Unfair dismissal; the various jurisdictional issues

These passages from an unfair dismissal decision of the Fair Work Commission deal with the issue whether a former employee was protected from unfair dismissal at the time of dismissal which required the Commission to decide whether the employer was a small business employer (in which case the minimum employment period would be 12 months) which in turn required the Commission to figure out whether several employees were to be included in the head count…………..which required an assessment whether their employment as casuals was regular and systematic! Phew!

“Minimum Employment Period

[25] The evidence set out above reveals that the Applicant commenced employment as a

casual employee with the Respondent on 10 June 2022 and moved to a full-time role on 8

August 2022. On the basis of the hours worked by the Applicant between 10 June – 8 August

2022, I am satisfied that the Applicant was engaged on a regular and systematic basis and would

have had an expectation of ongoing employment in the period from 10 June 2022 to 8 August

  1. Consequently, I am satisfied that period of casual employment of two months should be

taken into account for the purpose of calculating the Applicant’s period of employment with

the Respondent. The Applicant then served a further period of 6 months and two weeks as a

full-time employee, bringing her total period of employment to that of approximately 8 months

and two weeks.

[26] As earlier stated, the Respondent contends that the Applicant has not met the MEP on

the basis that the Respondent is a small business employer. Relevantly, the MEP is one year for

a small business employer and six months for other employers as set out in s 383 of the Act 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.”

[27] To determine whether the Respondent is a small business employer it is necessary to do

so by reference to the meaning of term, ‘small business employer’ which is set out at s 23 of

the Act in the following terms;

[2023] FWC 1181

7

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time

if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the

employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at

that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, the employee

is a regular casual employee of the employer.

(3) For the purpose of calculating the number of employees employed by the

employer at a particular time, associated entities are taken to be one entity.

(3) To avoid doubt, in determining whether a national system employer is a small

business employer at a particular time in relation to the dismissal of an

employee, or termination of an employee’s employment, the employees that

are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being

terminated; and

(b) any other employee of the employer who is also being dismissed or

whose employment is also being terminated.” (my emphasis added)

[28] There are a number of casuals that the Respondent contends should not be included in

the calculation of employee numbers for the purpose of determining whether the Respondent

employed less than 15 employees at the time of the Applicant’s dismissal. As made clear by s

23(2)(b) of the Act, it is only ‘regular casual employees’ at the time of the Applicant’s dismissal

that are to be counted in the number of employees. Relevantly, the term ‘regular casual

employee’ referred to in s 23(2)(b) is defined as follows in s 12 of the Act;

“…………..

regular casual employee: 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.

……………..”

[2023] FWC 1181

8

[29] It follows from the foregoing that in calculating the number of employees at the time of

the Applicant’s dismissal for the purpose of determining whether the Respondent was a small

business employer, it is necessary for me to include only those casuals who had been employed

on a regular and systematic basis at that time. It is to that task I turn.

[30] It was not contested by the Applicant, and I am satisfied that, excluding the casual

employees MU, PC, JR, RE and SC which I will shortly deal with, there were 13 employees

employed at 23 February 2023. That number included seven full time staff members (including

the Applicant), one part-time staff member, three casual employees and one full-time staff

member who was on maternity leave at that time and currently remains on maternity leave.

[31] Before turning to consider whether any of the remaining five casual employees were

regularly and systematically engaged at the time of the Applicant’s dismissal, it is necessary to

briefly refer to some authorities dealing with the meaning of ‘regular and systematic’ casual

employment. The oft cited authority relied on in both Full Bench and single member decisions

of the Commission is that of Yaraka Holdings Pty Ltd v Giljevic29 (Yaraka). In that decision the

Court of Appeal of the ACT held that it is the “engagement that must be regular and systematic;

not the hours worked pursuant to such engagement”30 and went on to say as follows;

“[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”……”31

[32] It is also apparent from the Full Bench authority of Chandler v Bed Bath N’ Table Pty

Ltd32 (Chandler) that it would be wrong to treat the degree of regularity in the pattern of the

hours worked by a casual employee as decisive, “(rather than merely as one of a number of

relevant considerations in the analysis)”

33 Further, a Full Bench in Bronze Hospitality Pty Ltd

v Janell Hanson34 (Bronze Hospitality) cautioned that Yaraka does not stand for the proposition

that the hours worked by a casual employee are analytically unimportant and that “Clearly, the

days on which a person works and the hours worked on those days are relevant to the

consideration of whether casual employment is regular and systematic,…..”35

I discern from

the authorities referred to that in determining whether a particular casual employee was

regularly and systematically engaged, all of the circumstances of the casual employment must

be taken into account including, the periods of engagement, the hours worked, the frequency of

the work, whether there is a pattern or system to the engagements, the contractual terms and the

working relationship.

