1
Fair Work Act 2009
s.394—Unfair dismissal
Kenneth Burke
v
Marist Brothers St Joseph’s College T/A St Joseph’s College
(U2015/5952)
VICE PRESIDENT LAWLER SYDNEY, 26 OCTOBER 2015
Application for relief from unfair dismissal - jurisdictional objection.
[1] This is a decision that relates to a jurisdictional objection brought by the Respondent
pursuant to which it contends that the Applicant has not completed the minimum period of
employment, and therefore is not protected from unfair dismissal: s.382(a) of the Fair Work
Act 2009.
[2] Sections 383 and 384 relevantly provide:
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.
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:
[2015] FWC 7324
DECISION
E AUSTRALIA FairWork Commission
[2015] FWC 7324
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(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;
…
(emphasis added)
[3] The Applicant was employed pursuant to a written contract entered in about May 2012
as a “casual bus driver”. The contract states:
You will be employed on a casual basis. There is no expectation of ongoing
employment with the College. Each day of work is a separate engagement and
represents a distinct period of employment. This agreement shall apply to each such
distinct period of employment.
[4] I note:
(a) The Applicant challenged the authenticity of the contract (Exhibit 3). While he
accepts that his signature appears under the acceptance block on page 4 of the
contract the Applicant alleges, without having articulated any clear foundation
for doing so, that the front three pages of the contract have been fraudulently
manipulated by Mr Habib. I accept Mr Habib’s evidence that Exhibit 3
represents an authentic business record of the College and that the accusation
that the letter has been fraudulently manipulated is without substance.
(b) The contract contains other terms that may bear upon the questions for
determination. For example, the contract provides that the Applicant shall “not
engage in other paid work or business without the written consent of the
College. The College will not unreasonably withhold its consent.”
(c) In relation to “hours” the contract provides “your casual hours of work will be
set on a weekly basis and may be varied in accordance with the needs of the
College.” There is a contention between the hours of work being set on a
weekly basis and the extract from the contract quoted above.
[5] At the end of the day there is little dispute in relation to the facts that are determinative
of this jurisdictional objection. All of the payslips for work performed by the Applicant in the
12 month period ending 19 June 2015 (the date of termination) are in evidence and their
contents are accurately summarised in MFI5, a table prepared as an aide memoire by the
Respondent’s representatives. That table is as follows:
Date
Week
Number
Hours Worked Per
Week (Timesheets)
Fortnightly Hours
(Pay Report) School Holidays
27-Jun 1 4 Yes
4-Jul 2 0 4 Yes
11-Jul 3 0 Yes
18-Jul 4 0
Classes resume on
15 July 2014
[2015] FWC 7324
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Date
Week
Number
Hours Worked Per
Week (Timesheets)
Fortnightly Hours
(Pay Report) School Holidays
25-Jul 5 0 No
1-Aug 6 0 No
8-Aug 7 0 No
15-Aug 8 0 No
22-Aug 9 13 No
29-Aug 10 8.5 21.5 No
5-Sep 11 0 No
12-Sep 12 0 No
19-Sep 13 0
End of term on
18 September 2014
26-Sep 14 0 Yes
3-Oct 15 0 Yes
10-Oct 16 0
Classes resume on
8 October 2014
17-Oct 17 11.5 No
24-Oct 18 28.5 40 No
31-Oct 19 27.5 No
7-Nov 20 16.5 44 No
14-Nov 21 11.5 No
21-Nov 22 11.5 23 No
28-Nov 23 11 No
5-Dec 24 9.5 20.5
End of term on
4 December 2014
12-Dec 25 0 Yes
19-Dec 26 0 Yes
26-Dec 27 0 Yes
2-Jan 28 0 Yes
9-Jan 29 0 Yes
16-Jan 30 0 Yes
23-Jan 31 0 Yes
30-Jan 32 0
Classes resume on
28 January 2015
6-Feb 33 0 No
13-Feb 34 11.5 11.5 No
20-Feb 35 34 No
27-Feb 36 31 65 No
6-Mar 37 31 No
13-Mar 38 4 35 No
20-Mar 39 22 No
27-Mar 40 3 25 No
3-Apr 41 7
End of term on 1 April
2015
10-Apr 42 0 7 Yes
17-Apr 43 0 Yes
[2015] FWC 7324
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Date
Week
Number
Hours Worked Per
Week (Timesheets)
Fortnightly Hours
(Pay Report) School Holidays
24-Apr 44 0 Yes
1-May 45 0
Classes resume on
28 April 2015
8-May 46 0 No
15-May 47 8.5 No
22-May 48 10 18.5 No
29-May 49 12 No
5-Jun 50 4 16 No
12-Jun 51 0 No
19-Jun 52 6 6
End of term on
18 June 2015
[6] Mr Smith, the Applicant’s direct supervisor and the person responsible for allocating
work to the Applicant, accepted in cross-examination that he approached the allocation of
work to the Applicant in the following fashion: on any day when a casual bus driver was
required the first priority was given to Mr Dagg, who was the primary bus driver and
mechanic who, although employed as a casual, was effectively working full-time hours.
