Unfair dismissal; who is protected

There are a number of legal requirements for an employee to be protected from unfair dismissal in Australia, which of course determines whether an employee who regards himself or herself as having been unfair dismissed can take action for unfair dismissal in the Fair Work Commission under the Fair Work Act. The employment of the majority of Australian employees is covered by this system and different considerations apply to those employees who are covered by other jurisdictions.

One of the most important qualifying factors under the Fair Work Act is whether the employee was employed for long enough to be protected from unfair dismissal. And separate considerations apply to casual employees. It is very well explained in the following excellent extract from a recent unfair dismissal case.

“In this case, the employer was not a small business, and the relevant minimum employment period of 6 months has involved a contest raised by way of the minimum employment period objection. There was no dispute that the applicant was employed as a casual, and consequently the minimum employment period objection has involved an assertion that the applicant’s period of service as a casual employee did not satisfy subsection 384 (2) of the Act.

The relevant provisions of s. 384 of the Act are as follows:

“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”

The minimum employment period objection that was raised by the employer has asserted that the applicant had not completed a period of employment of 6 months at the time of his dismissal on 16 July 2020. This assertion was made notwithstanding that the total period of employment of the applicant was recognised to be 6 months and 10 days. The employer has advanced a number of factors relating to detailed aspects of the employment of the applicant which it was said, by virtue of the operation of subsection 384 (2) of the Act, established that the applicant had not completed a period of employment of at least 6 months at the time of his dismissal on 16 July 2020.

Regular and systematic basis

The first factor that has required examination arises from the terms of paragraph (i) of subsection 384 (2) (a) of the Act, namely whether the employment of the applicant as a casual was on a regular and systematic basis. The well-established principles for determination of whether employment was regular and systematic, can be found in the Full Bench Decision in Chandler v Bed Bath N’ Table  2 (Chandler). Importantly, it is necessary to examine evidence of the history of the actual engagements in order to make any determination as to whether the employment was on a regular and systematic basis.

The applicant provided various presentations of the rostered hours that he worked in the period between 6 January and 16 July 2020. The affidavit of Mr Hollway confirmed (at paragraph 18) that work was allocated to the applicant by way of a roster organised by the Airport Manager, Ms Quintal. Further, attachment AH-05 to Mr Hollway’s affidavit set out a table that showed the actual hours worked by the applicant in each of 14 the fortnightly periods commencing on 19/01/2020 and finishing on 23/07/2020. The table in attachment AH-05 shows that the applicant worked in every one of the fortnightly periods albeit that the actual hours worked fluctuated, and generally diminished from a time that coincided with the Covid 19 restrictions, circa early April 2020.

The evidence of the manner in which the work of the applicant was arranged by means of an organised roster, and the actual engagements worked as was broadly reflected in attachment AH-05 to the affidavit of Mr Hollway, has required consideration in accordance with and adoption of the approach articulated in the Decision in Chandler. Although the actual hours worked by the applicant fluctuated from fortnight to fortnight, and generally decreased from early April onward, the evidence of the regular rostering of the applicant has provided clear and compelling basis upon which to find that the employment of the applicant was on a regular and systematic basis. The employment of the applicant as a casual employee was on a regular and systematic basis during a period that spanned 14 consecutive fortnights.

Although the evidence has established that the applicant worked as a casual employee on a regular and systematic basis during the period between 6 January and 16 July 2020, the employer advanced further argument which introduced factors regarding aspects of the applicant’s employment which it said would require a reduction from the total 6 months and 10 days period of employment, such that the applicant had not completed a period of continuous service of at least 6 months.

Deductions from Total Period for Paid Training, Unpaid Leave and Alternative Duties

In the period between 6 January and 10 January the applicant attended paid training prior to his first engagement as an ASO on 17 January 2020. The employer submitted that the period prior to the applicant’s first engagement as an ASO on 17 January 2020, should not be counted as a period of service for the purposes of the minimum employment period. It was asserted that the period of training did not involve work as an ASO and therefore should not be treated as part of a period of regular and systematic service for the purposes of establishing the minimum employment period.

The employer referred to a Decision of Richards SDP in the case of Ms Sharon Collins v STL Holdings  3 (STL Holdings), which, it was submitted, supported the proposition that time engaged in paid training should not be counted towards the period of continuous service that constitutes the minimum employment period. However, when the STL Holdings Decision is read in full and considered in context, it does not assert that engagement in paid training should not count towards the minimum employment period but rather, in the particular circumstances of that case, if the commencement of employment was said to have coincided with the first day of paid training, 18 June 2013, the continuous period of employment of Ms Collins would have amounted to only 5 months and 23 days, and therefore not have represented at least 6 months.

