[2] Put shortly, Mr McKeown contended that Mr Grey had been employed by the respondent, Ardmona Foods Pty Ltd as a casual employee for the following periods during the 1999-2000 season:

Mr Grey had been dismissed on 7 March 2000 with notice (1 hour's notice being required by either party in accordance with his contract of employment) on the grounds of his conduct on 6 March 2000.

[3] Whilst acknowledging that Mr Grey had been employed by the respondent during the season over some seven or eight years, Mr McKeown submitted that Mr Grey was a causal employee for less than twelve months and thus fell within the category of employee identified in Regulation 30B(1)(d) as excluded from the Commission's jurisdiction.

[4] Mr McKeown drew on the provisions of the Act, namely s.170CC(1)(C) and Regulation 30B(1)(d) and Regulation 30B(3) to formulate three tests which had to be considered by the Commission in determining whether Mr Grey's application fell within the jurisdiction of the Commission. These tests were:

(ii) Was Mr Grey engaged on a regular systematic basis for a sequence of periods of employment during a period of at least twelve months? and

(iii) Did Mr Grey have a reasonable expectation of continuing employment?

He submitted that whilst Mr Grey's circumstances satisfied (i), neither (ii) nor (iii) were met.

[5] Evidence was given by Mr Schubert, Human Resources Manager for the respondent for some six years. That evidence might be summarised as follows:

• In December 1999 - January 2000, the high season for fruit processing, the company employed approximately 1500 employees.

• During the season the company operates over 24 hours with a day shift, an afternoon shift and a night shift with two casual shifts - one from 11 p.m. to 4 a.m. and the other from 11 p.m. to 5 a.m.

• In October - November 1999 the company in accordance with the usual practice advertises vacancies in the local press and some 3,500 applications/registrations were received - two thirds of those by way of the normal process - completing a registration form and one third by way of the company's web site - an innovation introduced for the 1999 season.

• Having described the registration process he identified Mr Grey's registration card for 1999 - 2000.

• Mr Grey had registered for casual employment on the night shift for the "cocktail" production within the deciduous fruit production division - the only form of employment possible in that area as a consequence of an agreement reached some years back with the then Food Preservers Union.

• Mr Grey had incorrectly completed his registration form by stating that he had previously worked for nine seasons when in fact he had only worked for seven seasons.

• Mr Grey had been rated in his last season 1998-99 in category "A" - the second highest rating. He attested to the ratings given for each of the six criteria upon which the aggregate rating is based and that for the categories "work performance" and "attitude to work" he had been rated "B". (He had been rated A for each of "attendance, initiative, flexibility and communication.")

• Employment as a casual provides no leave entitlements but a loading of 20% for the 1999-2000 season.

• Mr Grey had in the 1998-1999 season been employed as a seasonal employee but for all other seasons as a casual.

• At the time of commencement each year each employee is provided with a start up kit regardless of their employment classification. The kit includes a range of documents informing employees about various aspects of their employment including:

a) Ardmona Foods Limited statement of class of employment in accordance with clause 8B of the Food Preservers Interim Award 1986 which sets out the definitions of the various forms of employment including casual.

b) A general information sheet which describes among other things "Termination of Employment", as they relate to each of the categories of employment-weekly, seasonal and casual.

• Mr Grey had completed the tear off slip for 1999-2000 acknowledging his receipt of the start up kit, that he had read its contents and that he was engaged as a casual employee.

• Mr Grey had completed a comparable slip for the 1998-1999 season and had been employed initially as a casual and then as a seasonal employee and accrued sick leave, annual leave and RDO entitlements for his period of employment as a seasonal employee.

• Mr Grey had been employed as a casual for the 1993-1998 seasons.

• An investigation had been conducted into events involving Mr Grey's performance including the use of a forklift on 6 March 2000 and lead ultimately to his termination.

• He attested to the processes leading up to the termination, the termination letter and the "C" assessment of Mr Grey's performance for the 1999-2000 season.

• The use of casuals on the night shift was at the company's initiative for financial reasons and was accepted by the union.

