This portion of an unfair dismissal decision sets out the legal principles which are applied in the federal fair work system to calculate the length of an employee’s employment to determine whether the employee is protected from unfair dismissal.
“Consideration
Legislative provisions
[43] 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.
[44] 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.”
[45] Section 384 provides:
“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:
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(i) the employment as a casual employee was as a regular casual employee;
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.”
[46] Section 12 defines “service” by referring to “section 22” and “continuous service” as
having “a meaning affected by section 22”.
[47] In somewhat curious drafting, s 22 defines “service” but does not contain an express
meaning of “continuous service” (though the phrase is bolded by the legislature in s 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
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(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.”
[48] A “casual employee” is defined in s 15A as:
“15A Meaning of casual employee
(1) A person is a casual employee of an employer if:
(a) an offer of employment made by the employer to the person is made on the basis
that the employer makes no firm advance commitment to continuing
and indefinite work according to an agreed pattern of work for the
person; and
(b) the person accepts the offer on that basis; and
(c) the person is an employee as a result of that acceptance.
(2) For the purposes of subsection (1), in determining whether, at the time the offer is
made, the employer makes no firm advance commitment to continuing and
indefinite work according to an agreed pattern of work for the person,
regard must be had only to the following considerations:
(a) whether the employer can elect to offer work and whether the person can elect to
accept or reject work;
(b) whether the person will work as required according to the needs of the employer;
(c) whether the employment is described as casual employment;
(d) whether the person will be entitled to a casual loading or a specific rate of pay for
casual employees under the terms of the offer or a fair work
instrument.
Note: Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least
12 months and has, during at least the last 6 months of that time, worked a regular pattern
of hours on an ongoing basis may be entitled to be offered, or request, conversion to
full-time employment or part-time employment.
(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance
commitment to continuing and indefinite work according to an agreed
pattern of work.
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(4) To avoid doubt, the question of whether a person is a casual employee of an
employer is to be assessed on the basis of the offer of employment and the
acceptance of that offer, not on the basis of any subsequent conduct of either
party.
(5) A person who commences employment as a result of acceptance of an offer of
employment in accordance with subsection (1) remains a casual
employee of the employer until:
(a) the employee’s employment is converted to full-time or part-time employment under
Division 4A of Part 2-2; or
(b) the employee accepts an alternative offer of employment (other than as a casual
employee) by the employer and commences work on that basis.”
[49] A “regular casual employee” is defined in s 12 as:
“a national system employee of a national system employer is a regular casual
employee at a particular time if, at that time:
(a) the employee is a casual employee; and
(b) the employee has been employed by the employer on a regular and
systematic basis.”
The required period of service
[50] Modern Concrete is a small business employer. In order to be protected from unfair
dismissal, the minimum employment period required to have been served by Mr Spadavecchia
prior to his dismissal taking effect was one calendar year (twelve months).
[51] As Mr Spadavecchia’s dismissal took effect on 4 August 2023, the question which arises
is whether he had twelve months of “continuous service” (s 384(1)) prior to that date.
[52] “Service” as an employee for the purposes of s 22 does not require a person to be
actually working on each of the days in the relevant period. Rather, the issue is whether an
unbroken employment relationship existed in that period. The reason for this is self-evident. An
employee may be rostered off work during a relevant period or not required to work on a day
or days during a relevant period or be taking paid or unpaid leave during a relevant period yet
be in continuous service as an employee. It is a separate issue, addressed by s 22(2), whether a
particular day or days in that period are excluded from being counted towards the length of
continuous service.
[53] As noted, the phrase “continuous service” (used in s 384) is not defined in the FW Act.
However, its ordinary meaning is a period of unbroken service by an employee with an
employer.7 Subject to the statutory exceptions in s 22, “continuous service” for the purposes of
ss 384 and 22 of the FW Act requires the employment relationship to have been unbroken.
However, as provided by s 384(2)(a), for unfair dismissal purposes regularly and systematically
rostered casual employees remain in service notwithstanding that each engagement may be by
separate casual contracts provided reasonable expectation of continuing employment on that
basis exists. 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.8
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[54] For these reasons, the phrases “period of employment” and “continuous service” in s
384 of the FW Act and the phrase “continuous service” in s 22 are best read as relating to a
period of an unbroken employment relationship and not necessarily an unbroken employment
contract (subject to the further statutory provisions in s 22 which deem certain service to be
continuous despite a break in the employment relationship).
