DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Elizabeth Rankine
v
Aboriginal Sobriety Group Indigenous Corporation
(U2021/1350)

Application for an unfair dismissal remedy – jurisdiction – minimum employment period – whether “continuous service” – resignation as a full time employee – subsequent casual employment – sections 384 and 22 Fair Work Act 2009 – whether employment relationship continuous – statutory criteria satisfied – applicant protected from unfair dismissal

[1] On 18 February 2021 Ms Elizabeth Rankine (Ms Rankine or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by the Aboriginal Sobriety Group Indigenous Corporation (ASG, the employer or the Respondent). She claims to have been unfairly dismissed on 29 January 2021.

[2] She seeks reinstatement or, in the alternative, compensation.

[3] ASG is not a small business employer. It opposes the application and raises a jurisdictional issue 1. It submits that Ms Rankine was not a person protected from unfair dismissal under the FW Act because she had not completed the minimum employment period (of six months) required by sections 382(a) and 383. It says that Ms Rankine’s service was broken by a resignation on 28 August 2020 notwithstanding re-employment five days later.

[4] On 9 March 2021 conciliation was conducted by a staff conciliator. Further Member Assisted Conciliation on 22 April 2021 did not resolve the matter.

[5] I issued directions on 17 March 2021 and 5 May 2021. On Ms Rankine’s application, on 5 June 2021 I issued a production order on ASG. An application by Ms Rankine to stay the hearing of her unfair dismissal application pending potential criminal proceedings was adjourned pending resolution of the jurisdictional matter.

[6] The jurisdictional matter was heard by video on 29 June 2021.

[7] By decision on 5 May 2021 2 I had granted permission under section 596 of the FW Act for both parties to be represented.

Evidence

[8] I received witness statements from both Ms Rankine 3 and ASG’s Human Resources/Governance Manger Ms Bianca Kreft4. Both gave sworn evidence though Ms Rankine was not cross examined.

[9] The facts relevant to the jurisdictional issue are largely not in dispute although a clear difference exists on conclusions to be drawn from those facts.

[10] Both Ms Rankine and Ms Kreft gave evidence as to separate discussions each had with an officer of ASG (Ms Underwood). Discussions between Ms Rankine and Ms Underwood (on 28 August 2020) and between Ms Kreft and Ms Underwood (on 28 August 2020 or 31 August 2020) are relevant to the jurisdictional issue. Ms Underwood was not called to give evidence (she resigned from ASG in late 2020). She was not an employee at the time of dismissal or during the course of proceedings). The failure by either party to call Ms Underwood means that evidence of discussions with Ms Underwood is not fully tested. That notwithstanding, the evidence of Ms Rankine and Ms Kreft with respect to their separate discussions with Ms Underwood is plausible, particularly where consistent with the documentary record and subsequent conduct of the parties.

[11] More generally, I consider both Ms Rankine (with one caveat) and Ms Kreft to have been generally reliable witnesses on facts relevant to the jurisdictional issue. For reasons set out later in this decision, I have not accepted Ms Rankine’s evidence that she twice signed a contract supplied to her on 24 July 2020. I make findings (including drawing relevant inferences) based on the written and oral evidence of both, its plausibility and consistency with the documentary evidence and conduct of the parties.

Facts

[12] ASG is a not-for-profit organisation funded by governments and the wider community to provide rehabilitation and healthier lifestyle services to indigenous persons and communities. It operates both mobile and fixed facilities (including a women’s rehabilitation centre at Monarto in regional South Australia).

[13] Ms Rankine was employed as a Residential Night Worker. For the first month she worked at a men’s rehabilitation facility, and thereafter at the women’s rehabilitation centre (House of Hope). In total, she worked across a period of two years eleven months.

[14] Whilst Ms Rankine’s employment commenced as a casual, she became a full time employee under various fixed term contracts, then reverted to casual employment (the circumstances of which bear directly on this decision) and then again became a full time employee.

[15] At the time of the dismissal the subject of her unfair dismissal application (29 January 2021) she was a full time employee.

Casual employment – 23 February 2018 to 24 April 2018 (two months)

[16] Ms Rankine commenced work as a casual employee under a casual contract dated 22 February 2018 5.

Full time employment – 25 April 2018 to 24 April 2019 (first twelve month fixed contract)

[17] On 19 April 2018 Ms Rankine and ASG entered into a fixed term 12 month full time contract commencing 25 April 2018 6.

