr Teotia saying:

“…

Please see attached for Adv Playground worker John Attard. Casual CoPP Employee in FYC.

John was injured at his non-copp workplace. He went through work cover process and RTW at other place of employment.

John has recovered from injury, operation and has had OT.

John had been on gradual RTW Plan with his non-copp employment, alternative duties.

John has supplied a CoC with full clearance.

We are seeking to do standard re-introduction to site. No RTWP required.

…”

[23] Mr Attard’s evidence is that he was not able to return to work in June 2021 as a further lockdown was announced by the Victorian Government and the APG was closed again. 24 It appears uncontested that the lockdown lifted briefly in July 2021 and Mr Attard worked at the APG.25 During the period 5 August 2021 to 26 October 2021 Melbourne was subject to a further lockdown and the APG was again closed. Mr Attard did not perform work at the APG during this period, however, Mr Keenan’s uncontested evidence was that:

(a) during the fortnight ending 24 August 2021 the Applicant didn’t work but was paid for his rostered hours (5 hours);

(b) during the fortnight ending 20 September 2021, Mr Attard attended a team meeting for which he was paid for 1.5 hours but otherwise did not work;

(c) during the fortnight ending 5 October 2021 Mr Attard completed emergency food parcel packing shifts (4 hours) but otherwise did not work; and

(d) during the fortnight ending 29 October 2021 Mr Attard worked at the APG (2 hours). 26

[24] Mr Attard’s evidence, which I accept, was that during the above dates his shifts were very short and the hours worked may have comprised more than one shift in the fortnight. 27 On 1 October 2021 the Victorian Government announced that all workers in Melbourne and regional Victoria on the Authorised Worker list must have a first dose of a COVID-19 vaccine by 15 October 2021 in order to continue to work outside of their primary residence and be fully vaccinated by 26 November 2021.28 The Chief Health Officer’s Direction to this effect was issued on 7 October 2021 and provided that Authorised Workers were required to have at least one dose of a COVID-19 vaccine by 22 October 2021 and be fully vaccinated by 26 November 202129 (Direction).

[25] On 29 October 2021, the Respondent wrote to Mr Attard seeking evidence of his vaccination status. That correspondence included the following:

“In line with the Chief Health Officers Direction, Authorised Workers, including casuals, are unable to be at work if they are not vaccinated after 22 October 2021.

At this time, there are no alternative interim arrangements available to you, and as such you will not be able to work any shifts once the Adventure Playground reopens. As such you are unable to work until such time as you provide evidence as set out above.

Further, I will make contact within the next two weeks to allow you to provide an update in relation to your vaccination status, evidence of a confirmed booking, or your intention not to be vaccination

You may return to the workplace at any time during this period upon production of evidence of your first dose of the COVID-19 vaccination, to be provided to me” 30

[26] On 30 October 2021 Mr Attard wrote to the Respondent by email advising that due to his beliefs he was unable to be vaccinated and requested some “patience” as “the ombudsman is on the case” 31

[27] On 5 November 2021 the Respondent wrote to Mr Attard by email confirming that the only exemption from the Directions was a medical exemption. That email concluded as follows:

“As such we are unable to roster you until you have provided evidence of your vaccination status or medical exemption.” 32

[28] Mr Attard’s evidence is that in early December 2021 he contracted COVID-19 and as a consequence was exempt from vaccination requirements. 33 On 23 December 2021 he wrote via email to the Respondent advising that as a consequence of having contracted COVID-19 he was exempt from vaccination requirements for a six month period and requesting to return to work.34 On 4 January 2021 he again wrote to the Respondent by email again enquiring if he could return to work.35 On 6 January 2021 Ms Schaefer-Rivilla wrote to Mr Attard by email advising that she had passed his email on to human resources as they were responsible for COVID-19 compliance.36 On 14 January 2021 Mr Attard wrote via email to the Respondent’s people and culture helpdesk again enquiring if he could return to work.37 On 20 January 2021 Mr Attard again wrote to the Respondent via email, in that email Mr Attard expressing confusion at the lack of response to his emails and requested to return to work. That correspondence includes the following statements:

“…

I know I have not been terminated because I have not received any warning of, or letter of termination. I was simply told that I cannot return to work until I get my vaccinations.

