DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Janell Hansson
v
Bronze Hospitality T/A The Harbour Terrace
(U2018/6613)

Application for an unfair dismissal remedy – jurisdictional objection – regular and systematic casual – minimum employment period – Small Business Fair Dismissal Code.

[1] Janell Hansson has made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Hansson was employed by Bronze Hospitality T/A The Harbour Terrace (Bronze Hospitality) between 28 November 2018 and 7 June 2018. She was first engaged as a casual employee between about 28 November 2017 and 21 January 2018 and then as a full-time employee between 22 January 2018 and the date of her dismissal on 7 June 2018 (although timesheet records indicate that the last occasion on which Ms Hansson worked as a casual employee was on 20 January 2018 and the first occasion on which she worked as a full-time employee was on 24 January 2018).

[2] This decision concerns the Respondent’s jurisdictional objection that Ms Hansson has not satisfied the minimum employment period, as that term is defined in ss.382 and 384 of the Act, for the reason that the Applicant’s period of employment as a casual was not on a regular and systematic basis and that the Applicant did not have a reasonable expectation of continuing employment, and as such her period of service as a casual should not count towards the minimum employment period.

[3] It is also in contention whether Bronze Hospitality is a small business employer for the purposes of the Act. If the business was a small business employer, then the minimum employment period would be 12 months, which Ms Hansson would demonstrably not have completed.

[4] It is not in contention that Ms Hansson was employed first on a casual basis and then as a permanent, full time employee.

[5] For the reasons set out below, I find that Ms Hansson was employed on a regular and systematic basis, during which she had a reasonable expectation of ongoing employment with Bronze Hospitality and that since Bronze Hospitality was not a small business employer at the time of her dismissal, she has completed the minimum employment period and her application may proceed.

BACKGROUND

[6] Evidence in this matter was received for the Applicant from Ms Hansson, and for the Respondent from Mr Andrew Thorpe, Director at Bronze Hospitality and Ms Georgette Connellan, Accountant and Payroll Officer at Bronze Hospitality. Each party represented themselves in the proceedings.

[7] Bronze Hospitality is a standalone company which provides labour to the Harbour Terrace Bar and Grill in Western Australia. Ms Hansson was a Food and Beverage Attendant employed on a casual basis up until 22 January 2018 after which she signed a letter of engagement categorising her as a full time employee. According to Mr Thorpe, Bronze Hospitality is the provider of labour to the business operating as Harbour Terrace Bar and Grill, with that business being owned by another entity, which itself does not employ anyone.

[8] The Applicant’s statement recorded that during her period of casual employment she had an ongoing roster every week and although there were variations in her hours and the days in which she worked as a casual employee she had a minimum of 30 hours each week. Ms Hansson was not particularly precise about how she came to be employed by Bronze Hospitality, either as a casual employee, or on a full time basis. However, that which she has put forward indicates that she was engaged initially in the pre-Christmas period when the business was very busy, and with the expectation that if things worked out she would be offered ongoing employment at a later time. That offer came about, likely in the last week of December, with it then taking until late January to formally document the ongoing arrangement and convert her employment from casual to full-time.

[9] The Applicant provided copies of her payslips between the period of 10 December 2017 and 4 February 2018. Those payslips record respectively:

•  65.28 hours for the fortnight ending 10 December 2017;

•  94.26 hours for the fortnight ending 24 December 2017;

•  81.51 hours for the fortnight ending 7 January 2018;

•  74.73 hours for the fortnight ending 21 January 2018; and

•  77.28 hours for the fortnight ending 4 February 2018.

[10] The Applicant submits that the timesheets provided demonstrate that she worked on a weekly basis, while acknowledging the hours of work varied daily.