Full time employment – 25 April 2019 to 24 April 2020 (second twelve month fixed contract)

[18] Ms Rankine continued to work as a full time employee beyond the expiry of her first fixed term contract. It was not until 28 May 2019 that Ms Rankine and ASG entered into a further fixed term 12 month full time contract, the commencement of which was backdated to 25 April 2019 7.

Full time employment – 25 April 2020 to 28 August 2020 (four months)

[19] Ms Rankine continued to work as a full time employee beyond the date of expiry of her second fixed term contract (24 April 2020).

[20] A number of factors affecting both ASG and Ms Rankine during this period impacted their ability to conclude a further written agreement.

[21] 2020 was the first year of the COVID pandemic. It impacted the operations of ASG. Staff considered ‘at risk’ were temporarily taken off the roster and placed on JobKeeper. This included Ms Rankine, who did not work but received JobKeeper during the month of June 2020 (in lieu of payment by ASG).

[22] Ms Rankine returned to rostered work in July 2020.

[23] At the same time, ASG delayed providing new contracts to staff because of funding uncertainty that had the potential to impact operations.

[24] Also, in July 2020 a new Program Manager Ms Underwood commenced.

[25] On 14 July 2020 ASG wrote to Ms Rankine indicating that insufficient funding existed for her current position at the current level of hours worked 8. It proposed two options for discussion – same classification but fewer days of work (5 to 3), or same full time hours but a lower classification.

[26] On 21 July 2020 Ms Rankine met Ms Kreft and CEO Ms Snell to discuss the options. Ms Rankine expressed a preference for the same hours (full time) but a lower classification. It was agreed that Ms Kreft would prepare a contract for consideration.

[27] On 24 July 2020 Ms Kreft sent Ms Rankine a contract 9. It was for a six month fixed term as a full time employee commencing 26 August 2020 and ending 25 February 2021. Ms Kreft sought its return “as soon as possible”.

[28] Ms Rankine did not sign the contract. She was concerned about the (shortened) six month term, having previously had twelve month contracts. Ms Rankine felt stressed by the situation. At around the same time, an incident occurred in which a client came to Ms Rankine’s house unexpectedly, which added to her anxiety. Ms Rankine took a short period of leave (albeit annual not personal leave). She did not inform ASG of her stress or of the client attending her home.

[29] On 10 August 2020 Ms Kreft sent Ms Rankine a reminder about the contract 10.

[30] There is a dispute as to whether Ms Rankine signed and returned the 24 July 2020 contract at any time. I deal with that issue later in this decision.

[31] A discussion occurred between Ms Kreft and Ms Rankine around 10 August 2020 in which Ms Rankine advised her concern at the proposed six month term. Ms Kreft requested that, notwithstanding the concerns, the contract should be signed as Ms Rankine was working without a written contract and the new contract was due to start on 26 August 2020.

[32] On 26 and 27 August 2020 the following four email exchanges occurred between Ms Rankine and Ms Kreft 11.

[33] On 26 August 2020 (2.51pm) Ms Rankine advised:

“Hi Bianca I need to have a chat with u regarding my contract”.

[34] The next morning (8.45am 27 August 2020) Ms Kreft replied:

“Let me know some times…I am quite keen to receive pending contract as you currently are out of contract with ASG and the contract emailed to you states this commencement from yesterday.”

[35] Shortly after (10.00am 27 August 2020), Ms Rankine responded:

“…I have had a chat with my manager on what will work for myself and have made a decision and would like a change to my contract and will work Sunday Monday Wednesday and Thursday, once change has been made will sign and send contract”.

[36] In practice, Ms Rankine was seeking to substitute her Friday work (12.01am to 8.00am) with Sunday work so as to work a Sunday to Thursday roster, not a Monday to Friday roster.

[37] Ms Kreft makes inquiries as to whether ASG could meet Ms Rankine’s request. That afternoon (1.15pm), Ms Kreft replied:

“Hi Elizabeth

Hope you are well.

Thank you for your email in regards to your request to change your nights working on the above contract.

ASG have reviewed your request.

Unfortunately your request to work a Sunday 12.00am - 8am cannot be granted due to our casual pool completing shifts on weekends.

Permanent staff are only offered the working week hours.

Therefore please can you provide me a response by no later than 12.00pm Friday, 28 August of your intention, as you currently have no contract.