• The use of the term "seasonal work" in the company's advertisement was widely understood as work during the fruit processing season and was not a specific reference to the "seasonal" category of employment contained in the award. This difference in terminology was reflective of various material, such as seasonal employment report, used by the company.

• Stated that whilst an "A" rating carried with it the comment "you have made a valuable contribution in all the aspects of your work performance. You can expect to be re-employed at our earliest convenience subject to suitable work being available" it had to be considered in the context of the overarching comment which said: "Please note, the prospects for future employment are subject to suitable work being available and seasonal variables." He then cited the variations in seasonal employment over the three last seasons which were 1,500, 1,780 and 900 for 1997-98. He did acknowledge that all employees classified as "A+" would be re-engaged each year if they registered and there was work available.

• He acknowledged that it was possible that the company would reemploy Mr Grey but not as a fork lift driver and only if there was a bumper crop and the company was desperately short of employees.

• He had been employed as a seasonal worker for the last 8-10 seasons.

• The use of the term seasonal worker did not reflect any specific award category.

• He had received a start up kit each season and completed the documentation it contained.

• He did not know whether he was employed for the 1999-2000 season as a seasonal employee or casual employee. He had indicated that he wanted to work the 11 p.m. to 7 a.m. shift and accepted that on the registration form his employment was classified as casual. He had worked that shift and had not been paid any annual leave or sick leave.

• In every other season he had, along with the other employees, been given a "greeny"? which provided two days notice of the termination of their employment.

• He was a dairy farmer but because of deregulation was going to sell up.

• He was currently employed on a six month contract (probation) as a Sales Manager with Shepparton Vibrating Concrete.

• Under cross examination he described the processes followed in relation to his recruitment and employment over the period 1993-1999. He also acknowledged that apart from the 1999 season he had not had an entitlement to annual leave, sick leave or long service leave.

• Ultimately whilst insisting that for the 1999-2000 season he did not know whether he was employed as a casual or a seasonal worker and was unfamiliar with the award employment categories. He acknowledged that if he had not received the 20% loading he would have complained.

• Accepted that for the 1998-1999 season he had been graded as needing to improve, but he had raised that grading with a Mr Bertram who had advised him to ignore the "B" ratings because he should have been taken aside and had explained the basis for those "B" ratings in two categories and as that hadn't occurred they should be disregarded.

• Accepted that he had received one hour's notice in relation to his termination on 7 March 2000 and had been given a termination letter stating that his performance had been not satisfactory.

• Accepted that at the time of his termination his expectations of ongoing employment were not good.

• Accepted that when he applied for work each year there was not any guarantee of work in the future.

• That for the 1998-99 season he was just told he was going to be a seasonal worker. He had also been concerned about his performance rating for last season, particularly the "B" classification in two categories which lead him to make enquiries because of its possible implications for his employment in the next season.

• He believed that whilst his actions on 6 March were foolish, they had not endangered any employees.

[7] Mr McKeown relied on a number of authorities in support of his contention that the Commission lacked jurisdiction to deal with Mr Grey's application. He examined in some detail those authorities which were:

• _JE Ross v Court Recording Services (New South Wales) Pty Lt_d [Print R8254]

• GB Graham v Blue Suits Pty Ltd t/a Toongabbie Hotel [Print S0282]

• C Hogan v Puckle Street Newsagency [Print S7349]

• J Egan v Botanic Gardens Management Services Pty Ltd [Print S4512]

• TM Stone v Australia Post IRCA 31 May 1995 AI95/1002

[8] Mr McKeown contended that Mr Grey was engaged as a casual employee on the evidence in that:

• Mr Schubert had testified that only casuals were employed on night shift.

• Mr Grey did not have an entitlement to sick pay, annual leave or long service leave.

• Mr Grey had acknowledged receipt of various documentation which indicated he was engaged as a casual.

• Mr Grey has a full time position and operates a dairy farm.

• The evidence of both Mr Grey and Mr Schubert clearly points to his employment as a casual.

[9] It was also contended that Mr Grey's employment:

• Involved on each occasion a registration process being used by the company.

