1
Fair Work Act 2009
s.394—Unfair dismissal
Donovan Gough
v
Outdoor Supacentre
(U2022/6309)
DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 13 SEPTEMBER 2022
Application for relief from unfair dismissal – jurisdictional objection – minimum employment
period.
[1] Mr Donovan Gough commenced employment with Outdoor Supacentre Pty Ltd
(Outdoor Supacentre) as a casual employee on 22 January 2021. He became a permanent full-
time employee with Outdoor Supacentre on 10 January 2022. Mr Gough remained in full-time
employment with Outdoor Supacentre until his employment was terminated on 5 June 2022.
[2] Outdoor Supacentre contends that Mr Gough was not protected from unfair dismissal
on 5 June 2022 because he had not, at that time, completed at least the minimum employment
period with Outdoor Supacentre (s 382(a) of the Fair Work Act 2009 (Cth) (Act)). This decision
relates to Outdoor Supacentre’s jurisdictional objection in relation to the minimum employment
period for Mr Gough.
Relevant legal principles
[3] Sections 383 and 384 of the Act relevantly provide as follows:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer – 6 months ending at the earlier of
the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer – one year ending at that time.
384 Period of employment
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DECISION
AUSTRALIA FairWork Commission
[2022] FWC 2435
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(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; …”
[4] It is the employment that must be on a regular and systematic basis, not the hours
worked.1 However, a clear pattern or roster of hours is strong evidence of regular and systematic
employment.2
[5] The absence of any contractual requirement for the employee to work at set times or of
any assumption that the employee be present on a daily, weekly or monthly basis unless told
otherwise does not preclude a finding that the employee’s engagements were regular and
systematic.3
[6] The term “regular” should be construed liberally.4 It implies some form of repetitive
pattern and does not mean frequent, often, uniform or constant.5 Employment on a “regular”
basis may be constituted by frequent though unpredictable engagements.6
[7] The term “systematic” requires that the engagement be “something that could fairly be
called a system, method or plan”.7 The concept of engagement on a “systematic” basis does not
require the employee 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
on the employee’s services as an incident of the business by which he or she is engaged.8
[8] For a period of service as a casual employee to count for the purpose of the minimum
employment period under s 384, it is necessary that the employee be employed on a regular and
1 Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 399 (Yaraka) at [65]; cited in Ponce v DJT Staff Management Services
Pty Ltd t/a Daly’s Traffic [2010] FWA 2078 (Ponce)
2 Ibid
3 Yakara at [67]
4 Yaraka at [68]
5 Yaraka at [68]; cited in Grives v Aura Sports Pty Ltd [2012] FWA 5552 at [32]
6 Yaraka at [89]
7 Yaraka at [68]
8 Yaraka at [69]
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systematic basis and have a reasonable expectation of ongoing employment on that basis
throughout the relevant period. If during any part of the period of casual employment, one of
these elements is not present, that part of the period of casual employment does not count.9
[9] In Shortland v The Smiths Snackfood Co Ltd,10 a Full Bench of the Commission
explained what is meant by a break in the continuous service of a casual employee:
“[13] 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.”
Relevant facts
[10] Mr Gough’s contract of employment dated 18 January 2021 contains the following
relevant provisions:
“I am pleased to offer you casual employment in the position of Sales Representative
with us…
1.1 Your employment will be on a casual basis. As a casual employee, there is no
guarantee of ongoing or regular work.
…
3.1 As a casual employee your hours are irregular and intermittent by nature and
you are not guaranteed any number or allocation of working hours.
3.2 Your hours may be rostered ahead of time in the staff roster where it is
reasonably practicable to do so. These hours may change from time to time
according to business needs.
[11] Mr Gough worked in the Gosford Outdoor Supacentre store.
[12] Weekly rosters were provided to staff at the Gosford store a fortnight in advance, but
the rosters were commonly edited by management before the commencement of the week
covered by the roster.
[13] Mr Gough informed Outdoor Supacentre that he was generally available to work at any
time. In the event that Mr Gough became unavailable to work on a particular day, he would let
management known beforehand.