[11] The Respondent submits that the duration of shifts, days worked and start and finish times all varied and therefore did not have an expectation of regular and systematic work. It submitted that a period of seven weeks employment was incapable of being considered as regular and systematic. More specifically, it argued that Ms Hansson’s casual employment should be disregarded by the Commission because it was not long enough for any view to be formed that it was regular and systematic. Bronze Hospitality’s submission in this regard included that the industry in which it worked was featured with very high rates of employment turnover and that, since many of the people who had worked alongside Ms Hansson no longer worked in the business, that fact illustrated its case – that regularity and systematicity of employment could not be drawn from periods of short employment. Bronze Hospitality also argued that other decisions of the Commission on the subject of assessment of regularity of systematic employment dealt with longer periods of employment and that there was no precedent for accepting short periods of employment as featured by regular and systematic employment.

[12] The material submitted by the Respondent showed the following dates and times of work between 27 November 2017 and 21 January 2018:

Size of Business

[13] The Respondent submits that it is a small business for the purposes of the Act. The Respondent submits that while it employs 10 permanent employees it only employs one casual that can be included in the calculation of the number of employees employed at the time of the Applicant’s dismissal. The Respondent submits that the reasons that four other casual employees employed by Bronze Hospitality are not included in this calculation is because those employees “worked for short periods of time – all less than twelve months and some for only a few months or even a few days”.    1 Additionally the Respondent submits that these casual employees’ “their shift durations, days off and start and finish times were irregular”2 and that “seven have since ceased working for the Respondent of their own volition”. 3

[14] Ms Hansson contends that the business and ownership arrangements of Bronze Hospitality are such that employees of other entities associated with, or operated by, Mr Thorpe should be included in consideration of the number of employees.

LEGISLATION

[15] A person is protected from unfair dismissal if they meet the following criteria, set out in s.382 of the Act:

“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 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.”

[16] The definition ascribed to the minimum employment period is provided in s.383:

“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.”

[17] Relevant to this decision, and the Respondent’s assertion that Ms Hansson’s period of service as a casual employee should not count towards her period of employment with Bronze Hospitality, are the terms of s.384 of the Act:

“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

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

CONSIDERATION

[18] As is evident from the provisions of s.384(1) of the Act, the matter for determination in this decision is whether the Applicant has a period of continuous service with her former employer that would exceed the minimum employment period. A period of casual employment will not be counted towards the period of employment itself unless that casual employment was on a regular and systematic basis and the employee had a reasonable expectation of continuing employment with the employer also on a regular and systematic basis.

[19] In City of Sydney RSL & Community Club Limited v Balgowan a Full Bench of this Commission said, at [24]:

“The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment. There are some, albeit rare, cases where a casual employee has been found to have been engaged under a single continuing contract of employment, but the accepted orthodoxy of casual employment is the notion that each engagement is under a separate contract rather than a continuing contract of employment. True it is that service rendered under a series of separate casual employment contracts may be regarded as continuous in respect of statutory entitlements such as long service leave, certain entitlements prescribed under the National Employment Standards and accident compensation legislation, and as is evident from the above for the purposes of assessing whether a particular employee had been engaged for the minimum employment period for the purposes of making an unfair dismissal remedy application under the Act. But such recognition of casual service does not alter the fundamental contractual character of regular casual employment as a series of engagements, each under a separate contract of employment.” 4

[20] The Full Bench adopted the following observation of Gooley DP in Andrew Kim v. ORC International Pty Ltd 5:

“At common law a casual employee’s contract of employment ceases at the end of each engagement.”

[21] It has been held in relation to predecessor legislation, in which there was also a need to find employment on a “regular and systematic” basis that in order for a casual employee to be entitled to make an unfair dismissal application, “that it is the ‘engagement’ that must be regular and systematic; not the hours worked pursuant to such engagement”. 6 In a finding made under the current legislation, employment is regarded to have commenced when the employee first attended for work, thereby accepting the offer of employment.7

[22] Further, the Full Bench has made plain that the enquiry in matters such as this is an enquiry as to the whole of the period of employment, with an established sequence of engagements being capable of being considered continuous service, with that continuous service being broken only when one party makes it clear to the other by words or actions that there will be no further engagements. I take into account and apply the reasoning of the Full Bench in Shortland v Smiths Snackfood:

“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.

