Forbes v Bega Valley Shire Council

The applicant's case

1. The applicant filed an affidavit in the proceedings in which he disagreed with the assertions made by Mr Screen to the effect that his employment was irregular and ad hoc. He stated that, while his week to week hours varied he was included on a weekly roster. Rosters are produced a month in advance and he was required to notify periods of unavailability. He claimed that in each week he has worked over the last two years, he has on average worked 20 hours a week. While his work location varied site to site and his hours varied, he claimed that there was an ongoing employment relationship. The applicant disputed the number of times claimed by Mr Screen when he turned down work. He also claimed that he had a reasonable expectation of ongoing employment.
2. In written submissions filed by the United Services Union ("USU") on behalf of the applicant, reference was made to the decision of Sams DP in Larcombe and EBL Catering ([200 1] NSWIRComm 149) in which his Honour considered the decision of the Full Bench in Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta ([2001] NSWIRComm 46 which dealt with the question of what constitutes a "short period" for the purposes of subsection 82(2)(c) of the Act. As the respondent did not canvass this issue as part of its jurisdictional objection, I do not propose to consider it further, other than to indicate that I am well satisfied that the applicant, having commenced as a casual employee with the respondent in January 2019, was not, at the time of his dismissal in May 2020, "engaged on a casual basis for a short period".
3. The applicant's submissions continued as follows: 9. We disagree with the submissions of the respondent stating that the applicant to the proceedings has not been engaged on a basis that can be considered to be systematic with a reasonable expectation of work into the future. We contest the nature of the work pattern of the applicant with a clear history of rostering as attached to the affidavit of the applicant, and consistent employment the submissions of the respondent are clearly incorrect. 10. While in the past the definition of systematic engagement as provided by Smajlagic and Karhunan (Smajlagic and Heidi and Ellis Karhunan (1999] NSWIRComm 117) and the decision of Ryde-Eastwood Leagues Club Ltd v Taylor ([1994] 56 IR 385) could be provided a reasonable test to determining regular systematic employment, they must be read in conjunction with some more recent decisions that have amended the understanding of what is regular and systematic.. 11. The decision of Ponce v DJT Staff Management Services Pty Ltd (Ponce v DJT Staff Management Services Pty Ltd trading as Daly's Traffic ([2010] FWA 2078) recognised that Regular and systematic does not necessarily mean the hours and days must be regular and systematic with Roe C stating: 'regular and systematic' means that there must be "sufficient evidence to establish that a continuing relationship between the employer and the employee has been established where: a) The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and b) Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular" The employment pattern of the applicant clearly reflects this test regularly being available and rostered within a schedule of recognised availability, and the length and consistency of the employment was such it could not be simply considered to be occasional or irregular. 12. For this reason the test as established in Ryde-Eastwood Leagues Club Ltd v Taylor prior to the existing Industrial Relations act, still applies besides the test that the hours of work be regular, and that there is consistent start and finish times. Ponce reinforces that consistency of work hours or regular start and finish times are not required to demonstrate the existence of an ongoing working relationship. 13. The decision of Ponce has been supported and reinforced more recently with the decision of Kamanda v House with No Steps ([2016 FWC 767). This case reinforced the determination of Ponce with the a liberal application of the definition of regular and systematic. The term "regular" should be construed liberally. It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant. Employment on a "regular" basis may be constituted by frequent though unpredictable engagements without a consistent roster or set hours. The term "systematic" requires that the engagement be "something that could fairly be called a system, method or plan". The concept of engagement on a "systematic" basis does not require the employee 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 on the employee's services as an incident of the business by which he or she is engaged. In the circumstances of the applicant the rostering, and timesheets, showing the engagement clearly reflects the establishment of this relationship. 14. In considering the other tests provided by the respondent in relation to Ryde Eastwood Leagues Club Ltd v Taylor, the applicant clearly meets each of these tests. The applicant has had consistent rostered work as demonstrated in the affidavit he has provided at Annexure A, based on the length and nature of the employment there is a clear reasonable expectation for the continuing work to be provided were it not for the actions of the respondent, the applicant was required to provide notice for periods of unavailability and/or leave, and the applicant could reasonably expect that this work would be available considering his own roster pattern and the patterns of the other casual employees. 15. Similarly the recent appeal in Chandler v Bed Bath N' Table Pty Ltd ([2002] FWCFB 306) the full bench again recognised in testing as to whether employment was regular and systematic and if there was a reasonable expectation of ongoing work, it is simplistic and an incorrect application of the tests as to whether a casual employee has a right to unfair dismissal based on recent hours work and availability, rather to assess the nature of the employment relationship the entire engagement of employment must be considered. Again the pattern of work held by the applicant for the entire period of employment reflects the ongoing nature of the work relationship as seen in the rosters and timesheets attached to the applicant's affidavit. 16. Regarding the provisions of casual employment provided in Clause 26 (i.) of the Local Government (State) Award 2017 while it is true the intent of casual employment is to be on a day to day basis, the system of rostering for not only the applicant but other casuals employed within this division of council do not reflect employment on this basis, with an active consistent employment relationship for casual employees. The reality is based on this definition it is likely the respondent is in fact in breach of the Local Government (State) Award 2017 and inappropriately engaging casual staff in positions that should be classified as permanent, in fact based on this definition it could be considered that these casual staff are permanent employee with an inappropriate classification in an attempt to undermine employment security. 17. While the respondent argues that the request for flexibility and reduced capacity to work across all sites following the loss of his home in the fires, would provide reason that there shouldn't be expectation for ongoing employment, the reality is the submissions of Mr Screen's affidavit should be brought under scrutiny as it is clear that the employment process ceased following the receipt of an email, stating the applicant's services were no longer required. Were it not for this action there would remain an ongoing employment relationship. 18. The applicant's employment cannot be considered to be for a short period as defined by Section 83(2)(C) and therefore should not be excluded from the right to relief from unfair dismissal. Were the commission to find that employment has been for a short period the employment can not be considered anything but regular and systematic with a reasonable expectation of ongoing work, and considering the engagement has been greater than a period of 6 months, the applicants application meets the tests provided by Regulation 6 (d) Industrial Relations (General) Regulation 2015. 19. The commission should recognise and sustain the application for relief from unfair dismissal made by the applicant and allowing the substantive matter to progress to hearing.