1
Fair Work Act 2009
s.394—Unfair dismissal
Joshua Rei
v
Marlau Nominees Pty. Ltd. T/A Paramount Liqour
(U2019/14760)
COMMISSIONER YILMAZ MELBOURNE, 19 JUNE 2020
Application for an unfair dismissal remedy – minimum employment period – whether
continuous service – had an interruption affected the minimum period served?
[1] Mr Joshua Rei lodged an application for unfair dismissal remedy pursuant to s.394 of
the Fair Work Act 2009 (the Act) having been dismissed by Marlau Nominees Pty Ltd T/A
Paramount Liquor (Paramount Liquor). Mr Rei filed his unfair dismissal application on 29
December 2019, within the statutory time period of 21 days. He alleges that the dismissal was
unfair because it was lacking in procedural fairness and there was “no valid reason that is
sound or defensible”. Paramount Liquor dispute Mr Rei’s allegations and stand by their
decision to dismiss Mr Rei for misconduct. Paramount Liquor raised an objection to the
application on the grounds that he was employed as a casual employee and did not serve the
minimum 6-month employment period for unfair dismissal protection.
[2] Mr Rei submits he had served the minimum employment period as he was first
engaged on 11 February 2019, then proceeded to take a period of “authorised leave” of 3
months, returning on 14 October 2019 after his seasonal employment as a ski lift attendant
concluded. Mr Rei acknowledged that he was a casual employee, but submits his engagement
was regular and systematic and that he had an expectation of ongoing regular and systematic
work.
[3] I granted permission for representation of Mr Rei by a paid agent because it would
enable the matter to be dealt with more efficiently having regard to the complexity of the
matter and Mr Rei would be unable to represent himself effectively.
[4] The Fair Work Commission (Commission) must determine matters relating to the
jurisdiction of an application before considering merit.
[5] It was not argued that Paramount Liquor is not a small business employer, that the
application was lodged within the required statutory time frame, nor was it disputed that Mr
Rei’s employment was covered by an industry award and the sum of his earnings was less
than the threshold for protection under the unfair dismissal provisions under the Act.
[2020] FWC 2501
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 2501
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[6] The only jurisdiction issue in dispute is whether Mr Rei as a casual employee served
the minimum employment period to be a person protected from unfair dismissal.
The legislation
[7] Sections 382 and 383 of the Fair Work Act 2009 (the Act) provides that a person is
protected from unfair dismissal if they have completed a minimum employment period of 12
months if a small employer, or 6 months if not a small employer. A small employer is defined
as having less than 15 employees. The relevant period is the period of continuous service and
the relevant provisions of the Act are sections 22 and 383. The Act provides for excluded
periods and periods that may affect the period of continuity.
[8] The relevant sections of the Act are:
“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 to the person 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.”
“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.
[2020] FWC 2501
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(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…”
[9] To advance an application under s.394, the applicant must be a person protected from
unfair dismissal at the time of dismissal. Paramount Liquor submits that Mr Rei does not
qualify as a protected person as he did not satisfy s.383 concerning the minimum employment
period. Mr Rei challenged the argument that he had not served the statutory minimum
employment period.
[10] I now turn to the issue of whether Mr Rei had served the minimum employment
period.
Second and most recent period of employment: 14 October 2019 – 9 December 2019
[11] Mr Rei was employed as a casual warehouse pick packer and his employment was
terminated on 9 December 2019 in a face to face meeting.
[12] Paramount Liquor tendered in evidence a copy of the letter of engagement dated 14
October 2019 which clearly states that the employment offer is casual employment in the
position of warehouse assistant. It states that each engagement is a separate contract of
employment that ceases at the end of the shift, and there is no guarantee of ongoing or regular
work. The document also contains a separate page signed by Mr Rei confirming his
understanding of the letter and that “each engagement constitutes a separate contract of
employment”.1
[13] While giving evidence, Mr Rei stated that he did not sign a letter of engagement when
he commenced work in October 2019. When sighting the document tendered by Paramount
Liquor, he acknowledged it was his signature on the document which confirms that he read,
understood and accepted employment on the terms and conditions set out in the letter.