[7] Mr Smith was required to make arrangements for necessary buses to be available
during school term to meet travel needs in relation to excursions, sporting events, dances,
debating and the myriad other activities that require the transportation of students. Mr Smith
made an effort to allocate known excursion days in each term at or shortly before the
beginning of that term, however, many of the occasions where bus transport was required
arose with only short notice. During the summer and winter sporting seasons there was a
substantial requirement for bus transportation on most Saturdays, most of which was satisfied
through the use of charter coaches that were more expensive to use than the use of a school
bus with casual drivers, at least where the large bus owned by the school was being used.
[8] It is clear from the evidence of Mr Smith that he allocated work to the Applicant on
what were described as “general sports” Saturdays and then allocated additional work to the
Applicant in relation to excursions etc with as much notice as possible. Mr Smith’s
description of the way in which work was allocated to casual bus drivers had a system to it.
[9] It should be noted that the table above, supplemented by the oral evidence,
demonstrates that the Applicant was free to decline work that he would ordinarily be offered
during school terms when, for example, he went on an extended cruise with his wife and, on
another occasion, travelled to the USA for several weeks to attend to urgent private matters.
[10] On any view, the Applicant received work that can properly be described as regular
over the period of three years that he worked for the College. The key issue is whether the
pattern of work allocated to the Applicant in his employment can properly be characterised as
“systematic” within the meaning of section s.384(2)(a).
[11] There are two distinct approaches that emerge in the single Member decisions of the
Commission that, in particular cases, will lead to different outcomes. A Full Bench is yet to
rule upon the correctness of those competing approaches.
[2015] FWC 7324
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[12] The Respondent relied upon the decision of Deputy President Hamilton in Leane v
Federal Hotel [2011] FWA 5959 (Leane), applied, for example, by Deputy President
Harrison in Organ v Bushman’s Bakery Pty Ltd [2012] FWA 8079.
[13] In Leane the employee’s pattern of employment has certain similarities with the
pattern of employment of the Applicant in this case. Hamilton DP stated:
[20] Secondly, Mr Leane's employment was not regular and systematic. Mr Leane's
bank records show at most some consistency in the amount of the wages in the first
three weeks, and then a separate but consistent amount for a second period of four
weeks, and thereafter the payments usually vary each week, except for two periods of
two weeks each in December and January. Irregular wages by themselves are no basis
for a finding that Mr Leane's employment until March 2011 was regular and
systematic.
[21] The time and wages records filed by the Federal Hotel provide more evidence
that the employment was not regular and systematic. They confirm the evidence of
Mr Leane's bank records that the wages earned by Mr Leane usually varied each week.
