[2011] FWA 6300 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Mark Tilbrook
v
Willall Industries Pty Ltd
(U2011/8224)
COMMISSIONER HAMPTON |
ADELAIDE, 5 OCTOBER 2011 |
Termination of employment - unfair dismissal application - jurisdictional point - whether protected under the Act - casual employee - nature and length of service - whether regular and systematic - sufficient eligible service found.
BACKGROUND AND CASE OUTLINE
[1] This matter concerns a preliminary jurisdictional issue that arises from an application seeking a remedy for an alleged unfair dismissal. That application has been made by Mr Mark Tilbrook (Mr Tilbrook or the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent employer is Willall Industries Pty Ltd (Willall).
[2] The immediate question is whether Mr Tilbrook is protected from unfair dismissal by the Act. More particularly, the question is whether Mr Tilbook’s service with Willall is sufficient to meet the requirements of s.383 and in the context of this matter, whether his casual service counts for that purpose given the provisions of s.384(2) of the Act.
[3] This matter was the subject of a hearing conducted on 12 September 2011 at which time the applicant represented himself and Willall was represented by its General Manager, Mr Kurt Wilson. Given the absence of professional representation, the parties were advised at the outset of the general nature of the statutory context and the manner in which the hearing would be conducted. Appropriate assistance and latitude was also provided to both parties in the presentation of their respective cases. 1
[4] The following provided witness statements and gave evidence in this matter:
[5] There are a range of factual disputes in the evidence, however much of that is not directly relevant to the preliminary jurisdictional point. I consider that much of the evidence has been subject to some post event exaggeration, and I treat it with caution. Subject to that significant caveat, where there is a direct relevant dispute between the evidence of the parties, I generally prefer the evidence of Kurt and Keir Wilson. There was no significant dispute over the evidence of Mr Donnon but this did not go the heart of the issues to be determined.
[6] Given my reservations about the witness evidence in this matter I have placed significant weight upon the objective material before Fair Work Australia, including in particular, the summary of weeks and hours worked as provided by Willall. 2
THE STATUTORY REQUIREMENTS
[7] Section 382 and 383 of the Act provide as follows:
“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.
Note: High income threshold indexed to $118,100 from 1 July 2011
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.”
[8] Section 384 of the Act is the focus of this matter and provides relevantly as follows:
“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
...”
THE ELEMENTS THAT ARE NOT IN CONTENTION
[9] The following facts and other elements of this case are either expressly agreed or are not in contention.
[10] Willall conducts a business which includes the provision of hydroblasting demolition services to clients on a project basis. Each contract involves the provision of specific services and the extent and timeframe for those services depends upon the various client requirements from time to time.
[11] Willall is a small business within the meaning of s.23 of the Act. This means that Mr Tilbrook requires 12 months of eligible service in order to be protected from unfair dismissal under the Act.
[12] Willall Racing Pty Ltd is a related business and any work performed by Mr Tilbrook in that capacity was treated as service with Willall. That is, Mr Tilbrook was in effect loaned to the car racing business but was always employed and paid by Willall.
[13] Mr Tilbrook undertook work both in the hydroblasting and car racing elements of the business.
[14] Mr Tilbrook was first employed by Willall in August 2008 and it is agreed that any employment since that time has been as a casual employee.
[15] Mr Tilbrook was dismissed on 12 May 2011.
THE COMPETING CONTENTIONS OF THE PARTIES
The applicant
[16] Mr Tilbrook contended that his total period of service was over 32 months and during that time there were only three months where there was no work or earnings from the respondent.
[17] Although there was not necessarily a clear pattern of rostered hours and days worked, there was regular and systematic work within the meaning of the Act. That is, Willall regularly offered work at times when it knew the applicant was available and this work was offered and accepted sufficiently so that it should be regarded as being regular and systematic.
[18] Mr Tilbrook also contended that he did not refuse any hydroblasting work, was assured by Willall that there was always plenty of work coming up, and that he did not pursue or do any other paid work during the 32 months of employment with the respondent.
[19] As a result, Mr Tilbrook contended that he had service that was regular and systematic and had a reasonable expectation that this would continue. Accordingly, all of his employment should count as service for present purposes.
The respondent
[20] Willall contended that Mr Tilbrook’s service was not regular and systematic and that he could have had no reasonable expectation of future employment that was itself regular and systematic.
[21] The respondent contended that Mr Tilbrook was part of a group of employees that was utilised to perform the hydroblasting work and that he was considered to be a lower priority for the allocation of that work given the circumstances of others within the group. As a result, he was not always allocated work that may have been available. Further, it was contended that Mr Tilbrook was free to accept or reject work offered to him, and did so.
[22] Willall also contended that the employment was irregular and entirely dependent upon the business needs and demands, which varied dramatically. On that basis, it encouraged all of the employees within its pool of workers to have other employment or businesses and it contended that they all did so.
[23] The nature of the engagements was said to be revealed by the fact that there were a total of 32 weeks over the 32 months when Mr Tilbrook performed no work. Further, when there was work, it would often involve extensive hours but the work was not regular or recurring.
[24] Willall also contended that it informed Mr Tilbrook at the commencement of employment that there could be no guarantees as to the extent of work and that it would be offered when/if work was allocated. It also contended that Mr Tilbrook actively sought alternative employment and conducted business activities during the period over which the engagements occurred.
[25] In arguing its case, the respondent accepted that the approach as outlined by Roe C in Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 3 (Ponce) should be applied but contrasted the facts of this case.
[26] As a result, Willall argued that there was not sufficient relevant service and that the applicant was not protected from unfair dismissal under s.382 of the Act.