However, Mr Rei could not confirm if the date next to his signature was his own handwriting
as he did not have any other document to compare the handwriting with. I accept the signature
is his, as he acknowledges, and that it is consistent with the signature on the Anti-bullying,
Discrimination and Harassment Policy signed on 11 February 2019. On balance I accept that
Mr Rei had signed the letter of engagement on 14 October 2019 before he recommenced
work. However, even if Mr Rei had satisfied me that he had not signed the letter on 14
October 2019, the question of minimum employment period in this case does not rely on the
document.
1 J Rei Letter of Engagement dated 14 October 2019.
[2020] FWC 2501
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[14] Also tendered in evidence by Paramount Liquor, was an employee payment summary
which identified the number of hours worked each pay week ending from 16 October 2019 to
11 December 2019. This payment summary confirms that each of the 9 pay week cycles
during the 8-week engagement period contained varying hours, neither week being consistent
with another.2 This evidence is consistent with the materials relied on by the Applicant
concerning his hours of work and the regularity of his engagement.
[15] Paramount Liquor submit Mr Rei’s employment commenced on 14 October 2019 and
he worked a couple of days a week with sporadic days and hours.3 This period of 8 calendar
weeks was not on any set roster.4 Further, it is submitted that Mr Rei would not have
reasonably expected regular and systematic work. Paramount Liquor submit that work for
casuals depends on the work available each day, as there are peak periods and quiet times
where a smaller amount of casual staff are kept on the books. It is also submitted that the
afternoon shift is predominantly covered by casuals due to constant changes in business
requirements and the inability to guarantee ongoing regular work.5
[16] Paramount Liquor submits its work in the warehouse is seasonal, with casuals engaged
up to 35 hours a week in the busy period and as low as 15 in quieter times. Paramount Liquor
acknowledge that it has a few long-term casuals, but even these employees have had gaps in
their engagement with the company. Casuals are engaged to supplement the work of the
weekly full-time staff during the business peak season.6 The afternoon shift consists of 4 full-
time employees throughout the year and up to 35 casuals during the peak season.7 Ms
Campbell who manages the hiring of staff states no afternoon casual employee is guaranteed
ongoing work.8 In describing the hours worked by casuals, Ms Campbell states employees are
given a guaranteed minimum of 4 hours if they come in and a maximum of 10 hours,
depending on the amount of work available. Casuals are engaged in the afternoon shift
Monday to Wednesday and on Thursday if required. It is unknown how much work there is
until the night before.9
[17] During the hearing, in answer to questions regarding how casual staff including Mr
Rei are aware of their hours of work, Ms Campbell stated that Monday to Wednesday are the
busiest days and Mr Rei would have turned up for the afternoon shift unless he received a call
the night before advising him that he was not required.10
[18] Mr Rei submitted his payslips that covered the majority of both periods of engagement
(before and after his employment during the snow season). An assessment of this material
also shows inconsistent hours of work with no pattern other than work during the afternoon
casual shift and the frequency of weekly work.
2 Employee Payment Summary.
3 Respondent’s outline of argument: objections at Q2g.
4 Form F4 at Q1.2.
5 Respondent’s outline of argument: objections at 2h and oral submissions of Ms S J Campbell at 40.03.
6 Oral submissions of Ms S J Campbell at 29:52 and 39.
7 Oral submissions of Ms S J Campbell at 39:03.
8 Ibid at 40:15.
9 Oral submissions of Ms S J Campbell at 42:32.
10 Ibid.
[2020] FWC 2501
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[19] Mr Rei submits that he has worked over 30 weeks in total. Of the 28 payslips in his
possession, 10 show him working more than 30 hours per week, a further 10 show him
working 20-30 hours per week, 4 show him working between 15 and 20 hours per week and a
further 4 show him working below 15 hours per week.11 An analysis of the payslips by pay
week shows no pattern in hours of work with the lowest hours of work per week being 7.45
and the highest being 36 hours.
[20] It is not contested that Mr Rei was engaged as a casual warehouse assistant for the
afternoon shift. The payslips also confirm that Mr Rei worked the “casual afternoon shift”
during both periods of engagement.