…

Why has no one had the decency to reply to my emails to explain why I can’t return to work or what is happening?

Even though I was casual before the pandemic, I had a very regular roster for years. Why am I being treated so unfairly?

Do I still have a job? 38

[29] On 20 January 2022 the Respondent wrote to Mr Attard by email apologising for the delay, advising that a risk assessment of Mr Attard’s role at the APG was expected to be completed shortly and saying “as you are now eligible to return to work, we will be sending you a notification letter in relation to a disciplinary matter that needs addressed prior to you recommencing at CoPP. You will be receiving this letter from David Jaboor, Acting Manager, Family, Youth and Children.” 39

[30] On 3 February 2022 the Respondent advised Mr Attard in writing “that your casual employment will be terminated effective 3 February 2022.” 40

Consideration

Was Mr Attard’s employment with the Respondent continuous?

Respondent’s submissions

[31] It is uncontested that Mr Attard was engaged as a casual employee. 41 The Respondent submits that Mr Attard is not a person protected from unfair dismissal because he has not completed the minimum employment period.42

[32] The Respondent submits that Mr Attard had two distinct and separate periods of casual employment with the Respondent.  43

[33] The Respondent submits that the first period of employment was from 10 April 2018 until April 2020 (First Period). 44 As already set out at paragraph [14] above, the Respondent concedes that during the First Period Mr Attard’s employment as a casual employee was on a regular and systematic basis and during that period he had a reasonable expectation of continuing employment on a regular and systematic basis. However, the Respondent submits that Mr Attard’s employment ceased in April 2020 as a consequence of his knee injury and incapacity to work, coupled with Melbourne’s lockdowns.45 It submits that termination of Mr Attard’s casual employment occurred by way of plain and unambiguous conduct46 and relies upon the decision of the Full Bench in Shortland v The Smiths Snackfoods Co Ltd [2010] FWAFB 5709 (Shortland).

[34] The Respondent submits that the second period of casual employment commenced in the pay period ending 27 July 2021 and continued until 3 February 2022 (Second Period). 47 During the Second Period it submits that firstly, Mr Attard’s casual employment was not regular and systematic as between 5 August 2021 and 21 October 2021 it was subject to when the APG was open due to Victoria’s lockdowns, he was unable to work for the Respondent after 15 October 2021 due to his vaccination status and subsequently was not rostered due to allegations of serious misconduct.48 Secondly, it submits for primarily the same reasons that during the Second Period Mr Attard cannot have had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis.49

[35] As a consequence the Respondent submits that:

(a) the First Period does not count towards Mr Attard’s period of service as it was not continuous service as defined in section 22 of the Act; 50 and

(b) the Second Period does not count because Mr Attard was not employed on a regular and systematic basis and he cannot reasonably have had an expectation of continuing employment on a regular and systematic basis.  51

[36] Accordingly, it is submitted that Mr Attard has not met the minimum employment period required under section 383 of the Act.

Applicant’s submissions

[37] Mr Attard submits that his employment has been continuous since April 2018. He submits that at no time was there any clear communication to him by words or actions that his employment was terminated or there would be no further engagements. He submits that the period he did not work for the Respondent between April 2022 and July 2021 was due to injury and lockdowns. He submits that he has met the minimum employment period under the Act.

Consideration

[38] At issue is whether the Mr Attard’s employment continued in the period April 2020 to July 2021 when Mr Attard did not perform any work for the Respondent, such that Mr Attard’s period of employment in the First Period and the Second Period was continuous.

[39] As has been observed in other cases it is often difficult to determine when a casual employee’s employment has ended. In Shortland the Full Bench said:

“Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”

[40] The Respondent submits that in light of Shortland a casual employment relationship can be terminated by the conduct of the parties.  52 I accept that submission. The Respondent submits that the 15 months between the First Period and the Second Period, the lodgement of a workers’ compensation claim with the Second Employer in relation to Mr Attard knee injury,53 the management of Mr Attard’s return to work process by the Second Employer, the absence of Mr Attard being rostered in any capacity during this period54 and the correspondence between the parties, including the significant period between communications,55 supports a conclusion that Mr Attard’s employment ceased in April 2020. In particular, the Respondent submits that Mr Keenan’s evidence was that Mr Attard was taken off the casual roster and that was the action that definitively brought the casual employment relationship to an end.56 It also points to language used in an email from Mr Attard to a number of Councillors on 25 October 2021 (Emails)57 and the text to Ms Corifeo on 19 March 2021 in which Mr Attard says “I realise I may have been replaced as it has taken so long”58 (Text). Respondent also submits that the nature of the employment in the First Period and the Second Period was different.