Kind regards

Bianca Kreft”

[38] A text to this effect was also sent by Ms Underwood to Ms Rankine. At 4.43pm that day (Thursday 27 August 2020) Ms Rankine’s partner responded by text to ASG as follows: 12

“She’s not up to talking to anyone at the moment but asked me to send this to you. She said she will do tonight’s shift (sic) and wants to resign.”

Resignation 28 August 2020

[39] Ms Rankine worked the night shift as rostered on Friday 28 August 2020 12.01am to 8.00am.

[40] At 8.00am, upon concluding her shift, Ms Rankine sent the following email to Ms Kreft (copied to Ms Underwood): 13

“Unsure of the process but would like to inform you of my resignation thanks”.

[41] Ms Rankine’s resignation did not specify the date of operation of her resignation nor whether she was giving notice or how much (if any).

[42] Ms Kreft was unsure whether to accept the resignation. At 8.37am Ms Kreft wrote to Ms Underwood: 14

“Hi Brenda

Are you happy for me to accept this resignation effective immediately (today) due to Elizabeth being out of contract.

I will be in a Directors meeting and not available after 9.30am for the rest of today and it would be good for me to email her sooner than later.”

[43] Ms Underwood replied at 10.56am: 15

“Hi Bianca

Please do not accept as yet. We need to confirm this is not an emotional response and does not leave us in a questionable predicament.”

[44] Ms Rankine received a telephone call from Ms Underwood shortly thereafter. I deal with that call later in this decision. Either later that day (28 August 2020) or the following Monday (31 August 2020) Ms Underwood debriefed Ms Kreft on the contents of her call with Ms Rankine.

Period 29 August 2020 to 2 September 2020 (inclusive)

[45] Ms Rankine did not work and was not paid for any of the five days from 29 August 2020 to 2 September 2020 (inclusive).

[46] Ms Rankine was not paid out her final full time payment of wages owed or accrued full time entitlements on the day of her resignation (28 August 2020). She was paid in the next ordinary pay cycle.

[47] It was not until 7 September 2020 that Ms Kreft took steps to inform ASG’s payroll department of Ms Rankine’s resignation and the need to pay out her full time entitlements. That day, Ms Kreft sent payroll the following email: 16

“Good morning Mital

Can you please terminate Elizabeth Rankine as a full time Residential Careworker and pay her any leave entitlements owing to her.

Official resignation email by Elizabeth was 28 August 2020.

Elizabeth will be coming on as an On call Casual for LTW Rehabilitation Centres so please let me know once you have finalised on your side so I can draw the contract up

Thank you

Kind regards

Bianca Kreft”

[48] Later that day (7 September 2020) Ms Kreft emailed Ms Underwood to confirm Ms Rankine’s new employment: 17

“Hi Brenda

Please find attached Casual Contract and Position Description for signing by Elizabeth

Please return at your earliest convenience so I can arrange Rosney to sign off on them.

I have commenced Elizabeth's casual contract from our new pay period (9 September 2020)

Elizabeth's new employee number will be 734 please can you let her know

Thanks

Kind Regards

Bianca Kreft”

Casual employment – 3 September 2020 to 30 November 2020 (three months)

[49] On either 31 August 2020 (Monday), 1 September 2020 (Tuesday) or 2 September 2020 (Wednesday) Ms Rankine was offered the first casual shift to be worked under the new arrangement. It was for Wednesday 3 September 2020. Ms Rankine agreed to work the shift, and did so.

[50] Over the following three months (until 30 November 2020) Ms Rankine worked approximately twenty casual shifts, usually four shifts per week worked.

[51] ASG prepared a written casual contract for Ms Rankine to sign. It was sent to Ms Rankine on 7 September 2020. Ms Rankine did not sign it and a reminder was sent to Ms Rankine on 21 September 2020. Ms Rankine then sent Ms Kreft a copy of the 2018 signed casual contract, not the 2020 casual contract. On 6 November 2020 Ms Rankine returned a signed position description but not the signed signature page of the contract. After a further reminder, Ms Rankine told Ms Kreft that she had signed the casual contract but was wanting her manager to countersign it.

[52] No signed casual contract for this three month period was received by ASG.

Full time employment – 1 December 2020 (ongoing)

[53] On 16 November 2020 Ms Rankine’s manager offered Ms Rankine full time employment, which she accepted from 1 December 2020.