In addition they indicate that the wages were usually earned on different days, usually
one day a week but sometimes more, and the hours worked were different. The only
regularity was that Mr Leane often, but not always, worked one day a week. There
were no regular hours or patterns of work or rosters: Robert James Power v. Rupe. I
note that there are some minor differences between Mr Leane’s bank records and the
time and wages records which record net pay, but most correlate, and reinforce the
accuracy of the records.
(footnotes omitted)
[14] The Applicant relied upon the decision of Commissioner Roe in Ponce v DJT Staff
Management Services Pty Ltd [2010] FWA 2078 (Ponce), a decision that has been applied on
a number of occasions by other members.
[15] In Ponce, Roe C undertook a lengthy analysis that included the following:
Regular and systematic employment
[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.
[2015] FWC 7324
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[67] In my view, full-time and part-time work must be regarded as meeting the
definition of regular and systematic. This is one reason why regular and systematic
casual work meets the jurisdictional hurdle and why it is distinguished from irregular,
occasional or non-systematic casual work for the purposes of a range of entitlements
under the Act and Awards as discussed above. Legislators have deemed it fair to give
regular and systematic casuals the same entitlements as other workers because they are
engaged regularly and systematically, like full and part-time employees (in respect to
matters such as parental leave and unfair dismissal jurisdiction).
[68] Full-time, part-time and casual employees often work on varying days and at
varying times. Awards provide wide flexibility in this respect and further flexibility is
available through flexibility agreements and through collective agreements. Under
many awards ordinary hours can be averaged over a week, a month or sometimes
longer periods; ordinary hours under many awards can be worked on any day of the
week, and daily hours for full-time workers can vary under many awards from 4 to 12
hours. The fact that an employee works more hours in one week or one month than
another and the fact that an employee might have variable start and finish times is not
conclusive evidence of irregular, occasional, or non-systematic employment or
engagement.
[69] Mr Hull for the Applicant drew my attention to Yaraka Holdings Pty Ltd
v Giljevic. The legislation which was the subject of this authority concerned whether
the “engagement” had been on a “regular and systematic basis” or whether “the
individual had a reasonable expectation of the engagement continuing on a regular
and systematic basis”. This is distinguishable from the present case because in Section
384 of the Act both of these matters are required to be established. They are not
alternatives as in this authority. However in the judgment Crispin P and Gray J state:
“it was common ground that the concept of employment on a regular and
systematic basis had been drawn from provisions found in regulation under the
Workplace Relations Act 1996…”
[70] The Judges further observed:
“it is the engagement which must be regular and systematic not the hours of
work pursuant to such engagement.
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.”
[71] The Judges then find that:
“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.”
[2015] FWC 7324
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[72] In the same case in a separate judgement Madgwick J found:
“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.”
…
[75] I conclude from this that the set of facts in each case must be examined and
that, if the number of hours worked is small and the gaps between days and times
worked is long and irregular this means that there needs to be other evidence that the
employment of a casual is regular and systematic. Conversely, if there is a clear
pattern or a roster for the hours and days worked then this would be strong evidence of
regular and systematic employment.
[76] In situations where there is not a clear pattern or roster of hours and days
worked or a clear agreed arrangement between the employer and employee, then
evidence of regular and systematic employment can be established where:
The employer regularly offers work when suitable work is available at times
when the employer knows that the employee has generally made themselves
available; and
Work is offered and accepted sufficiently often that it could no longer be
regarded as simply occasional or irregular.
[77] Positive evidence of these two situations establishes regularity and a system to
the employment. It is also positive evidence of a reasonable expectation of continuing
employment on a regular and systematic basis. That is an expectation that this pattern
of when work will continue to be offered and be accepted will continue.
[78] If the hours worked over a lengthy period are similar to or exceed that of full-
time ordinary hours then this would also be strong evidence that work is being
performed when offered and that work is being offered when available at the time
parties know this is practical. Hence this would also be evidence of regular and
systematic employment.
(footnotes omitted)
[16] The facts in Leane, in terms of the pattern of employment and variability in pay, bear
some similarities to the facts in the present case. The approach in Leane would lead to a
finding that the employment of the Applicant in the present case was not regular and
systematic.