[41] I do not consider that Mr Attard’s casual employment ceased in April 2020. Firstly, it is uncontested that the Respondent did not expressly terminate Mr Attard’s employment in April 2020 nor communicate to him in any express way that his employment had ended or that he would not be offered further engagements. Secondly, Mr Attard has a written contract of casual employment and there is no evidence that this contract was expressly terminated. Further, no new casual contract of employment was provided to Mr Attard at any time and most specifically at the commencement of the Second Period, nor was he required to provide any new employment documentation to the Respondent at that time. Thirdly, section 22 of the Act makes it clear that periods of unpaid leave, unpaid authorised absence or unauthorised absence do not break an employee’s continuous service (although they do not count towards an employee’s length of continuous service). 59 Fourthly, I accept that the period between the First Period and the Second Period was not insignificant and, as the Full Bench observed in Varichak v COG Regional Team Proprietary Limited [2022] FWCFB 372,60 the failure by an employer to offer a casual employee shifts may at some point change the status of the relationship to the extent that a dismissal will result. However, in the circumstances of Mr Attard’s employment I do not consider this is what occurred. Firstly, as set out above, Mr Attard had an overarching contract of casual employment. Secondly, Mr Attard was initially not offered work in April 2020 due to Melbourne going into lockdown (First Lockdown). Notwithstanding his injury Mr Attard continued to work between December 2019 and April 2020. The First Lockdown continued until 12 May 2020. Mr Attard was then not offered work because of his subsequent surgery and rehabilitation and the Respondent requiring that he be fully fit before he return to duties. These matters were known to the Respondent and in my view explain the absence of Mr Attard being offered any work during this period. I interpose to add that I am unable to see how the management of Mr Attard’s return to work process by the Second Employer (being the employer required to do so under applicable legislation) affects whether Mr Attard’s employment relationship with the Respondent ended in April 2020. Fifthly, this is consistent with Ms Corifeo’s evidence that Mr Attard took time off work due to his injury and that she was advised that he remained employed. Further, whilst Ms Corifeo’s evidence was that Ms Schaefer-Rivilla was the person with authority to determine whether or not Mr Attard could return to work,61 her evidence was also that whilst Acting Team Leader she was responsible for rostering at the APG62 and that she modified the roster because Mr Attard was unable to work due to his injury.63 Her evidence was that there was never any doubt that Mr Attard would return once his injury had healed.64 I also consider it consistent with her email communications to Mr Attard and also her communication to Ms Schaefer-Rivilla on 8 June 2021. Sixthly, the Respondent did not call Ms Schaefer-Rivilla to give evidence. I consider this to be of some significance. Seventh, I do not consider that Mr Keenan’s evidence was that Mr Attard was “taken off” the roster as submitted by the Respondent. His evidence was that the First Period ended because there was such a long period until Mr Attard was rostered to work again in the Second Period.65 In response to questions from the Bench Mr Keenan then said that the employment ended due to Mr Attard not being available for work.66 The evidence is that Mr Attard’s first ceased work due to the First Lockdown. The further evidence is that when Ms Corifeo was Acting Team Leader she was responsible for the roster at the APG and she did not include Mr Attard because he was injured; not because he was no longer employed. Mr Keenan’s evidence was also that Mr Attard’s return to work in the Second Period was communicated by email from Ms Schaefer-Rivilla.67 He said that Ms Schaefer-Rivilla sent an email to Mr Attard saying he could return to the casual roster.68 Despite the Commission requiring the Respondent to produce this email, no email was produced. Rather, a text exchange between Mr Attard and Ms Schaefer-Rivilla was produced, commencing with Mr Attard’s text of 4 June 2021 which is set out above. I do not consider that Ms Schaefer-Rivilla’s text in reply indicates that Mr Attard is commencing new employment. As to the requirement that Mr Attard undertake induction before recommencing work, whilst I accept this may, as submitted by the Respondent,69 be consistent with the commencement of a new casual employment relationship, I consider it also equally consistent with an employee returning to work after an extended absence due to injury. I also note that Ms Schaefer-Rivilla’s email to Mr Teotia regarding Mr Attard’s return in June 2021 refers to Mr Attard as a “Casual CoPP Employee” and that she is seeking to do a standard “re-introduction”. I light of those matters I consider that latter explanation is to be preferred. Eighth, whilst the communications between Mr Attard and the Respondent were not frequent, I accept Mr Attard’s submissions that he understood that he could not return to work until he had a full medical clearance and as such there was “nothing to discuss” until he had that clearance. Communications were simply to keep in touch and keep the Respondent informed of his medical progress.70

