//
[43]
[2020] FWCFB 6019
General information, not legal advice.
Fair Work Commission (Full Bench)
2020-11-11
Original judgment source is linked above.
s.604 - Appeal of decisions
Appeal against decision [2020] FWC 4245 of Deputy President Binet at Perth on 3 September 2020 in matter number U2020/6241.
[1] Ms Amy Greene has lodged an appeal, for which permission is required, against a decision of Deputy President Binet issued on 3 September 2020[1] (decision) in which the Deputy President dismissed Ms Greene's application for an unfair dismissal remedy against Floreat Hotel Pty Ltd (Floreat). The Deputy President determined that Ms Greene was not eligible to pursue an unfair dismissal application because she had not completed the minimum employment period and was therefore not a person protected from unfair dismissal under Pt 3-2 of the Fair Work Act 2009 (FW Act). Ms Greene contends in her appeal that she had in fact served the minimum employment period and the Deputy President erred in finding otherwise.
[2] The provisions of the FW Act relevant to Ms Greene's appeal are as follows. Section 390(1)(a) provides that the Commission must, relevantly, be satisfied that a person was "protected from unfair dismissal" at the time of being dismissed before it may make an order for an unfair dismissal remedy in the person's favour. Section 382(a) provides that the first of the two requirements that must be satisfied in order for a person to be "protected from unfair dismissal" is that the person is an employee who has completed a "period of employment" with the relevant employer of at least the "minimum employment period". Section 383(a) provides, in respect of an employer which is not a small business employer, that the "minimum employment period" is 6 months ending at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal (the period is 12 months for a small business employer).
[3] Section 384(1) of the FW Act provides that an employee's "period of employment" with an employer is the period of continuous service the employee has completed with the employer. Section 384(2)(a) provides:
(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; ...
[4] It is not in contest in this case that Floreat is not a small business employer, so the requisite minimum employment period in Ms Greene's case is 6 months. It is not in dispute that Ms Greene commenced employment with Floreat on a casual basis on 24 February 2019, became a permanent full-time employee of Floreat on 20 January 2020, and was dismissed effective from 16 April 2020. The matter in issue is whether Ms Greene's period of casual employment counts for the purpose of assessing whether she has served the minimum employment period. Before the Deputy President, Floreat contended that, whilst a casual employee, Ms Greene was not employed on a regular and systematic basis and she did not have a reasonable expectation of continuing employment on a regular and systematic basis. The Deputy President upheld this contention and consequently concluded that Ms Greene had not served the minimum employment period.
[5] In her decision, the Deputy President first summarised the evidence before her concerning Ms Greene's period of casual employment. The Deputy President noted that Ms Greene did not enter into any written employment contract with respect to her casual employment and was initially engaged on a "zero hour" basis performing the duties of a food and beverage attendant.[2] The Deputy President then said that Ms Greene gave evidence that after a few weeks she was allocated the duties of an assistant manager, managing staff, training and banking, and from about 4 March 2019 she was allocated a basic roster each week and performed additional shifts as required, with her having the first choice of available hours.[3] The Deputy President then referred to evidence to the effect that Mr Brennan, the Managing Director and owner of Floreat, became concerned in around July 2019 about the cost of casual employees and directed Mr Dalli, the venue manager at the time, to reduce the use of casuals.[4] Mr Brennan's evidence was that in August 2019, he told Mr Dalli that Ms Greene should not expect ongoing casual employment because it was not financially viable, but the business was happy to offer her permanent employment. Discussions about this stalled during September and October 2019 because Ms Greene was on holiday.[5] The Deputy President recorded that on her return, Ms Greene initially refused the offer of permanent employment communicated to her by Mr Dalli and that, by mid-December 2019, Mr Brennan was personally reviewing rosters, directed that Ms Greene was not to be offered regular and systematic employment because of the costs involved, and Ms Greene was offered fewer shifts consistent with this instruction.[6] On 4 December 2019, there was a discussion between Mr Brennan and Ms Greene about the possibility of permanent employment and, on 17 January 2020, Mr Brennan offered Ms Greene permanent employment. She accepted on 20 January 2020.[7]
[6] The Deputy President next summarised the principles derived from case authorities concerning the interpretation and application of the expression "regular and systematic employment" as follows (footnotes omitted):
"[33] The term 'regular' implies a repetitive pattern and does not mean frequent, often, uniform, or constant. A 'regular' basis may, however, be constituted by frequent though unpredictable engagements.
[34] The term 'systematic' requires that the engagement be 'something that could fairly be called a system, method or plan'.
[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. 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."
[7] In her consideration, the Deputy President placed decisive weight on Ms Greene's roster and working pattern. The Deputy President found as follows (footnotes omitted and italics added):
"[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.
[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.
[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 [sic] reflected shifts she worked to cover the illness of other staff and peaks of demand which were unpredictable.
[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.
[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."
[8] The Timesheet Report/Records referred to above is set out in paragraph [48] of the decision and is reproduced in the annexure to this decision.