[2015] FWC 7324
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[17] On the other hand, if the approach articulated by Roe C in Ponce is adopted then the
employment of the Applicant in the present case can properly be described as regular and
systematic.
[18] With one caveat, I prefer the approach of Roe C. That caveat is that one must not treat
the summary of Roe C as a substitute for the language of the statute: the ultimate question
always remains whether the employment was “regular and systematic” within the meaning of
section s.384(2)(a) and care must be taken not to invert the test to one which asks the question
whether the employment was “occasional or irregular”.
[19] Further, it seems to me that one cannot strain or strive to find system, but rather, it
must be apparent on the evidence that some system has been adopted in the allocation of work
in the course of an Applicant’s employment.
[20] I have come to the view that in the present case there is evidence of such a system and
that the Applicant’s employment can properly be described as regular and systematic within
the proper meaning of s.384(2)(a).
[21] In accordance with the approach laid down by the Full Bench in Shortland v Smith
Snackfood Co Ltd [2010] FWAFB 5709, the breaks in employment evident in the table set out
above, to the extent that they do not coincide with the school holidays when ordinarily very
little work would be available to the bus drivers, do not count towards the minimum period of
employment, but the periods when work was being allocated do count and can be added,
consistent with Shortland, such that the Applicant has completed 6 months of regular and
systematic employment with the Respondent.
[22] Further, Mr Smith, who struck me as an impressive witness of truth, made a proper
and candid admission that a reasonable person in the position of the Applicant would have
had an expectation of ongoing employment. I am satisfied that the Applicant had such a
reasonable expectation, notwithstanding the express term to the contrary in the written
contract.
[23] Whether an employee has a “reasonable expectation of continuing employment” in
accordance with section s.384(2)(a)(ii), is a question of fact to be determined on all the
evidence. In this respect, the term of the contract to the contrary is merely a factor to be
brought to account. Over the three years during which work was allocated to the Applicant
I find it was done in such a way as to engender the reasonable expectation that the Applicant
had and, as Mr Smith acknowledged, a reasonable person would have, continuing
employment, notwithstanding the express term to the contrary within the contract.
[24] For all these reasons I am satisfied that the Applicant has completed the minimum
period of employment and that the Respondent’s jurisdictional objection should be rejected.
[25] However, before concluding, I feel it necessary to make some further observations
about the further conduct of this matter.
[26] I have a strong provisional view that the “cap” amount in this case has been correctly
calculated by the Respondent as an amount in the order of $7,300. The Respondent made an
open offer to settle of $5,000, which offer was rejected by the Applicant who countered with
an offer of $18,000 - an amount that, on any view, exceeds the statutory cap.
[2015] FWC 7324
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[27] In open negotiations, the Applicant made it clear that he wanted his “day in court” in
order to pursue allegations of lying and dishonesty against the key witnesses of the
Respondent. This is a case where the intensity and negativity of the allegations and attacks
made upon Mr Smith and Mr Habib are such that it is inconceivable that reinstatement could
be regarded as appropriate – it is inconceivable that a harmonious relationship of trust and
confidence could be re-established between the parties. That conclusion can be made on the
evidence thus far and cannot rationally be altered by evidence yet to come.
[28] In these circumstances the Applicant should be on notice that, were the Respondent to
offer the cap amount, and that offer is refused and the Applicant does not eventually secure a
more beneficial outcome, then the Applicant has a real exposure to costs. The processes of the
Commission do not exist to allow parties to vindicate their negative conclusions about
officers or other employees of a Respondent employer.
VICE PRESIDENT
Appearances:
Mr K Burke, the Applicant, appeared for himself
Mr S Hartford-Davis, of counsel, appeared for the Respondent
Hearing details:
2015
Sydney
October 12
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Price code C, PR573240
OF FAIR WORK COM -- COMMISSION AUSTRALIA THE SEAL