9 Bronze Hospitality Pty Ltd v Hansson [2019] FWCFB 1099 at [29]
10 [2010] FWAFB 5709
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[14] When Mr Gough commenced casual employment with Outdoor Supacentre in January
2021, he was told by the manager of the Gosford store, Mr Jamie Clark, that he would be
working mostly on weekends between Thursday and Monday. That representation turned out
to be true. The rosters tendered by Outdoor Supacentre11 show that Mr Gough was rostered to
work:
every Saturday bar three in the period from 22 January 2021 to 10 July 2021;
every Sunday bar four in the period from 22 January 2021 to 10 July 2021;
14 times on a Friday in the period from 22 January 2021 to 10 July 2021;
nine times on a Monday in the period from 22 January 2021 to 10 July 2021; and
occasionally on a Tuesday, Wednesday or Thursday in the period from 22 January 2021
to 10 July 2021.
[15] In about June 2021, Mr Gough had a discussion with Mr Clark about the possibility of
becoming a full-time employee of Outdoor Supacentre at the Gosford store. Mr Clark told Mr
Gough that there were no full-time vacancies available at the time, but Mr Clark would try to
get a full-time job for Mr Gough.
[16] In the period between 22 January 2021 and 9 July 2021, Mr Gough says that he had an
expectation of continuing employment by Outdoor Supacentre on a regular and systematic
basis. He contends that his expectation in this regard was reasonable on the basis that he was
seen as a valuable employee by Outdoor Supacentre and he was working most weekends
between Thursday and Monday, as Mr Clark told him would be the case.
[17] In the period between 10 July 2021 and 14 December 2021, Mr Gough did not undertake
any work for Outdoor Supacentre. The reason Mr Gough did not work for Outdoor Supacentre
during this time was because his health issues meant that he was not vaccinated against COVID-
19, and government directives were in place which prevented him from working in the Gosford
store of Outdoor Supacentre without being vaccinated against COVID-19. Outdoor Supacentre
informed Mr Gough that so long as he remained unvaccinated against COVID-19 and
government directives prevented him from working in the Gosford store without being
vaccinated, he would not be rostered to work in the Gosford store. Outdoor Supacentre
encouraged Mr Gough to be vaccinated against COVID-19 and did not inform him that his
employment had ceased or that he would never be offered shifts again in the future.
[18] The Gosford Outdoor Supacentre was closed for about two months in about July 2021.
Once the store re-opened, it was initially opened with minimal staff on a click-and-collect basis
only.
[19] Mr Gough understood that he could not expect full-time employment with Outdoor
Supacentre while COVID-19 restrictions were impacting the Gosford store.
11 Ex R3
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[20] In about October 2021, Mr Gough heard that the government directives concerning
working in retail outlets were going to be lifted. Mr Gough had a discussion with Mr Clark
about returning to work. As a result of those discussions, it was planned that Mr Gough would
return to work when the directives lifted in about November 2021. The lifting of the government
directives did not take place until 14 December 2021. As a consequence, Mr Gough could not
return to work until that time.
[21] During his discussions with Mr Clark in about October or November 2021, Mr Gough
was told that he would be working full time hours leading up to Christmas 2022.
[22] Mr Gough returned to work at the Gosford Supacentre store, as a casual employee, on
15 December 2021. On that day he spoke to Mr Clark again about the possibility of becoming
a full-time employee of Outdoor Supacentre. Mr Clark informed Mr Gough that he was looking
into it, but it depended on a range of matters including COVID-19, any government directives
requiring staff to be vaccinated, and the Gosford store remaining open. Mr Clark informed Mr
Gough that he needed to “get Christmas out of the way” before making a decision about full-
time employment for Mr Gough.
[23] Mr Gough worked about 35 hours a week in the period from 15 December 2021 to 9
January 2022.
[24] Mr Gough was provided with a letter of engagement, dated 5 January 2022, as a full-
time employee of Outdoor Supacentre. Mr Gough accepted that offer and commenced as a full-
time employee of Outdoor Supacentre on 10 January 2022. He remained in that position until
his dismissal on 5 June 2022.