• Involved him being presented on each occasion with various forms and informative material.

• Required participation on most occasions in an induction seminar.

[10] Turning to the second test - was Mr Grey engaged on a regular and systematic basis for a sequence of periods of employment during a period of at least twelve months - Mr McKeown submitted that:

• Mr Grey had been employed for less than twelve months - December 1999 to March 2000.

• There was no continuity in terms of previous periods of employment.

• There was a clear distinction as between seasonal workers, weekly employees and casuals.

• The requirement of registration anew for each season demonstrates there is no continuity.

• There is no guarantee of employment for these individuals who register because of the numerous exogenous factors in operation.

• The employment history of Mr Grey reveals a pattern of casual employment but not continuous employment - there is a major difference between a sequence of periods of employment as opposed to short periods of casual employment.

• The assessment process needs to be considered within the broader context of individuals deciding from year to year whether they want to work and if so register.

[11] Mr McKeown submitted that Mr Grey did not have a reasonable expectation of continuing employment not only because of the incidents on 6 March 2000 but also because of the assessment of his performance over the 1998-99 season.

[12] Mr Hale for the applicant submitted that each of the authorities relied upon by the company as a basis for determining whether Mr Grey was a casual were not relevant and failed because in each instance the employee involved had not been engaged for a period of more than twelve months.

[13] He contended that the logical consequence of the argument advanced by the respondent

"that a casual employee cannot have an ongoing employment relationship over… eight years, is to say effectively this part of the Act can never apply to a casual employee."

This would be so, if that interpretation be accepted, because of the very nature of the terms of employment, which in the instant case involves a notice period of one hour. Their employment contract ceases daily and restarts on the next occasion.

[14] Mr Hale submitted that Mr Grey had had a regular and systematic sequence of periods of employment and relied on the decision in J Egan v Botanic Gardens Management Services Pty Ltd as authority for that contention.

[15] He tendered, as Exhibit G2 a document entitled Proposed Precedure [sic] - Selection of Seasonal F.P.U. Employees which had been the subject of proceedings in the Australian Conciliation and Arbitration Commission in 1987. That document sets out a process which had been agreed between the parties in part settlement of a dispute. Mr Hale drew particularly on point 4 in that document which states as an aim of the procedure;

"That provides incentive to seasonal employees who have performed well, through a reasonable expectation of re-employment in subsequent seasons."

[16] Clearly in his submission there is a reasonable expectation of reemployment under these guidelines. He submitted that the assessment processes contained in that exhibit were reflected in a somewhat revised form under the current procedures which incorporated an "A+" rating and stated;

"…an A+ rating employee can expect to be reemployed at our earliest convenience, subject to suitable work being available." (Transcript p.57)

[17] He contended that it was reasonable to believe that ongoing work would be available save for an outbreak of a locust plague.

[18] As regards the requirement of regulation 30B(3) that there be employment on a regular and systematic basis for a sequence of periods/employment during a period of at least 12 months, Mr Hale contended that much employment had occurred over a period of at least 8 years and that it was systemic given the systematic nature of the seasons. As he put it:

"Every time the season comes along, Darren Grey has gone to Ardmona, he has filled in his registration and, because of the rating that he has received from the previous year's employment, has been given employment. And that depending on that rating, there is a priority in relation to his receiving that employment. And that, as he told the Commission, he was concerned when he got an A rating instead of a A+ rating. He did ring up. He did enquire and he was advised not to worry about it." (Transcript p.59)

[19] Mr Hale then drew on the decision of SDP Watson in the matter of Stokes v Westernport Cool Stores Pty Ltd [Print Q7557] 14/10/98, (1998) 44AILR3-921, where it was stated:

"A seasonal employee who has worked on a regular basis over a number of years for a particular employer will be able to bring an application in relation to termination of that employment. Although such an employee may well be a casual employee, the regularity and consistency of his or her engagement means that the employee is not a casual employee engaged for a short period of time within the meaning of the exclusion in reg 30B(1)(d) of the Workplace Relations Regulations.

