Unfair dismissal and length of employment

This extract from an unfair dismissal case decided by the Fair Work Commission sets put the legal principles which apply to calculating an employee’s length of service when determining whether an employee is protected from unfair dismissal at the time the employment ends.

“The minimum employment period

[23] A person is protected from unfair dismissal if they have completed the minimum employment period. 9 Section 383 of the Act sets out the meaning of the minimum employment period as follows:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer – 6 months ending at the earlier of the following times:

(i)  the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer – one year ending at that time.

[24] Section 384 of the Act is concerned with how an employee’s period of employment is calculated for the purpose of determining if the employee has satisfied the minimum employment period. The relevant part reads:

(1) [Meaning of period of employment]

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. (emphasis added)

[25] The starting point is that a period of employment is also referred to as a period of continuous service.

[26] Section 22 defines the terms ‘service’ and ‘continuous service’, the relevant subsections follow:

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) [Exceptions to meaning of service]

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) [Excluded period does not break continuous service]

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…

[27] A period of continuous service can be made up of a series of periods of service. 10 An employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment (period of continuous service) with that employer.11

[28] However, continuous periods of service will only count towards the employee’s period of employment if the requirements in s 384(2)(a)(i) and (ii) are met. Those requirements are, in short, that the employment was on a regular and systematic basis, and during the period of service, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[29] In the decision of Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic (Ponce), 12 it was observed that ‘it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement’.13 It was further explained in Ponce, that it is not necessary to establish that shifts, and start and finish times were regular or rostered, to establish that the employment was on a regular and systematic basis’.14

[30] In Yaraka Holdings Pty Ltd v Giljevic (Yaraka), 15 Madgwick J, concurring with the majority, said, with respect to the phrase ‘regular and systematic’, that a ‘regular… basis’ may be constituted by frequent though unpredictable engagements, and that the term ‘systematic basis’, did not have to involve predictability concerning those engagements or an assurance of work. Regarding ‘systematic basis’, he said that it implied something more than regularity, if regularity were to refer to frequency. The basis of engagement, explained Madgwick J, had to exhibit something that could fairly be called a system, method, or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001).

[31] Later decisions of the Commission, such as those of Chandler v Bed Bath N’ Table Pty Ltd (Chandler), 16 and Greene v Floreat Hotel Pty Ltd,17 have acknowledged that the reasoning in Yaraka has been applied to the concept of casual employment on a ‘regular and systematic basis’ in the Act. In Chandler, the Full Bench set out at paragraph [13]:

…In WorkPac Pty Ltd v Skene, the Federal Court Full Court favoured (without needing to finally adopt) the view that the construction in Yaraka Holdings should be applied to the definition of “long term casual employee” in s 12 of the FW Act (which includes a requirement that the employee has been employed “on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months”). The Commission in its own decisions has consistently applied Yaraka Holdings to s 284(2)(a), including in the Full Bench decisions in Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell and Bronze Hospitality Pty Ltd v Janell Hansson as well as in numerous first instance decisions (citations omitted and reference to 284(2)(a) presumed to be 384(2)(a))

[32] On identifying that the Deputy President in Chandler had adopted an incorrect approach in the consideration of the status of a casual employee, the Full Bench in that same decision expressed:

[I]n Yaraka Holdings Pty Ltd v Giljevic, the Court of Appeal of the ACT gave consideration to the proper construction of s 11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as workers for the purpose of that Act casual workers if their “engagement, under the contract or similar contracts, has been on a regular and systematic basis” taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work. Crispin P and Gray J observed that the concept of employment on a regular and systematic basis was drawn from the Workplace Relations Act 1996, and went on to say (emphasis added):

“[65] It should be noted that it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent.

[67] Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.

[68] 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”. Considered in the light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.

[69] Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. 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.” 18 (bold my emphasis)

[33] Over the period of March 2021 until November 2021, it is apparent that the Applicant worked a repetitive pattern, such that as each week passed, the Applicant had been assigned work and his total hours recorded each week on the timecards exceeded, for the most part, 40 hrs. The engagements were regular in the sense of being frequent, as was demonstrated by the data in the timecard recordings. Although information as to the roster worked, start and finish times and the like was not provided by either party. However, what was observable from the timecards tendered by the Applicant, was that the engagements at Boddington during the period appeared to have culminated into one ‘assignment’.