[54] Ms Rankine was sent a full time contract for signature on or about 18 November 2020. The contract was to commence on 1 December 2020 and was for an indefinite period (“shall remain in force until renegotiated or terminated” 18).

[55] Despite being requested to do so, Ms Rankine did not sign or return the contract. However, Ms Rankine commenced full time employment on 1 December 2020. She remained so employed until dismissed on 29 January 2021.

Consideration

Legal Framework

[56] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[57] Section 383 sets out the minimum employment period:

“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.”

[58] Section 384 states:

“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.”

[59] The FW Act’s dictionary (section 12) defines “service” by referring to “section 22” and “continuous service” as having “a meaning affected by section 22”.

[60] In somewhat curious drafting, section 22 defines “service” but does not contain an express meaning of “continuous service” (though the phrase is bolded by the legislature in section 22(4)(b) without subsequent definition). Section 22 relevantly provides:

“22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.”

Minimum employment period

[61] In order to be protected from unfair dismissal, the minimum employment period required to have been worked by Ms Rankine prior to her dismissal taking effect was six months.

[62] As Ms Rankine’s dismissal took effect on 29 January 2021, the question which arises is whether she had six months of relevant service prior to that date.

[63] It is not disputed by ASG that Ms Rankine was first employed on 28 February 2018 and worked continuously under a series of contracts (initially as a casual employee then, from 25 April 2018 as a full time employee) until the events of 28 August 2020.

[64] Nor is it disputed by ASG that Ms Rankine worked (as a casual employee) from 3 September 2020 and then (as a full time employee) from 1 December 2020 until her dismissal on 29 January 2021.

Was Ms Rankine’s casual employment between 3 September 2020 and 1 December 2020 regular and systematic?

[65] ASG do not concede that service during this three month period of casual employment (between 3 September 2020 and 1 December 2020) was a “period of employment” within the meaning of section 384 of the FW Act.

[66] I do not agree.

[67] For a casual employee to be said to have worked “regularly and systematically” within the meaning of section 384(2) of the FW Act it is sufficient for their employment to have been “regular” in the sense of being frequent notwithstanding it being unpredictable, and “systematic” in the sense of it being part of a pattern of engagement occurring as a consequence of businesses reliance on the employee’s services notwithstanding that the precise pattern of working may not be foreseeable to the employee 19.

[68] The evidence is that Ms Rankine’s work in this period was based on her services being sought by the employer via a system of advance rostering, a pattern of generally four days (commonly Monday to Thursday) in weeks worked and at least twenty shifts worked in total. This meets the description of casual employment having been “regular and systematic” within the meaning of section 384(2)(a).

[69] Given this, and that a casual contract had been sent to Ms Rankine for signing, I also conclude that Ms Rankine had a reasonable expectation of continuing employment on a regular and systematic basis within the meaning of section 384(2)(a)(ii) of the FW Act.

[70] The three month period of service as a casual employee between 3 September 2020 and 1 December 2020 is to be included in the six month count.

What was the status of Ms Rankine’s employment on and between 28 August 2020 and 3 September 2020?

[71] The gravamen of the jurisdictional issue is whether Ms Rankine’s resignation on 28 August 2020 and the subsequent five days (29 August, 30 August, 31 August, 1 September and 2 September) when Ms Rankine neither worked nor was paid broke service such that her employment in the six month period preceding dismissal was not, in a relevant sense, continuous. In other words, did either Ms Rankine’s resignation or the gap of five days between resignation as a full time employee and commencing a casual shift break service such that Ms Rankine does not meet the minimum statutory employment period to be eligible to make an unfair dismissal claim?

[72] To determine this question, the facts, as objectively found and properly characterised, need to be applied to the law (including the statutory definition in section 22).

[73] An employment relationship is inherently contractual 20. Whilst it is necessary for a contact of employment to exist for there to be “employment” from which a person is terminated, the FW Act’s unfair dismissal jurisdiction concerns itself with termination of the employment relationship and not necessarily termination of the contract:21

“[50] Thus it is clear, contrary to the first proposition stated in Lunn to which we have earlier referred, that a termination of the employment relationship might constitute a termination at the initiative of the employer under the WR Act notwithstanding that the contract of employment remains on foot. That is, under the WR Act, termination at the initiative of the employer did not, on its ordinary meaning, refer to termination of the contract of employment. The first proposition in Lunn to which we have earlier referred was therefore not a correct statement of the law under the WR Act, and as a result the Full Bench’s analysis in Lunn proceeded on the wrong premise that it was necessary to analyse whether the final employment contract was terminated at the initiative of the employer, not whether the employment relationship was terminated at the initiative of the employer. The correct position remained as stated in Mohazab, namely that a termination of employment at the initiative of the employer occurs where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”

[74] Indeed, termination of the employment relationship is a different concept from the termination of an employment contract 22.

