s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Jurisdictional objection - Minimum employment period - Whether Applicant had six months' continuous service - Applicant a casual employee - Whether Applicant was a casual employee with reasonable expectation of continuing employment on a regular and systematic basis

• [1] On 21 October 2024, Ms Amanda Dunne made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed from her employment with HYPAR Residential Care Pty Ltd (the Respondent), and that the dismissal was harsh, unjust or unreasonable.

• [2] Ms Dunne commenced casual employment with the Respondent on 26 January 2024 as a Youth Mentor/Worker. The Respondent provides residential care services for vulnerable young people.

• [3] On 13 July 2024, Ms Dunne suffered a workplace injury following an incident involving one of the Respondent's clients in her care. Ms Dunne was dismissed on 14 October 2024 for reasons relating to her handling of and reaction to this incident. She then made her unfair dismissal application to the Commission on 21 October 2024. She claimed that she was unfairly dismissed, and her conduct was a result of stress, injury and provocation.

• [4] On 18 November 2024, the Respondent filed a Form F3 Employer Response to the application. It raised a jurisdictional objection on the basis that Ms Dunne's employment did not meet the minimum employment period. A person is only protected from unfair dismissal if the person has completed a period of employment of at least the minimum employment period.[1] s.396(b) of the Act states that before considering the merits of an unfair dismissal application, the Commission must first determine whether the person is protected from unfair dismissal.

• [5] Accordingly, I issued directions for the filing of evidence and submissions in relation to the jurisdictional objection, and the matter was listed for hearing on 13 February 2025. Ms Dunne was granted permission to be represented by Ms Jackie Yuen of Unfair Dismissals Australia Pty Ltd. The Respondent was granted permission to be represented by Mr Craig Pollard of Community Management Solutions.

• [6] Ms Dunne and Ms Emily Gehrke, People and Culture Manager of the Respondent filed witness statements, however, were not required for cross-examination at the hearing.

• [7] Section 383 of the Act states:

(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."

• [8] The Respondent is not a small business employer, meaning the applicable minimum employment period is 6 months.

• [9] Section 384 of the Act defines a "period of employment" for the purposes of determining whether an employee has served the minimum employment period. It relevantly provides as follows:

(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.

(a) a period of service as a causal employee does not count towards the employee's period of employment unless:

(i) the employment as a causal employee was as a regular casual employee; 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".

• [10] Ms Dunne was employed by the Respondent as casual employee for the entirety of her employment, being a total of approximately 10 months. I must therefore determine whether her periods of service as a casual employee count towards her period of employment, having regard to s.384(2)(a) of the Act. Per the definition in s.12 of the Act, a "regular casual employee" is a casual employee employed on a regular and systematic basis.

• [11] The meanings of "service" and "continuous service" are provided by s.22 of the Act. That section relevantly states:

"22 Meanings of service and continuous service

(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 account as service because of subsection (2).

(2) The following periods do not count as service:

(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) 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."

• [12] Ms Dunne first attended an induction with the Respondent on 19 January 2024.

• [13] On 1 February 2024, Ms Dunne worked an ordinary shift in her role as a Youth Mentor/Worker. From 10 to 16 February 2024, Ms Dunne went on a pre-planned vacation which the Respondent was aware of during the hiring process. On 17 February 2024, Ms Dunne worked a further ordinary shift as a Youth Mentor/Worker.

• [14] From 19 February to 21 February 2024, Ms Dunne undertook advanced training with the Respondent, which was a prerequisite to being allocated consistent shifts. On 22 February 2024, Ms Dunne worked an ordinary shift. She argued that from this date, she became a regular and systematic employee with an expectation of ongoing employment.

• [15] Between 23 February 2024 and 12 April 2024, Ms Dunne did not work any shifts. Ms Dunne's mother had a broken hip and moved in with Ms Dunne to receive full-time care, while Ms Dunne also assisted in renovations to a residence.

• [16] On 13 April 2024, Ms Dunne worked an ordinary shift. She contended, in the alternative to 22 February 2022 being considered when she became a regular and systematic employee with an expectation of ongoing employment, that this date would otherwise apply.

