Unfair dismissal; length of casual service

This extract from an unfair dismissal case describes the manner in which length (or more correctly the “period” of service (see sec 382, Fair Work Act)) is counted for casual employees for the purpose of determining whether an employee is protected from unfair dismissal.

“Consideration

[14] From the above statutory provisions and on the authority of Shortland v Smiths I discern the following must be established to determine the Applicant’s period of employment in order to ascertain whether he had met the relevant MEP at the date of his dismissal;

(i) Was the Respondent a small business, such that MEP required to have been served was 12 months;

(ii) If the Respondent was not a small business, the MEP required to have been served by the Applicant will be 6 months;

(iii) Establish the Applicant’s period of employment by reference to the contiguous periods of service (that being the period of continuous service) which involved regular and systematic engagement during which periods of service the Applicant had an expectation of ongoing employment; and

(iv) Deduct from the period of continuous service any excluded periods to ascertain the Applicant’s period of employment for the purpose of establishing whether he served the MEP.

[15] It is not in dispute that the Respondent is not a small business employer. Therefore, the MEP required to have been served by the Applicant is that of 6 months. Nor was it in contention between the parties, and I accept, that the Applicant was employed on a casual basis by the Respondent.

[16] I discern from the Applicant’s evidence that he contends that his period of employment met the MEP, that his casual employment was on a regular and systematic basis and that he had a reasonable expectation of continuing employment during his period of service.

[17] The Respondent contends that the Applicant did not meet the MEP. It submits that the first period of engagement as a casual employee between 9 February 2021 and 9 May 2021 ended when the plant closed following which the Applicant obtained alternate employment, and as such that period of engagement should not be included for the purpose of determining the Applicant’s period of employment.

[18] In respect of the second period of engagement as a casual employee, the Respondent accepts that the period from 23 June 2021 to 12 January 2022 exceeds 6 months and that the Applicant was regularly and systematically engaged in that period, save for the period between 17 December 2021 and 4 January 2021 when the business closed for its Christmas shutdown. The Respondent contends that while the Applicant’s termination was communicated on 12 January 2021, his last shift was actually on 7 January 2021 and that the Christmas shutdown period should not count towards the Applicant’s period of employment for the purpose of determining whether the Applicant met the MEP.

[19] The Respondent makes the above submission on the Christmas shutdown on the basis that the period from 17 December 2021 to 4 January 2022 was “unpaid leave” which is an excluded period, as defined at s.22(1) of the Act, for the purpose of calculating the Applicant’s period of employment. The Respondent further contends that while that excluded period may not break the continuous service of the Applicant, it must be deducted from the Applicant’s period of employment in calculating whether the Applicant met the MEP.

[20] It is uncontested that the Applicant originally commenced employment with the Respondent as a casual employee on 9 February 2021 and ceased employment on 9 May 2021 when the previous site closed following which he sought and obtained alternate employment. I am satisfied that the site closure and the Applicant’s securing alternate employment evinces an intention that there would be no further engagements, thus breaking the period of continuous service. Consequently, and applying the authority of Shortland v Smiths, that initial period of casual employment is not to be counted for the purpose of establishing the Applicant’s period of employment.

[21] Turning to the second period of casual engagements, the Respondent contends that the last shift worked by the Applicant on 7 January 2021 should be taken to be the end date of his period of employment. I disagree. While the Applicant was not engaged for any shifts after 7 January 2021, the date on which the Respondent made clear there would be no further shifts offered was 12 January 2022. Therefore, I am satisfied that the Applicant’s period of continuous service was from 23 June 2021 to 12 January 2022, that being a period of 6 months, 2 weeks and 6 days (203 days).

[22] I am satisfied that the period from 23 June 2021 to 12 January 2022 involved an unbroken sequence of engagements and as such constitutes a period of continuous service. It is also apparent, and I find on the evidence that the Applicant was engaged on a regular and systematic basis during that period and had an expectation of ongoing employment during that period of service. While the Applicant was not offered shifts during the Christmas shutdown from 17 December 2021 to 4 January 2022, which period the Respondent characterised as “unpaid leave”, that break does not constitute an interruption of the continuous service as neither party made clear there would be no further engagements beyond that shutdown.