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.

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).

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.” 8 (original emphasis)

[23] The meaning of the term “regular and systematic” was considered by Jones C in Harry Grives v Aura Sports Pty Ltd 9 where she stated as follows:

“[29] The Macquarie Dictionary meaning of ‘regular’ relevantly includes:

1. Usual; normal; customary

2. Recurring at fixed time; periodic

3. Observing fixed times or habits

The Macquarie Dictionary meaning of ‘systematic’ relevantly includes:

1. Having, showing or involving a system, method or plan

2. Characterised by a system or method; methodical

3. Arranged in or comprising an ordered system 

[30] The Court of Appeal, Australian Capital Territory, in Yaraka Holdings Pty Ltd v Giljevic considered a deeming provision applicable to independent contractors which, in part, deemed an individual to have been employed by an employer if the engagement ‘has been on a regular and systematic basis.’ It should be noted that the deeming provision included matters which should be considered in determining whether an engagement has been on a regular and systematic basis. The following extracts from the judgements of the majority are instructive. Crispin P and Gray J noted:

It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulations under the Workplace Relations Act 1996 (Cth), particularly reg 30B, and this concept has been considered by industrial tribunals in a number of cases.

[31] Their Honours noted that:

...it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. 

[32] Relevantly, their Honours observed in relation to the meaning of ‘regular’ that:

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”.

and formed the view that the pattern of engagement of the individual in question over the years from 1995 to 2002 satisfied this description.

[33] In respect of the meaning of ‘systematic’, their Honours held:

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. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses.

[34] Madgwick J concurred with the majority. In a separate judgement, his Honour considered examples provided in the relevant statute of ‘individuals who are workers’ concluding that ‘the meaning to be ascribed to (the deeming provision) is conditioned by the examples.’  Accordingly, his Honour stated:

It is clear from the examples that 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.

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 3^rd edn, 2001). 

[35] The finding as to whether employment is regular and systematic is a discretionary one having regard to the totality of the evidence. Setting out factors which dictate a finding one way or another is to be avoided, particularly so given the Act is silent as to the matters to be considered.” (citations removed)

[24] It is clear that the Applicant’s hours did vary somewhat from week to week. However, that does not lead to an inevitable conclusion that that the Applicant’s casual employment was not regular or systematic. In Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic (Ponce) Roe C stated as follows:

“[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.” 10

[25] The Respondent’s argument that a period of 7 weeks employment is incapable of being regarded as a period of regular and systematic employment is not made out and fails. Further, its contention that the work within that period of 7 weeks was not regular and systematic is also not made out. The evidence of Ms Hansson was that she was engaged to work as a casual with the prospect of being converted to full time employment if the relationship progressed positively. The evidence of the timesheets is that the actual work performed by Ms Hansson in the period in question was part of a continuing relationship between the parties.

[26] I therefore find that Ms Hansson’s employment as a causal was regular and systematic. Her period of employment for the purposes of the minimum employment period was between 28 November 2017 and 7 June 2018, a period of slightly more than 6 months and 1 week.

Whether Bronze Hospitality was a small business employer

[27] Whether an employer is to be determined to be a small business employer is set out within s.23 of the Act. The section provides that an employer is a small business employer if “at a particular time if the employer employs fewer than 15 employees at that time” (s.23(1)); “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” (s.23(2)(b); and in determining the number of employees, associated entities are taken to be one entity (s.23(3)).

[28] As noted earlier, Ms Hansson contends that the business and ownership arrangements of Bronze Hospitality are such that employees of other entities associated with, or operated by, Mr Thorpe should be included in consideration of the number of employees. Ms Hansson’s contentions on this matter are not much more than a supposition that since Mr Thorpe has entities or business people connected with him who owned and operated other businesses, that they were connected with Bronze Hospitality and their employees should be counted in the assessment in this matter for the purposes of s.23.

