1
Fair Work Act 2009
s.604 - Appeal of decisions
Angele Chandler
v
Bed Bath N' Table Pty Ltd
(C2019/6120)
VICE PRESIDENT HATCHER
COMMISSIONER CAMBRIDGE
COMMISSIONER BOOTH SYDNEY, 23 JANUARY 2020
Appeal against decision [[2019] FWC 6448] of Deputy President Mansini at Melbourne on
20 September 2019 in matter number U2019/2368.
Introduction and background
[1] Angele Chandler has lodged an appeal, for which permission to appeal is required,
against a decision issued by Deputy President Mansini on 20 September 20191 (decision). The
decision concerned an application made by Ms Chandler for an unfair dismissal remedy in
respect of the termination of her casual employment with Bed Bath N' Table Pty Ltd (BBNT).
The Deputy President determined that Ms Chandler was not a person protected from unfair
dismissal because she had not completed the minimum employment period, and accordingly
dismissed her application for want of jurisdiction. Ms Chandler contends in her appeal that
she had in fact served the minimum employment period and the Deputy President erred in
finding otherwise.
[2] The relevant aspects of the statutory scheme concerning unfair dismissal in Pt 3-2 of
the Fair Work Act 2009 (FW Act) are as follows. Section 390(1)(a) provides that the
Commission must, relevantly, be satisfied that a person was “protected from unfair dismissal”
at the time of being dismissed before it may make an order in the person’s favour for an unfair
dismissal remedy (reinstatement or the payment of compensation). Section 382(a) provides
that the first of the two requirements that must be satisfied in order for a person to be
“protected from unfair dismissal” is that the person in an employee who has completed a
“period of employment” with the relevant employer of at least the “minimum employment
period”. Section 383(a) provides, in respect of an employer which is not a small business
employer, that the “minimum employment period” is 6 months ending at the earlier of the time
when the person is given notice of the dismissal or immediately before the dismissal. It is not
in dispute that BBNT was not at the time of the dismissal a small business employer. Section
384(1) provides that an employee’s “period of employment” with an employer is the period of
1 [2019] FWC 6448
[2020] FWCFB 306
DECISION
E AUSTRALIA FairWork Commission
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continuous service the employee has completed with the employer. Relevant to Ms
Chandler’s application, section 384(2)(a) provides:
(2) However:
(a) a period of service as a casual employee does not count towards
the employee's period of employment unless:
(i) the employment as a casual employee was on a regular and
systematic basis; and
(ii) during the period of service as a casual employee, the employee had
a reasonable expectation of continuing employment by the employer on
a regular and systematic basis; …
[3] It was not in dispute before the Deputy President or in the appeal that Ms Chandler
worked her first shift as a casual employee of BBNT on 25 June 2018, and worked her last
shift 8 months and 3 days later on 28 February 2019. However BBNT contended that this did
not count towards Ms Chandler’s period of employment or satisfy the minimum employment
period requirement because her employment was not on a regular and systematic basis and
she did not have a reasonable expectation of continuing employment by the employer on a
regular and systematic basis.
The decision
[4] The evidence concerning the pattern of Ms Chandler’s casual engagement over the
period of her employment upon which the Deputy President principally relied in reaching the
conclusion that she did is set out in Annexure A to the decision. That annexure contains
BBNT’s record of the calendar days, daily hours and weekly hours worked by Ms Chandler in
each week from Thursday 5 July 2018 through to her last shift on Thursday 28 February
2019. The Deputy President found the material in the annexure to be “the most reliable and
relevant source of evidence” in relation to the issue requiring determination. The Deputy
President however took into account all the material before her, including Ms Chandler’s own
evidence, evidence given by co-workers of Ms Chandler and fortnightly wages data.
[5] On the basis of this material, the Deputy President stated the following conclusion
relevant to s 384(2)(a)(i):
“[19] I find Annexure A the most reliable and relevant source of evidence in this
respect. An objective analysis of Annexure A, taking into account Ms Chandler’s
identified discrepancies, reveals no regularity of Ms Chandler’s engagements over the
period. Whilst Ms Chandler worked at least 3 days each week, Annexure A shows the
number of days worked each week, the days of the week worked and the duration of
the shift on each occasion varied significantly such that no pattern is able to be
identified.
[20] The fortnightly wages data does not assist in identifying regularity or a system of
engagements, providing a more general overview than the detail depicted by Annexure
A. The evidence of other employees’ hours worked also does not assist in determining
regularity or system of Ms Chandler’s engagements.”