[75] Whilst the phrase “continuous service’ is not defined in the FW Act, the ordinary meaning of “continuous service” is a period of unbroken service by an employee with an employer 23. That Part 3-2 of the FW Act concerns itself with unfair dismissals from the employment relationship and not simply from an employment contract is a relevant contextual consideration in determining the proper construction of the phrase “continuous service” in section 384. Subject to statutory exceptions in section 22, “continuous service’ for the purposes of sections 384 and 22 of the FW Act is to be understood as requiring the employment relationship to have been unbroken.

[76] Such an approach is not novel. As observed by the Supreme Court of South Australia, “service pursuant to an employment contract can consist of standing and waiting to perform work as much as the active performance of work duties” 24. By way of example, it is well established that continuously rostered casual employees remain in service notwithstanding that each engagement may be by separate casual contracts. Gaps in time between such contracts do not necessarily break service because it is the employment relationship and not the contract that is assessed for continuity. As stated by a full bench of the Commission in Shortland v Smiths Snackfood Co Ltd: 25

“[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).”

[77] For these reasons, the phrases “period of employment” and “continuous service” in section 384 and the phrase “continuous service” in section 22 are best read as relating to a period of an unbroken employment relationship and not necessarily an unbroken employment contract (subject of course to the further statutory provisions in section 22 which deem certain service to be continuous despite a break in the employment relationship).

[78] In order to apply this construction, it is necessary to make further findings of fact.

[79] Firstly, from what contract did Ms Rankine resign on 28 August 2020?

[80] There is no dispute that it was a resignation from full time employment. However, there is a dispute as to whether Ms Rankine signed the 24 July 2020 contract at any stage. Ms Rankine says she did so twice. She says that on the first occasion she returned a copy to Ms Underwood. Ms Kreft says that ASG received a scan of the contract from Ms Rankine but the final two pages for signature were not included and that she then raised that issue with Ms Rankine. Ms Rankine said that when the omission was raised by Ms Kreft, Ms Rankine said that she no longer had a copy but Ms Underwood would.

[81] Ms Rankine’s evidence was that she signed the contract a second time some weeks later “but may not have forwarded it. I think I left it in my pigeonhole at work” 26.

[82] Ms Kreft says that ASG never received a signed copy of the 24 July 2020 contract, once or twice.

[83] To the extent necessary, I prefer Ms Kreft’s evidence on this point. There is no evidence of receipt of a signed contract by ASG. Ms Rankine did not produce a copy of the signed contract or the record of it being sent or scanned. Her evidence is that she was uncomfortable about the six month term. Her discomfort is consistent with not having signed the document. It is implausible that Ms Rankine would place a signed copy in her pigeonhole, and not that of a manager.

[84] One the balance of probabilities, I consider it more likely than not that Ms Rankine, despite being under pressure to sign the 24 July 2020 (given its start date of 26 August 2020), neither signed nor returned that contract at any stage.

[85] Thus, at the date of resignation no signed contract for the four months of full time work immediately preceding had been entered into. By conduct, the parties had continued to observe the terms of the second fixed term contract which had been allowed to operate beyond its specified term.

[86] Secondly, the content of Ms Rankine’s telephone call with Ms Underwood shortly after 10.56am on 28 August 2020.

[87] Ms Rankine’s evidence was: 27

“After sending the email, I was called by Brenda. She said the resignation could not be accepted because she felt I was making an emotional decision. She asked if I would prefer to take some time off and my job would still be there when I get back. If I wanted to, I can fill in and do a few shifts a week and not do the full five day rotation of shifts per week. I accepted to do this and asked her if I could do the casual work until November 2020. Nothing was put in writing.”

[88] She went on to say: 28

“MR FABBRO: …You state in your evidence that on the 28th of August 2021 Ms Underwood said don't resign, instead you’ll go on a casual contract. Is that correct?

MS RANKINE: Yes, that’s correct.”

[89] I accept this evidence for the following reasons.

