DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Barnes
v
Plantagenet Bakery
(U2017/2060)

Application for an unfair dismissal remedy - jurisdiction - small business employer and minimum employment period.

[1] Ms Rebecca Barnes has made an application for an unfair dismissal remedy in relation to her dismissal by Plantagenet Bakery (the Bakery, the company, the Respondent). The application was made under section 394 of the Fair Work Act 2009 (the Act).

[2] The Bakery has made two jurisdictional objections to the application. These are that the employer is a small business employer and that Ms Barnes was employed as a casual employee and had not completed the minimum employment period required by the Act.

[3] A determinative conference to deal with the company’s jurisdictional objections was held on 1 May 2017 by telephone.

Small business employer

[4] Section 23 of the Act relevantly defines a small business employer as follows:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.”

[5] With respect to the first jurisdictional objection that the employer was a small business employer, this issue was discussed at length during the determinative conference. During the determinative conference, Ms Porter, on behalf of the Bakery, went through the list of employees and their length of service and, for the casual employees the nature of their rosters. The outcome of Ms Porter’s evidence during the determinative conference was a finding by the Commission that, as at 3 February 2017, the employer did not employ fewer than 15 employees including Ms Barnes, but employed more than that.

[6] There was a detailed discussion about the two schoolgirl casual employees who worked one shift every weekend and also in relation to Logan and Ryan. On the basis of Ms Porter’s evidence at the time, Ryan and one of the two casual employees (Tessa) were included in the list of employees as at 3 February 2017. This was because the pattern of the work of these two employees (Ryan and Tessa) constituted regular and systematic employment. The other casual employee (Amber) and Logan were not included. This was because it was thought that Amber may not have commenced with the Bakery prior to Ms Barnes’ dismissal and it was not clear as to exactly Logan’s pattern of work.

[7] Following the determinative conference, Ms Porter provided a list of employees, their employment status and commencement dates. The lists confirmed what had been said during the determinative conference in terms of those employees who were definitely on the list due to the fact that they were either full-time or part-time employees at the time of Ms Barnes’ dismissal. In relation to the two schoolgirl casual employees, Amber had not been counted because it was thought that she may have commenced with the Bakery after Ms Barnes’ dismissal. However, on the written list provided by the Bakery, Amber’s start date was recorded as 24 January 2017. As this was prior to Ms Barnes’ dismissal, it appears that Amber should now be included in the list of employees to be counted. In relation to Logan, there was no further evidence provided in relation to the pattern of his work and so therefore his situation remains unclear. Therefore, on this basis, Logan will not be included in the list of employees to be counted.

[8] Therefore, I find that there were seven full-time ongoing employees, two apprentices/trainees, five casual employees including Ms Barnes and the two schoolgirl casual employees. The seven casual employees have been included on the list on the basis of their length of service and their shift patterns. Both of these factors amount to these casual employees having been employed on a regular and systematic basis.

[9] Accordingly, the number of employees employed by the Bakery, as at 3 February 2017 was 16. As the Bakery, therefore, employed 15 or more employees, I confirm my finding find that the Bakery was not a small business employer at the time of Ms Barnes’ dismissal. The Bakery’s jurisdictional objection in this regard is dismissed.

Minimum employment period

[10] The question remaining, therefore, is whether Ms Barnes meets the minimum employment period requirement of six months in order for the Commission to have jurisdiction to deal with her application.

[11] The minimum employment period and period of employment are relevantly defined in sections 383 and 384 of the Act 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

(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; …”

[12] Ms Barnes commenced employment with the Bakery as a part-time employee on either 28 April 2016 (Respondent’s date) or 10 April 2016 (Applicant’s date). On 29 August 2016, Ms Barnes’ employment was unilaterally changed to that of a casual employee. Ms Barnes continued as a casual employee until the time of her dismissal.

[13] In calculating the minimum period of employment, periods of full time and part time employment, together with casual employment, are to be taken into account. The test for whether the casual employment is counted is whether it was regular and systematic and whether the employee had a reasonable expectation of continuing regular and systematic employment.

