Fair Work Act 2009

s.394 - Unfair dismissal

[1] On 6 May 2020 Ms Amy Veronica Greene (Ms Greene) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Floreat Hotel - CEH GROUP T/A Floreat Hotel (Floreat Hotel).

[2] On 15 May 2020 Floreat Hotel filed a Form F3 Employer Response.

[3] On 22 June 2020, the parties participated in a conciliation conference before me, during which Floreat Hotel raised a jurisdictional objection that Ms Greene had not served the minimum employment period for the purposes of section 383 of the FW Act (Jurisdictional Objection).

[4] Given that there are contested facts involved, the FWC is obliged by section 397 of the FW Act to conduct a conference or hold a hearing.

[5] Taking into account the parties wishes and circumstances it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on 12 August 2020 (Hearing).

[6] Directions for the filing of materials in advance of the Hearing were first issued to the parties on 1 July 2020, and subsequently amended on 13 July 2020 (Directions).

[7] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which the Hearing is conducted is fair and just.[1]

[8] Having considered the submissions of the Parties, I exercised my discretion to grant Floreat Hotel leave to be represented by a lawyer. I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[9] At the Hearing, Ms Greene represented herself and gave written and oral evidence on her own behalf. The following witnesses gave evidence on behalf of Ms Greene.

1. Mr Jake Dalli Former Venue Manager

2. Ms Hannah Corr Chef

3. Ms Charlotte Court Former colleague

4. Ms Angela Hewitt Casual Bartender/manager

5. Ms Lara Cicchini Casual employee

[10] Mr Dalli's witness statement was described as a 'character reference' and bears characteristics of a job reference. Mr Dalli did not attend the Hearing and did not make himself available to appear remotely by video or telephone. Floreat Hotel was therefore denied the opportunity to test his evidence via cross examination. In these circumstances where there is was contested evidence I have preferred the evidence of the witness for the Floreat Hotel who gave both written and oral evidence and was cross examined in relation to his evidence.

[11] Ms Hewitt, Ms Cicchini, Ms Corr, and Ms Court, also provided character/job references. The content of which was largely irrelevant to the issues I need to determine.

[12] At the Hearing, Floreat Hotel was represented by Ms Julie Grant of Capital Legal Pty Ltd. Mr Brian Brennan, the sole Director and owner of Floreat Hotel, gave written and oral evidence on behalf of Floreat Hotel.

[13] Floreat Hotel is a bar and restaurant located in the western suburbs of Perth. Mr Brennan is the owner and managing Director of the company that owns the Floreat Hotel. Mr Brennan and his family own and operate a number of other venues.[2]

[14] The Floreat Hotel is staffed by a mix of permanent and casual staff. There are a small number of permanent employees and a large pool of casuals drawn from a flexible workforce such as students and backpackers. The permanent staff give a degree of consistency to the operation of the hotel. Casuals are brought in for peak periods. The need for casuals is highly variable depending on seasons and events.[3]

[15] Ms Green commenced employment as a casual food and beverage attendant at the Floreat Hotel on 24 February 2019. The parties did not enter into any written employment contract with respect to the casual employment. The evidence is that she was at least initially engaged on a 'zero hour' basis.[4]

[16] Ms Green says that her duties were limited to food and beverage attendant only for the first few weeks of her casual employment and that after this date she was allocated duties of an assistant manager including managing staff, staff training and banking.[5]

[17] Ms Greene says that from around 4 March 2019, she was allocated a 'basic roster' each week and performed such additional shifts as the business required.[6] She says she was given first choice of the available hours.[7]

[18] Up until July 2019, Mr Dalli would sit down each week to prepare a roster for the week ahead. He was instructed by Mr Brenan to use as few casuals as possible, particularly on weekends or other times when penalty rates applied. In or around July 2019, Mr Brennan became concerned about increasing staffing costs. On further inquiry, he became aware that Mr Dalli was allocating work preferentially to a small group of casuals which included Ms Greene. This was substantially increasing staffing costs. Mr Brennan instructed Mr Dalli to reduce the use of casuals because it was financially unviable.[8]