[33] Returning to the five casual employees that the Respondent contends are not ‘regular

casual employees’ as defined in s 12 of the Act I commence by considering SC. As set out

above, SC resigned with effect from her permanent employment with the Respondent on 26

October 2022 to take up full-time employment with another employer. Prior to her resignation

she was employed as a full-time medical receptionist. On resignation SC did however agree to

continue to work for the Respondent on a casual basis commencing on 31 October 2022, her

availability being subject to her commitments to her other employment.

[34] Since SC commenced as a casual employee on 31 October 2022, she has worked 10

shifts, the last of which was worked on 12 February 2023 and no shifts have been worked since.

[2023] FWC 1181

9

She did not work any shifts from 3 November to 2 December 2022, from 3 December to 25

December 2022 and from 26 December 2022 to 6 January 2023. She worked six shifts between

7 January and 31 January 2023 and one further shift between that later date and 23 February

  1. The total number of hours worked between 31 October and 23 February is that of 77

hours which over the 16-week period from 31 October 2022 to 23 February 2023 is an average

of 4.8 hours per week.

[35] I readily accept that the total number of hours per week is not determinative of whether

SC can be regarded as a casual employee engaged on a regular and systematic basis. However,

taking into account the limited number of hours worked in the period by SC, the absence of any

apparent system or pattern of engagement, the long breaks between engagements, the fact that

SC is employed on a full-time basis by another employer thus limiting her availability to work

for the Respondent and that she has not worked since 12 February 2023, I am satisfied that SC

was not engaged on a regular and systematic basis at the time of the Applicant’s dismissal. As

SC was not a ‘regular casual employee’ at 23 February 2023, she is not to be included in the

Respondent’s employee numbers at that date.

[36] Turning to MU, she commenced employment with the Respondent on 16 May 2022 as

a casual practice nurse and in the period between 31 August 2022 and 23 February 2023 worked

31 shifts, the last of which was worked on 3 January 2023. MU’s availability has been more

recently impacted by her work for another employer. In the period prior to 23 December 2022,

it is apparent that she worked on a regular basis, working shifts in all but one of the weeks

between 31 August and 23 December 2022 and averaged 7.5 hours per week over that period.

Since 23 December 2022 however she has only worked two shifts totalling 14.5 hours. Having

regard to MU’s limited recent availability and the fact that she has only worked two shifts since

23 December 2022, the last one being 3 January 2023, I am not satisfied that MU was a ‘regular

casual employee’ at the date of the Applicant’s dismissal. It follows that she is not to be included

in the Respondent’s employee numbers at 23 February 2023.

[37] JR commenced as a casual medical receptionist on 23 June 2020, works full-time for

another employer and is said to have limited availability which is reflected in a text message

exchange in February 2023 where JR indicated that she was unable to work shifts during

weekdays and was only available on weekends36

. In the 25-week period between 28 August

2022 and 23 February 2023 JR worked 21 shifts totalling 159.25 hours which averaged 6.4

hours per week. In that 25-week period there were a number of weeks in which JR was not

engaged, those weeks being from 5 – 25 September 2022 (three-week period), 14 – 20 October

2022 (one-week period), 5 – 18 December 2022 (two-week period), 9-15 January 2023 (oneweek period) and 6 – 12 February 2023 (one week period).

[38] Looking more closely at JR’s engagements, of the 21 shifts worked, 18 shifts were

worked on either a Saturday, Sunday, or in one case on a public holiday (2 January 2023). This

reinforces the evidence that JR’s availability is generally limited to working weekends. I am

satisfied on the evidence that JR was engaged on a regular basis over the period between 28

August 2022 – 23 February 2023 notwithstanding there were periods in which she did not work.

