[2017] FWC 2702
The attached document replaces the document previously issued with the above code on 24
May 2017.
Typographical error in subheading ‘PERMISSION FOR REPRESENTATION BY A
LAWYER’ corrected.
Associate to Commissioner Wilson
Dated 25 May 2017
1
Fair Work Act
2009
s.394 - Application for unfair dismissal remedy
Joseph Calleri
v
Swinburne University of Technology
(U2017/2340)
COMMISSIONER WILSON DARWIN, 24 MAY 2017
Application for an unfair dismissal remedy - jurisdictional objection - minimum employment
period - casual employee.
[1] On 3 March 2017 Joseph Calleri made an unfair dismissal application to the Fair Work
Commission alleging a termination at the initiative of his former employer Swinburne
University of Technology (Swinburne), and more particularly alleging that such dismissal was
unfair within the meaning of the Fair Work Act 2009 (the Act).
[2] This decision concerns two matters; the reasons for a grant of permission for
representation of Swinburne by a lawyer, made by me prior to the hearing of the matter; and
whether Mr Calleri has completed the minimum employment period and is thus a person
protected from unfair dismissal, and eligible to make an unfair dismissal application.
PERMISSION FOR REPRESENTATION BY A LAWYER
[3] On 6 April 2017 Swinburne sought to be legally represented in these proceedings and
provided short particulars to the Commission in support of its application. That material
disclosed that the Respondent relied upon s.596(2)(a) to the effect that the matter might be
dealt with more efficiently, taking into account its complexity. Swinburne’s application for
legal representation was provided by the Commission to Mr Calleri on the same day for the
purposes of eliciting his views about the application prior to the making of a decision as to
representation. Mr Calleri responded, also on 6 April 2017, strongly opposing the application.
[4] On Friday, 7 April 2017, having considered the material provided by each regarding
the application for permission for legal representation, I advised the parties that I would grant
the application pursuant to s.596(2)(a) and that reasons for doing so would be provided in due
course in the Commission’s decision on jurisdiction.
[5] Section 596 of the Act, which regulates when a party may be represented by a lawyer
or paid agent in proceedings before the Commission, provides as follows:
596 Representation by lawyers and paid agents
[2017] FWC 2702 [Note: An appeal pursuant to s.604 (C2017/3144) was
lodged against this decision - refer to Full Bench decision dated 29 August
2017 [[2017] FWCFB 4187] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4187.htm
[2017] FWC 2702
2
(1) Except as provided by subsection (3) or the procedural rules, a person may be
represented in a matter before the FWC (including by making an application or
submission to the FWC on behalf of the person) by a lawyer or paid agent only
with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid
agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into
account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the
person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into
account fairness between the person and other persons in the same matter.
(3) The FWC’s permission is not required for a person to be represented by a lawyer
or paid agent in making a written submission under Part 2-3 or 2-6 (which deal
with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer
or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the
Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
[6] In granting Swinburne’s application for permission for representation by a lawyer, I
had regard to the proper interpretation of s.596, which was considered by Flick J of the
Federal Court in Warrell v Walton1:
“[24] A decision to grant or refuse “permission” for a party to be represented by “a
lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural
decision. It is a decision which may fundamentally change the dynamics and manner in
which a hearing is conducted. It is apparent from the very terms of s 596 that a party
[2017] FWC 2702
3
“in a matter before FWA” must normally appear on his own behalf. That normal
position may only be departed from where an application for permission has been
made and resolved in accordance with law, namely where only one or other of the
requirements imposed by s 596(2) have been taken into account and considered. The
constraints imposed by s 596(2) upon the discretionary power to grant permission
reinforce the legislative intent that the granting of permission is far from a mere
“formal” act to be acceded to upon the mere making of a request. Even if a request for
representation is made, permission may be granted “only if” one or other of the
requirements in s 596(2) is satisfied. Even if one or other of those requirements is
satisfied, the satisfaction of any requirement is but the condition precedent to the
subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant
permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c)
thus need not of itself dictate that the discretion is automatically to be exercised in
favour of granting “permission”.”2
[7] It is well established that in order for permission for representation to be granted under
this section, the Commission must first determine if there exists a jurisdictional prerequisite to
the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act
being met. The Commission must then decide whether or not to exercise the discretion to
grant permission.3 The task of determining whether any of the criteria in s.596(2) is satisfied
involves the making of an evaluative judgment akin to the exercise of a discretion.4
[8] In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt
with more efficiently, a lack of complexity may still mean that permission is refused.5 Sheer
volume of documents or the existence of extraneous issues does not equate to complexity.6
While the consideration of complexity must be treated as a matter of significance in
consideration of this criterion, ultimately the issue is whether the grant of permission would
enable the matter to be dealt with more efficiently.7 There may be many grounds for a
consideration of “efficiency” and familiarity with the subject matter, the conceptualisation
and organisation of argument in the statutory context and marshalling of relevant materials
may be matters that assist in the efficient conduct of the hearing of a matter, as may the
increased alacrity with which cross-examination may be carried out, as well as familiarity
with the Act and authorities in the context of a jurisdictional question.8 The expertise and
familiarity with the issues before the Commission of human resource practitioners or in-house
counsel may also be relevant.9
[9] The relevant complexity in this particular matter is whether, in all the circumstances,
the service of Mr Calleri may properly be regarded as continuous service for the purposes of
the Act and whether, in any respect, any breaks in employment may be regarded as having
broken the continuity of service. In themselves these matters are not especially complex,
however within the context of a short jurisdictional hearing ostensibly to be focused upon the
facts of the matter it was considered by me that legal representation by the Respondent would
assist the matter to be dealt with more efficiently.