[34] The Applicant was unable to direct the Commission to an employment contract that covered the period of March 2021 to November 2021, or to any employment contract preceding that time. However, it can be seen from the Agreement, which would presumedly have covered the Applicant from 2 June 2021 (given its date of operation), that ‘Assignment’ as that term was understood in respect of the Agreement, meant the ‘job, task or activity requested by the Customer and also refers to the period during which an employee performs services for a Customer’. Clause 16.1 of the Agreement, provided:

16.1 Employees may be offered Assignments to perform work for a Customer of the Company on a temporary basis. Each Assignment is a separate and distinct period of employment. The Company does not guarantee the duration or length of any Assignment.

16.2 Employees will generally be employed on a casual basis on the understanding that there is no ongoing expectation of continuing employment.

[35] In this sense, the employment can also be characterised as systematic – that is, arranged pursuant to an identifiable system for the reason that the Applicant’s casual employment was subject to defined ‘Assignments’.

[36] Whilst the Applicant’s engagements with his employer culminated in an ‘Assignment’ for the period of March to November 2021, they also culminated into what can be considered contiguous periods of service that counted toward a single period of employment as understood under the Act. That is, during the period between March to November 2021, the Applicant served a period of continuous service with his employer that was either on a DIDO or FIFO basis.

[37] However, it is important to emphasise that the timecards adduced by the Applicant show no recording of total chargeable hours for the period from 21 November 2021 to 10 January 2022. 19 The Applicant has explained that during this period he went to work for another employer, albeit for a purported period of three weeks. On his return to the employer for the purpose of this unfair dismissal application, he was required to sign the LOO, should he wish to be employed – he did so, but it appears that he did reluctantly.

[38] The Applicant gave evidence that it was obvious from the emails tendered that he had no intention of signing the LOO, noting that it had been sent to him multiple times and he had not signed it. The Applicant continued that he had communicated that he was already employed and had signed dozens of ‘these’, presumedly other letters of offer, but the response he said he was provided with, was that if he did not sign the LOO, he would not be paid.

[39] It is apparent from the direct evidence and from the Applicant’s account regarding the chronology of his work history, that the period of 21 November 2021 to 10 January 2022 was not an ‘excluded period’ as that term is understood in s 22 of the Act.

[40] The general meaning of ‘service’ refers to a period during which the employee is employed by the employer. The evidence before me did not suggest that in the period of 21 November 2021 to 10 January 2022, the Applicant remained an employee of the employer notwithstanding the Applicant’s evidence to the contrary. The Applicant was unable to adduce an employment contract prior to the aforementioned intervening period and during that intervening period, on his own evidence, he conceded that he had worked for a company he referred to as Mammoet.

[41] A national system employee’s period of service with her or his national system employer, is a period during which the employee is employed by the employer. For the period between 21 November 2021 to 10 January 2022, I find that the Applicant was not employed by the Respondent or readi. It therefore follows that the Applicant commenced employment with the employer on 14 January 2022.

[42] To be protected from unfair dismissal, it must be established that the Applicant served contiguous periods of service amounting to 6 months preceding dismissal. That requirement was not met given his dismissal came into effect on 23 March 2022. Therefore, the Respondent’s jurisdictional objection on the ground that the Applicant has not met the minimal employment period, is sustained.

[43] In arriving at this conclusion, I have been appreciative that the Applicant considers that he has worked for the Respondent for three years and that he did not feel he was still on probation after three years of employment. The Applicant’s feelings are understandable, but what is required is an application of the law to the indubitable facts as they have been presented in the evidence provided to this Commission.

[44] Whether employed by the Respondent or readi, the Applicant had not satisfied the minimum employment period therefore necessitating the dismissal of his unfair dismissal application. However, for the sake of fulsomeness, I have addressed the Applicant’s argument that notwithstanding his acknowledgment that that he was employed by readi, he was in fact employed by the Respondent via its in-house labour hire company.”

Organ v Boom Logistics Limited (2022) FWC 2007 delivered 5 August 2022 per Beaumont DP