| [2020] FWC 3206 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Richard Warren
v
Moreland Bus Lines Pty Ltd
(U2020/3889)
COMMISSIONER BISSETT |
Application for an unfair dismissal remedy – jurisdiction – no dismissal – application dismissed.
[1] Mr Richard Warren was employed as a casual bus driver with Moreland Bus Lines Pty Ltd (Respondent). He has made an application for unfair dismissal, claiming that he was a regular and systematic casual employee and that his employment was terminated effective from 17 March 2020 when he was removed from completing a job due to end on 27 March 2020 providing a replacement bus service for a V-Line service to Wandong.
[2] The Respondent objects to the Fair Work Commission dealing with the application on the grounds that Mr Warren has not served the minimum employment period necessary to make an application as he was not employed on a regular and systematic basis and had no reasonable expectation of continuing employment on a regular and systematic basis and that, in any event, he was not dismissed.
[3] At the commencement of proceedings I gave the Respondent permission to be represented by a lawyer in that I was satisfied it did not have the capacity to effectively represent itself. Given the jurisdictional issues to be covered in the proceedings I exercised my discretion to grant permission pursuant to s.596 of the FW Act.
[4] Mr Warren worked as a casual bus driver for the Respondent. He commenced such work in January 2019 and worked his last shift on 17 March 2020.
[5] The Respondent employs approximately 50 full-time (on-going) employees and 3 casual drivers.
[6] Work was allocated to drivers each day via a “job sheet” although the full-time drivers had a roster that was issued a week in advance.
[7] As a casual driver Mr Warren was allocated work a day in advance by the posting of a job sheet at the depot although at times he would be advised by text or email of his allocation.
[8] On 4 March 2020 Mr Geoff Thomas, Operations Manager for the Respondent, contacted Mr Warren to ask if he could commit to a V-Line job from 10 March to 27 March 2020, apparently picking up the work from Dyson’s (bus company). That job required Mr Warren to drive a replacement service between Southern Cross railway station and the town of Wandong in the morning and again in the evening. Mr Warren accepted the work.
[9] On 16 March 2020 Mr Warren was subject to a complaint by a passenger. That complaint was sent to V-Line and then referred to the Respondent. The passenger said that Mr Warren stopped the bus in traffic and approached the passenger who was coughing. The passenger said Mr Warren was rude and told the passenger they had to self-isolate. The passenger explained that they were asthmatic and showed Mr Warren their Ventolin. The passenger felt embarrassed about what had occurred.
[10] Mr Thomas met with Mr Warren after he completed the morning service on 17 March 2020 to discuss the complaint. Mr Thomas outlined to Mr Warren the Respondent’s concerns with his actions. Mr Thomas says that Mr Warren refused to commit to comply with the Respondent’s or V-Line’s procedures should such a matter arise again (in the context of COVID-19). In all there were three meetings between Mr Warren and Mr Thomas although there is some dispute as to whether all occurred on 17 March 2020 or one happened the following day. When the meetings occurred is not material to the matter before me.
[11] Mr Thomas said that he advised Mr Warren that he was being taken off the V-Line job. He said he did advise Mr Warren that there may be another job coming up within a week but it was not yet confirmed although Mr Warren disputes this was said.
[12] At the same time restrictions with respect to the COVID-19 pandemic started to be implemented in Victoria with a general reduction in activity, including demands on the Respondent. In particular, Mr Thomas said that most forward charters were cancelled (e.g. school trips, club excursions and the like) such that the demands on the Respondent were reduced. In reaction to this Mr Thomas said that full-time drivers were allocated work first and that only minimal work has been available to the casual drivers. He said that 1 casual driver picked up the afternoon shift from the job being done by Mr Warren and another casual received a shift when a full-time driver rang in sick.
[13] The minimum employment period in relation to a casual employee is to be determined in accordance with s.384 of the FW Act.
[14] Section 384 states as follows:
(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.
[15] It is necessary for me to determine if Mr Warren has, in fact, completed the minimum employment period such that he is eligible to make an application for unfair dismissal.
[16] Mr Thomas attached to his witness statement a table setting out the hours worked by Mr Warren for each week since he commenced casual employment with the Respondent.
[17] That table shows that, in the 73 weeks since Mr Warren commenced with the Respondent, he has worked in all bar 6 weeks on a weekday. For some of these 6 weeks Mr Warren did work of a weekend.
[18] For by far the majority of the remaining weeks Mr Warren has worked most days of the week although there were days when he did not work.
[19] Mr Warren’s weekly hours (excluding the 6 weeks referred to above) ranged from 12.5 hours (in a week where he only worked 2 days) to 78 hours, in a week he worked 7 days. A brief perusal of the working hours information indicates that Mr Warren regularly worked 5 days a week in the range of 25 to 40 hours.
[20] The Respondent agrees that Mr Warren was provided his hours of work day to day by the Respondent. However, the Respondent argues that there was no obligation on the Respondent to provide such work. That there might not have been an obligation however is no basis on which to conclude that Mr Warren was not employed on a regular and systematic basis.
[21] In Bronze Hospitality Pty Ltd v Hansson 1 the Full Bench of the Commission said:
[24] In Yaraka Holdings Pty Ltd v Giljevic, 2 the Court noted that it is the engagement of a casual employee that must be regular and systematic, not the hours worked pursuant to such engagement. It also held that the term ‘regularly’ should be construed liberally, and that ‘systematic’ does not mean predictable. We respectfully adopt these observations. However, it is important to note that the Court did not say or suggest that the hours of work are analytically unimportant. Clearly, the days on which a person works and the hours worked on those days are relevant to the consideration of whether casual employment is regular and systematic, and whether the person has a reasonable expectation of ongoing employment. [footnotes omitted]
[22] The full import of the views of the Court in Yaraka Holdings Pty Ltd v Giljevic (Yaraka Holdings) is best understood when the text of that decision is considered.