[10] I also took into account that the Applicant is professionally a solicitor and that an
unfairness to the Respondent may arise in the event that it was not permitted legal
representation (s.596(2)(c)).
[2017] FWC 2702
4
[11] Accordingly, I was satisfied that representation of Swinburne by a lawyer would assist
the matter to be dealt with more efficiently and so permission for legal representation was
granted.
[12] As a result. Mr Calleri appeared in the matter on his own behalf and Matthew
Minucci, of Counsel, instructed by Maddocks, appeared on behalf of Swinburne.
JURISDICTIONAL OBJECTION – MINIMUM EMPLOYMENT PERIOD
[13] Swinburne’s jurisdictional objection is that Mr Calleri has not satisfied the minimum
employment period, as that term is defined in ss.383 and 384 of the Act, for the reason that
his period of employment as a casual employee, with the exception of some limited
concessions, was not on a regular and systematic basis and that he did not have a reasonable
expectation of continuing employment, meaning that his period of service as a casual should
not count towards the minimum employment period.
[14] A person who has not completed a period of employment with his or her employer of
at least the minimum employment period is not a person protected from unfair dismissal
(s.382(a)). In turn, an objection that an applicant is not a person protected from unfair
dismissal is one of the initial matters that need to be determined by the Commission before
turning to the merits of an unfair dismissal application (s.396).
[15] In relation to the other initial matters within s.396, it is not in contention that the
Respondent is not a small business employer for the purposes of the Act and it is not
contended that Mr Calleri’s termination of employment, if there was one, was a genuine
redundancy.
[16] However, it may be that a question arises about whether his application was made
within the time period permitted by the Act for the making of an unfair dismissal application.
This is because Swinburne contends that Mr Calleri has not been dismissed and that he has
not worked for it since 6 December 2016. If Mr Calleri has not been employed by Swinburne
since that date, and the Commission is both satisfied that Mr Calleri was terminated on the
employer’s initiative (s.386(1)(a)), as well as having been employed for at least the minimum
employment period, the date upon which his application was made, 3 March 2017, would
mean that it would be necessary for the Commission to consider whether there were
exceptional reasons that would lead the Commission to grant an extension of time for the
making of Mr Calleri’s unfair dismissal application.
BACKGROUND AND EVIDENCE
[17] Evidence in this matter was directly received from the Applicant, Mr Calleri, and for
the Respondent from Ms Simona Jobbagy, Director of Design, Media and Information
Communication Technologies in the Pathways and Vocational Education Department at
Swinburne.
[18] Mr Calleri puts forward that his employment with Swinburne commenced in
approximately June 2010 and that he continued in employment until February 2017. He says
that the circumstances of that employment means he:
“… has served at least five (05) minimum employment periods:
[2017] FWC 2702
5
In 2010 (07 months), and
In 2012 (06 months), and
In 2013 (10 months), and
In 2014 (11 months), and
In 2015 (06 months). ”10
[19] Swinburne however contends that the commencement of Mr Calleri’s period of
employment is only from 2016, not, as Mr Calleri contends, from 2010, and that he performed
no work for them after 6 December 2016.
[20] Swinburne put forward that Mr Calleri has had various periods of casual employment
with it since 8 May 2010 but that his “casual engagements prior to 2016 were occasional,
irregular, short and related to a different type of work (non-teaching work) to his 2016 casual
engagements”.11 It also put forward that Mr Calleri, prior to 2016, had not been offered or
accepted work with Swinburne for more than 1 year and 4 months, or since 24 December
2014, and further that even if Mr Calleri had established any period or periods of continuous
service prior to 24 December 2014 the continuous service was clearly broken by the lengthy
break referred to.12
[21] Swinburne says about Mr Calleri's most recent engagements in 2016 that he first had a
casual engagement of 18.5 hours of work across three days on 4 – 6 May 2016 which
involved writing a submission for a training award on behalf of Swinburne13 and that other
employment after the work in May was not a continuation of that work.14
[22] Mr Calleri completed several “Sessional Teaching Engagement” or “Sessional TAFE
Teacher Engagement” documents, referred to by him, and in this decision, as “C3
Engagements”. The documents Mr Calleri provided to the Commission including such
engagements are dated 14 May 2010, 5 July 2011, 1 March 2013, and 1 March 2014, and an
undated document from 201615 which Mr Calleri signed on 9 May 2016.16
[23] A summary of Mr Calleri's timesheets and payslips submitted within his evidence
would suggest that he worked the following days and hours for Swinburne between 2010 and
2016;
2010 – 279 hours over 43 days;
2011 – 61.5 hours over 9 days;
2012 – 397.5 hours over 86 days;
2013 – 91 hours over 21 days;
2014 – 633 hours over 76 days;
2015 – 200 hours over 6 days.17
[24] Mr Calleri’s evidence about the work he performed for Swinburne between 2010 and
2015 was that he generally worked from home providing timesheets to Swinburne for
payment, with his work being to prepare learning materials for certain courses taught by the
University. Ms Jobbagy’s recollection about when she first met Mr Calleri is that he had been
engaged to develop some resources for a theatre arts program18 and that the work he
performed between 2010 and 2014 included short-term once-off tasks in tender writing or
course development.19
[2017] FWC 2702
6
[25] Mr Calleri’s evidence is that the work he performed for Swinburne in 2015 was,
because of Swinburne’s budgetary position, the subject of a prepayment of $13,000 paid to
him on 7 January 2015 and that he performed the work relating to the prepayment over the
next six months. The work for which he was prepaid related to the development of certain
learning materials for one of Swinburne’s units. On Mr Calleri’s evidence those materials
were finalised by him on 5 June 2015.20 In contrast, Swinburne put forward that the work was
actually completed much earlier, in March 2015, and that Mr Calleri’s materials were not
provided by him to Swinburne for some reason until June.
