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Fair Work Act 2009
s.394—Unfair dismissal
Robert Goodwin
v
Shanaya Pty Ltd T/A Domino’s Pizza
(U2016/6282)
COMMISSIONER RYAN MELBOURNE, 31 MAY 2016
Application for relief from unfair dismissal - jurisdictional objections - small business -
minimum employment period not served.
[1] The Applicant filed an unfair dismissal application on 18 April 2016 alleging that he
was dismissed by the Respondent on 12 April 2016 in that he resigned from his employment
but was forced to do so because of conduct engaged in by the Respondent.
[2] The Applicant commenced employment with the Respondent on 5 October 2015 and
had just over six months employment as at the date of dismissal.
[3] The Respondent in its Form F3 raised three jurisdictional objections to the application:
that the Applicant was not dismissed; that the Applicant had not met the minimum
employment period; and that the Respondent was a small business and the dismissal was
consistent with the Small Business Fair Dismissal Code.
[4] The Respondent filed with its Form F3 a list containing the details of the 14
employees employed by the Respondent at the Swan Hill Domino’s Pizza outlet.
[5] The jurisdictional objection that the Applicant had not served the minimum period of
employment because the Respondent was a small business was listed for hearing before me
on 13 May 2016.
[6] Shortly after that hearing Mr Pankaj Monga, the Director of the Respondent conceded
that the Respondent was not a small business within the meaning of s.23 of the Fair Work Act
in that there were associated entities of the Respondent and that the total number of
employees of the Respondent and the associated entities was more than 15.
[7] The Commission is satisfied and so finds that the Respondent is not a small business
within the meaning of s.23 of the Act.
[8] At the hearing on 13 May 2016 Mr Monga contended that the Applicant had not
served the minimum period of employment in that the employee was a casual employee and
was not employed on a regular and systematic basis. At the conclusion of the hearing the
[2016] FWC 3539
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 3539
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Respondent was given an opportunity of filing further material in support of its contentions.
The Applicant was given an opportunity to respond to any further material filed by the
Respondent.
[9] The Fair Work Act 2009 deals with the issue of minimum employment period 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.
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; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of
business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities
when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new
employment started that a period of service with the old employer
would not be recognised;
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the period of service with the old employer does not count towards the
employee’s period of employment with the new employer.”
The Respondent contended that the Applicant was never given a guarantee of hours of work
nor was he provided with his desired hours of work. This contention is not challenged by the
Applicant. The contention however is irrelevant. The Applicant concedes that he was
employed as a casual. The issue raised by s.384(2) is not about the presence or absence of
guaranteed hours or even desired hours. Rather it is concerned with whether the employment
as a casual was on a regular and systematic basis and whether the Applicant, as a casual, had a
reasonable expectation of continuing employment by the employer on a regular and
systematic basis.
[10] The Respondent contended that the Applicant usually worked irregular hours. This
contention relied on operation of s.384(2)(a) and if true would exclude the Applicant’s period
of casual employment from counting towards the minimum employment period.