[23] If the Respondent is correct in its submissions that the period from 17 December 2021 to 4 January 2022 is a period of “unpaid leave” that as an excluded period must be deducted from the period of continuous service, that would result in a deduction of 2 weeks and 4 days (18 days) from the Applicant’s period of continuous service of 6 months, 2 weeks and 6 days (203 days). The Applicant’s period of employment would therefore be 6 months and 2 days (185 days) and on that basis he will have served the MEP of 6 months with the Respondent.

[24] Notwithstanding that the Applicant appears to have met the MEP on the above analysis, I doubt the correctness of Respondent’s submission that the period of 17 December 2021 to 4 January 2022 must be deducted from the Applicants period of employment. Nothing may turn on this if my above analysis is correct that the MEP has been met. However, in the event my analysis above is incorrect it is appropriate for me to deal with Respondent’s argument that the period from 17 December 2021 to 4 January 2022 is an excluded period for the purpose of calculating the Applicant’s period of employment.

[25] As I have previously stated, the Applicant has established a period of continuous service from 23 June 2021 to 12 January 2022, that being a period of 6 months, 2 weeks and 6 days (203 days). The Respondent contends that pursuant to the definition of service found at s.22 of the Act, the period from 17 December 2021 to 4 January 2022 was a period of “unpaid leave” and as such is an excluded period and while not breaking the period of the Applicant’s continuous service, does not count as service for the purpose of calculating the period of employment. The Full Bench in Affinity Education Group Limited v Kogler 5 (Kogler), when considering the period of employment of a casual employee, relevantly stated the following;

“[7] It is therefore necessary for Affinity Education’s jurisdictional objection to be determined. However, we do not consider that the evidence as it currently stands permits this Full Bench to undertake this task. We consider that the expressions “unpaid leave” and “unpaid authorised absence” in s.22(2)(b) connote periods of time off work which, but for the permission or authorisation of the employer, would have been expected if not required to have been worked by the employee. In the case of a casual employee, this raises issues of some complexity, since according to normal legal concepts of casual employment a casual employee is offered and may accept or reject work on a day by day basis. When a casual employee does not work on a given day, it may be difficult absent appropriate evidence to determine whether the day was taken off as leave or an absence authorised by the employer, or whether the employee simply chose not to make himself or herself available for work that day.” (emphasis added)

[26] The Full Bench in Kogler highlighted the challenge of determining whether a particular absence of a casual employee could be characterised as “unpaid leave” or an “unpaid authorised absence.” I agree with the Full Bench’s observation that the terms “unpaid leave” and “unpaid authorised absence” “connote periods of time off work which, but for the permission or authorisation of the employer, would have been expected if not required to have been worked by the employee.”

[27] In the present circumstances the Applicant would not have been offered or required to work but for the “unpaid leave.” That is for the simple reason that no work was available due to the Christmas shutdown of the Respondent. I do not agree with the Respondent that it constitutes a period of “unpaid leave” . Rather, it was a period that the Applicant was not offered work due to the operational requirements of the business. That has a different character to and may be contrasted with for example a period of authorised leave sought by the Applicant, but for which authorised leave he would have been offered and expected to work.

[28] It follows from the above that the period from 17 December 2021 to 4 January 2021 was not a period of “unpaid leave or unpaid authorised absence” as that term is used in s.22 of the Act. Consequently, it is not an excluded period and must be counted as service for the purpose of calculating the Applicant’s period of employment.

[29] I am satisfied that the Applicant has served a period of 6 months 2 weeks and 6 days (203 days) with the Respondent, that being a period in excess of the MEP of 6 months. I have reached this conclusion, on the basis that the period from 17 December 2021 to 4 January 2022 (18 days), is not an excluded period and is to be counted in the Applicant’s period of employment. If I am wrong in that conclusion, the Applicant still meets the MEP, with a period of employment of 6 months and 2 days (185 days) if the period of 18 days is not counted in the calculation of his period of employment.

Conclusion

[30] I have found that the Applicant has met the MEP. Consequently, the Respondent’s jurisdictional objection is dismissed. The matter will now be programmed for hearing of the merits of the Applicant’s application for an unfair dismissal remedy.”

Copley v Tranmor Enterprises Pty Ltd T/A Maxiplas  [2022] FWC 1073 delivered 9 May 2022  per Masson DP