[42] As to the Emails, I reject the Respondent’s construction of these emails. In the first email 71 Mr Attard says:

“My name is John Attard, and I used to work at St Kilda Adventure Playground. I say used to work, because of Anthony Traill has his way, the iconic St Kilda Adventure Playground and Skinner Playground will become nothing more than a generic open park playground, which we have a lot of in the area.”

[43] The Respondent submits that the phrase “I used to work at the St Kilda Adventure Playground” in the past tense demonstrates that Mr Attard’s employment as it was in the First Period had ended. 72 I reject that submission. The immediately following sentence makes clear that that is not so.

[44] As to the second email, 73 the Respondent says this evidences the change in Mr Attard’s role and demonstrates that the First Period had ended. It is clear in the email that Mr Attard is expressing concern about changes to the way in which the APG is going to operate and the role of APG workers. However, when read in its totality and in the context of the entire email chain74 I do not consider it supports the Respondent’s contention. In particular, the preceding email from the Mayor to Mr Attard75 makes clear that no changes had been determined, saying “Council is at the early stages of considering the upgrade and model of adventure playgrounds…No decisions have been made... all of this will come to the community for consultation as we move through the process.”

[45] As to the Text, I accept that in isolation it may be interpreted as an acceptance that Mr Attard considered that this employment had ended. However, firstly, I consider the Text needs to be read in the context of all of the other circumstances. Secondly, it is clear that not all correspondence is before the Commission and I therefore consider that caution ought be exercised in relying upon communications not read in context. Thirdly, Mr Attard says that he wrote the Text out of anxiety following a discussion with a non-work related friend and that Ms Corifeo confirmed that he had not been replaced, that the APG had been borrowing staff from another playground and that he would be rostered when he was fit. 76 Finally, these documents were produced by the Respondent following the conclusion of the Hearing and could not therefore be put to Mr Attard or Ms Corifeo. Accordingly, I decline to draw the conclusion pressed by the Respondent.

[46] Finally, as to the Respondent’s contention that the nature of the employment in the First Period and the Second Period was different, I do not consider that accurately reflects the situation. The evidence is that Mr Attard was not able to return to work in June 2021 once fully fit as the APG was closed due to a further lockdown. Following that lockdown being lifted for a brief period in July 2021, Mr Attard returned to work at the APG until a further lockdown was announced. That further lockdown was for the period 5 August 2021 until 26 October 2021. In that period, Mr Attard was paid for five rostered hours (although he did not work them), attended a team meeting for which he was paid, completed some emergency food parcel packing shifts and returned to the APG once the lockdown lifted on 26 October 2021. Following that, he was unable to attend the APG due to the requirements of the Directions and his unvaccinated status. Mr Keenan’s evidence was that during the lockdown between 5 August 2021 and 26 October 2021 the Respondent “created work”  77 to provide all casual employees with some income. This work was home-based training work and a team meeting.78 There was also some food relief packing work available.79 As set out above, Mr Attard undertook all of this work. Ms Corifeo’s’ evidence was that during this period a lot of staff weren’t able to work and they took alternate duties within other teams and services within Council to provide some income as they were not eligible for JobKeeper.80 Her further evidence was that she was asked to prioritise offering work to permanent staff when it was available and casual employees would be offered work if there was any further work available.81 As such, between June 2021 and the end of October 2021 Mr Attard performed duties at the APG when it was open and otherwise, when the APG was closed due to lockdowns, undertook whatever work was offered to him as a casual employee. I do not consider that supports a conclusion that the nature of the employment was different between the First and Second Period. As to the period after October 2021, on 29 October 2021 the Respondent wrote to Mr Attard that it had not received evidence from him to satisfy the Directions and as there were “no alternative interim arrangements available” he would not “be able to work any shifts once the Adventure Playground reopens.” It also provided that “you may return to the workplace at any time during this period upon production of evidence of your first does of the COVID-19 vaccination.”82 Further, following correspondence from Mr Attard regarding his vaccination status, Ms Sidhom of the Respondent wrote to Mr Attard on 5 November 2021, copying in Ms Schaefer-Rivilla, outlining that the only exemption from the Direction was a medical exemption and concluded by saying “As such, we are unable to roster you until you have provided evidence of your vaccination status or medical exemption.” Accordingly, I do not consider that the nature of Mr Attard’s employment, being an APG worker, had changed between the First and Second Periods.