[11] The Commission required the Respondent to file and serve the details of the hours
worked by the Applicant including the start and finish times each day worked. The
Respondent did not file any such material with the Commission. However, the Applicant
provided to the Commission all of his pay records which showed the days worked and the
number of hours worked on each day but which did not show start and finish times. The pay
records provided by the Applicant show the following:
Week Period Total hours Days of the week worked
1 5/10/15 - 11/10/15 6.0 Thur, Sat
2 12/10/15 -18/10/15 22.25 Mon, Tue, Thur, Fri, Sat
3 19/10/15 - 25/10/15 22.75 Tue, Wed, Thur, Fri, Sat
4 26/10/15 - 1/11/15 11.75 Tue, Wed, Thur
5 2/11/15 - 8/11/15 16.75 Tue, Wed, Fri, Sat
6 9/11/15 - 15/11/15 15.75 Tue, Thur, Fri, Sat
7 16/11/15 - 22/11/15 19.75 Tue, Thur, Fri, Sat
8 23/11/15 - 29/11/15 19.75 Tue, Thur, Fri, Sat
9 30/11/15 - 6/12/15 15.0 Mon, Tue, Thur, Sat
10 7/12/15 - 13/12/15 19.25 Mon, Tue, Thur, Fri, Sat
11 14/12/15 - 20/12/15 20.5 Mon, Tue, Wed, Thur, Sat, Sun
12 21/12/15 - 27/12/15 21.52 Mon, Tue, Wed, Thur, Sat
13 28/12/15 - 3/1/16 18.5 Tue, Wed, Thur, Fri
14 4/1/16 - 10/1/16 12.5 Thur, Fri, Sat
15 11/1/16 - 17/1/16 22.5 Mon, Tue, Thur, Fri, Sat
16 18/1/16 - 24/1/16 20.75 Mon, Tue, Thur, Fri, Sat
17 25/1/16 - 31/1/16 23.5 Mon, Tue, Thur, Fri, Sat
18 1/2/16 - 7/2/16 20.5 Mon, Tue, Thur, Fri, Sat
19 8/2/16 - 14/2/16 22.5 Mon, Tue, Thur, Fri, Sat, Sun
20 15/2/16 - 21/2/16 35 Mon, Tue, Thur, Fri, Sat, Sun
21 22/2/16 - 28/2/16 24 Mon, Tue, Thur, Fri, Sat, Sun
22 29/2/16 - 6/3/16 13.5 Tues, Wed, Thur
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Week Period Total hours Days of the week worked
23 7/3/16 - 13/3/16 0
24 14/3/16 - 20/3/16 9.5 Mon, Fri, Sat
25 21/3/16 - 27/3/16 5.25 Fri, Sat
26 28/3/16 - 3/4/16 6.75 Mon, Thur
27 4/4/16 - 10/4/16 6.0 Mon, Fri
[12] The most obvious aspect of the above chart is that the Applicant worked every week
except for week 23 and that from his commencement of employment until week 22 the
Applicant was anything but an irregular casual employee. The picture painted by the above
chart is one of regular and systematic employment. On 3 March 2016 which is in week 22 the
Applicant raised a complaint with Domino’s head office about his employment with the
Respondent. The Applicant contends that as result of making the complaint he was removed
from the roster as from 3 March 2016. The Applicant was offered no further work in that
week and none in week 23. Some limited hours were offered to the Applicant in the remaining
weeks of his employment. This period coincides with further communications between the
Applicant and Domino’s head office and the Applicant contends that he only received hours
as a result of Domino’s head office communicating with the Respondent.
[13] In his unfair dismissal application the Applicant contends that it is the conduct of the
Respondent since 3 March 2016 which constitutes the course of conduct by the Respondent
which forced the Applicant to resign his employment.
[14] The pattern of work for the first 22 weeks is regular and systematic and I accept the
contention of the Applicant that he had reasonable expectations of continuing employment on
a regular and systematic basis. Whilst the Applicant portrays his working hours in weeks 24
to 27 as being provided by the Respondent only because of the involvement of Domino’s
head office they are still regular and systematic.
[15] I am satisfied, having considered the contentions of the Applicant and the Respondent
and the material filed by each of them that the employment of the Applicant was on a regular
and systematic basis and that the Applicant as a casual employee had a reasonable expectation
of continuing employment by the employer on a regular and systematic basis.
[16] On the basis of this finding the entire period of employment of the Applicant as a
casual employee counts towards the minimum employment period. Therefore the period of
employment of the Applicant for the purposes of calculating the minimum employment
period is 27 weeks. This is greater than the six month period required by s.383(a).
[17] As the Applicant has served the minimum employment period, this application will be
subject to further proceedings before the Commission.
[2016] FWC 3539
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COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code A, PR581050
THE FAIR WORK COMMISSION HE SEALO