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[6] In relation to s 384(2)(a)(ii), the Deputy President said (footnote omitted):
“[22] Having found that the employment was not regular and systematic, there is no
need to make a conclusion about any expectation of ongoing employment that Ms
Chandler may have reasonably held during the period of her service as a casual
employee. That said, much of the evidence focussed on this question and so it is
appropriate to address it.
[23] Whilst I accept that the 3 individuals who gave evidence considered there to be a
practice in the Essendon store of employing “main casuals” as distinct from
“Christmas casuals” or “other casuals”, the balance of the evidence does not support
this conclusion. Even on these witnesses own accounts, there was nothing formal or
specific to warrant a finding of a reasonable expectation in this respect.
[24] The Applicant’s own admission in an email to the employer of 27 February 2019
is telling;
‘With regards to rostering I understand that ALL casuals do not have
guaranteed hours as well as casuals have a right to refuse any shift given the
nature of the casual position without retribution.’
[25] Further, the objective documentary evidence including employment contract,
position description, workplace policies, rosters prepared in advance when compared
with actual hours worked and pay advices does not support a finding that Ms Chandler
had a reasonable expectation of ongoing employment.”
[7] On the basis of the above findings, the Deputy President concluded that Ms Chandler
had not served the minimum employment period and for this reason was not a person
protected from unfair dismissal, and accordingly dismissed her application.
Submissions
[8] Ms Chandler submitted that the Deputy President erred in reaching this conclusion
because:
the Deputy President did not take into account that Ms Chandler, as part of a
predominantly casual workforce, worked shifts allocated to her on a monthly roster
based on prior indications of her availability for the month;
the roster planned in advance for each month indicated that the employment was on a
regular and systematic basis, with all casual shifts planned in advance except for some
occasional additional shifts offered to cover for unreliable employees;
the Deputy President also did not take into account that Ms Chandler had an ongoing
contract of employment with BBNT;
the records in Annexure A to the decision showed that Ms Chandler worked 3-4 shifts
each week for 32 weeks with no break taken;
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BBNT engaged many longstanding casual employees on a regular and systematic
basis with the expectation of ongoing employment;
Ms Chandler’s email of 27 February 2019 referred to in paragraph [24] of the decision
was taken out of context;
while the hours and days were varied, the employment itself was regular and
systematic, but the Deputy President did not take this into account; and
the rostering system and regularity of employment meant that Ms Chandler had an
expectation of ongoing employment.
[9] Ms Chandler contended that the grant of permission to appeal would be in the public
interest because the decision affected the rights of over 1700 casual employees engaged by
BBNT and the decision was contrary to many previous decisions of the Commission
concerning the circumstances in which casual employees could be characterised as working
on a regular and systematic basis.
[10] BBNT submitted that:
Ms Chandler had not demonstrated that the grant of permission to appeal would be in
the public interest as required by s 400(1) of the FW Act;
it was incorrect that the decision was disharmonious with other recent decisions of the
Commission, and the fact that BBNT employed a significant number of casual
employees was not rationally connected to the subject matter of the proceedings and
did not make Ms Chandler’s dismissal a matter of public importance;
Ms Chandler had not demonstrated any significant error of fact in accordance with s
400(2);
it was open to the Deputy President to take into account the email of 27 February 2019
as demonstrative of Ms Chandler’s understanding as to the nature of her employment;
the Deputy President’s decision was a discretionary one, and it was impermissible
simply to invite the Full Bench to re-decide the issue for itself;
in finding that the material in Annexure A was the most reliable source of data as to
Ms Chandler’s roster, the Deputy President clearly took into account that Ms
Chandler’s employment was “continuous and without breaks”, and otherwise made
reference to Ms Chandler’s photographs of monthly handwritten rosters and other
records and data relied upon Ms Chandler;
the Deputy President’s finding that Ms Chandler’s employment was not regular or
systematic meant that there was no need for her to come to a conclusion about whether
she had an expectation of ongoing employment pursuant to her contract of
employment or on some other basis; and
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the Deputy President, consistent with authority, took into account all the relevant
circumstances in determining that the employment was not regular or systematic, and
the conclusion she reached was reasonably open to her.