[26] Ms Jobbagy’s evidence is that in 2014 Mr Calleri worked on a training submission;
and that in 2015 he undertook work associated with the preparation of tender documents, and
a course evaluation.
[27] The next work performed by Mr Calleri for Swinburne commenced in May 2016 and
continued for some time, albeit with a question posed by the Respondent about whether the
work was continuous service within the meaning of the Act. The 2016 work included the
teaching of academic units for the University, as well as the preparation of materials for the
making of a submission to an awards body on Swinburne’s behalf. Swinburne considers the
different work subjects to be unconnected with each other, and thereby not to be considered as
continuous employment. Ms Jobbagy deals with Mr Calleri’s 2016 employment in her
witness statement as follows;
She needed someone in early May 2016 to write a submission for a training award
and asked Mr Calleri to do so. That work took him 18.5 hours with it being
performed across three days between 4 and 6 May 2016;21
On 30 May 2016 he performed five hours of work as a specialist guest speaker in a
particular university program;22
In August 2016 Mr Calleri was engaged to teach a 12-week semester course with his
teaching involvement being between 2 August and 25 October 2016 and which had
some associated marking work;23
Mr Calleri was engaged on six occasions between 15 August and 31 October 2016 as
a guest industry speaker in a particular university program;24
On 4 November 2016 Mr Calleri was engaged to complete six hours of marking;25
and
On 6 December 2016 he was engaged to attend a three-hour meeting.26
[28] Mr Calleri claims to have had an expectation of employment continuing after
December 2016. There is an incomplete document trail before the Commission on the subject,
however material within the Applicant’s documents show him responding by email on 15
December 2016 to an earlier email, also on 15 December, from a Swinburne manager, Mark
Boyle. Mr Calleri’s communication takes issue with matters apparently referred to in Mr
Boyle’s correspondence, which is not before the Commission, and mentions, amongst other
things, that Mr Calleri regards Swinburne’s actions as constituting “[c]onstructive and unfair
dismissal without reason”.27 A communication the next day to Mr Calleri from Kirsten Ryan,
a Swinburne HR Business Partner, informs Mr Calleri of the following;
“Hi Joe,
[2017] FWC 2702
7
I am the HR Business Partner for the PAVE team within Swinburne. I've reviewed the
emails below, and spoken with Mark about this. I wanted to confirm the main points
from Mark's email (sent 15/12/2016).
You have not been dismissed from employment at Swinburne.
We would like you to continue working at Swinburne as a sessional teacher,
specifically teaching the unit implementing copyright arrangements next year.
Your teaching skills, qualifications and experience are not being questioned. In fact,
from all accounts we have received positive feedback from students on your teaching
this year.
We do not have any concerns about your conduct, in relation to conflict of interest.
At the time of making the decision to employ you, Kate Herbert did not disclose a
potential conflict of interest stemming from her personal relationship with you.
In future, Mark has asked Kate to work with him on any staffing decisions in her
program area.
As DMICT are still planning timetables for 2017, can you please advise if you would
like to teach the unit mentioned above?
I hope this information reassures you. If you want to meet to discuss this situation, or
if you have any unresolved concerns, I would be more than happy to meet with your
personally next week. Please let me know if you would like to do so.
I look forward to hearing from you.
Kind regards,
Kirsten Ryan
HR Business Partner (PAVE) / People and Culture / Swinburne University of
Technology”28
[29] Mr Calleri regards his termination of employment as having been notified to him and
taken effect on 13 February 2017 and comes to this conclusion after seeing an email from a
manager within Swinburne to Mr Calleri’s wife, Kate Herbert, who also works at Swinburne.
That email indicates that another employee of Swinburne’s had been allocated teaching of the
courses Mr Calleri expected to undertake. He had earlier arrived at the conclusion that he
would teach the two units, having been shown a timetable with his name indicated against the
relevant course units. The relevant timetable provided to the Commission by Mr Calleri
indicates several preparation and revision dates between 30 November 2016 and 6 December
2016.