• [17] From 23 April to 14 June 2024, Ms Dunne worked ordinary shifts as a Youth Mentor/Worker. The Respondent contended that this is when Ms Dunne became a regular and systematic employee with an expectation of ongoing employment.

• [18] Ms Dunne left her shift early on 15 June 2024 to attend to a medical emergency resulting in her young son's hospitalisation. Following this, she was absent to care for her son until 22 June 2024. From 26 to 29 June 2024, Ms Dunne was absent to attend a close friend's terminal illness and her partner's ill health, and bereavement leave when her friend passed.

• [19] From 1 July 2024 to 13 July 2024, Ms Dunne worked ordinary shifts. While on shift on 13 July 2024, Ms Dunne was assaulted by a child client of the Respondent, and went on worker's compensation leave due to her injuries sustained as part of the incident.

• [20] On 18 September 2024, the Respondent put to Ms Dunne allegations of misconduct relating to the incident on 13 July 2024, informing Ms Dunne that her employment may be terminated, and noted a meeting was scheduled for 26 September 2024. Ms Dunne attended the disciplinary meeting and delivered a written response. Ms Dunne was invited to a further meeting on 14 October 2024, where she was informed that she was being terminated immediately and was provided a termination letter.

• [21] Ms Dunne submitted that her casual employment from 26 January 2024 until 14 October 2024 had a regular and systematic character from 13 February 2024, or in the alternative, from at least 14 April 2024, and that she therefore meets the minimum employment period of six months.

• [22] For the material six months leading up to Ms Dunne's dismissal on 14 October 2024, Ms Dunne worked from 14 April 2024 until the incident on 13 July 2024, whereafter she was on workers' compensation leave. Ms Dunne stated she had worked reduced hours from 12 April 2024 to 22 April 2024, and from 18 July 2024 to 1 July 2024 she had absences for carers and bereavement leave, due respectively to caring for her injured mother and then unwell son, and the terminal illness and passing of a close friend. Ms Dunne submitted that taking of leave for her caring responsibilities or due to bereavement is consistent with regular and systematic employment.

• [23] Ms Dunne submitted that throughout the period from 14 April 2024 until her absence due to the incident on 13 July 2024, she was engaged in regular and systematic employment, working a baseline of approximately 55-65 hours per fortnight with fixed commitments to certain clients, notwithstanding absences due to serious personal matters which are consistent with ongoing employment.

• [24] Ms Dunne submitted that her absence on workers' compensation between 13 July 2024 and 14 October 2024 was characteristic of a worker employed on a regular and systematic basis. Worker's compensation leave is treated as part of continuous employment, and the statutory regime is designed for a timely and efficient return to work, with legal limitations and the expectation that employment is ongoing. Ms Dunne was expected to return to work around December 2024. The Respondent conceded that the period of Ms Dunne's worker's compensation leave did not prevent her employment from being regular and systematic.

• [25] Ms Dunne noted that prior to 13 February 2024, her work hours were low due to preplanned leave and her caring responsibilities. Ms Dunne attended training and was undertaking a reduced workload prior to that training. However, Ms Dunne submitted that she worked more than six months regular and systematic ongoing employment between from 13 February 2024 and her dismissal. In the alternative, Ms Dunne's regular and systematic engagement commenced on 13 April 2024 when Ms Dunne returned from caring for her mother.

• [26] Ms Dunne submitted that even though her days of work and start/finish times varied, the nature of the consistent clients meant that Ms Dunne was carrying out regular and systematic work, even if the schedule of engagement was not fixed or predictable.[2] The Respondent relied on Ms Dunne and its other casual workers systematically to perform its responsibilities towards its clients.

• [27] Ms Dunne submits that she exceeded the minimum service period of six months and the Respondent's jurisdictional objection should be dismissed.

• [28] The Respondent submitted that Ms Dunne does not have jurisdiction to make this application for relief from unfair dismissal as she did not complete the required minimum employment period of six months as a regular and systematic casual employee.

• [29] The Respondent submitted that Ms Dunne nominating herself as being unavailable from time to time, whether that be due to carers requirements or otherwise, is evidence that she was not engaged on a regular and systematic basis. The Respondent also submitted that Ms Dunne received workers' compensation on the basis of her average earnings, which suggests that she did not have a sufficiently regular work pattern.