[47] Accordingly, I consider that Mr Attard’s employment with the Respondent was continuous from April 2020 until February 2022.

What periods of service count towards Mr Attard’s period of employment?

Consideration

[48] It is uncontested that in the First Period Mr Attard’s employment as a casual was as a regular casual and that during that period of service he had a reasonable expectation of continuing employment by the employer on a regular and systematic basis. That period of service therefore counts towards Mr Attard’s period of employment for the purposes of section 384 of the Act.

[49] As to the Second Period, even if it could be said that Mr Attard was employed during the Second Period on a regular and systemic basis, I do not consider that Mr Attard had a reasonable expectation of ongoing employment on a regular and systematic basis during that period. In Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 1099 the Full Bench made the following observations as to section 384(2)(a)(ii): 83

First, ‘during’ can mean either ‘throughout the course of’ or ‘at a point in the course of’. In our view, the first of these meanings is intended. The sub-provision is an exception to an exception; a period of casual service does not count, unless two requirements are met. Both of these requirements concern states of affairs that can develop over time. This context points to the word ‘during’ connoting a continuous period, rather than a point in time. Further, the alternative construction would mean that a casual employee need only have a reasonable expectation of continuing employment for any fleeting period in the course of the casual employment. There is no apparent rationale that would support this being the intended meaning. Finally, we note that the explanatory memorandum to the Fair Work Bill states simply that ‘service as a casual employee does not count towards the period of employment unless it was on a regular and systematic basis and the employee had a reasonable expectation of continuing engagement on a regular and systematic basis.’17 This wording is consistent with the interpretation we favour, and inconsistent with a ‘point in time’ meaning. The effect of this is that a particular period of service as a casual employee only ‘counts’ in respect of periods when the casual employment was regular and systematic and the employee had a reasonable expectation of continuing employment.” 84

[50] Whilst the language of section 384 was amended in March 2021, I consider the Full Bench’s comments regarding section 384(2)(a)(ii) remain applicable. Accordingly, the reasonable expectation must have existed throughout the Second Period.

[51] Further, as to the reasonableness component of the expectation required by section 384(2)(a)(ii), in Bronze Hospitality Pty Ltd V Hansson (No 2) [2019] FCA 1680 the Federal Court said:

“The ordinary meaning of the words of s 384(2)(a)(ii) requires that the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis. If that expectation has been formed, it is necessary to assess whether it is a reasonable one. It is true that the word 'reasonable' is generally used in the law to import an objective standard: Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at [33] (Lord Hoffmann). But the FWA does not limit the matters that may be taken into account in determining whether the expectation is reasonable. … But the reasonableness of the expectation depends on all the circumstances…” 85

[52] Mr Attard’s evidence is that he always had an expectation of continuing employment on a regular and systematic basis. 86 I accept that evidence. However, the expectation must be reasonable in all the circumstances throughout the course of the Second Period for it to count toward an employee’s period of service. The evidence is that upon being declared fit from 14 June 2021 to return to work at the APG a further lockdown was announced and the APG again closed. The lockdown briefly lifted in July 2021 and Mr Attard performed work in that period. However, the APG was closed again from 5 August 2021 until 26 October 2021 due to a further lockdown and Mr Attard did not work at the APG other than for 2 hours during the fortnight ending 29 October 2021. From 22 October 2021 Mr Attard was required by the Directions to be vaccinated to attend work. His evidence is that he cannot be vaccinated due to his spiritual beliefs.87 In light of Mr Attard’s unvaccinated status I do not consider that Mr Attard’s expectation of continuing employment was reasonable or could have been so for the duration of the Second Period. In circumstances where due to his beliefs Mr Attard will not be vaccinated, and vaccination was required to enable him to perform his role, I am unable to see how a continuing expectation of employment, regular and systematic or otherwise, could have been reasonably held. For completeness, I do not consider this is changed by Mr Attard later contracting COVID-19. Firstly, he cannot have known that this would occur. Secondly, as set out above, the expectation must be for the duration of the relevant period; it is not a point in time assessment. Accordingly, the Second Period does not count towards Mr Attard’s period of employment for the purposes of section 384 of the Act.