The employee in the present case had worked daily for 16 week periods over almost 4 years, being paid a casual rate of pay plus loading. Senior Deputy President Watson said that the evidence leaned more towards a finding that the applicant was a casual employee, but even if she were, she was not a casual employee engaged for a short period of time as required by reg 30B(3), as her work pattern had been regular and systematic and she had a reasonable expectation of continuing employment with her employer."

[20] Mr Hale submitted that the circumstances which related to Mr Grey were directly analogous. Mr Grey's performance had been classified as an "A" in the previous season and had a reasonable expectation of being employed as was clear from the definition for an "A" rating contained in the performance document viz

"You have made a satisfactory contribution in terms of reliability and work performance. You can expect to be re-employed as processes in which you are experienced scale up."

[21] Mr Hale then addressed specifically the three questions posed in Egan v Botanic Gardens Management Services. He contended that there was doubt as to whether Mr Grey was employed as a casual given that for the previous season he had been employed as a seasonal employee. He certainly had not been engaged by way of a fixed term contract and if he had been, he had been terminated before the end of the season. There was not a need therefore for the Commission to determine whether Mr Grey was a casual. Despite these contentions Mr Hale indicated that if it were found that Mr Grey was employed as a casual that finding would be accepted.

[22] Mr Grey met the second test in that he had been engaged on a regular and systematic basis for a period of at least 8 years. It was regular in that it occurred with the advent of the fruit season. For the same reason it was systematic.

[23] In relation to the third test regarding an expectation of ongoing employment Mr Hale submitted that the fact that Mr Grey has contested his termination and does not accept the decision to give him a "C" rating comes with it the possibility that his application would be successful and that his "A" rating would be restored then his prospects of re-employment would be good. As he put it:

"because once you are terminated, if you are not allowed to seek redress from the Commission because your expectation of re-employment is not good, well, then, you are never going to be able to (obtain) redress from the Commission." (Transcript p.62)

[24] He submitted that apart from the incident which led to his termination, Mr Grey's assessment was such that he would have had a reasonable expectation of further employment as Mr Grey had not done anything prior to the events of March 6 which would ground an expectation that he would not be employed the next season, certainly he had not previously been the subject of any disciplinary actions.

[25] He submitted that the authority relied upon by the respondent, TM Stone v Australia Post, was clearly distinguishable on its facts to the instant case and therefore was not relevant.

[26] Mr McKeown submitted that the authority relied upon by the applicant - Stokes v Westernport Cool Stores was clearly distinguishable on its facts. In that case the casual employee had been employed from October 1994 until 6 May 1998 continuously except for two brief absences, one or three days in February 1998 and a few days associated with the birth of her grandchild. Those circumstances were not comparable with the situation where there were separate compartmentalised periods of employment each season. It would be a mistake to view those previous periods of employment of Mr Grey at Ardmona as constituting an ongoing agreement of re-employment.

[27] It is clear that Mr Grey was employed by the respondent for the 1999-2000 fruit season as a casual employee pursuant to the provisions of clause 8(a)(iii) of the Fruit Preservers' Interim Award 1986 and that Mr Grey had signed an acknowledged receipt (Exhibit A5) that he had been engaged as a casual. That fact in itself is not determinative.

[28] On the evidence before me it has been established that Mr Grey was in receipt of a 20% loading on the award rate of pay for weekly and seasonal employees. Moreover Mr Grey had no entitlement to and did not receive any annual leave, sick leave or long service leave. In relation to his capacity to choose whether or not he would work, the facts are not clear. However the award provides at clause 8(a)(iii):

"On a casual basis in which case employment shall be terminated by one hour's notice on either side given at any time or by the payment or forfeiture, as the case may be, of one hour's ordinary pay at the casual rate then applying. The rate of pay for a casual employee shall be as prescribed by sub-clause (k) of this clause."

[29] Mr Grey was also employed on three separate periods during the 1999-2000 season until his termination viz: 21/12/99-31/12/99, 4/1/00-13/1/00 and 24/1/00-7/3/00 - Clearly on an as needs basis by the respondent.