[21] For the purposes of s.384, the period of employment is the period of continuous
service with the employer. A casual may be engaged on each occasion, but for the purposes of
unfair dismissal, it is the period of service that counts towards the period of employment.12
Further, principles relied on confirm that “regular” may be “constituted by frequent though
unpredictable engagements and that a ‘systemic basis’ need not involve either predictability
of engagements or any assurance of work at all.”13
[22] I find that the hours worked by Mr Rei were frequent, occurred during the busy
periods Monday to Wednesday and most often on a weekly basis during the peak business
period. The hours worked by Mr Rei over the 8-week period as a casual employee is
indicative of employment on a regular and systematic basis. The evidence of both the
Applicant and Respondent support this conclusion.
[23] However, the second condition concerning the protection of a casual in unfair
dismissals is the requirement that during the period of service, that the casual employee had a
reasonable expectation of continuing employment by the employer on a regular and
systematic basis.14
[24] Mr Rei submits he had a reasonable expectation of ongoing employment. It is
reasonable that Mr Rei had this expectation during his second period of engagement given the
willingness to re-engage him, the pattern of employment offered and his acceptance. Mr Rei
returned to work at Paramount Liquor at its busy time, he was available and was consistently
offered the afternoon shifts during the busiest days, i.e. Monday to Wednesday. The hours
varied and where he was not required, Paramount Liquor contacted him the night before his
scheduled shift. The hours cannot be described as sporadic and unpredictable, the evidence is
otherwise.
[25] Mr Rei’s first period of engagement was until July 2019 when he left to work at the
snow fields. It is also apparent that further work was likely to be available from October. I
find the eight-week period of work from October 2019 to December 2019 is indicative of
regular and systematic employment, and that when Mr Rei was re-engaged he had an
expectation of continuing employment on a regular and systematic basis. The immediacy of
being given available shifts when he called the afternoon shift manager (the day after) was
11 Applicant’s outline of submissions at [6].
12 Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709.
13 Chandler v Bed Bath N’ Table [2020] FWCFB 306 [12] citing Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, 149
IR 339.
14 S.384 (2)(ii) of the Fair Work Act 2009.
[2020] FWC 2501
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relevant to his expectation of regular and systematic casual afternoon shift work. I also
consider it reasonable that Mr Rei had that expectation once he was re-engaged.
Authorised absence
[26] Mr Rei contends that the period between July and October was a period of “authorised
absence” which does not break the period of employment for the purposes of the minimum
employment period. He submits the break from July to October was an agreed period off
work (“authorised absence”) so that he could work on the ski fields for a 3-4-month duration.
[27] Mr Rei submits the break did not involve a resignation or a dismissal.15 He submits
that the two casual engagement periods collectively satisfy the six-month minimum
employment period for the purpose of s.382 and s.383 and the “unpaid authorised absence”
did not break the continuity of service, even though it does not count for the minimum period
of service.
[28] Ordinarily, an authorised unpaid absence does not break the period of continuous
service but does not count as service.16
[29] Ms Campbell submits when Mr Rei left for the snow fields for paid employment with
another employer, this act broke any possible continuity. She submits the evidence of a letter
of engagement addressed to Mr Rei and signed by him in October 2019 confirms the parties
entered a new and unrelated employment arrangement. Ms Campbell submits that she
provides letters of engagement to all casuals to confirm that employment is on a casual basis,
that each occasion worked “will be a separate contract of employment which ceases at the end
of that engagement”. Further, the letter of engagement contains a statement signed by Mr Rei
confirming his acceptance that he “understand(s) that each engagement will constitute a
separate contract of employment”.17 In any event she submits no promises of ongoing or
regular employment was guaranteed to Mr Rei.
[30] I am not satisfied that the gap in employment was an authorised absence of leave.
When Mr Rei left for the snow fields it was understood that he was not available to work, that
his casual engagement came to an end, and further he admitted to having no expectation of
ongoing employment once his employment at the snow fields ended.
[31] Regarding the application of casual employment in respect of s.384, the Full Bench in
Wayne Shortland v The Smiths Snackfood Co Ltd (Shortland), affirmed that:
“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 week to week, day to day, shift to shift, hour to hour or for any other agreed
15 Applicant’s outline of submissions [16-18] and oral submissions at 59:59.
16 S22. Fair Work Act 2009.
17 J Rei Letter of Engagement attached to Respondent’s document list.
[2020] FWC 2501
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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.”18
[32] As a casual employee, Mr Rei’s employment was for each engagement, it follows that
the first engagement ended in July 2019. The sequence between the first and second
engagement was broken when Mr Rei put in notice that he would not be available as he had
committed to work at the snow fields for 3-4 months, and it was clear that there was no
guarantee of further engagement.