Minimum employment period

Respondent’s submissions

[53] The Respondent submits that even if it is found that the Second Period is not a new period of employment Mr Attard has still not completed the minimum employment period required under the Act. 88 It submits that section 383 requires that in the six months immediately before the dismissal or the time when notice is given (whichever is the earlier) “the requisite feature of section 384 must be present.” 89 That is, the minimum employment period will not be met if in the six months immediately prior to dismissal Mr Attard’s casual employment was not as a regular casual employee and during that period he did not have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[54] The Respondent relies on the decision in Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic [2010] FWA 2078 (Ponce) where the Commissioner said:

“…The test is simply whether or not during a period of at least six months prior to the dismissal the employment as a casual was on a regular and systematic basis and the employee had, during that period, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.” 90

[55] The Respondent submits that Ponce establishes that there are two elements that need to be met for an applicant to be protected from unfair dismissal within the meaning of section 382. 91 It submits that first, the applicable period of employment must be determined by reference to section 383.92 Then, having regard to the circumstances it must be determined whether during that period of employment, the employment was regular and systematic and the applicant had a reasonable expectation of continuing employment with that employer.93 In oral submissions the Respondent submitted that if all of the final six months of employment did not meet the requirements of section 384, “at least some period at the very least of the last six months must bear the features of section 384.”94

Consideration

[56] I reject those submissions and consider they misconstrue the relevant sections of the Act.

[57] Section 382 is set out in full at paragraph [7] above. However, it is useful to reiterate the relevant parts of that section, which are as follows:

“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;

…”

[58] Accordingly, Mr Attard will be protected from unfair dismissal at the time he made his application if at that time:

(a) he had completed a period of employment with the Respondent;

(b) of at least the minimum employment period.

[59] The meaning of period of employment is set out in section 384. Accordingly, the period of employment for the purposes of section 382(a) is determined by reference to section 384, not section 383 as submitted by the Respondent. I have found that Mr Attard’s employment with the Respondent was continuous from April 2020 until February 2022. However, as Mr Attard was a casual employee, only periods of service which meet the requirements of section 384(2)(a)(i) and (ii) count towards Mr Attard’s period of employment for the purposes of section 384. Accordingly, it is at this point the questions of regular casual employment and reasonable expectation of continuing employment on a regular and systematic basis arise. Not at the point contended for by the Respondent. I have found that the period of service that counts towards Mr Attard’s period of employment is the First Period. The question is then whether the First Period is of at least the minimum employment period. The minimum employment period is 6 months for an employer other than a small business employer. Accordingly, Mr Attard has met the minimum employment period as defined in section 383 and is a person protected from unfair dismissal.

[60] As to the Respondent’s reliance on Ponce, when read in its totality, I do not consider that Ponce stands for the proposition that it is the six months immediately before dismissal in which the requirements of section 384(2)(a)(i) and (ii) must be satisfied. I also note that in Ponce the Commissioner said:

“The words of the Fair Work Act (section 384(2)(a) “a period of service as a casual employee does not count towards the employee’s period of service unless…” suggests that some time might be included and some might not…Further, the six month minimum clearly must end with the dismissal or notice of dismissal but the wording suggests the possibility that the complying period of casual employment might be earlier so long as the period of continuous service extends up to the point of dismissal or notice of dismissal.” 95

[61] Further, in Shortland the Full Bench said: 96

“…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. It is against this background that s.384 must be construed.

…

Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s. 384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).”

[62] I consider the construction of section 382, 383 and 384 I prefer to be entirely consistent with Full Bench’s comments in Shortland.

Conclusion

[63] In light of the matters set out above, I find that Mr Attard has met the relevant minimum employment period and is therefore a person protected from unfair dismissal.