I am further satisfied that there was a ‘pattern’ to her engagements in that she was engaged to

cover weekend absences. Also taking into account the longevity of JR’s employment with the

Respondent which commenced in June 2020, the terms of the Employment Agreement, the

frequency of engagements, average shift length and the recurring pattern of weekend work, I

[2023] FWC 1181

10

am satisfied that JR was a ‘regular casual employee’ at the date of the Applicant’s dismissal. It

follows that JR is to be included in the Respondent’s employee numbers at 23 February 2023.

[39] PC commenced with the Respondent as a casual practice nurse in February 2021. Her

engagements from 26 August 2022 to 23 February 2023 are summarised above at [15] and

reveals that she worked 43 shifts, totalling 328 hours averaging 7.5 hours per shift in that period.

I note that she did not work any shifts in the period from 23 January – 7 March 2023 and while

no explanation was provided for that hiatus in engagements, PC appears to have resumed

working shifts on 7 March 2023.

[40] The Respondent contends that PC’s shifts are variable and impacted by other

commitments. That contention is not however borne out by the number of hours worked, the

consistency of engagement and the pattern of those engagements between 23 August 2022 and

23 January 2023. She worked every week in that period with 35 of the 43 shifts being worked

on a weekday while 8 shifts were worked on a weekend. In the 21-week period from 26 August

2022 to 23 January 2023 PC worked on average 2 shifts per week.

[41] Having regard to PC’s period of service as a casual employee, the terms of her

Employment Agreement, her resumption of shifts on 7 March 2023 after a break of six weeks

and the frequency as well as the pattern of engagements between 26 August 2022 – 23 January

2023, I am satisfied that PC was a ‘regular casual employee’ at 23 February 2023. It follows

that she should be included in the Respondent’s employee numbers at 23 February 2023.

[42] Turning finally to RE, she commenced as a casual medical receptionist for the

Respondent on 20 October 2021. The hours and shifts worked by RE between 23 August 2022

and 23 February 2023 are summarised above at [17]. On any view, RE’s engagements have

been regular and systematic. She worked a total of 433 hours over 62 shifts which averaged 6.9

hours per shift. She worked every week in the above-referred period except the 6-week period

between 22 December 2022 and 7 February 2023. If one excludes that 6-week period, RE

worked an average of over three shifts per week in the other 20 weeks between 23 August 2022

and 23 February 2023.

[43] The Respondent contends that RE’s availability is limited because of her university

commitments. That submission cannot be squared with the actual hours and shifts RE worked,

noting that the only break she actually took from working shifts for the Respondent fell during

January 2023 which is a period during which university would be on its long Christmas/New

Year break. In any case, RE resumed working shifts on 7 February 2023 following which a

consistent pattern of weekly shifts resumed. I am satisfied that RE was a ‘regular casual

employee’ at the date of the Applicant’s dismissal. Therefore, RE should be included in the

Respondent’s employee numbers.

[44] Based on the forgoing analysis I am satisfied that at the time of the Applicant’s

dismissal, the three casual employees RE, PC and JR were ‘regular casual employees’ and

therefore should also be included in the number of employees employed by the Respondent at

23 February 2023. When those three employees are added to the earlier referenced uncontested

employee numbers of 13, it brings the total number of employees employed by the Respondent

at 23 February 2023 to 16. That means that the Respondent was not a small business employer

at that date, therefore the MEP required to have been served by the Applicant was six months

[2023] FWC 1181

11

and not twelve months as contended by the Respondent. As previously stated at [25], I am

satisfied the Applicant’s period of employment with the Respondent was 8 months and 2 weeks.

Consequently, she has met the MEP of six months. It follows that she was protected from unfair

dismissal.

[45] For the sake of completeness it is necessary to also confirm that because the Respondent

was not a small business employer at the time of the Applicant’s dismissal, the Small Business

Fair Dismissal Code is not relevant.

Conclusion

[46] Having found that the Respondent was not a small business employer at the time of the

Applicant’s dismissal, the Applicant has completed the minimum employment period of 6

months with the Respondent at the time of her dismissal (s.382(a) of the Act). I therefore

dismiss the Respondent’s jurisdictional objection concerning the minimum employment period.

The Respondent’s jurisdictional objection that the dismissal of the Applicant was consistent

with the Small Business Fair Dismissal Code must also be dismissed. The matter will be shortly

listed for mention to deal with programming of determination of the application.”

 

Kaur v Legacy Medical Pty Ltd T/A Active Medical [2023] FWC 1181 delivered 19 May 2023 per Masson DP