[90] Firstly, leading up to the call Ms Rankine was not dissatisfied with her job or with what ASG stood for. She was dissatisfied with her job security and upset that ASG had not agreed to change her roster. Her immediate concern was that she no longer wanted to work on Fridays as this interfered with her personal affairs. Agreement to stay on as an employee but on a casual roster where a shift offer could be more easily accepted or rejected was consistent with Ms Rankine’s intention.

[91] Secondly, Ms Kreft’s evidence 29 is consistent with Ms Rankine’s evidence:

“On or around 28 August 2020, Ms Underwood informed me that she had spoken to Ms Rankine in relation to her resignation. Ms Underwood advised me that Ms Rankine had requested to remain on the books as a casual employee of ASG.”

[92] I also accept Ms Rankine’s evidence as to the immediacy of making herself available for casual work: 30

“MR FABBRO: When did you consider that you were, had to make yourself available for casual work?

MS RANKINE: Almost immediately it was (inaudible) getting short of staff.

MR FABBRO: So if you had been offered casual work on the Monday and the Tuesday of that week, before the 3rd of September but after the 28th of September 31, would you have considered yourself obliged to do that work?

MS RANKINE: Yes.

MR FABBRO: And you would have done it?

MS RANKINE: Yes.”

[93] And Ms Rankine’s further evidence: 32

“DEPUTY PRESIDENT: How did you come to be told that you were needed, you needed to turn up to work a casual shift on the 3rd of September?

MS RANKINE I was informed by Ms Underwood and Ms King.

DEPUTY PRESIDENT: Yes, do you recall when you were informed of that?

MS RANKINE: It was only days after…

MR FABBRO: Do you mean days after or days before the 3rd of September? Sorry just clarifying.

MS RANKINE: It was just days after I had sent my email to resign.

DEPUTY PRESIDENT: Days after the 28^th of August?

MS RANKINE: Yep. There was issues filling staff so I helped take the load off of the management.”

[94] I find that on the day of her resignation as a full time employee ASG and Ms Rankine reached an agreement for her to immediately be placed on the casual roster and that she would be offered shifts as required and as she could accommodate.

[95] Based on that finding, the proper construction of Ms Rankine’s employment status on 28 August 2020 and in the five days that followed was that she remained in an employment relationship albeit one in which she had resigned as a full time employee and agreed to be a casual employee with immediate effect in the sense that she would, from that time be ready, willing and able to consider offers of casual shifts and ASG would be ready, willing and able to offer casual shifts based on operational need.

[96] The surrounding circumstances support this finding. Whilst at law there is no need for an employer to accept an employee’s resignation for that resignation to take effect 33, ASG (Ms Underwood) in express terms instructed Ms Kreft not to accept the resignation pending the discussion that day that gave rise to Ms Rankine’s agreement that she would stay on as a casual. ASG was itself concerned at being left in a “questionable predicament” by the resignation.

[97] Further, ASG did not move to immediately pay-out Ms Rankine’s entitlements on 28 August 2020. It waited until 7 September 2020 to do so. This was more than a week after the resignation and only once Ms Rankine had commenced her casual employment. The ordinary payroll cycle was used for that purpose. That itself establishes a strong inference that ASG considered the employment relationship to be continuous.

[98] Characterised in this manner, it matters not that Ms Rankine was not paid for work in the five days between 29 August to 2 September 2020 (inclusive). As a casual employee, Ms Rankine was only entitled to be paid (at a loaded rate) for work performed.

[99] Nor does it matter that Ms Rankine’s accrued entitlements, when they were paid out, were calculated to 28 August 2020 only. Only as a full time employee, and not as a casual, did Ms Rankine accrue those entitlements.

[100] I do not accept the submission by ASG that the employment relationship terminated at 8.00am on 28 August 2020 immediately upon Ms Rankine’s resignation being sent. For the aforementioned reasons, I find that the employment relationship continued that day, and by mutual agreement made that day, Ms Rankine became a casual employee in lieu of being a full time employee. The employment contract from which Ms Rankine resigned was her contract as a full time employee.

[101] Moreover, it cannot be said that Ms Rankine’s resignation was unambiguous about when it was to take effect. Her emailed resignation made no reference to when it was to take effect or whether notice was either being given or required by ASG. Ms Rankine framed her resignation with the words “Unsure of the process’. Leaving aside the discussion with Ms Underwood that day, and though more likely than not that (at the time of resignation) Ms Rankine did not intend to work further as a full time employee, she nonetheless had an obligation to give notice and ASG had the right to require the period of notice (2 weeks) specified in the underpinning industrial instrument, or to withhold monies.