The factual circumstances in the STL Holdings Decision were significantly different to the training undertaken by the applicant in this instance. It is relevant that in the STL Holdings case, the Commission did not conclude that the employment of Ms Collins commenced on the first day of two days of paid training, 18 and 19 June 2013, but rather on 8 July 2013, when she subsequently commenced work in the role for which she was employed. Importantly, in the STL Holdings case, the paid training was not contiguous with the subsequent period of employment, and there was no contemplation as to whether the two days of paid training should have been aggregated with the subsequent period of employment because it was clear that even if the 2 days were added, the minimum employment period of 6 months would not have been reached.

Consequently, I can discern no basis as to why the applicant’s period of employment should not be held to have commenced on 6 January 2020, when he undertook paid training that was a necessary precursor to working in the role of an ASO. There is no proper basis upon which to exclude a period of paid training undertaken by an employee as not representing a period of employment. All of the ordinary elements which establish the existence of an employment relationship are present when an individual undertakes training activities at the direction of the putative or potential employer, and for which they receive payment at some level of remuneration which is ordinarily commensurate with the wage or salary applicable to the role which may subsequently be performed.

In circumstances where the period of paid training may not be contiguous with the subsequent engagement in regular and systematic employment, it is likely that any disconnected prior paid training should be aggregated with the subsequent period of regular and systematic employment for the purposes of determination of a period of continuous service as contemplated by s. 384 of the Act.

The employer also submitted that a deduction from the total 6 months and 10 days period should be made in respect of a period or periods that the applicant requested that he not be rostered on, as this was said to represent a period of unpaid leave. The employer referred to s. 22 of the Act which provides a meaning of service and continuous service. Relevantly, subsection 22 (2) (b) excludes any period of unpaid leave which does not count as service, and the employer asserted that the applicant had requested not to be rostered on for two occasions of at least three and seven days respectively. The applicant provided evidence that the second seven day period was cancelled, and he was not available for a total of three days.

There may be some debate as to whether a casual employee who requests not to be rostered on for a specified period is taking a period of unpaid leave. However, for present purposes I am content to accept that any shifts for which the applicant made himself unavailable to be rostered on represented a period of unpaid leave which should not count as service that comprises the period of continuous service required by s. 384 of the Act. Consequently, the applicant’s period of employment should be reduced by three days.

The employer further submitted that the periods during which the applicant was not performing duties as an ASO should not contribute towards the minimum employment period. During the time of significant Covid 19 travel restrictions, the applicant was engaged to perform alternative duties as a Social Distancing Ambassador (SDA). The affidavit of Mr Hollway confirmed that on several occasions during the week commencing 5 May 2020, the applicant worked as an SDA, and subsequently he was asked to complete a work assignment in connection with the work that he had undertaken as an SDA.

The alternative duties undertaken by the applicant as an SDA and in respect of the work assignment regarding his work as an SDA, were apparently paid at the ASO point 1 rate and involved work that became available in circumstances where there was a significant reduction in work to be performed as an ASO. The applicant was provided with alternative duties in circumstances where the level of work as an ASO had significantly reduced because of the Covid 19 restrictions. Although the work as an SDA was different, it was paid as if the applicant was working as an ASO, and it represented no more than allocation of different duties to supplement the reduced level of ASO work.

Consequently, the work that the applicant performed as an SDA was not undertaken as separate and distinct employment but represented a convenient, alternative set of duties caused by the unusual circumstances arising from the Covid 19 restrictions. In these circumstances, there is no basis to deduct the periods during which the applicant performed duties other than those of an ASO from the period of continuous service that contributes to the minimum employment period.

Reasonable Expectation of Continuing Employment

The minimum employment period objection was further advanced on the basis that paragraph (ii) of subsection 384 (2) (a) of the Act was not satisfied. The employer submitted that throughout the applicant’s employment there could not have been a reasonable expectation of continuing employment on a regular and systematic basis. The absence of reasonable expectation was said to occur because the pre-employment discussions and representations would not give rise to a reasonable expectation of ongoing employment. Further, the employer submitted that the events during the employment from April onwards, involving significant reduction in available work as a result of the Covid 19 restrictions, meant that if reasonable expectation had developed, such reasonable expectation of ongoing work could not have been maintained.

The applicant claimed that he had a reasonable expectation of ongoing employment throughout the period of his employment and that the factors that contributed to this included; the recruitment procedure; the subsequent letter of offer; the pre-employment training; and the subsequent alternative duties as an SDA which were provided to him when the amount of ASO work diminished. Further, the applicant stated that the reduction in ASO work was something that was temporary, and he always anticipated an increase in the frequency of engagements as an ASO when the Covid 19 restrictions were relaxed.