[55] It is not disputed by Modern Concrete that Mr Spadavecchia was in continuous service
between 10 August 2022 and 4 August 2023. This is because it is not disputed that Mr
Spadavecchia was employed in a full-time capacity by an offer accepted on 7 August 2022 and
that he commenced in that capacity on 10 August 2022.
[56] The relevant issue is whether Mr Spadavecchia was also in a period of “continuous
service” in at least the six days prior to his full-time employment commencing, that is between
4 and 10 August 2022.
[57] The answer to this question firstly rests on whether an employment relationship between
Mr Spadavecchia and Modern Concrete existed during this six-day period. This is because
“continuous service” for the purpose of s 384 and “service” within the meaning of s 22 means
service as an employee. Section 22(1) provides that it must be a period “during which the
employee is employed by the employer”. To have been “employed by the employer” requires
an employment relationship to have existed in the relevant period.
Was there an employment relationship prior to 10 August?
[58] On 27 July and 28 July 2022 Mr Spadavecchia performed work on two concreting sites.
Mr Spadavecchia did so at the invitation of the business. The business asked him to do so
because it wished to assess his suitability for the job he had expressed interest in. In order to
make that assessment, the business owner wanted to assess the ‘on the job’ skills and capacity
of Mr Spadavecchia. Mr Spadavecchia agreed to work on 27 July and, in a subsequent
discussion, agreed to also work on 28 July. There was no agreement or understanding as to pay
or conditions because the business considered it a trial period. On these days Mr Spadavecchia
performed five hours of work and eight hours of work respectively, labouring and assisting
during two different concrete pours. He actively worked, not simply observed others working.
[59] Mr Spadavecchia was not working as a contractor. He worked under the control and
direction of Mr Domin and the supervisors on the day.
[60] Nor does the evidence support a finding that Mr Spadavecchia was, on either of these
days working under a full-time employment contract or as a part-time employee. Rather he
worked the hours required on each day until the job was completed for the day. This is indicative
of casual employment. Mr Spadavecchia worked “as required according to the needs of the
employer” within the meaning of s 15A(2)(b) of the definition of “casual employee” in the FW
Act. There was no “firm advance commitment to continuing and indefinite work” within the
meaning of s 15A(2)(a).
[61] Was this casual employment?
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[62] It is arguable that no contract of employment existed because whilst an offer, acceptance
and consideration arguably existed, it could be said that the necessary intention to enter legal
relations was absent. Further it could be well argued that Mr Spadavecchia was simply
volunteering his labour solely for the purposes of being assessed. Factors used to determine
whether a person is performing ‘work’ as a volunteer or intern are well established9
. In this
matter, some point in that direction, others do not.
[63] That said, it is also tolerably arguable (and somewhat the better proposition) that Mr
Spadavecchia was a casual employee on these days despite no express agreement to that effect.
[64] The FW Act provides only limited scope for work in a commercial business setting
which is performed under the control and supervision of a business owner and at their request
to be unpaid training or voluntary work.10
[65] It is well established that mere labelling a form of work in a particular manner (in this
case, a ‘trial period’) does not of itself characterise the engagement as such. Having accepted
the offer to work on these days, Mr Spadavecchia provided his labour in a manner that
somewhat benefited the business. He worked to assist the completion of the job, and worked
under the observation of the business owner and supervisors. Whilst there was no agreement to
remunerate and some doubt exists as to whether a cash payment was made, this does not mean
that there was no employment that required remuneration.
[66] I give no weight to company personnel, superannuation and long service leave records
tendered by Modern Concrete that indicate a commencement date of 10 August 2022.11 A
record of a commencement date is, at best, a record of a business entry reflecting its
understanding at a given point in time. It is not, of itself, objective evidence of whether an
employment relationship existed prior to that date.
[67] However, in light of the issue of a prior employment relationship not being clear-cut
and because (below) I have found that Mr Spadavecchia, if a casual employee on these days,
was not a “regular casual employee” within the meaning of the FW Act, it is not necessary to
make a formal finding to this effect.