[33] As to whether the gap of 3 months joins the 2 periods of Mr Rei’s engagement, this
matter can be distinguished from Shortland on which Mr Rei relies. In that case, Mr Shortland
was a casual employee that had a total of 4 isolated weeks of absence in the period of almost 3
years, the absence prior to termination was due to a work-related injury and there was clearly
a reasonable expectation held by Mr Shortland of continuing employment on a regular and
systematic basis. During Mr Rei’s absence he was not available as a casual, nor was he
offered ongoing work and there was no reasonable expectation of ongoing regular and
systematic work.
First period of employment: 11 February 2019 – 17 July 2019
[34] Paramount Liquor also submits that Mr Rei was engaged separately from 11 February
2019 until 17 July 2019 when he departed to work at the snow fields during the ski season for
a period of 3-4 months. The employment came to an end not expressly through resignation or
termination, but because the written contract confirmed that there was no guarantee of
ongoing employment, no verbal guarantees were given and Mr Rei intended to leave the
company to work at the snow during the ski season.
[35] Mr Rei confirms his first engagement with Paramount Liquor was on 11 February
2019.19
[36] Ms Campbell submits that Mr Rei received a letter of engagement at the time he was
first engaged in February 2019. She submits that it is practice for the business to issue letters
of engagement for all new employees and to employees upon re-engagement.20 Ms Campbell
submits it stipulated that employment ends at the end of an engagement and is quite different
to the contract signed by Mr Rei in October 2019.21
[37] A copy of the first contract/letter of engagement was not tendered by either party.
[38] Mr Rei gave evidence that he did sign a contract together with other documents when
he first commenced with the company in February 2019.22 I am satisfied that a document was
given to Mr Rei and signed at the same time with other documentation including company
18 FWAFB 5709 [2010] at paragraph 10.
19 Exhibit A1 at [1].
20 Oral submission of Ms S J Campbell at 30:53.
21 Oral submission of Ms S J Campbell at 39:44.
22 Witness evidence at 50:15.
[2020] FWC 2501
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policies. The Anti-Bullying, Discrimination and Harassment policy was signed by Mr Rei on
11 February 2019.23
[39] Ms Campbell submits that had Mr Rei not left their employ “of his own accord to
work at another business” in July, Mr Rei’s employment would have been terminated at that
time.24
[40] Ms Campbell submits that Mr Rei lost his mother rather suddenly in June 2019, which
is why he received special consideration and attention from staff and the business. Ms
Campbell describes the text messages to Mr Rei from the afternoon shift manager as a result
of concern for his wellbeing because of his loss.25
[41] Ms Campbell also submits that Mr Rei was given flexibility, time off work to grieve
and a longer period of engagement due to his personal circumstances. She stated that casual
employees are normally let go around April- May. She added that a collection among staff
had taken place because there was genuine concern for Mr Rei.26
[42] Ms Campbell submits that at the end of May 2019, Mr Rei advised her that he
normally works during the ski season as a lift operator and asked “if it was possible for us to
take him back once the season ended. I told him that would be no problem as that was usually
our busy period and I would need extra staff”.27 Ms Campbell confirmed that there were no
issues with Mr Rei’s work before he left in July, therefore she was prepared to re-engage him
in October, which is the start of the peak season when she hires casual employees.28 She
submits that she did not guarantee work, but rather “the deal was if you contact us and there is
work available we are more than happy to help you out”.29
[43] Mr Dircks for Mr Rei described the text messages as regular contact during an
authorised absence. Ms Campbell rejected the submission that there was an authorised
absence and regular contact from Paramount Liquor. The first text message from the
afternoon shift manager on 23 July 2019 to Mr Rei was to wish him well, ask him to stay in
touch with pictures, inform him that his beer delivery had arrived and is signed off with “see
you in September”, which is when Mr Rei initially planned to return to Melbourne.
