When will casual employment count towards unfair dismissal

When will casual service count towards the minimum employment period to be protected from unfair dismissal?; sec 383 Fair Work Act 2009

“It will be recalled that s.384(2)(a) states that 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 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”

We make some observations about the construction of s.384(2)(a)(ii). First, ‘during’ can mean either ‘throughout the course of’ or ‘at a point in the course of’. In our view, the first of these meanings is intended. The sub-provision is an exception to an exception; a period of casual service does not count, unless two requirements are met. Both of these requirements concern states of affairs that can develop over time. This context points to the word ‘during’ connoting a continuous period, rather than a point in time. Further, the alternative construction would mean that a casual employee need only have a reasonable expectation of continuing employment for any fleeting period in the course of the casual employment. There is no apparent rationale that would support this being the intended meaning. Finally, we note that the explanatory memorandum to the Fair Work Bill states simply that ‘service as a casual employee does not count towards the period of employment unless it was on a regular and systematic basis and the employee had a reasonable expectation of continuing engagement on a regular and systematic basis.’ 17 This wording is consistent with the interpretation we favour, and inconsistent with a ‘point in time’ meaning. The effect of this is that a particular period of service as a casual employee only ‘counts’ in respect of periods when the casual employment was regular and systematic and the employee had a reasonable expectation of continuing employment.

[30] Secondly, the continuing employment that is to be the object of the reasonable expectation is employment as a casual employee. So much is clear from the reference to ongoing employment on a ‘regular and systematic basis’. However, if an employee has an expectation of future permanent employment, this might be relevant to whether the employee also had an expectation of continuing casual employment pending the commencement of permanent employment.

Thirdly, Bronze submitted that the definition of ‘long term casual employee’ in
s.12 of the Act affects the meaning of the word ‘casual’ in s.384(2). This is not the case. The expression ‘long term casual employee’ does not appear in s.384. It is relevant instead to requests for flexible working arrangements and parental leave (see ss.65(2)(b)(i) and 67(2)(a)).

Bronze’s principal contention in its third ground of appeal was that it is not possible for a casual employee to work on a regular and systematic basis, or to have or develop a reasonable expectation of continuing employment, after some eight weeks of casual work. We reject this contention. As we have said above in relation to s.23, there is no minimum period of time that is required in order for casual employment to assume a regular and systematic character, nor is any minimum period necessary for an employee to develop a reasonable expectation of continuing employment. This can be simply illustrated by the example of a casual employee who is told on commencement that his or her casual employment will be ongoing, as well as regular and structured in some way, and who is then rostered accordingly.

Where nothing is said about the regularity or system of engagement, or its possible duration, all of the circumstances are to be considered in order to ascertain whether s.384(2) is engaged. Clearly upon a person’s first engagement, without more, one could not speak of regularity or system, and in the very early phase of a casual employment relationship it may be difficult to substantiate that it is either regular or systematic, or that any reasonable expectation exists as to ongoing employment. However, a short period might well be sufficient, depending on the circumstances. The question in the present matter is whether it was reasonably open on the evidence for the Commissioner to conclude that Ms Hansson’s circumstances fell within s.384(2).

The Commissioner set out the evidence submitted by Bronze as to Ms Hansson’s working arrangements from 28 November 2017 to 26 January 2018. At [9] of his decision, in describing the background to the matter, the Commissioner noted the number of hours worked by Ms Hansson each fortnight, and at [12], helpfully, he set out a table identifying each day on which Ms Hansson worked, as well as her start and finish times.

The Commissioner’s consideration of whether Ms Hansson’s period of casual employment fell within s.384(2)(a) commenced, following a review of the relevant authorities, at [24]. He noted that it was clear that Ms Hansson’s hours varied somewhat from week to week, but that this did not necessarily lead to a conclusion that her employment as a casual was not regular or systematic. He then stated:

[25] The Respondent’s argument that a period of 7 weeks employment is incapable of being regarded as a period of regular and systematic employment is not made out and fails. Further, its contention that the work within that period of 7 weeks was not regular and systematic is also not made out. The evidence of Ms Hansson was that she was engaged to work as a casual with the prospect of being converted to full time employment if the relationship progressed positively. The evidence of the timesheets is that the actual work performed by Ms Hansson in the period in question was part of a continuing relationship between the parties.

[26] I therefore find that Ms Hansson’s employment as a casual was regular and systematic. Her period of employment for the purposes of the minimum employment period was between 28 November 2017 and 7 June 2018, a period of slightly more than 6 months and 1 week.” 18

The Commissioner’s decision does not reveal the precise basis upon which he concluded that Ms Hansson’s employment as a casual was regular and systematic. However, an examination of the details of Ms Hansson’s rostered work confirms that the conclusion was plainly open to the Commissioner. The table set out at [12] of the decision shows that over the period of her casual employment, Ms Hansson was engaged to work on 46 occasions. In six of the nearly eight weeks she worked on Tuesday, Wednesday, Thursday and Friday, and in all but one she worked on a Saturday. She also worked five Sundays. On 30 of the 46 occasions, she started worked around 17.00 to 18.00, and on most of those occasions worked until around 21.00 to 23.00.