[9] After finding that Ms Greene was unavailable for casual shifts for days or weeks in May, September, November and December 2019, the Deputy President stated that she was not satisfied that Ms Greene's casual employment was on a regular and systematic basis.[8]
[10] The Deputy President then gave consideration to whether Ms Greene had a reasonable expectation of continuing employment by Floreat on a regular and systematic basis. The Deputy President found that the evidence did not support Ms Greene's assertion that she held a managerial role or performed managerial duties of such a significance such that it was unavoidable that she be rostered regular and systematic shifts.[9] The Deputy President then said (italics added):
"[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."
[11] Ms Greene's appeal grounds are as follows:
"1. The Commission seemed to replace much reliance upon the evidence of Mr Brennan, whilst Ms Greene provided character references as to her duties, the commission failed to take cognizance of such evidence.
[12] In her appeal submissions, Ms Greene submits, in summary, that:
it was never rebutted that Ms Greene's duties actually involved banking, staff training and managing staff; Mr Brennan acknowledged that there was a legal requirement to have a duty manager present at all times when the venue was open; and it was not in dispute that Ms Greene was the duty manager when Mr Dalli was not on site;
the Deputy President referred to Mr Brennan's evidence that he told Mr Dalli in July 2019 not to employ casual staff when penalty rates applied, and his statement in August 2019 that Ms Greene should not expect ongoing casual employment, but the Deputy President did not take into account that Ms Greene's hours of work did not reduce in July or August 2019;
the Deputy President likewise took into account Mr Brennan's evidence that he began to oversee the roster from December 2019, directed that Ms Greene not be employed on a regular and systematic basis, and that her hours were reduced as a result, but failed to take into account that the records showed that Mr Greene still worked an average of close to 30 hours per week in the December 2019-January 2020 period prior to her acceptance of permanent employment;
the Deputy President correctly identified the principles applying to the definition of regular and systematic employment, but incorrectly applied those principles to her assessment of the "Timesheet Report" which shows that Ms Greene worked consistently in every week except on weeks where she took a holiday;
there was no proper evidentiary foundation for the finding that Ms Greene was unavailable for casual shifts, days or weeks in the months of May, September, November and December 2019;
the Deputy President's reliance on Mr Brennan's evidence about the pattern of work was misplaced given that he did not have any involvement in the day-to-day running of the venue, and the rosters were left to Mr Dalli;
the Deputy President erred in her assessment that the pattern of hours, days and weeks worked by Ms Greene could not be construed as regular and systematic; and
• the Deputy President committed the same error of principle as that identified in the Full Bench decision of Chandler v Bed Bath N'Table.[10]
[13] In response, Floreat submitted that:
the grant of permission to appeal would not be in the public interest because the appeal does not raise any issue of importance and general application, there is no diversity in decision-making which requires appellate resolution, the decision does not manifest an injustice or a counter-intuitive result, and the legal principles applied in the decision are not disharmonious when compared with other recent decisions dealing with similar matters;
Ms Greene had not demonstrated a significant error of fact;
the evidence in the proceedings demonstrated that Ms Greene worked irregular hours from week to week, was offered shifts when staff were sick or there were unplanned shifts, chose her hours of work each week and could accept and refuse work offered, made clear she would not accept work for a period from the end of August to the beginning of October 2019, received a casual loading in lieu of leave entitlements, and was told in August 2019 that unless she accepted an offer of permanent employment she could not hold a reasonable expectation of continuing employment on a regular and systematic basis;
Ms Greene's submissions do not identify any question of law or significant factual error, and the Deputy President did not act on a wrong principle, was not guided by irrelevant factors, did not mistake the facts or fail to take some material consideration into account;
Ms Greene does not explain in her submission how the Deputy President erred in her assessment that the pattern of hours worked by Ms Greene was not regular and systematic;
it was Ms Greene, and not Floreat, which organised and determined when she would work on a weekly basis; and
• the authority of Yaraka Holdings Pty Ltd v Giljevic[11] had been correctly applied by the Deputy President.
[14] It is only necessary for us to consider and determine the third ground of Ms Greene's appeal. It is apparent, we consider, that the decision here was attended by the same error of principle that was identified by the Full Bench in the recent decision in Chandler v Bed Bath N'Table.[12] In that decision, the Full Bench referred to the decision of the ACT Supreme Court in Yaraka Holdings Pty Ltd v Giljevic[13], in which the court construed the expression "engagement, ...on a regular and systematic basis" in relation to casual employment in s 11 of the Workers Compensation Act 1951 (ACT) and determined that while the expression required the engagement of the casual worker to be regular, the pattern of hours worked pursuant to the engagement did not necessarily need to be regular, predictable or assured. The Full Bench noted that Yaraka Holdings had consistently been applied to s 384(2)(a) of the FW Act, and identified the error in the decision under appeal in the following way:
"[11] 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."