[19] In August 2019, Mr Brennan says that he made it clear to Mr Dalli that Ms Greene should not expect ongoing casual employment because it was not financially viable for the business, but that the business would be happy to offer her permanent employment. Mr Brennan says that those discussions began in August 2019, but stalled during September and October while Ms Greene was on holiday and unavailable to work.[9]

[20] On her return to work, in accordance with the instruction from Mr Brenan, Mr Dalli met with Ms Greene and offered her a permanent role. She initially refused permanent employment preferring to access casual penalty rates.[10]

[21] By mid December, Mr Brennan was personally reviewing each roster before Mr Dalli was permitted to release the roster to staff. Further discussions occurred in which Mr Brennan reinforced that Ms Greene should not be offered regular and systematic shifts as a casual employee because of the costs involved.[11] Consistent with this instruction, Ms Greene was offered fewer shifts.[12]

[22] On 4 December 2020, Ms Green met with Mr Brennan to discuss permanent employment. Mr Brennan agreed to this, and on 17 January 2020, offered Ms Green full time employment.[13]

[23] On 20 January 2020, Ms Greene signed an employment contact accepting permanent full time employment as a food and beverage attendant effective from 20 January 2020. [14]

[24] On 23 March 2020, Ms Green was stood down from her employment as a consequence of a government directive to close hospitality venues. [15]

[25] On 15 April 2020, Ms Green was informed in writing that her position was redundant and that her employment would cease on 16 April 2020.[16]

[26] Ms Greene submits she was unfairly dismissed and seeks an Order that she be compensated.

[27] An order for reinstatement or compensation may only be issued if Ms Green was protected from unfair dismissal at the time of her dismissal.

[28] In order to be protected from unfair dismissal, Ms Greene must have completed a period of employment with Floreat Hotel of at least the minimum employment period.[17]

[29] If the employer is not a small business, the 'minimum employment period' is six months ending at the earlier of the following times:[18]

1. the time when the person is given notice of the dismissal; or

2. immediately before the dismissal.

[30] There is no dispute, and I am satisfied that Floreat Hotel is not a small business employer for the purposes of section 383 of the FW Act.

[31] 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 the time as an employee.[19]

[32] However, a period of service as a casual employee does not count towards the employee's period of employment unless the employment as a casual employee was on a regular and systematic basis, and 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.[20]

[33] The term 'regular' implies a repetitive pattern and does not mean frequent, often, uniform, or constant.[21] A 'regular' basis may, however, be constituted by frequent though unpredictable engagements. [22]

[34] The term 'systematic' requires that the engagement be 'something that could fairly be called a system, method or plan'.[23]

[35] Whilst a clear pattern or roster of hours is strong evidence of regular and systematic employment, it is the engagement that must be regular and systematic, not the hours worked pursuant to the engagement. [24] Previous decisions of the FWC have established that employment or engagement can be regular and systematic even where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee.

[36] There must also be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established.[25]

[37] There is no dispute that Ms Greene's employment from 20 February 2020 until 16 April 2020 (a total of 87 days) is continuous service for the purposes of the minimum employment period.

[38] What is in dispute is whether any of Ms Greene's service while engaged in a casual capacity between 24 February 2019 and 19 February 2020 constitutes continuous service for the purposes determining whether she has completed the minimum employment period.

[39] Floreat Hotel says that during this period:

1. while Ms Greene may have worked often during this period, she did not work on a 'regular' basis.

2. The nature of the hours for which she was engaged was not planned or part of a system and she was engaged to work as and when required.

3. Floreat Hotel had made it clear to Ms Greene that it could not commit to providing regular and system work on a casual basis and this is specifically why she was offered and accepted the written contact of full time permanent employment.