[102] For the sake of completeness, I add that I do not accept Ms Rankine’s submission that there was no real resignation. Her resignation was made in an environment of being upset at the rejection of her desired full time roster change and the pressure to sign a fresh full time contract by 26 August 2020, but it was not a forced resignation within the meaning of section 386(1)(b). I am satisfied that resignation was not “the probable result” of the employer’s conduct or that Ms Rankine “had no effective or real choice but to resign” 34.

[103] I therefore conclude that Ms Rankine’s service with ASG was unbroken by the events of 28 August 2020. Based upon the agreement she reached with Ms Underwood on the day of resignation Ms Rankine continued to be “employed by the employer” within the meaning of section 22(1) of the FW Act because the employment relationship continued, notwithstanding Ms Rankine resigning as a full time employee and ASG and Ms Rankine agreeing to her becoming a casual employee.

[104] Both counsel referred to a handful of decisions of the Commission which have variously considered whether a resignation followed by subsequent re-employment breaks continuous service for the purposes of section 22 of the FW Act 35. All are decisions of single members, and each were decided on their own facts. Oft cited is the reference by Commissioner Roe in Tebble v Rizmas Pty Ltd in which it was said36:

“…a resignation does break the period of continuous service as defined by Section 22 of the Act. The period between a resignation and reemployment cannot be characterised as a period during which the employee is “employed by the employer” unless the employer specifically agrees to regard it as such…”.

[105] To consider this as an expression of fixed principle would be to wrongly characterise the decision. Commissioner Roe went on to contemplate circumstances in which a resignation and subsequent reemployment would in fact not break service 37.

[106] More relevantly, each of these single member decisions are decided on their own facts. Kefer was a matter where resignation did not break service because reemployment was with an associated entity. Ireland was a case where service was held to be broken but where three weeks passed before reemployment, and reemployment was to a different position. In Lawler, the most recent of these decisions, the resignation preceded a five week overseas holiday and unplanned reemployment occurred upon return.

[107] To the extent broader general propositions are expressed by Deputy President Saunders in Harris v Laing O’Rourke 38 and by Deputy President Beaumont in Lawler v Grand Theatre39, understood in the context of the employment relationship being required to be unbroken rather than an employment contract, those general observations are consistent with the statutory construction I consider to be correct. Indeed, Deputy President Beaumont expressly uses the phrase “employment relationship”.

[108] Properly construed, there are no doubt circumstances (indeed, quite possibly the bulk of circumstances) where a resignation followed by subsequent re-employment breaks continuous service for the purposes of section 22. However, there are clearly circumstances where a resigning employee continues to be “employed by the employer” within the meaning of section 22(1) of the FW Act because the employment relationship continues in some varied or new form, or the parties agree expressly or by conduct to maintain continuity of service. This matter is one such case where the employment relationship continued by agreement in a varied form.

[109] I conclude that Ms Rankine’s service was not broken by her resignation as a full time employee on 28 August 2020 or by virtue of not working or being paid between 29 August 2020 to 2 September 2020 (inclusive).

Had Ms Rankine completed a period of continuous service of at least six months prior to being dismissed?

[110] The combined periods of Ms Rankine’s employment as a casual employee, as a full time employee, then as a casual employee and then a full time employee occurred over a span of two years and eleven months (28 February 2018 to 29 January 2021).

[111] I have concluded that the employment relationship, and thus service as an employee, continued in the five days between 29 August 2020 and 2 September 2020 (inclusive).

[112] The six month period prior to Ms Rankine’s dismissal taking effect is the period from 29 July 2020 to 29 January 2021.

[113] In this period Ms Rankine was (in the relevant sense) in “service” as a full time employee (29 July 2020 to 28 August 2020), as a casual employee (29 August 2020 to 30 November 2020) and as a full time employee (1 December 2020 to 29 January 2021).

[114] I need not determine if any days in this six month period, including these five days, were an “excluded period” under section 22. That issue raises difficult issues I need not navigate about whether a casual employee’s absence from work is an “unpaid authorised absence” 40. If the days were excluded, that would not alter the conclusion reached in this matter given that those five days would not break service but simply not be included in the six month count (section 22(3)). If commencement of the six month period is not to be counted from 29 July 2020 but from five days earlier (24 July 2020), Ms Rankine was relevantly employed (as a full time employee) during those five earlier days.