[30] For its part, Swinburne submits that no work was performed for it by Mr Calleri after
6 December 2016. Ms Jobbagy concedes that the timetable submitted to the Commission by
Mr Calleri shows his name held against the relevant course units but explained in her oral
evidence that the particular document, being a timetable, was just a room allocation and that
allocation of staff to the courses was another process, with the timetable merely identifying
who was available. Further, she explained that Swinburne’s process of allocating staff to
course units was firstly to prefer ongoing staff, then to consider fixed-term contract staff and
then finally to consider sessional staff such as Mr Calleri. Her evidence also included that the
person to whom the course units had actually been allocated had availability within her
[2017] FWC 2702
8
timetable because of other courses being cancelled and that the staff member concerned was
to be preferred to Mr Calleri in the allocation of work.
[31] Mr Calleri put numerous questions to Swinburne’s witness, Ms Jobbagy, to the effect
that her evidence was untruthful or that she was lying or that she had made things up. While
Mr Calleri put those propositions to her, each denied by Ms Jobbagy, he did not put contrary
and specific information to her that would enable a finding that she had been untruthful.
Rather than finding that Ms Jobbagy was untruthful in any respect I found her to be a truthful
witness who was prepared to acknowledge those parts of her statement where she relied upon
information provided from others or to acknowledge those aspects of her statement that were
incorrect. In relation to those parts of her statement requiring correction I accept that the
initial errors made by Ms Jobbagy were inadvertent, unintentional and without any intention
to mislead.
LEGISLATION
[32] A person is protected from unfair dismissal if they meet the following criteria, set out
in s.382 of the Act;
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; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in
accordance with the regulations, is less than the high income
threshold.
[33] The definition ascribed to the minimum employment period is provided in s.383;
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
[2017] FWC 2702
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(b) if the employer is a small business employer—one year ending at that time.
[34] Relevant to this decision, and the Respondent’s assertion that Mr Calleri’s period of
service as a casual employee should not count towards his period of employment with
Swinburne, are the terms of s.384 of the Act;
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;
the period of service with the old employer does not count towards the
employee’s period of employment with the new employer.
CONSIDERATION
[35] I note that no work has been performed by Mr Calleri for Swinburne since 6
December 2016 and that there was a communication with him on 15 December 2016 referring
to the prospect of further work. I note that Mr Calleri’s application refers to the date of
termination of his employment as being both notified and taking effect on 13 February 2017.
[36] As is evident from the provisions of s.384(1), the matter for determination in this
decision is whether the Applicant has a period of continuous service with his former employer
that would exceed the minimum employment period. A period of casual employment will not
[2017] FWC 2702
10
be counted towards the period of employment itself unless that casual employment was on a
regular and systematic basis and the employee had a reasonable expectation of continuing
employment with the employer also on a regular and systematic basis.
[37] It has been held in relation to predecessor legislation, in which there was also a need to
find employment on a “regular and systematic” basis in order for a casual employee to be
entitled to make an unfair dismissal application, “that it is the ‘engagement’ that must be
regular and systematic; not the hours worked pursuant to such engagement”.29 In a finding
made under the current legislation, employment is regarded to have commenced when the
employee first attended for work, thereby accepting the offer of employment.30
[38] Further, the Full Bench has made plain that the enquiry in matters such as this is an
enquiry as to the whole of the period of employment, with an established sequence of
engagements being capable of being considered continuous service, with that continuous
service being broken only when one party makes it clear to the other by words or actions that
there will be no further engagements. I take into account and apply the reasoning of the Full
Bench in Shortland v Smiths Snackfood;
“As a matter of the common law of employment, and in the absence of an agreement to
the contrary, each occasion that a casual employee works is viewed as a separate
engagement pursuant to a separate contract of employment. Casual employees may be
engaged from week to week, day to day, shift to shift, hour to hour or for any other
agreed short period. In this sense no casual employee has a continuous period of
employment beyond any single engagement. 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 that background that s 384 must be construed.
The criteria in s 384(2)(a) make it clear that s 384 does not proceed on the basis that a
casual employee’s period of employment for the purposes of the unfair dismissal
remedy starts and ends with each engagement as understood in the common law of
employment.
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).
[2017] FWC 2702
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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.”31 (original emphasis)
[39] The evidence about the circumstances in early 2015 includes that Mr Calleri was
prepaid to undertake certain work for the first part of 2015, which he then proceeded to do. In
relation to that work Mr Calleri’s outline of submissions refers to the following;
“The Applicant worked for the Respondent from January 01, 2015 to June 05, 2015
inclusive, a total period of time exceeding three months, writing Learning Materials,
Unit Outlines, and Assessment Documents for the following units of study in the
Respondent’s Diploma of Justice course:
VU20861 -- Apply Criminal Law Within A Justice Environment.
VU20862 -- Work with Family Violence.
VU20863 -- Work with Culturally Diverse Clients.
VU20864 -- Work with Conflict.
VU20865 -- Apply Management and Leadership within Justice.”32
[40] There is a dispute between the parties as to when that work was completed. On 21
March 2015, Mr Calleri’s wife, Ms Herbert, emailed Swinburne with six “Learning
Material/docs” which she refers to as being “the final unit” for the course. On 4 June 2015 a
person within Swinburne emailed Mr Calleri asking whether he had been asked to write a
particular module in relation to the diploma to which the earlier materials related.33 Several
hours later, also on 4 June 2015, Ms Herbert responded attaching the requested documents
and in doing so said “Apologies. I must have missed sending the docs for this unit in Feb”.34
[41] Notwithstanding the dispute between the parties as to when the work was completed,
whether that be 21 March 2015 or 4 June 2015, it is apparent that Mr Calleri’s engagement
with Swinburne finished on one of those dates. I am unable to see from the evidence before
me that there was any intention by Swinburne that further work would be performed by Mr
Calleri after the time that he provided the course materials.