In our opinion, there was an ample basis in the evidence for the Commissioner to conclude that Ms Hansson’s period of employment was on a regular and systematic basis over this period. In our view, he reached the correct conclusion. The evidence which is available to support it is to be contrasted with the evidence going to the working arrangements of the four contested casual employees discussed earlier.

Then there is the question of whether Ms Hansson had a reasonable expectation of continuing employment by Bronze on a regular and systematic basis. At [5], the Commissioner states his conclusion that Ms Hansson did have a reasonable expectation of ongoing employment with Bronze Hospitality. At [8], the Commissioner states:

“…However, that which she has put forward indicates that she was engaged initially in the pre-Christmas period when the business was very busy, and with the expectation that if things worked out she would be offered ongoing employment at a later time. That offer came about, likely in the last week of December, with it then taking until late January to formally document the ongoing arrangement and convert her employment from casual to full-time.”

Bronze contended that the Commissioner’s conclusion that Ms Hansson had a reasonable expectation of ongoing employment was not supportable, given her evidence to the effect that she did not expect to be employed for six months. In fact, what Ms Hansson said in her evidence was that, in the industry, employees know that their job might only last six months, and that if they do last that long it is a good effort. 19 We accept that this evidence is relevant to the consideration of whether Ms Hansson had a reasonable expectation of ongoing employment as a casual employee, however it is far from definitive. We reject Bronze’s contention that Ms Hansson’s evidence shows that she did not have a reasonable expectation of continuing employment.

Bronze also contended that the Commissioner was wrong to state, at [8], that Ms Hansson had put forward a position that ‘she was engaged initially in the pre-Christmas period when the business was very busy, and with the expectation that if things worked out she would be offered ongoing employment at a later time.’ Bronze says that there was no basis in the evidence for the conclusion that when she was engaged, there was already an expectation that ‘if things worked out’, she would be given ongoing employment. We agree that the possibility of ongoing permanent employment arose only later, towards the end of December, not at the beginning of Ms Hansson’s employment. The Commissioner asked
Ms Hansson during the proceedings whether it had been held out to her that, if things went well, she would become a permanent employee, but she did not say ‘yes’. 20

Similarly, Bronze contended that the Commissioner was wrong to find, at [25], that there had been evidence from Ms Hansson ‘that she was engaged to work as a casual with the prospect of being converted to full time employment if the relationship progressed positively.’ We agree. There was no such evidence. As we have said, only in late December was she told that she would be offered permanent employment, which ultimately occurred only later in January.

However, Ms Hansson also gave evidence that from the commencement of her casual employment, she was told that it was going to be busy over the Christmas period and school holidays and that she should expect a lot of hours. She gave evidence that she in fact expected that she was going to receive regular work because Bronze had told her that it was their busiest period. 21 In late December, she was offered the prospect of permanent employment22 and on 22 January 2018 she received this offer and accepted it.

In our view, this evidence, which was not contradicted by Bronze, is sufficient to found a conclusion that Ms Hansson had a reasonable expectation of ongoing employment as a casual employee. She was told that she would receive regular work, she expected to receive it, and she did in fact receive it. Although the precise date on which she was told that she should expect a lot of work is not indicated, it was evidently at the commencement of her employment (‘from the moment I was there’). 23 The ‘Christmas period’ might only extend to 25 December but the ‘school holidays’ continue into January. Then in late December,
Ms Hansson was told to expect a permanent contract. As explained above, what is relevant under s.384(2)(a) is an expectation of ongoing work as a casual, however, in this case the discussion about receiving a permanent contract would give rise to a reasonable expectation of continuing casual employment until the permanent employment was finalised. In our view, the Commissioner was correct to conclude that Ms Hansson had a reasonable expectation of ongoing employment for the purposes of s.384(2)(a)(ii).

As we have said, the period of regular and systematic employment must coincide with the reasonable expectation of ongoing employment, in order for the relevant period to count towards the period of employment. In light of what she was told to expect when she joined, and the days and hours she actually worked, we consider that all of Ms Hansson’s casual employment was regular and systematic, and that she had a reasonable expectation of continuing employment throughout this period. Although there were errors in his reasoning, the Commissioner’s conclusion that all of Ms Hansson’s casual service counts towards her period of employment was correct.

Accordingly, we reject Bronze’s third ground of appeal.”

 

Bronze Hospitality Pty Ltd v Hansson (2019) FWCFB 1099 delivered 20 February 2019 per Gostencnik DP, Colman DP and Saunders DP