[14] As set out in the decision of Commissioner Roe in Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 1 (Ponce):

“So it is clear that a period of continuous service for the purposes of Sections 22 and 383 and 384 of the Act can include a period of casual employment notwithstanding the fact that the employee may be engaged and re-engaged on a daily or even an hourly basis during that period of casual employment. The test is simply whether or not during a period of at least six months prior to the dismissal the employment as a casual employee was on a regular and systematic basis and the employee had, during that period, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.” 2

[15] Therefore, it first needs to be determined if Ms Barnes’ employment as a casual employee between the week ending 4 September 2016 and 3 February 2017 meets the requirements under section 384(2)(a) of the Act in order to be counted towards the minimum employment period.

[16] Prior to the determinative conference, Ms Porter had provided details of the hours that Ms Barnes had worked between the week of 11 December 2016 and 29 January 2017. At the request of the Commission, following the determinative conference, Ms Porter provided a breakdown of the hours that Ms Barnes had worked between August 2016 and February 2017. Across the two documents, it shows that, except for the first week in January 2017 and the fourth week in January 2017, Ms Barnes worked every week during the period of casual employment. The minimum weekly hours worked was eight hours which occurred during one week only (the week ending 11 December 2016). Other than that week, the minimum weekly hours appear to have been 15/15.5/16. Prior to the week ending 30 October 2016, Ms Barnes appears to have worked weekly hours ranging from 27.5 hours to 39.25 hours. During the November to December 2016 period, the weekly hours worked ranged from 15 hours to 30 hours with the exception of one week of eight hours as previously mentioned. In January 2017, as previously stated, there were two weeks where Ms Barnes did not work any shifts.

[17] On the basis of the pattern and number of hours that Ms Barnes worked during her employment as a casual employee, it would seem that Ms Barnes’ work pattern could not be regarded as simply occasional or a regular. Rather, during this period, Ms Barnes worked every week except for two weeks and, except for one week, Ms Barnes appears to have worked a minimum of two shifts a week. Therefore, it is my view that Ms Barnes’ casual employment was regular and systematic.

[18] With respect to whether there was an expectation of ongoing regular and systematic employment by Ms Barnes, during the period of casual employment, there is no evidence before the Commission to the contrary. Rather, the evidence is that, on 28 January 2017 and 29 January 2017, Ms Barnes was texting the Bakery asking whether the new roster was out, whether she had missed it and asking when she was next on the roster. It is my view that Ms Barnes had a reasonable expectation of continuing regular and systematic employment.

[19] Therefore, I find that Ms Barnes’ employment was regular and systematic and that Ms Barnes had a reasonable expectation of ongoing employment throughout the period of casual employment from 28 August 2016 to 3 February 2017 (about 5 months).

[20] Prior to the period of casual employment, Ms Barnes was employed part time from either 10 April 2016 or 28 April 2016 until 28 August 2016. As the difference between the two commencement dates is immaterial, for calculation purposes, I will take the date of commencement as 28 April 2016. As Ms Barnes ceased being a part time employee on 28 August 2016, Ms Barnes’ part time employment was for a period of four months. As Ms Barnes’ period of casual employment (5 months) has been found to count towards her period of employment, Ms Barnes’ total period of employment with the Bakery was 9 months.

[21] Therefore, I find that Ms Barnes is an employee who has completed a period of employment with her employer of at least the minimum six month period as required by Section 383 of the Act.

[22] Accordingly, the second jurisdictional objection of the Respondent is also dismissed.

[23] An order 3 dismissing the Respondent’s jurisdictional objections will be issued separately.

[24] Ms Barnes’ application will be referred for conciliation.

Appearances:

Ms R Barnes appeared on her own behalf

Ms C Porter appeared for the Respondent

Hearing details:

2017.

Melbourne and Perth (by telephone):

May 1.

 1   [2010] FWA 2078

 2   Ibid at [64]

 3   PR594674

Printed by authority of the Commonwealth Government Printer

<Price code C, PR594628>