[42] In considering the application of Shortland, referred to above, it is to be noted that that
case did not concern the situation where there had been a break in continuity of service;
“The Commissioner did not find that Mr Shortland’s employment was not continuous
and correctly so. Prior to June 2009 Mr Shortland worked almost every week. There
were a total of 4 isolated weeks in the period of almost three years prior to June 2009
when Mr Shortland performed no work. Those breaks should not be treated as a
discontinuity in Mr Shortland’s employment such that periods of service before them
should be discounted. The pattern of work disclosed by the evidence suggests that Mr
Shortland’s employment in the period was regular and systematic. On any view, Mr
Shortland had a reasonable expectation of continuing employment on a regular and
systematic basis. In June 2009 Mr Shortland ceased work as a result of an injury that
[2017] FWC 2702
12
he claimed was work-related and for which he has now lodged a claim for workers
compensation. Smiths has disputed that claim on the basis of causation. Mr Shortland’s
absence from work from June 2009 was due to that injury and incapacity.
A letter from Smiths dated 22 September 2009 informed Mr Shortland:
… Please be aware that given you are unable to undertake your full duties, we
are unable to roster you for any shifts as a casual packer.
Should a medical practitioner declare you fully fit for work again, please
advise us and provide a copy of the certificate so that we are able to roster you
for work where required.
It is clear from subsequent events that Smiths took the view that Mr Shortland was still
a casual employee but he was not being allocated work because he was not fully fit for
work.”35
[43] The question arises in this matter as to whether or not routinely occurring breaks in the
academic year might either explain some of the gaps in Mr Calleri’s employment and not be
treated as breaks in continuous service. Within the context of breaks associated with
employment in a school, Vice President Lawler observed the following in the matter of Burke
v Marist Brothers St Joseph’s College (Burke);
“[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.”36
[44] The proposition that the lack of work by Mr Calleri performed for Swinburne between
early-to-mid 2015 and mid-2016 can be explained by the ordinary or routine vacations that
may be experienced in an academic institution such as Swinburne would require there to be
significant evidence in favour of the proposition in order for it to be made out. For success the
proposition would need to be illustrated with positive evidence that demonstrated that when
work concluded in early-to-mid 2015 that conclusion was the product of some campus closure
that meant that Mr Calleri would not be brought back until the following year. At its shortest
the period is of slightly less than a year, and at its longest it is 14 months.
[45] The work performed by Mr Calleri in early-to-mid 2015 was associated with the
preparation of materials for Swinburne’s teaching courses. The work he next performed for
Swinburne in May 2016 was associated with the preparation of the submission for a training
award. There is no evidence before the Commission that would suggest that the two bodies of
work were separated because of the period associated with the University’s activities when
there was ordinarily very little work available to people such as Mr Calleri.
[46] Mr Calleri submits that due to what he calls the “continuous length” of his
employment from 2010 to 2016 inclusive he cannot be excluded from lodging a claim for
[2017] FWC 2702
13
unfair dismissal on the grounds of his casual status, relying on the Commission’s decision in
Atkins v Box Hill High School, School Council37 (Atkins).
[47] That matter was decided under the Workplace Relations Act 1996 (the WR Act) and
the test required to be applied by the Commission at that time was whether, in all the
circumstances, the Applicant was unable to make an unfair dismissal application because
work as a casual employee should be excluded from consideration “if the occasions on which
the employee works for that employer under that engagement occur within a period of less
than 12 months”.38 The Commission noted that the Applicant had employment as a causal
relief teacher over a series of engagements in a period of around 18 months. In deciding the
matter, the Commission considered the nature of casual employment and the meaning of the
verb “engage”, and concluded that the Applicant’s casual service should not be disregarded
since it would be inappropriate to characterise the occasions of her employment as a separate
employment relationship or relationships.39 Atkins also considered the reasoning of the Full
Court of the Federal Court in Hamzy v Tricon International Restaurants T/A KFC40 (Hamzy),
in which earlier Regulations, excluding some kinds of employees from the operation of the
termination of employment provisions contained in the WR Act, were found to be invalid.41
By the time Atkins was decided different Regulations had been made.42
[48] Mr Calleri’s submission about Atkins is that its reasoning should be applied “in
relation to an analysis of the “gaps” in the Applicant’s employment with the Respondent”,43
arguing that from the Commission’s analysis of the decision, it may be inferred that “the Fair
Work Act 2009 makes no mention whatsoever of the incidence, number, pattern, separation,
duration or any other feature of the occasions on which a casual employee performs work for
an employer”.44
[49] Atkins and Hamzy were decided under predecessor legislation and two sets of different
regulations, with Atkins relying on a finding that separate occasions of work were within the
one engagement occurring within a period of more than 12 months. The Regulation to which
the Commissioner was required to have regard in Atkins provided for the exclusion of casual
employees from access to Unfair Dismissal provisions if they were engaged for a “short
period” within the meaning of a sub-regulation which provided the following;
“30B. Certain employees excluded from requirements for termination of employment
(1) For subsection 170CC(1) of the Act, the following kinds of employees are
excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part
VIA of the Act:......