[29] Mr Thorpe argued that the other businesses, people and entities referred to by Ms Hansson were simply not connected to the requisite level for there to be a determination that they were associated entities for the purposes of this matter. While that was so, he conceded that Bronze Hospitality was the labour provider operating alongside another entity that actually operated the business of the Harbour Terrace Bar and Grill. Perhaps that relationship is one of associated entity, however in light of Mr Thorpe’s indication that the entity employs no one, and with there being no contrary evidence on the subject, it is unnecessary to determine the matter.

[30] Ms Hansson did not provide cogent evidence about there being other potential associated entities that require inclusion in my consideration. As a result, her arguments on the subject fail and require no further consideration.

[31] Consideration of the matter therefore turns on the number of people employed by Bronze Hospitality at the time of Ms Hansson’s dismissal, being 7 June 2018.

[32] It is contended by Ms Hansson that 15 people were employed at the time of Ms Hansson’s dismissal, and she provided a list of names to support her contention. The Bronze Hospitality Accountant, Ms Connellan gave evidence in these proceedings, including a “list of all persons who worked for the company in the period May 28 to June 7, 2018”. 11 Part of that evidence was to the effect that at the relevant time the Respondent employed 24 people.

[33] Mr Thorpe submitted in the proceedings for this matter that he accepted the first 11 people on Ms Hansson’s list as being employees to be counted for the purposes of s.23, but that he contested whether the remaining four (NB, AM, AR and LT), being casual employees, were regularly or systematically employed (hereinafter referred to as the Four Contested Employees). He and Ms Connellan were silent on the subject of whether the other people on Ms Connellan’s list of 24 employees should be included in the count. The Respondent also did not address in detail the working patterns of the Four Contested Employees relying instead on its submission that its preferred construction of the Act was that short term casual employment was incapable of being considered as regular and systematic employment within the meaning of s.383.

[34] It follows from my rejection of the Respondent’s submissions on this matter in relation to the question of Ms Hansson’s whole period of employment that I reject this submission as well in relation to matters associated with findings related to whether the Respondent was a small business employer.

[35] The consideration in this regard is whether the employment of any of the Four Contested Employees is to be regarded as regular and systematic employment.

[36] The Respondent’s documents show the following about the Four Contested Employees:

•  NB

•  Started employment on at some time between 20 and 26 February 2017 12 and was still in employment on 10 June 2018;

•  “% on time” was 85.71%;

•  Worked 31.22 hours between 28 May 2018 and 10 June 2018.

•  AM

•  Started employment on 1 May 2017 and ended employment on 19 July 2018;

•  “% on time” was 75%;

•  Worked 46.12 hours between 28 May 2018 and 10 June 2018.

•  AR

•  Started employment on 7 December 2017 and was still in employment on 10 June 2018;

•  “% on time” was 66.67%;

•  Worked 31.67 hours between 28 May 2018 and 10 June 2018.

•  LT

•  Started employment on 2 March 2018 and was still in employment on 10 June 2018;

•  “% on time” was 81.82%;

•  Worked 51.97 hours between 28 May 2018 and 10 June 2018.

[37] The foregoing indicates that each of the Four Contested Employees likely had, at 10 June 2018, a continuing employment relationship with Bronze Hospitality sufficient to allow a finding that each had at that date of Ms Hansson’s dismissal on 7 June 2018 a reasonable expectation of continuing employment. The limited evidence on the subject does not allow a finding to the contrary that any one of the people concerned did not have such an expectation. Further, the period 28 May 2018 and 10 June 2018 is relatively short, comprising a reference period of just 13 days. The hours worked by each of the Four Contested Employees in that period ranges between 31 and 52 hours; such is by no means irregular or intermittent employment. On the other hand evidence could have been presented by the Respondent, if it was actually available, about the irregularity or the absence of a systematic nature of the employment of each during that, or a longer period.