[15] The Full Bench then went on to say:
"[14] By treating the degree of regularity in the pattern of hours worked by Ms Chandler as disclosed by Annexure A as the only or decisive consideration in the application of s 384(2)(a)(i) (rather than merely as one of a number of relevant considerations in the analysis), we consider that the Deputy President misconstrued the provision. This erroneous approach resulted in the Deputy President failing to take into account a number of matters which pointed to a different conclusion, including Ms Chandler's contract of employment and the rostering system adopted by BBNT."
[16] In both her consideration of whether Ms Greene's employment was on a regular and systematic basis under s 384(2)(a)(i), and whether she had a reasonable expectation of continuing employment on a regular and systematic basis under s 384(2)(a)(ii), it is apparent from the italicised parts of the decision extracted above that the Deputy President treated as the decisive consideration that Ms Greene's hours of work did not appear to her to be consistent or predictable from week to week. This was inconsistent with the proper construction of the expression "employment ... on a regular and systematic basis' in s 384(2)(a), and indeed inconsistent with the principles concerning the interpretation and application of that expression stated in the decision by the Deputy President herself.
[17] This was a fundamental error of principle which has unfairly denied Ms Greene the opportunity to pursue her unfair dismissal application. We consider that the grant of permission to appeal would be in the public interest for the purpose of s 400(1) of the FW Act. We grant permission to appeal, uphold the appeal and quash the decision.
[18] We consider that the most efficient course is for us to re-determine the question of whether Ms Greene is a person protected from unfair dismissal based on the evidence that was before the Deputy President.
[19] We conclude, in respect of s 384(2)(a)(i), that Ms Greene's employment as a casual employee was on a regular and systematic basis from 4 March 2019 until Ms Greene became a permanent full-time employee. That it was regular is demonstrated by the agreed Timesheet Records annexed to this decision. They show that, apart from periods in which she took holidays by arrangement with Mr Dalli, Ms Greene was consistently engaged to work substantial numbers of hours in every week. Over each working week as a casual employee, she averaged approximately 36 hours worked per week - that is, close to full-time hours. It was systematic because, as the non-contested evidence showed, she worked in accordance with a roster that was established by Mr Dalli in consultation with her. The Timesheet Records further show that Ms Greene's rostered hours constituted the large majority of the hours she actually worked in every week, with the additional hours worked to cover business needs making up only a minority portion of the total hours. We consider that regular casual work undertaken in accordance with an established rostering system may reasonably be described as systematic in nature.
[20] We also consider, in respect of s 384(2)(a)((ii), that Ms Greene had a reasonable expectation of continuing casual employment with Floreat on a regular and systematic basis. This expectation arose from the fact that, pursuant to a roster system, she was employed every week to work substantial numbers of hours except when taking pre-arranged leave, and that she was involved in the preparation of the rosters to the extent that, as she said in her evidence, "I was always given first choice of hours and days". If Ms Greene was effectively able to select when and for how long she worked out of the available hours for each upcoming week, it is difficult to avoid the conclusion that she had a reasonable expectation of continuing employment on the same basis as her past employment. Indeed, it was Mr Brennan's evidence that Ms Greene's capacity to choose her shifts meant that she could choose the weekend shifts which carried with them the benefit of penalty rates. We also take into account that Ms Greene felt sufficiently secure in her casual employment that she was able to reject Floreat's initial offer of permanent full-time employment after returning from holiday between September and October 2019 and she continued to be employed regularly and systematically afterwards notwithstanding this.
[21] Mr Brennan's evidence to the effect that in August and December 2019 he said that Ms Greene should not be offered continuing casual employment on a regular and systematic basis does not alter the position. Whatever Mr Brennan may have said to either Mr Dalli or Ms Greene in this connection, this is not what Floreat did. The Timesheet Records show that Ms Greene continued to be employed regularly and systematically after these statements and up until the time she accepted permanent employment. This necessarily informed the expectation concerning continuing employment which Ms Greene held during her period of casual employment.
[22] For the above reasons, we find that Ms Greene's period of casual employment from 4 March 2019 until she became a permanent full-time employee on 20 January 2020 formed part of her period of employment under s 384(1), that Ms Greene therefore completed the minimum employment period, and that Ms Greene is a person protected from unfair dismissal.
(3) The decision ( [2020] FWC 4245) is quashed.
(4) Ms Greene's unfair dismissal remedy application (U2020/6241) is referred back to Deputy President Binet for final determination on the basis of our finding that Ms Greene is a person protected from unfair dismissal in respect of her employment with Floreat.
Ms A Greene on her own behalf, accompanied by Mr M Greene and Mr D Carney.
[10] [2020] FWCFB 306, 295 IR 1
[11] [2006] ACTCA 6, 149 IR 339
[12] [2020] FWCFB 306, 295 IR 1
[13] [2006] ACTCA 6, 149 IR 339
Printed by authority of the Commonwealth Government Printer
Amy Greene
Floreat Hotel Pty Ltd [2020] FWCFB 6019