Consideration
[11] It is apparent on the face of the decision that the Deputy President’s determination as
to whether Ms Chandler’s casual employment was regular and systematic was attended by a
significant error of principle. In her application of s 384(2)(a) to the facts of the case, the
Deputy President proceeded on the basis that it was necessary to identify a consistent pattern
of engagement in the number of days worked each week, the days of the week worked and the
duration of each shift in order to be able to conclude that the employment was regular and
systematic. We do not consider this to be the correct approach. In Yaraka Holdings Pty Ltd v
Giljevic,2 the Court of Appeal of the ACT gave consideration to the proper construction of s
11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as
workers for the purpose of that Act casual workers if their “engagement, under the contract
or similar contracts, has been on a regular and systematic basis” taking into account a range
of matters including the contractual terms, the working relationship and all associated
circumstances, the period or periods of engagement, the frequency of work, the number of
hours worked, the type of work, and the normal arrangements for someone engaged to
perform that type of work. Crispin P and Gray J observed that the concept of employment on
a regular and systematic basis was drawn from the Workplace Relations Act 1996,3 and went
on to say (emphasis added):
“[65] It should be noted that it is the "engagement" that must be regular and
systematic; not the hours worked pursuant to such engagement. Furthermore, the
section applies to successive contracts and non-continuous periods of engagement. It
is true that subs (3) provides that, in working out whether an engagement has been on
a regular and systematic basis, a court must consider, inter alia, the frequency of work,
the number of hours worked under the contract or similar contracts and the type of
work. However, these statutory criteria relate to the decisive issue of whether the
relevant engagement has been on a regular and systematic basis. The section contains
nothing to suggest that the work performed pursuant to the engagements must be
regular and systematic as well as frequent.
…
[67] 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.
[68] The term "regular" should be construed liberally. It may be accepted, as the
Magistrate did, that it is intended to imply some form of repetitive pattern rather than
being used as a synonym for "frequent" or "often". However, equally, it is not used in
the section as a synonym for words such as "uniform" or "constant". Considered in the
light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement
over the years from 1995 to 2002 satisfied this description.
2 [2006] ACTCA 6, 149 IR 339
3 Ibid at [64]
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[69] Mr Rares argued that the course of engagement over these years had not been
shown to have been systematic because it had not been predictable that the respondent
would be engaged to work at particular times, on particular jobs or at particular sites.
Again, that is not the test. 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.”
[12] Similarly, Madgwick J said (emphasis added):
“[89] … 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.
[90] The respondent’s work for the appellant was certainly frequent enough to be
termed ‘regular’ within an acceptable understanding of that term, which may, even in
ordinary speech, be used to denote ‘frequent’.
[91] 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 (cf the
definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001).”
[13] The reasoning in Yaraka Holdings has been applied to the concept of casual
employment on a regular and systematic basis in the FW Act. In WorkPac Pty Ltd v Skene,4
the Federal Court Full Court favoured (without needing to finally adopt) the view that the
construction in Yaraka Holdings should be applied to the definition of “long term casual
employee” in s 12 of the FW Act (which includes a requirement that the employee has been
employed “on a regular and systematic basis for a sequence of periods of employment during
a period of at least 12 months”).5 The Commission in its own decisions has consistently
applied Yaraka Holdings to s 284(2)(a), including in the Full Bench decisions in Pang
Enterprises Pty Ltd ATF Pang Family Trust v Sawtell6 and Bronze Hospitality Pty Ltd v
Janell Hansson7 as well as in numerous first instance decisions.
[14] By treating the degree of regularity in the pattern of hours worked by Ms Chandler as
disclosed by Annexure A as the only or decisive consideration in the application of s
384(2)(a)(i) (rather than merely as one of a number of relevant considerations in the analysis),
we consider that the Deputy President misconstrued the provision. This erroneous approach
resulted in the Deputy President failing to take into account a number of matters which
pointed to a different conclusion, including Ms Chandler’s contract of employment and the
rostering system adopted by BBNT.
[15] In respect of s 384(2)(a)(ii), we note that the Deputy President considered that there
was no need to state a final conclusion about the application of this provision given her
4 [2018] FCAFC 131
5 Ibid at [150]-[152]
6 [2016] FWCFB 4438 at [15]-[17]
7 [2019] FWCFB 1099 at [24]
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conclusion in relation to s 384(2)(a)(i) but nonetheless went on to express a view about it. To
the extent that it is necessary for us to consider this part of the decision, we would conclude
that it is also attended by appealable error in at least one respect. The Deputy President treated
as “telling” the excerpt from Ms Chandler’s email of 27 February 2019 quoted in paragraph
[24] of the decision. We take that to mean that the Deputy President regarded it as a relevant
and significant, if not decisive, consideration in the analysis. We consider this to be incorrect.
The excerpted passage did no more than set out the basic incidents of all casual employment.
That could not be relevant or significant in determining whether Ms Chandler’s casual
employment was of a type to which s 384(2)(a)(ii) applied. Were the contrary the case, no
casual employment could ever fall within s 384(2)(a)(ii).