[38] LT’s period of employment was the shortest, being from 2 March 2018 however, no cogent evidence was presented by the Respondent to the effect that the hours the person worked over the three months of employment, or the 52 hours worked in the 28 May – 10 June period was merely a casual happenstance with them having no reasonable expectation at that time of ongoing employment. No endeavour was made to provide direct evidence that LT was merely filling in for a temporary uplift in customers which could end at any moment. The most the Commission has before it are the general contentions from Mr Thorpe about the transient nature of the industry.

[39] Mr Thorpe’s submission, both in respect of LT and the other Four Contested Employees, to the effect that the hospitality industry is notoriously transient and featured by high turnover is neither unremarkable or inconsistent with the Commission’s own knowledge, however such contention does not dispense with the matter – instead the question is whether, at the time Ms Hansson was dismissed, the relevant “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”. 13

[40] I also take into account that each employee was measured for their relativity to start shifts on time – ranging in the case of the Four Contested Employees between 66.67% and 85.71%. These precise measurements indicate some expectation of continuity, albeit in tandem with the other circumstances of the employment relationship of each person. Why would it be necessary to consider “% on time” if not to make decisions about future work?

[41] I am satisfied that each of the Four Contested Employees at the time of Ms Hansson’s dismissal were employed by Bronze Hospitality on a regular and systematic basis and likely had an expectation of continuing employment.

[42] I also take into account that at the relevant time, on the Respondent’s own evidence, it employed a further nine employees who appear on the Respondent’s list of employees at 10 June 2018, but not on the Applicant’s. Consideration of the evidence about those employees does not lead to the view that the employment of all of those people was not on a regular and systematic basis. The Respondent’s information discloses the following about each:

Initials	Date first employed	Hours worked between 28 May and 10 June 2018
1. CM	23 October 2017	6.27
2. DS	17 May 2017	52.12
3. DH	28 April 2018	65.43
4. JH	27 November 2017	5.27
5. JD	4 June 2018	11.38
6. KM	9 May 2018	58.0
7. NI	2 May 2018	10.25
8. SB	5 May 2018	16.27
9. YN	14 May 2018	4.65

[43] As a result, I find that each of the Four Contested Employees is to be included in the count of employees of Bronze Hospitality on the date on which Ms Hansson was dismissed, on 7 June 2018. As a result I find that Bronze Hospitality was not a small business employer at the time it dismissed Ms Hansson because it did not employ fewer than 15 employees.

[44] It follows that Ms Hansson has completed the minimum employment period and was a person protected from unfair dismissal.

[45] This matter will now be reassigned to the Commission’s Unfair Dismissal Case Management Team to be dealt with in the usual manner.

COMMISSIONER

Appearances:

Ms Janell Hansson on her own behalf.

Mr Andrew Thorpe for the Respondent.

Hearing details:

2018.

9 September;

Melbourne.

Printed by authority of the Commonwealth Government Printer

<PR700226>

 1   Exhibit R1, Respondent’s Outline of Argument, p.g. 10.

 2   Ibid.

 3   Ibid.

 4   [2017] FWCFB 5537.

 5   [2016] FWCFB 2642.

 6   Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, (2006) 149 IR 339 [65].

 7   Corner v SkyCity Adelaide Pty Ltd [2011] FWAFB 955, (2011) 204 IR 63 [7].

 8   [2010] FWAFB 5709, (2010) 198 IR 237 [10]–[13].

 9   [2012] FWA 5552.

 10   [2010] FWA 2078.

 11   Exhibit R2, Witness Statement of Georgette Connellan, [2].

 12   The material before the Commission is unclear on this subject.

 13   Fair Work Act 2009 (Cth), s.23(2)(b).