Disposition

[64] The Respondent’s jurisdictional objection is dismissed.

[65] The matter will now be programmed for the filing of materials and listed for hearing.

DEPUTY PRESIDENT

Appearances:

J Attard for the Applicant

N Duggal for the Respondent

Hearing details:

16 July
Melbourne
2022

Final written submissions:

20 June 2022

Printed by authority of the Commonwealth Government Printer

<PR744467>

 1   Exhibit R1, TK-1

 2   Ibid

 3   Exhibit A2 at [3]

 4   Transcript PN 242

 5   Exhibit A1, paragraph 2

 6   Exhibit R1, TK-3

 7   Ibid

 8   Transcript PN 78

 9   Exhibit A1 at [4], Exhibit R1 at [14]

 10   Exhibit R1 at [14]

 11   Exhibit R1 at [15]

 12   Exhibit R1 at [16]

 13   Exhibit R1 at [17]

 14   Exhibit A1 at [5], Transcript PN 266

 15   Transcript PN 266

 16   Exhibit A1 at [5]

 17   Exhibit A2 at [7]

 18   Transcript PN 267

 19   Transcript PN 263

 20   TK-4

 21   Exhibit R1, TK-4

 22   Respondent’s supplementary documents, pg19

 23   Exhibit R1, TK-5

 24   Exhibit A2 at [9]

 25   Exhibit R1 at [26]

 26   Ibid at [23]- [26], Transcript PN 64-65

 27   Transcript PN 63

 28   Exhibit R1 at [27], TK-8

 29   Ibid

 30   Ibid

 31   Exhibit A2, JA-1

 32   Ibid, JA-2

 33   Exhibit A2 at [12]

 34   Ibid, JA-3

 35   Exhibit A2 at [14], JA-4

 36   Ibid at [15], JA-5

 37   Ibid at [16], JA-6

 38   Ibid at [17], JA-7

 39   Ibid

 40   TK-9

 41   Respondent’s Further Submissions at [5]

 42   Respondent’s Outline of Submissions at [4]

 43   Ibid at [22]

 44   Ibid at [10] – [15]

 45   Ibid at [15]

 46   Respondent’s Further Submissions at [9]

 47   Respondent’s Outline of Submissions at [16] – [20], Respondent’s Further Submissions at [13]

 48   Respondent’s Outline of Submissions at [24] – [28]

 49   Ibid at [29], [30]

 50   Ibid at [22]

 51   Ibid at [25]

 52   Transcript PN 297

 53   Respondent’s Outline of Submissions at [22]

 54   Respondent’s Further Submissions at [9]

 55   Ibid at [10]

 56   Transcript PN 307

 57   Transcript PN 244 – PN 259

 58   Respondent’s Further Submissions at [11], Respondent’s supplementary documents, pg 15

 59   See section 22(1)-(3), Fair Work Act 2009

 60   at [58]

 61   Transcript PN 97

 62   Transcript PN 100

 63   Transcript PN 96

 64   Transcript PN 120

 65   Transcript PN 176, PN 179

 66   Transcript PN 194

 67   Transcript PN 186,188

 68   Transcript PN 188

 69   Transcript PN 320

 70   Applicant’s Further Submissions at [5-6]

 71   CB, pg 44

 72   Transcript PN 258

 73   CB, pg 42

 74   CB, pg 42-44

 75   CB, pg 43

 76   Applicant’s Further Submissions at [7-8]

 77   Transcript PN 154

 78   Transcript PN 153

 79   Transcript PN 154

 80   Transcript PN 123

 81   Transcript PN 124

 82   TK-8

 83   Upheld by the Federal Court in Bronze Hospitality Pty Ltd V Hansson (No 2) [2019] FCA 1680

 84   at [29]

 85   at [40]

 86   Exhibit A2 at [20]

 87   Ibid at [11]

 88   Respondent’s Further Submissions at [15]

 89   Transcript PN 277, 278, PN 290, Respondent’s Further Submissions at [16]

 90   at [64]

 91   Respondent’s Further Submissions at [21]

 92   Ibid at [22]

 93   Respondent’s Further Submissions at [22]

 94   Transcript PN 290

 95   at [81]

 96   Shortland at [10 and [12]