The issue of whether and when an employee could be found to have objectively formed a reasonable expectation of continuing employment was traversed in the Federal Court Judgement in Bronze Hospitality Pty Ltd v Hansson (No 2)  4 (Bronze No 2). In particular, paragraphs 38 to 43 of the Judgement in Bronze No 2 deal with the basis upon which an employee may be found to have objectively formed a reasonable expectation of continuing employment. The Court held at paragraph number 43 of the Judgement in Bronze No 2, that:

“43    What the employer tells the employee must be relevant. Counsel for Bronze accepted this. If the employee in fact has the necessary expectation, and if what the employer said at the beginning of the employment was sufficient to make the expectation reasonable, and nothing in the circumstances indicated that what the employer said was unreliable, implausible or was otherwise to be disbelieved, then the criterion may be satisfied from that time. If nothing happens subsequently to show that the expectation will not be fulfilled, then it may subsist, as a reasonable expectation, throughout the entire period of service as a casual employee. There is nothing in the legislation which indicates that the employee’s expectation cannot be reasonable until a pattern of regular and systematic employment, such as regular shifts, has in fact emerged.”

Further, the Court also stated at paragraph number 40 of the Judgement in Bronze No 2 that; “… the reasonableness of the expectation depends on all the circumstances…”. Consequently, the Judgement in Bronze No 2 has established that a reasonable expectation of continuing casual employment may be objectively formed from the commencement of the employment, and any assessment as to the reasonableness of that expectation should involve consideration of all of the circumstances.

The circumstances relevant to the applicant’s objective formation of a reasonable expectation of continuing employment involved a reasonably sophisticated recruitment process whereby he and other candidates were interviewed in respect of the casual ASO position that had been advertised, and for which a comprehensive position description document had been constructed. The applicant was subsequently one of the successful candidates for a casual ASO position. The applicant was provided with the letter of offer dated 29 November 2019, which did include the sentence; “As a casual employee, there is no guarantee of ongoing or regular work.” The applicant then completed training for the ASO position, and he subsequently performed his first engagement as an ASO on 17 January 2020.

Careful consideration has been given to all of the circumstances surrounding the recruitment, selection, training and subsequent engagement of the applicant in the casual ASO position. Although the letter of offer dated 29 November 2019, mentioned that there was no guarantee of ongoing or regular work, any such guarantee would be unlikely to apply to almost all employment, other than in respect to the regularity required to provide for minimum hours for full-time or part-time employment. Having regard for all of the circumstances relevant to the applicant’s employment, I am satisfied that he objectively formed a reasonable expectation of continuing employment on a regular and systematic basis on and from the commencement of his employment on 6 January 2020.

It was further submitted that if the applicant had a reasonable expectation of continuing employment on a regular and systematic basis, that expectation would have been lost from April onwards as a result of the reduction in the frequency of engagements as an ASO caused by the impacts of the Covid 19 travel restrictions. Consideration of this proposition has led to its rejection. The applicant maintained the realistic and reasonable belief that the Covid 19 travel restrictions were temporary. Further, the applicant was provided alternative duties as an SDA, and the provision of this work would have provided sound basis for an objective belief that the employer wanted to continue to provide the applicant with work so as to mitigate the impacts of the reduction in ASO work associated with the Covid 19 restrictions. Consequently, an evaluation of all of the evidence of the circumstances surrounding the employment of the applicant has established that he objectively formed a reasonable expectation of ongoing casual employment on a regular and systematic basis, and that expectation existed from the commencement to the end of the employment.

Conclusion

In this Decision, the Commission has been required to determine the employer’s minimum employment period objection. The minimum employment period objection has asserted that the applicant’s period of employment did not satisfy the requirements of subsection 384 (2) (a) of the Act. Specifically, it was asserted that the applicant’s period of service as a casual employee did not count towards the minimum employment period because his employment as a casual was not on a regular and systematic basis, and that throughout the period of service as a casual employee, the applicant did not have a reasonable expectation of continuing employment on a regular and systematic basis.

The evidence has established that the total period of the applicant’s employment was a period of 6 months and 10 days. Following a careful consideration of all of the evidence and submissions made in respect to any deduction that should be made to the total period of employment of the applicant, I find that three days in respect to unpaid leave should not count towards the minimum employment period. Further, I find that there is no basis for any other reduction in respect of the applicant’s period of employment for the purposes of establishing the minimum employment period. In addition, the evidence has provided sound basis to conclude that the applicant was a casual employee engaged on a regular and systematic basis and that during the entire period of his service as a casual employee he had a reasonable expectation of continuing employment on a regular and systematic basis.

Consequently, in view of the findings that have been made, the period of employment of the applicant was a period of continuous service of 6 months and 7 days. Therefore, the applicant was an employee who had completed at least the minimum employment period, which in this case was 6 months ending at the time at which the applicant was given notice of his dismissal, 16 July 2020.”

Pataki v Norfolk Island Regional Council [2021] FWC 85 delivered 13 January 2021 per Cambridge C