FINDINGS AND CONSIDERATION
[27] The employment commenced with Willall in August 2008. I find that it was a common understanding that the work would be casual, be offered when the opportunity arose and include work as a hydroblaster and as a mechanic with the racing business. Early on in the relationship, the hydroblasting work became the predominate work performed by Mr Tilbrook with the mechanical work being considered to be supplementary.
[28] I find that Mr Tilbrook was at times encouraged to seek “other” employment/income by the respondent, including with the racing team. It is however not clear on the evidence whether Mr Tilbrook did that in relation to his private mechanical repair services or via a joint business arrangement with his wife.
[29] Mr Tilbrook considered his work with Willall to be his chosen employment and accepted all offers of hydroblasting work except on a limited number of specific occasions. These included a family holiday, the need to attend a Court hearing, the birth of a child and once when he declined to work due to concerns about working with a particular person on a major project. All of these circumstances where known to and accommodated by the respondent.
[30] The respondent regularly offered hydroblasting work to the applicant when contracts arose and this occurred on a regular basis. The applicant was given the expectation that these opportunities would continue for the foreseeable future.
[31] When the entire period of the 32 months over which engagements occurred is considered, the following is revealed:
[32] In October 2009, there were discussions between Mr Tilbrook and Kurt Wilson including about the provision of a company credit card, rates of pay, concerns Mr Tilbrook had about another person on the project concerned and the lack of income compared to the expectations said to have been given to him at the time of employment. Although Mr Tilbrook contended that the absence of work for a period of some 11 weeks after that incident was related only to the normal slowdown in the industry, I do not accept that proposition. On balance, I find that during one of those conversations, Mr Tilbrook indicated that he would be seeking other employment and in effect indicated that he would no longer be available. I add that it is clear that the Wilsons were not inclined to offer any work after that time and that Willall considered the applicant had in fact resigned. I will return shortly to the significance of this event.
[33] In mid December 2009, Mr Tilbrook approached Kurt Wilson and apologised for the previous conversation and indicated that he wanted to be considered for future work. Kurt Wilson informed Mr Tilbrook that subject to certain assurances regarding his conduct, he was still on the books and would be considered for future work. Mr Wilson also encouraged Mr Tilbrook to also seek supplementary work as the work from Willall may be more sporadic than before. I will canvass the reality of the situation in due course.
[34] Mr Tilbrook’s first engagement was in mid January 2010 when he performed work over two weeks and then had two weeks without work which was prearranged with Kurt Wilson to go on a family holiday.
[35] In the period between mid January 2010 and the dismissal on 12 May 2011, the following pattern of working hours occurred:
[36] In applying s.384 of the Act, the following approach arises from the face of the provision:
[37] The operation of this provision was discussed by a Full Bench in Shortland v The Smiths Snackfood Co Ltd 4 (Shortland) which said:
“[10] 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.
[11] 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.
[12] 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).
[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.”
[38] In the earlier decision of Ponce, Roe C after considering the changes introduced by the Act and a range of authorities, coherently summarised his approach as follows:
“[75] I conclude from this 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. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.
[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.”
[39] The respondent argued its case in the context of this approach. The views expressed in Shortland are not inconsistent and the extract from Ponce I have cited above further informs the meaning of the Act.
[40] I consider that the events of October 2009 represented an indication from the applicant that had the effect of interrupting or concluding the continuous service as contemplated by the Full Bench in Shortland (at par [13]). This means that I must primarily consider the nature of the service and the expectations of the applicant from January 2010 onwards. I do however observe that the response to the applicant’s indication at that point, which was treated as a resignation by Willall, is also an indication that the relationship was otherwise ongoing with a strong degree a mutual expectation.
[41] Given the period over which engagements were performed after January 2010, there is sufficient service to meet the requirements of s.383 of the Act. Accordingly, if that service meets the requirements of s.384(2), Mr Tilbrook will be protected.
[42] On balance, I am satisfied that the employment of Mr Tilbrook as a casual employee after January 2010 was on a regular and systematic basis and during the period of service he had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
[43] Although there were fluctuations in the extent of engagements and despite the parameters stated by Willall, in practice the actual engagements were regular and systematic within the meaning of the authorities. Further, that experience would have objectively led to a reasonable expectation on Mr Tilbrook’s behalf that there was to be ongoing employment of that nature.
CONCLUSIONS
[44] I find that Mr Tilbrook satisfies the requirements of s.384(2) of the Act and that he has sufficient continuous service to be protected from unfair dismissal by virtue of s.382 of the Act.
[45] The preliminary jurisdiction objection is not upheld.
[46] I would however note that the applicant has raised issues of potential underpayment of wages. The respondent has also raised serious conduct and other credit issues concerning Mr Tilbrook. It has not been appropriate to deal with those issues as part of this preliminary matter. I make no findings about them but I would observe that this may be an appropriate juncture for the parties to review their positions on the merit of this application and any other related matters. Should Fair Work Australia be able to assist in that regard, one or both parties should advise my Chambers at the earliest opportunity.
[47] In the absence of such advice from the parties, this matter will be assigned for arbitration of the substantive unfair dismissal application.
COMMISSIONER
Appearances:
M Tilbrook, the applicant on his own behalf.
K Wilson, General Manager of Willall Industries Pty Ltd for the respondent.
Hearing details:
2011
Adelaide
September 12
1 This was done in a manner consistent with the statutory charter of Fair Work Australia. See the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.
2 Exhibit R1.
3 [2010] FWA 2078, 15 March 2010.
4 [2010] FWAFB 5709, 16 September 2010, per Lawler VP, Drake SDP and Lewin C.
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