Are the days prior to 10 August 2022 counted?
[68] That a casual employment relationship may have existed on 27 July and 28 July 2022
does not necessarily mean that Mr Spadavecchia was a person employed by Modern Concrete
beyond those days and until 10 August 2022. After 28 July 2022 he did not work for Modern
Concrete again for twelve days. Rather, he worked for his then employer on 29 July and 1
August, resigning effective that day.
[69] Section 384(2) makes it clear that, for days in this period to be counted, Mr
Spadavecchia not only has to establish that he was a casual employee (as defined) but also:
- that he was a “regular casual employee” (as defined in s 12); and
- that he had a reasonable expectation of continuing employment on a regular and
systematic basis (s 384(2)(a)(ii)).
[70] On the evidence, neither proposition is made out.
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[71] It was clearly understood and agreed between the parties that the two days of work on
27 and 28 July 2022 would be for the purpose of the business forming a view as to his suitability
for a full-time offer. The evidence is that an offer was then made by Modern Concrete in the
week that followed (on 3 August) which was accepted on 7 August 2022.
[72] There is no evidence that Mr Spadavecchia had, prior to 10 August 2023, “been
employed by the employer on a regular and systematic basis” as required by the definition of
“regular casual employee” in s 12. Rather the evidence is to the contrary; there were separately
made agreements to work on 27 and 28 July 2022 for a singular purpose – to be assessed for
suitability. Beyond those days, and if and until an offer of full-time employment was made and
accepted, no other work was offered and none performed. Indeed, Mr Spadavecchia was not
available to work for Mr Domin at least until 2 August. At its highest, on 28 July 2022 Mr
Domin told Mr Spadavecchia that he was suitable and would be offered a full-time contract.
Even if that were so (and on the evidence it is more likely than not), a promise of a forthcoming
full-time offer does not establish the fact of regular and systematic employment prior to that
offer being made and accepted.
[73] Mr Spadavecchia was not a “regular casual employee” prior to 10 August 2022. Nor
was he employed in any capacity prior to that date other than potentially on the two days 27
and 28 July 2022 when it is arguable that he was casually employed.
[74] Not being a “regular casual employee”, Mr Spadavecchia could not and did not, in this
period, have had a reasonable expectation of continuing employment on that basis (s 384(a)(ii)).
[75] This being so, the two days of work, even if they were employment, do not count as part
of the minimum employment period (s 384(2)(a)).
[76] Further, Mr Spadavecchia was not “employed by the employer” in the sense required
by s 22(1) in the gap period after 28 July 2022, and in particular was not so employed between
4 and 10 August 2022.
[77] That being so, it is not necessary to determine whether days in the gap period were
“excluded periods” within the meaning of s 22(2) of the FW Act.
Conclusion
[78] The periods of Mr Spadavecchia’s employment with Modern Concrete were, arguably,
two stand-alone periods of employment as a casual employee on 27 July 2022 and 28 July 2022,
and an undisputed period of continuous service as a full-time employee commencing 10 August
2022.
[79] The gap between 28 July 2022 and 10 August 2022 was not a period of “continuous
service” with the employer within the meaning of s 384(1) of the FW Act and in particular the
period 4 August 2022 to 10 August 2022 was not.
[80] Consequently, no days prior to 10 August 2022 are included in the count for the purposes
of determining the minimum employment period.
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[81] That being so, the “period of employment” for the purposes of ss 383 and 384 of the
FW Act served by Mr Spadavecchia immediately prior to the dismissal on 4 August 2023 fell
short of the one year minimum employment period by six days.
[82] That being so, Mr Spadavecchia had not relevantly completed the period of employment
required by s 382 of the FW Act to be protected from unfair dismissal.
[83] In light of this, there is no jurisdiction to hear and determine the unfair dismissal
application. It must be dismissed.
[84] An order giving effect to this decision is issued in conjunction with its publication.12″
Spadavecchia v The Trustee For Modern Concrete Co Trust T/A Modern Concrete Co [2023] FWC 2747 delivered 20 October 2023 per Anderson DP