[40] Ms Greene says that she worked a 'basic roster' every week and it was only her additional hours which were worked on an 'as required' basis and that she had a reasonable expectation of ongoing work given her pattern of work and responsibilities.[26]

[41] The Floreat Hotel tendered a timesheet report for the period of Ms Green's employment which recorded total hours worked and total hours paid (Timesheet Report). The evidence of Ms Greene, and Mr Brennan, is that the hours described as total hours worked in the Timesheet Report reflected her rostered hours of work and total hours of paid reflected her actual hours worked. The totals for the actual hours worked are consistent with the pay slips tendered by Ms Greene.[27]

[42] Ms Greene claims to have worked a set or 'basic roster' each week (plus such additional hours as the business needed). She did not identify what particular days or hours of work constituted this 'basic roster' and it was not apparent from the Timesheet Report.

[43] She conceded that the roster was prepared on a weekly basis, and that she was given the first choice of available hours. This implies that the roster was not fixed from week to week nor were her hours of work. It also indicates that she was free to decline work at will. This is consistent with evidence tendered that she informed Floreat Hotel that she was unavailable for work during periods in August, September and October 2019.

[44] She concedes that her total hours of worked reflected shifts she worked to cover the illness of other staff and peaks of demand which were unpredictable.[28]

[45] Consistent with this, the Timesheet Records of rostered hours of work varied widely from week to week as set out in the table below.

[46] There does not appear to be any discernible pattern or system to the allocation of rostered hours.

[47] Notwithstanding her rostered hours of work, according to Ms Greene within months of commencing work at Floreat Hotel, she worked:[29]

"... a steady and consistent full time hours each week and sometimes even more with some weeks working up to 60 hours."

[48] A review of the Timesheet Records reveals that her actual hours of work varied widely from week to week as set out in the table below. Until she was appointed to her permanent role, she did not work full time hours every week as she alleges. She did not work consistent hours each week. There is only one occasion on which she worked 60 hours in a week.

[49] Ms Greene was unavailable for casual shifts for days or weeks in May, September, November and December 2019.

[50] I am not satisfied, on the evidence before me, that Ms Greene's employment as a casual employee was on a regular and systematic basis. Even if I were, it would still be necessary for Ms Green to demonstrate that during the period of service as a casual employee she had a reasonable expectation of continuing employment by Floreat Hotel on a regular and systematic basis.[30]

[51] Ms Green says that she had a reasonable expectation of ongoing work given her pattern of work and responsibilities.

[52] Floreat Hotel denies that Ms Greene had any formal management role or position during her casual employment such that it was unavoidable that she be rostered regular and systematic shifts.

[53] The evidence is that Ms Greene did not attend formal management meetings and that there were a number of 'duty managers' in addition to the venue manager Mr Dalli.[31] While by all accounts she was a good performer and took on some leadership duties. The evidence does not support her assertion that she held a managerial role, or position, or performed managerial duties of such a significance, that it was unavoidable that she be rostered regular and systematic shifts.[32]

[54] The irregularity in her hours of work does not support a reasonable expectation of regular and systematic work.

[55] Most critically, though Mr Brennan made it abundantly clear that Ms Greene should not, and could not, expect ongoing employment on a regular and systematic basis while employed on a casual basis. Ms Green would seem to have accepted this to be true by signing the contract for permanent employment in January 2020.

[56] I am not satisfied during her period of service as a casual employee that Ms Green had a reasonable expectation of continuing employment by Floreat Hotel on a regular and systematic basis.[33]

[57] Based on the evidence before me, I am not satisfied that Ms Greene has completed the minimum employment period necessary to be eligible to seek a remedy for unfair dismissal.

[58] The Application is, therefore, dismissed. An order to this effect will issue with this decision.

[1] Warrell v the Commission [2013] FCA 291.

[4] Digital Court Book at pages 147-148.

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

[18] Ibid s.383.

[19] Ibid s.384(1).

[20] Ibid s.384(2).

[21] Yaraka Holdings Pty Limited v Giljevic 2006 149 IR 399 cited in Grives v Aura Sports Pty Ltd [2012] FWA 5552 at [32]

[25] Ponce v DJT Staff management Services Pty Ltd T/A Daly's Traffic [2010] FWA 2078

[30] Fair Work Act (2009) Cth s.384(2).

[33] Fair Work Act (2009) Cth s.384(2).

Printed by authority of the Commonwealth Government Printer