Application of legal principles to the facts
[25] Because Outdoor Supacentre was not a small business employer at the time of Mr
Gough’s dismissal, his minimum employment period was six months (s 383(a) of the Act).
[26] It is not in dispute and I am satisfied on the evidence that Mr Gough was employed by
Outdoor Supacentre as a casual employee in the period from 22 January 2021 until the
commencement of his full-time employment on 10 January 2022. In order for any part of that
period of service as a casual employee to count towards Mr Gough’s 17 weeks and one day’s
service as a full-time employee, both limbs of s 384(2)(a) must be satisfied.
[27] As to the period from 22 January 2021 until 9 July 2021, I am satisfied that:
(a) Mr Gough’s employment with Outdoor Supacentre as a casual employee was as a
regular casual employee. It was regular because it involved Mr Gough working a
repetitive pattern constituted by shifts almost every weekend during the period, together
with other frequent engagements, particularly on a Friday and Monday; and
(b) throughout the period from 22 January 2021 until 9 July 2021 Mr Gough had a
reasonable expectation of continuing employment by Outdoor Supacentre on a regular
and systematic basis. I accept Mr Gough’s evidence that he had such an expectation. I
also accept that his expectation was reasonable given that he was told by Mr Clark at
[2022] FWC 2435
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the commencement of his employment that he would be working mostly on weekends
between Thursday and Monday. That representation matched the reality of what
happened. Mr Gough’s employment was on a systematic basis because he was engaged
to work pursuant to a rostering system which resulted in Mr Gough working a pattern
of engagements almost each weekend during the period.
[28] As to the period from 10 July 2021 to 14 December 2021, Mr Gough did not work for
Outdoor Supacentre but his continuous service as a casual employee was not broken by this
period. That is because neither Mr Gough nor Outdoor Supacentre made clear to the other party,
by words or actions, that there would be no further engagements. Outdoor Supacentre made
clear to Mr Gough that he would not be offered shifts during this time because the government
regulations in place at the time meant that, in his capacity as a person who was not vaccinated
against COVID-19, he was not permitted to work in the Gosford store.
[29] As to the period from 15 December 2021 until 9 January 2022, I am satisfied that:
(a) Mr Gough’s employment with Outdoor Supacentre as a casual employee was as a
regular casual employee. It was regular because it involved Mr Gough working almost
full-time hours (about 35 per week) across frequent engagements each week; and
(b) throughout the period from 15 December 2021 until 9 January 2022 Mr Gough had a
reasonable expectation of continuing employment by Outdoor Supacentre on a regular
and systematic basis. It was a reasonable expectation because Mr Gough was told by
Mr Clark that he would be working full-time hours leading up to Christmas and Mr
Clark was considering the possibility of making Mr Gough a full-time employee after
Christmas. Mr Gough’s employment was on a systematic basis during this period
because he was engaged to work pursuant to a rostering system which resulted in Mr
Gough working a pattern of engagements which gave him, on average, about 35 hours
work each week.
[30] It follows that Mr Gough’s period of service as a casual employee in the periods from
22 January 2021 to 9 July 2021 and 15 December 2021 to 9 January 2022 count towards his
period of employment with Outdoor Supacentre. Once these periods are combined with Mr
Gough’s period of service from 10 January 2022 until 5 June 2022 as a full-time permanent
employee, it is clear that, at the time of his dismissal, Mr Gough had completed at least the
minimum period of employment (six months) with Outdoor Supacentre.
Conclusion
[31] For the reasons given, Outdoor Supacentre’s jurisdictional objection is dismissed and
the application may proceed to be dealt with on its merits. The parties will be advised in due
course of the next step to be taken in the proceedings.
THE FAIR WORK AIR NORK C OMMISSION KLIA SEX THE SEAL OF THE
[2022] FWC 2435
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DEPUTY PRESIDENT
Appearances:
Mr D Gough on his own behalf;
Ms M Baumgarten and Ms K Turnbull on behalf of Outdoor Supacentre.
Hearing details:
2022.
Newcastle (by telephone):
13 September 2022.
Printed by authority of the Commonwealth Government Printer
PR745772