(d) a casual employee engaged by a particular employer for a short period, within the
meaning of subregulation (3).......”
(3) For paragraph (1)(d), a casual employee is engaged by a particular employer for a
short period if the occasions on which the employee works for that employer under
that engagement occur within a period of less than 12 months.”45
[50] Examination of that sub-regulation, together with the decision of Commissioner
Lewin, leads to the view that Atkins has limited utility in the determination of this matter.
While it is consistent with the proposition that assessment of continuous service requires an
analysis of the whole of the employment relationship and that there can be continuous service
[2017] FWC 2702
14
for a casual employee across separate contracts of employment, it does not make, as Mr
Calleri would seek, a finding that any work that runs beyond a six-month span is deemed to
be completion of the minimum employment period.
[51] Hamzy has little application to this matter. The judgment is significantly concerned
with matters such as the Court’s jurisdiction and the validity of certain regulations. While it
also addresses the meaning of the phrase “engaged on a casual basis” used in the WR Act and
considered the date from which an employee’s status may be evaluated in applying the phrase,
those do not determine the application of ss.382, 383 and 384; the relevant tests in which are
whether an employee has completed a period of employment of at least the minimum
employment period with that period being the period of continuous service that has been
completed. The fact that certain regulations were found by the Full Court to be invalid in 2001
does not impact on this decision, which concerns the application of legislation enacted by the
Parliament in 2009 in altogether different terms to the invalid regulations.
[52] Mr Calleri also drew upon the provisions of the Explanatory Memorandum to the Fair
Work Bill 2008 to assist his case, referring particularly to the explanations given for the term
“period of employment”. Mr Calleri did not draw the Commission’s attention to any part of
the Explanatory Memorandum that would cause me to apply the provisions of the Act in a
manner differently to the cases to which I have referred in other parts of this decision.
[53] Based on the evidence before the Commission I can make no finding other than that
his continuity of service with Swinburne, if there was any, was broken when he completed
preparation of the course materials in 2015, whether that was in March or June 2015. None of
the C3 Engagement documents he provided to the Commission give rise to a contrary finding,
and neither does any other evidence. It follows that assessment of Mr Calleri’s minimum
employment period for the purposes of this decision commences with the work he was
contracted to perform from 4 May 2016.
[54] Having made that finding, the question arises as to whether the work performed by Mr
Calleri in 2016 was continuous service and whether, as a casual employee, he had a
reasonable expectation of continuing employment by Swinburne on a regular and systematic
basis.
[55] The evidence about Mr Calleri’s 2016 engagements by Swinburne is set out above.
That evidence indicates that Mr Calleri was initially contracted in May 2016 to prepare a
submission for Swinburne; in May he was engaged as a specialist guest speaker; between
August and October he taught classes of a particular program; also between August and
October he spoke as a guest industry speaker at another university program; in November he
was involved in marking associated with the classes he taught; and in December he attended a
meeting for which he was paid.
[56] Viewed both in whole and objectively, this evidence does not lead me to a finding that
there is continuous service within those engagements. This is for the reason that s.384(2)(a)(i)
requires employment as a casual employee that was not on a regular and systematic basis to
be disregarded from inclusion in the Commission’s consideration of continuous service.
[57] The question of whether an employee’s engagements were “regular and systematic
employment” was considered at length in the matter of Ponce v DJT Staff Management
Services T/A Daly’s Traffic (Ponce).46 In that matter it was concluded that the fact “that an
[2017] FWC 2702
15
employee works more hours and 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”47 and 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”.48 Further;
“[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.”49
[58] The Commission also considered these matters in the matter of Burke, decided after
Ponce. Burke in turn gave consideration to the earlier decision of the Commission in Leane v
Federal Hotel (Leane)50 in which the patterns of payment to an employee were analysed and
became the basis of an assessment of whether or not the employment of the applicant was
regular and systematic, with the Commission in that matter finding that the only regularity of
Mr Leane was that he often, but not always, worked one day a week.51 After analysing the
approach taken in Leane, Vice President Lawler in Burke set out the following;
“[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.”52
[59] I, too, apply the reasoning in Burke and Ponce and do not follow Leane in this case.