Conclusion

[115] Ms Rankine had continuous service with ASG for at least six months prior to her dismissal taking effect.

[116] Her service was not broken by either her resignation on 28 August 2020 from full time employment nor the five day gap between ceasing as a full time employee and commencing her first casual shift.

[117] In these circumstances, Ms Rankine served the minimum employment period required by section 382(2)(a) of the FW Act. She was a person protected from unfair dismissal at the time of dismissal. She was eligible to make an unfair dismissal claim.

[118] The jurisdictional challenge by ASG is dismissed.

[119] The matter will be relisted for further directions on a date and time to be advised.

DEPUTY PRESIDENT

Appearances:

Mr D Fabbro (of counsel) with Mr P Bogatec (instructing), with permission, for Ms Rankine

Ms K Stewart (of counsel) with Ms S Lithgow (instructing), with permission, for Aboriginal Sobriety Group Indigenous Corporation

Hearing details:

2021

Adelaide (by video)

29 June

Printed by authority of the Commonwealth Government Printer

<PR731413>

 1   Amended Employer Response (F3) 11 May 2021

 2   Audio directions hearing 5 May 2021

 3   A1 (8 June 2021) and A2 (28 June 2021)

 4   R1 (26 May 2021) and R2 (25 June 2021)

 5   BK1

 6   BK2

 7   BK3

 8   BK4

 9   BK5

 10   BK6

 11   BK7

 12   ER4

 13   BK8

 14   BK10

 15   BK10

 16   BK9

 17   BK10

 18   BK19

 19   Bell v Aboriginal Legal Service (NSW/ACT) Limited [2018] FWCFB 6102 at [10] – [11]; see also Yaraka Holdings Pty Ltd v Glijevic (2006) 149 IR 399 at [65] – [68] per Crispin and Gray JJ and at [89] per Madgwick J

 20   Broadlex Services Pty Ltd v Australian Workers’ Union [2020] FCA 867 at 61

 21   Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [50]

 22   Visscher v Guidice and Others (2009) 258 ALR 651 at [53] to [5] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]-[22]; Khayam v Navitas English Pty Ltd [2017] FECFB 5162 at [31]-[50]

 23   Holland v UGL Resources Pty Ltd [2012] FWA 3453 at [20]

 24   Flinders Ports Pty Ltd v Woolford [2015] SASCFC 6 at [74] per Stanley J with whom Kelly J agreed

 25   [2010] FWAFB 5709

 26   A1 paragraph 57

 27   A1 paragraph 65

 28   Audio 29 June 2021 12:17pm

 29   R1 paragraph 30

 30   Audio 29 June 2021 12:18pm

 31   Counsel appears to have mistakenly referred to “28th of September” rather than “28th of August”

 32   Audio 29 June 2021 12:20pm

 33   Tebble v Rizmas Pty Ltd [2011] FWA 6853 at [8]

 34   O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (PR973462)

 35  Tebble v Rizmas Pty Ltd [2011] FWA 6853 at [6]; Kefer v Tattersall’s Holdings Pty Ltd [2012] FWA 2375; Ireland v Hanson Construction Materials Pty Ltd [2013] FWC 5292; Lawler v Grand Theatre Company Pty Ltd t/as Grand Cinemas [2021] FWC 3144; see also Voican v Monadelphous Engineering Pty Ltd [2013] FWC 9329 and Harris v Laing O’Rourke Construction Australia Pty Ltd [2017] FWC 1204

 36   [2011] FWA 6853 at [6]

 37   [2011] FWA 6853 at [8]

 38   Harris v Laing O’Rourke Construction Australia Pty Ltd [2017] FWC 1204 at [9] “ a “gap” between periods of employment with the same employer would not satisfy the ordinary meaning of “continuous service” because the service is broken and there is nothing in s.22 or elsewhere in the Act to alter this outcome”

 39   Lawler v Grand Theatre Company Pty Ltd t/as Grand Cinemas [2021] FWC 3144 at [67] “ss 22(5) and (7) do not extend to an employee whose employment relationship with an employer comes to an end only to be later re-employed by the same employer”

 40   Affinity Education Group Limited v Kogler [2014] FWCFB 8752 at [7]; Johansen v JH Lever and Associates Pty Ltd [2019] FWC 2766 at [74] to [85]