[30] I have considered these facts in the light of the indicia specified in Bluesuits Pty t/a Toongabbie Hotel v Graham [Print S0282] and find that Mr Grey was employed as a casual employee at the time of his termination by Ardmona.

WAS MR GREY EMPLOYED ON A REGULAR AND SYSTEMATIC BASIS OVER A PERIOD OF AT LEAST TWELVE MONTHS?

[31] In considering this issue it is necessary to have regard to Mr Grey's employment history with Ardmona. It was helpfully tabulated in Exhibit A6 which I have incorporated below:

Cleaner/Reliever, Tubbing cherries. Opening pineapple. Relief Fork Lift Driver (Training).

[32] An examination of that table reveals that since 1994 Mr Grey has been engaged regularly by Ardmona as a casual during the annual fruit season up until and including 1998 in the February of that year. For the 1998-99 season he was engaged in December, for one day as a casual and then for some three months as a seasonal employee, whilst for the 1999-2000 season he was engaged as a casual on three separate occasions.

[33] That table also reveals that since 1999 Mr Grey has been engaged for between 1.5 months and 3 months every year since February 1994. He had also been the subject of a performance assessment by the company and at the end of the 1998-99 was rated "A". In light of these facts I am satisfied that Mr Grey has been employed on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months. In coming to that conclusion I have had regard to the normal usage of the words regular and systematic. The Macquarie Concise Dictionary defines regular in the following way:

Regular. 1. usual; normal; customary: to put something in its regular place. 2. conforming in form or arrangement; symmetrical: regular teeth. 3. characterised by fixed principle, uniform procedure, etc.: regular breathing. 4. recurring at fixed times; periodic: regular meals… 6. observing fixed times; periodic: regular customer.

Systematic. 1. having, showing, or involving a system, method, or plan: a systematic course of reading, systematic efforts. 2. characterised by system or method; methodical: a systematic person, systematic habits.

[34] The engagement of casuals for every season clearly is both periodic and recurs at regular times. It is also undertaken in accordance with a plan and involves a regular method (Exhibit A4) and system.

[35] In my view the fact that Mr Grey was employed as a seasonal worker for all but one of the days of his employment in the 1998-1999 season does not effect the fact that he was engaged for a sequence of periods of employment. Deegan C in Kirsten Gibson and August Krux Media Pty Ltd [Print R2832] considered the issue of whether the regulation restricted the periods of employment to periods of casual employment and concluded that given the beneficial nature of the legislation and the usual meaning of the words the term "periods of employment" was not to be read as limited to "periods of casual employment." I respectfully adopted that reasoning in Bourke and Brown Gouge Rosebud [Print S7771]. Whilst that decision is under an appeal in that it is currently the subject of the consideration of a Full Bench of this Commission, I see no reason to change my view in that regard.

[36] In light of the above I am satisfied that the requirements of Regulation 30B(3)(a) are met.

[37] Finally I do not accept that but for the decision by Ardmona to terminate Mr Grey's employment he would not have had a reasonable expectation of continuing employment by Ardmona. A examination of the table at p.9 above points to an expectation that Mr Grey would have continued in employment until late March or early April 2000. Moreover his performance rating, (currently C as a consequence of the basis of his termination) might well be progressed to a "B" or an "A" as a consequence of a successful outcome of his application pursuant to s.170CE of the Act and/or a review under the provisions of the award. Consequently I find that the requirements of Regulation 30B(3)(b) are met.

[38] In view of these findings the application by Ardmona Foods Pty Ltd is dismissed. I am satisfied that this Commission does have jurisdiction to consider Mr Grey's claim and I have referred the file for allocation for a conciliation.

Termination of employment - unfair dismissal - jurisdiction - whether casual - applicant employed at fruit processing plant for about 2 months per year since 1994 - satisfied employed casually at time of termination - satisfied employed on regular and systematic basis during a period of at least 12 months - 'periods of employment' not to be read as limited to periods of casual employment - but for termination there was reasonable expectation of continuation of employment - jurisdiction found - referred for conciliation.

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