• [30] In her witness statement, Ms Gehrke referred to clause 1.2 of Ms Dunne's employment contract, which states:

"...This contact is not intended to give rise to an expectation or intention of an ongoing or continuous employment relationship."

• [31] Ms Gehrke gave evidence and submitted payslips demonstrating that Ms Dunne only received pay for work for the Respondent for nine fortnights.

• [32] The Respondent submitted that Ms Dunne could not have been working regularly until 23 April 2024, and she only commenced regular work after that time. In making this submission, the Respondent relied upon Ms Dunne not providing communication with the employer regarding her absence in March and April in a manner which is consistent with an ongoing expectation of work, which Ms Dunne denies. The Respondent submitted that there was no offer of shifts that was denied, and that Ms Dunne may not have been offered shifts had she been available.

• [33] The Respondent submitted that the absences of Ms Dunne prior to her workers' compensation leave should not be characterised as leave, but rather indications of unavailability as is ordinary for a casual worker not engaged in regular and systematic work.

• [34] The nature of casual employment as it relates to the minimum employment period was considered in Shortland v Smiths Snackfood Co Ltd,[3] where the Full Bench observed:

"[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee's period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee's period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee's period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee's period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee's period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of 'leave' or an absence due to illness or injury." [footnotes omitted]

• [35] In Chandler v Bed Bath N' Table Pty Ltd, the Full Bench considered the meaning of 'regular and systematic' for the purposes of s.384(2)(a). The Full Bench said (footnotes omitted):

"[11] It is apparent on the face of the decision that the Deputy President's determination as to whether Ms Chandler's casual employment was regular and systematic was attended by a significant error of principle. In her application of s 384(2)(a) to the facts of the case, the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic. We do not consider this to be the correct approach. In 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.'

[12] Similarly, Madgwick J said (emphasis added):

'[89] ... a 'regular ... basis' may be constituted by frequent though unpredictable engagements and that a 'systematic basis' need not involve either predictability of engagements or any assurance of work at all.

[90] The respondent's work for the appellant was certainly frequent enough to be termed 'regular' within an acceptable understanding of that term, which may, even in ordinary speech, be used to denote 'frequent'.

[91] Engagement under contracts on a 'systematic basis' implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of 'systematic' in the Macquarie Dictionary, revised 3rd edn, 2001).'"

• [36] Ms Dunne worked the following shifts from the commencement of her employment:

• [37] I consider that Ms Dunne had regular and systematic work as a casual employee, with a reasonable expectation of it continuing from the week ending 28 April 2024. That week commenced on 22 April 2024. The period of her regular and systematic work was from 23 April 2024 until her dismissal on 14 October 2024. That is not a period of six months, and accordingly, the minimum employment period of six months has not been met.

• [38] Further, Ms Dunne had a two-week period week ending 23 June 2024 and 30 June 2024 where no work was performed. Whilst Ms Dunne had valid reasons not to be in attendance at work, it was unpaid leave. Pursuant to s.22(2) of the Act, this is a period of unpaid leave and does not count towards continuous service.

• [39] The Act provides that a person is protected from unfair dismissal if, at the time of the dismissal, the person has completed at least a minimum employment period. In the case of Ms Dunne, that is a period of a minimum of six months.

• [40] The six-month period is a threshold requirement for making this application under s.394 of the Act and there is no discretion under the Act for this to be varied.

• [41] Ms Dunne fell approximately three weeks short of the minimum employment period when the following week ending periods are removed from the calculation of continuous service pursuant to s.22 of the Act:

• [42] Accordingly, the application before the Commission must be dismissed.

• [43] An order [PR786267] to this effect will be issued.

J Yuen of Unfair Dismissals Australia, for the Applicant.

C Pollard of Community Management Solutions, for the Respondent.

[1] Fair Work Act 2009 (Cth) s.382(a).

[2] Purcell v Aspen Living Villages Pty Ltd t/a Darwin FreeSpirit Resort [2020] FWC 3098 ('Purcell').

[3] [2010] FWAFB 5709.

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