[23] In Yaraka Holdings the Court said:
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”... 3
[24] A review of Mr Warren’s pattern of engagement indicates that it has been regular and it belies anyone observing his days and hours of work to suggest his engagement has not been regular.
[25] In Yaraka Holdings the Court also said:
…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... 4
[26] Applying this approach, Mr Warren’s engagement has also been systematic. Even if it is that Mr Warren was allocated work the day before via job sheets, systematic does not mean predictable, but rather connotes some reliance. The pattern of engagement demonstrates this reliance. The evidence of Mr Thomas is that Mr Warren was regularly used to fill gaps in scheduling prior to COVID-19.
[27] Whilst Mr Warren may have worked varying hours each day the engagements were systematic and predictable.
[28] The Respondent relies on the fact that Mr Warren could refuse work and suggests that he “frequently” indicated that he was not available to work. The Respondent provided no evidence of this and the pattern of engagement does not suggest that he frequently declined work.
[29] The Respondent agreed that there was no work or limited work over school holidays (although it is not apparent that Mr Warren did not work in these periods except for the Christmas/New Year period and 1 week in September) and Mr Warren said that there were times when he did indicate unavailability but this was generally when he had a medical or other private appointment to attend to.
[30] On the basis of the material before me I am satisfied that Mr Warren was employed on a regular and systematic basis.
Did Mr Warren have a reasonable expectation of continuing employment?
[31] Given the pattern of Mr Warren’s employment with the Respondent and that he had been engaged on a regular and systematic basis for an extended period of time I am satisfied that he had a reasonable expectation of continuing employment. Whilst there may have been other incidents in Mr Warren’s employment there are no grounds on which Mr Warren could have thought his pattern of engagement would change.
[32] Section 382 of the FW Act states that an employee is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period. That period, in relation to this Respondent, is 6 months. The period of employment, in relation to a casual employee, is determined in accordance with s.384(2) of the FW Act.
[33] For the reasons given above I am satisfied that Mr Warrant’s regular and systematic period of employment commenced in January 2019. He has therefore completed the minimum employment period such that he is protected from unfair dismissal.
[34] The meaning of “dismissal” is set out in s.386 of the FW Act, It states that:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
[35] I am satisfied that none of the exceptions in s.386(2) of the FW Act apply to this case, and none is argued.
[36] Mr Warren did not resign his employment such that s.386(1)(b) does not apply in this case.
[37] The matter to determine is if Mr Warren’s employment was terminated on the employer’s initiative.
[38] For the reasons given below I am not satisfied that Mr Warren’s employment has been terminated on the employer’s initiative.
[39] Mr Thomas gave evidence, which I accept, that he never told Mr Warren that his employment was being terminated or that he would not be offered any further work.
[40] Mr Warren said that he “believed” he would not get any further allocations after the afternoon shift of 17 March 2020 was removed from him. He appears to have reached this conclusion because he considered that the V-Line work until 27 March 2020 was his work and that, by not letting him complete that bit of work, his employment had been terminated. Mr Warren agreed however that he was not advised by Mr Thomas that he had been fired.
[41] Mr Warren agreed that there were times when work was not allocated to him or where he had not worked so he had contacted Mr Thomas by text about work availability and Mr Thomas would respond. Mr Warren said, in answer to a question, that he did not contact Mr Thomas or anyone else from the Respondent after 17 March 2020 to enquire about further work.
[42] I do not consider that the decision to take Mr Warren off the V-Line work was a termination of his employment at the employer’s initiative. It was a reasonable response to a complaint of a passenger and a refusal by Mr warren to comply with the Respondent’s and V-Line’s policy in dealing with issues associated with the COVID-19 pandemic.
[43] In this case however there has been a confluence of events that means Mr Warren has not been offered any further work. On 22 March 2020 the Victorian Government announced that it would “proceed over the next 48 hours to implement a shutdown of all non-essential activity across our state to combat the spread of Coronavirus.” The impact of this on the Respondent’s charter operations was swift with cancellations occurring as travel restrictions were imposed and school closures commenced. I accept that the result of this is that very little casual work has been available with the Respondent first allocating work to its full-time, rostered employees. I accept that it is the restrictions imposed in Victoria as a result of COVID-19 that has resulted in Mr Warren not being offered any further shifts – it is not that his employment has been terminated or that the employer has stopped offering shifts.
[44] For these reasons I am satisfied that Mr Warrant’s employment has not been terminated.
[45] Mr Warren has done nothing to determine if he is still employed (albeit on a casual basis) with the Respondent and if (and when) he will be offered further work.
[46] I would observe that it appears neither party has sought to contact the other to clarify the situation – Mr Warren as to if he will be offered further shifts or Mr Thomas to explain the lack of shifts and effect of COVID-19 and Government directions on the availability of work to Mr Warren. Both are at fault in this regard.
[47] I am satisfied that Mr Warren has served the minimum employment period in that he was engaged on a regular and systematic basis and had a reasonable expectation that he would continue to be so engaged.
[48] I am, however, not satisfied that Mr Warren had his employment terminated.
[49] A person can only make an application for a remedy for unfair dismissal if their employment has been terminated. As Mr Warren has not had his employment terminated the jurisdictional objection of the Respondent must be upheld.
[50] Mr Warren’s application for unfair dismissal is therefore dismissed. An order 5 to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr Buche for the Applicant.
L. Sowden for the Respondent.
Hearing details:
2020.
Melbourne by telephone:
June 12.
Printed by authority of the Commonwealth Government Printer
<PR720317>
2 [2006] ACTCA 6.
3 Ibid at [68].
4 Ibid at [69].