[44] The second text message relied on by Mr Rei suggesting there was an authorised
absence on 24 September 2019, from himself to the afternoon shift manager, advising her
that the ski season had been extended and that he should be back at work roughly on 14
October 2019. The response to him via text message is that it will be good to have him back.
[45] I do not find the texts as an indication of authorised absence as described by Mr
Dircks. The final text message exchange from Mr Rei on Sunday 13 October 2019 at 5.06pm,
advised the afternoon shift manager that he returned on Wednesday and asks if it is still all
good to come back tomorrow Monday 14 October 2019. The afternoon shift manager
23 Respondent’s outline of arguments: merits, attached document.
24 Oral submission of Ms S J Campbell at 29:48.
25 Attachments to Exhibit A1.
26 Op Cit at 40:49 and 41:55.
27 Written statement of Samantha Jade Campbell, Operations Manager.
28 Op Cit at 30:38.
29 Ibid at 39:50.
[2020] FWC 2501
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confirms he is welcome to come back the next day at 2.00pm. The text messages in my
opinion cannot be described as a confirmation of either the commencement of or return from
“authorised leave”. The texts do confirm a willingness to re-engage Mr Rei, but they cannot
be described as return from authorised leave.
[46] During cross examination of Mr Rei, he admitted that he understood there was no
guarantee of further employment when he left for the snow fields in July 2019.30 He states
that on his return home he called his afternoon shift manager to ask if there was any work, and
she answered there was and he came in for a shift the next day.31 From his evidence it is clear
that Mr Rei understood he was welcome to contact Paramount Liquor after completing his
seasonal work at the snow fields to ascertain if there was any work.
[47] While there was no obvious pattern to the hours of work each week, Mr Rei regularly
worked weekly hours. Mr Rei acknowledged he was in possession of a letter of engagement
which makes it clear that the employment is casual. Mr Rei in evidence admitted he had no
expectation of continued work when he left for the snow fields.
[48] Despite the pattern of work from February to July 2019 which can be characterised as
regular and systematic, the evidence is that during the casual period of service prior to Mr Rei
leaving for the snow fields, he did not have an expectation of continuing employment with
the employer on a regular and systematic basis.
[49] On balance of the evidence it is reasonable to conclude that there was a prospect of re-
engagement; Ms Campbell’s submissions and the text messages confirm that Mr Rei was well
liked, Ms Campbell referred to care and consideration shown to him when he lost his mother
and it was agreed that he was welcome to re-apply for work, but these considerations do not
to satisfy the requirement that it was reasonable that Mr Rei had an expectation of regular and
systematic work when he concluded his work at the snow fields. Mr Rei in his evidence
admitted that he knew he did not have a guarantee of further work.
[50] Consequently, I do not find that Mr Rei’s period of service as a casual satisfies
s.384(2) of the Act on both conditions for the period of February to July 2019. It is necessary
that both conditions are satisfied, that he was employed on a regular and systematic basis, and
that he had a reasonable expectation of ongoing employment on a regular and systematic
basis.
30 Witness evidence at 47:51.
31 Ibid at 50:04.
[2020] FWC 2501
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Conclusion
[51] Mr Rei was employed as a casual employee on a regular and systematic basis, and the
first engagement period concluded in July 2019. However, this first period of engagement
failed to meet the second requirement that Mr Rei had a reasonable expectation of continuing
employment with Paramount Liquor on a regular and systematic basis. There was a three-
month gap in engagements which was due to Mr Rei leaving to take up employment on the
snow fields, this period while argued is a period of authorised absence, is not supported by
evidence. The second period of engagement from October 2019 till his termination of
employment in December due to alleged misconduct, consists of a period of 8 weeks. This
period is regular and systematic, and it is reasonable that Mr Rei has an expectation of
ongoing and regular systematic work during the busy seasonal peak period. I find that Mr Rei
did not satisfy s.384 (2) for the purpose of protection from unfair dismissal pursuant to
s.382(a), as he did not complete a minimum employment period of 6 months. On this basis
the application is dismissed.
COMMISSIONER
Appearances:
Mr G Dircks for the Applicant
Ms S J Campbell for the Respondent
Hearing details:
2020
Melbourne
13 March
Printed by authority of the Commonwealth Government Printer
PR719334
JORK COMMISSION AUSTRALIA THE SEAL OF THE FAIR