[16] Because the decision was attended by appealable error in the above respects, we
consider that the grant of permission to appeal would be in the public interest. The errors
concern a question of the Commission’s jurisdiction and the decision departed from well-
established principles concerning the construction of s 384(2)(a) of the FW Act with the result
that Ms Chandler has been deprived of the opportunity to litigate her unfair dismissal remedy
application. Accordingly, permission to appeal must be granted in accordance with s 604(2).
We uphold the appeal and quash the decision.
Re-determination
[17] We consider that the most efficient course is for us to re-determine the question of
whether Ms Chandler is a person protected from unfair dismissal based on the evidence that
was before the Deputy President.
[18] We conclude, in respect of s 284(2)(a)(i), that Ms Chandler’s employment as a casual
employee was on a regular and systematic basis. That it was regular in the sense of being
frequent is amply demonstrated by the data in Annexure A to the decision. This shows that
Ms Chandler was employed in every week the subject of the analysis until the termination of
her employment, and in 30 of those weeks she was employed for 3 or 4 shifts in the week.
The employment can also be characterised as systematic - that is, arranged pursuant to an
identifiable system - for two fundamental reasons. The first is that, unusually, Ms Chandler’s
casual employment was the subject of a single and ongoing written contract executed on 15
June 2018. This contract had the following relevant features:
(1) Ms Chandler was engaged as a “Casual Sales Assistant”, for which there was a
detailed position description attached to the contract. Clause 2.1 identified the
position description as containing Ms Chandler’s job responsibilities and the
primary duties she was required to carry out.
(2) Clause 2.2 required that Ms Chandler perform the duties and exercise the
powers and functions assigned to her from time to time.
(3) Clause 2.2(d) required Ms Chandler “at all times” to protect and promote the
reputation of BBNT and conduct herself in a manner which would not injure or
impair its reputation or bring its good name into disrepute.
(4) Clause 3.1 provided that “Hours of work will be offered to you depending on
the operational needs of the business, your availability and your ability to
perform your duties to the standard required by BBNT”. This provision
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however operated subject to clause 3.5, which established “blackout periods”
for peak trading from 1 December to 15 January, the weeks before and after
Easter, and at sale, stocktake and/or catalogue times, and provided: “Any
casual employee taking leave during a blackout period will be on unauthorised
leave and upon return, hours of work will not be guaranteed”.
(5) Clause 11.1, Termination, provided that employment under the contract would
cease “when there is no longer an operational need for your services; or you
resign from BBNT, or you have not been rostered and/or worked for BBNT for
a period in excess of four (4) weeks”.
[19] The terms of the contract demonstrate that Ms Chandler was employed to work in a
particular position in BBNT’s operational structure in accordance with a pre-established and
ongoing framework of legal obligations. The second reason is that the evidence demonstrated
that, for the most part, Ms Chandler’s employment was the subject of a monthly roster system
involving her having to indicate in advance her availability to work for the month in question
and then working shifts in accordance with the roster that was subsequently prepared and
posted. The copies of the monthly rosters which Ms Chandler provided to the Commission
clearly demonstrate that this was a system which applied to her and the other casual
employees at the store at which she worked.
[20] For similar reasons, we consider in respect of s 384(2)(a)(ii) that, during her period of
service with BBNT as a casual employee, Ms Chandler had a reasonable expectation of
continuing employment on a regular and systematic basis. That expectation was engendered
by:
(1) the ongoing contract of employment which established a legal framework for
the allocation of work to Ms Chandler in a particular position, effectively
required her to hold herself available to work during “blackout periods”, and
continued until a prescribed termination event occurred;
(2) a monthly roster system, under which a roster was posted in advance of each
month setting out the shifts that were allocated to Ms Chandler during the
course of the month based on her prior indication of availability to work; and
(3) the frequency and amount of work that was allocated to Ms Chandler over the
course of her employment.
[21] We therefore determine that Ms Chandler’s period of service from the commencement
of her employment until its termination counted towards her period of employment, that Ms
Chandler therefore completed the minimum employment period, and therefore that Ms
Chandler is a person protected from unfair dismissal.
Orders
[22] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
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(3) The decision ([2019] FWC 6448) is quashed.
(4) Ms Chandler’s unfair dismissal remedy application (U2019/2368) is referred
back to the Unfair Dismissal Case Management Team for allocation to and
final determination by a Commission member on the basis of our finding that
Ms Chandler is a person protected from unfair dismissal in respect of her
employment with BBNT.
VICE PRESIDENT
Appearances:
A Chandler on her own behalf.
N Tindley, solicitor, on behalf of Bed Bath n Table Pty Ltd
Hearing details:
2019.
15 November.
Sydney.
Printed by authority of the Commonwealth Government Printer
PR716058
OF THE FAIR WORK MISSION THE