[60] The circumstances in which Mr Calleri came to be engaged in 2016 as set out in Ms
Jobbagy’s evidence are as follows;
[2017] FWC 2702
16
She needed a submission written in May 2016; was aware that Mr Calleri was a
lawyer and wanted sessional work; and asked Ms Herbert if he would be available
and interested. The subsequently signed employment contract specifically noted that
a working with children certificate and a certificate IV qualification were “not
required as this is not a teaching engagement”;53
The specialist guest speaker arrangement in late May was offered by Ms Herbert and
performed on 30 May 2016 and, since the work related to contracts, drew upon Mr
Calleri’s qualifications as a lawyer. Ms Jobbagy says about this work that it “did not
involve teaching or assessment and therefore Mr Calleri did not need a Certificate IV
in Training and Assessment in order to work as a guest speaker”;54
In August Mr Calleri was engaged to teach a 12-week semester 2 class in a Writing
Short Non-Fiction course which is part of the Bachelor of Arts program. The
engagement was arranged by Ms Herbert and approved by Mr Boyle. “Mr Calleri
was engaged to teach this class because there had been an unexpected and unusually
high number of enrolments in this unit, which required Swinburne to put on an extra
class at short notice”. The engagement process “was a bit more rushed than usual
because of the expected need for an extra class”. The work was undertaken between
2 August and 25 October 2016;55
Mr Calleri was engaged on six occasions between August and October 2016 as a
guest industry speaker in a particular unit. The dates on which work was performed
associated with this work were 15 and 22 August and 10, 17, 24 and 31 October
2016;56
There was a marking engagement of 6 hours’ work on 4 November 2016.57 Ms
Jobbagy’s evidence is unclear as to whether this work was associated with the
Writing Short Non-Fiction course referred to above; however Mr Calleri’s
submissions include that he performed marking tasks associated with this course
well into November 2016;58
There was a further, and final, meeting on 6 December 2016 comprising three hours’
work, with Ms Jobbagy conceding in her oral evidence that the purpose of the
meeting was not, as stated in her witness statement, a unit assessment validation
meeting, but instead a meeting to review teaching arrangements for 2017. She
conceded that the unit assessment validation meeting was actually on 26 October
2016.
[61] Mr Calleri’s evidence also refers to work undertaken on 10 October 2016 which
comprised of a meeting associated with the content of a particular course;
Ms Jobbagy;
“… represented to the Applicant that the meeting – which according to the
Applicant’s hand-written notes occurred on Tuesday 10 October 2016 - with
Kathleen Drew (Ms Drew) and Janelle Arena (Ms Arena) was to provide Ms
Drew with legal advice regarding a human resources problem that Ms Drew
was having with one of her teachers.
Jobbagy was not present during this specific 10 October 2016 meeting.
When the Applicant, acting in good faith, arrived at the meeting, he was
ambushed by Ms Drew and Ms Arena who informed the Applicant that:
[2017] FWC 2702
17
Their law teacher had walked out on the Respondent the very morning
that teaching classes had commenced; and
Ms Drew and Ms Arena were, therefore, urgently seeking a teacher to
come in at no notice to take on 100 hours of teaching, plus marking;
The law course was in “chaos”;
The law course had a very high failure rate;
The majority of the students undertaking the law units were not native
English speakers and that they had problems understanding the course
materials;
The Applicant would have less than 2 days to prepare for such a heavy
workload;
The teaching of the law units would take place over the period of
December 2016 and January 2017 when the Applicant had already
organised his annual leave.
In October 2016, the Applicant was already successfully teaching units for the
Respondent, and the Respondent had already represented to the Applicant that
he would be teaching in 2017.”59
Further;
“During a validation meeting on Wednesday 26 October 2016 from 10am for
the course CUFCMP301A – Implement Copyright Arrangements, involving
the Applicant, Mark Boyle and Ms Kate Herbert, Mark Boyle discussed with
the Applicant some possible changes that the Applicant could introduce in
2017 to some of the teaching elements (for example: note taking; oral
presentations) for the course CUFCMP301A – Implement Copyright
Arrangements. Therefore, the Applicant had a reasonable expectation of
teaching that particular course, and continuing his employment with the
Respondent into 2017.”60
[62] Viewed objectively the two engagements in May 2016 are separate and distinct as
between themselves, and I am unable to discern something regular and systematic within
those two engagements. The work associated with the award submission is separate and
distinct to the teaching and guest speaking arrangements. The guest speaking arrangements
came about for different reasons to the preparation of the award submission and were offered
by different people for different motives.
[63] Further, I am unable to discern a regular and systematic basis of engagement between
the May engagements and the first August 2016 teaching engagement. The first August 2016
teaching engagement came about for reasons unconnected with the May engagements. Its
offering had neither a regular nor systematic basis to it.
[64] However, I am satisfied that there is the requisite connection between the first August
teaching engagement, which commenced for 12 weeks on 2 August 2016 and the second,
which commenced on 15 August 2016. Each required teaching of some kind, although the
second is characterised by Swinburne as being work as a “guest industry speaker”. Given that
it went for several weeks and required Mr Calleri to work directly with students, I consider it
has a sufficient relationship to teaching.
[2017] FWC 2702
18
[65] I also consider that the marking in November 2016 and the October 2016 and
December 2016 meetings to have the character of regular and systematic employment. Each
relates, it appears, to the teaching activities Mr Calleri undertook in 2016.
[66] Whether Mr Calleri had a reasonable expectation of continuing employment on a
regular and systematic basis (s.384(2)(a)(ii)) depends on how one might view the
communication from Ms Ryan to Mr Calleri on 16 December 2016.
[67] That communication, set out in full above, indicates that Swinburne would like Mr
Calleri “to continue working at Swinburne as a sessional teacher, specifically teaching the
unit implementing copyright arrangements next year”.61 Ms Ryan asked Mr Calleri on that
day to advise whether he would like to teach the unit mentioned above. She sought his views
about whether he would still like to teach the unit mentioned. In overall context it is doubtful
that the communication may be regarded as an offer of employment, however it is
unnecessary to determine the question, since the relevant consideration is whether Mr Calleri
had a reasonable expectation of continuing employment by Swinburne on a regular and
systematic basis. Ms Ryan’s communication is to be regarded as giving him that reasonable
expectation.
[68] As referred to above, Swinburne argue that Mr Calleri performed no work for it after 6
December 2016. The evidence supports that proposition.
[69] Notwithstanding Mr Calleri’s contention that his termination of employment was
notified and took effect on 13 February 2017, my consideration of the minimum employment
period must have regard to his “service” as a casual employee, and whether any part does not
count. Noting that the term “service” is defined by s.22 of the Act to be a “period during
which the employee is employed by the employer”, subject to specified exclusions, I am
unable to find any period of employment after 6 December 2016. While Mr Calleri may have
had a reasonable expectation of continuing employment, there is no evidence that any ever
eventuated.
[70] As a result of the findings made by me, I find that the employment period to which I
must have regard commenced on 2 August 2016. All casual employment after that period was
on a regular and systematic basis, with Mr Calleri having a reasonable expectation of
continuing employment. Therefore, no casual employment is to be disregarded. However, his
last casual employment with Swinburne was on 6 December 2016, and there was a
representation to him on 16 December 2016 that there may be further employment if he was
interested. There is no evidence that Mr Calleri answered Ms Ryan’s request that he advise
her if he would like to teach the unit she mentioned. The absence of such a response allowed
Swinburne to see that as Mr Calleri’s words or actions that there would be no further
engagement under the then operating contract. There is no evidence of employment after 16
December 2016. In all likelihood Mr Calleri’s employment ended by no later than 16
December 2016, and I find that date to be his date of termination.
[71] Mr Calleri has therefore not completed the minimum employment period
[72] I must dismiss his application as being beyond the jurisdiction of the Commission to
deal with and an order to that effect is issued at the same time as this decision.
E THE FAIR WORK C AUSTRALIA HIMISSION THE SEAL
[2017] FWC 2702
19
COMMISSIONER
Appearances:
Mr J Calleri on his own behalf.
Mr M Minucci, of Counsel, for the Respondent.
Hearing details:
2017.
Melbourne:
10 April, 2 May.
Printed by authority of the Commonwealth Government Printer
Price code C, PR592982
1 [2013] FCA 291.
2 Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar
Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
3 Appellant v Respondents [2014] FWCFB 4297; Emily Oratis v Melbourne Business School [2014] FWCFB 3869 [5].
4 Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 [19].
5 King v Patrick Projects Pty Ltd [2015] FWCFB 2679 [15].
6 Ibid [17].
7 Singh v Metro Trains Melbourne [2015] FWCFB 3502 [16].
8 Smith v James Cook University [2016] FWC 6010 [6]–[7].
9 Ibid [18].
10 Exhibit A2, Applicant’s Statement of Evidence, 2–3.
11 Respondent’s Outline of Argument: Objections, 20 March 2017, [14].
12 Ibid [15].
13 Ibid [16].
14 Exhibit R2, Witness Statement of Simona Jobbagy, [27].
15 Exhibit A3, Applicant’s Document List, C3 Engagements.
16 Exhibit A2, 17; Exhibit R2 [17].
17 Exhibit A1, Applicant’s Outline of Arguments/Objections, Attachment – Joe Calleri timesheets and payslips.
18 Exhibit R2 [7].
19 Ibid [9]
20 Exhibit A1, 19-20.
21 Exhibit R2 [12]–[15].
22 Ibid [19].
23 Ibid [20].
24 Ibid [24].
25 Ibid [26].
26 Ibid [27].
[2017] FWC 2702
20
27 Exhibit A3, Attachment Emails, 15 December 2016.
28 Ibid, Attachment Emails, 16 December 2016.
29 Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, (2006) 149 IR 339 [65].
30 Corner v SkyCity Adelaide Pty Ltd [2011] FWAFB 955, (2011) 204 IR 63 [7].
31 [2010] FWAFB 5709, (2010) 198 IR 237 [10]–[13].
32 Exhibit A1, 20.
33 Exhibit R1, email sent 4/6/15 at 2:06 PM.
34 Exhibit A3, Attachment Emails.
35 [2010] FWAFB 5709, (2010) 198 IR 237 [14] – [15].
36 [2015] FWC 7324 [21].
37 Unreported, PR930307 (2003).
38 Ibid [3].
39 Ibid [43].
40 [2001] FCA 1589, (2001) 111 IR 198.
41 Ibid [74]–[80].
42 PR930307 [3], [47].
43 Exhibit A1, 8.
44 Exhibit A2, 7.
45 Workplace Relations Regulations 1996 (Cth) r 30B.
46 [2010] FWA 2078.
47 Ibid [68].
48 Ibid [75].
49 Ibid [76]-[78].
50 [2011] FWA 5959.
51 Ibid [21].
52 [2015] FWC 7324 [18]-[19].
53 Exhibit R2 Attachment SJ-2.
54 Ibid [19].
55 Ibid [20]–[21].
56 Ibid [24].
57 Ibid [26].
58 Exhibit A1, 37-38.
59 Ibid, 39.
60 Exhibit A2, 17.
61 Exhibit A3, Attachment Emails, 16 December 2016.
