Fair Work Act 2009_

s.394 - Unfair dismissal

Application for relief from unfair dismissal - jurisdictional objections - small business - minimum employment period not served.

[1] The Applicant filed an unfair dismissal application on 18 April 2016 alleging that he was dismissed by the Respondent on 12 April 2016 in that he resigned from his employment but was forced to do so because of conduct engaged in by the Respondent.

[2] The Applicant commenced employment with the Respondent on 5 October 2015 and had just over six months employment as at the date of dismissal.

[3] The Respondent in its Form F3 raised three jurisdictional objections to the application: that the Applicant was not dismissed; that the Applicant had not met the minimum employment period; and that the Respondent was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

[4] The Respondent filed with its Form F3 a list containing the details of the 14 employees employed by the Respondent at the Swan Hill Domino's Pizza outlet.

[5] The jurisdictional objection that the Applicant had not served the minimum period of employment because the Respondent was a small business was listed for hearing before me on 13 May 2016.

[6] Shortly after that hearing Mr Pankaj Monga, the Director of the Respondent conceded that the Respondent was not a small business within the meaning of s.23 of the Fair Work Act in that there were associated entities of the Respondent and that the total number of employees of the Respondent and the associated entities was more than 15.

[7] The Commission is satisfied and so finds that the Respondent is not a small business within the meaning of s.23 of the Act.

[8] At the hearing on 13 May 2016 Mr Monga contended that the Applicant had not served the minimum period of employment in that the employee was a casual employee and was not employed on a regular and systematic basis. At the conclusion of the hearing the Respondent was given an opportunity of filing further material in support of its contentions. The Applicant was given an opportunity to respond to any further material filed by the Respondent.

[9] The Fair Work Act 2009 deals with the issue of minimum employment period as follows:

(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;

(b) if the employer is a small business employer - one year ending at that time.

(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 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; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer."

The Respondent contended that the Applicant was never given a guarantee of hours of work nor was he provided with his desired hours of work. This contention is not challenged by the Applicant. The contention however is irrelevant. The Applicant concedes that he was employed as a casual. The issue raised by s.384(2) is not about the presence or absence of guaranteed hours or even desired hours. Rather it is concerned with whether the employment as a casual was on a regular and systematic basis and whether the Applicant, as a casual, had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[10] The Respondent contended that the Applicant usually worked irregular hours. This contention relied on operation of s.384(2)(a) and if true would exclude the Applicant's period of casual employment from counting towards the minimum employment period.

[11] The Commission required the Respondent to file and serve the details of the hours worked by the Applicant including the start and finish times each day worked. The Respondent did not file any such material with the Commission. However, the Applicant provided to the Commission all of his pay records which showed the days worked and the number of hours worked on each day but which did not show start and finish times. The pay records provided by the Applicant show the following:

[12] The most obvious aspect of the above chart is that the Applicant worked every week except for week 23 and that from his commencement of employment until week 22 the Applicant was anything but an irregular casual employee. The picture painted by the above chart is one of regular and systematic employment. On 3 March 2016 which is in week 22 the Applicant raised a complaint with Domino's head office about his employment with the Respondent. The Applicant contends that as result of making the complaint he was removed from the roster as from 3 March 2016. The Applicant was offered no further work in that week and none in week 23. Some limited hours were offered to the Applicant in the remaining weeks of his employment. This period coincides with further communications between the Applicant and Domino's head office and the Applicant contends that he only received hours as a result of Domino's head office communicating with the Respondent.

[13] In his unfair dismissal application the Applicant contends that it is the conduct of the Respondent since 3 March 2016 which constitutes the course of conduct by the Respondent which forced the Applicant to resign his employment.

[14] The pattern of work for the first 22 weeks is regular and systematic and I accept the contention of the Applicant that he had reasonable expectations of continuing employment on a regular and systematic basis. Whilst the Applicant portrays his working hours in weeks 24 to 27 as being provided by the Respondent only because of the involvement of Domino's head office they are still regular and systematic.

[15] I am satisfied, having considered the contentions of the Applicant and the Respondent and the material filed by each of them that the employment of the Applicant was on a regular and systematic basis and that the Applicant as a casual employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[16] On the basis of this finding the entire period of employment of the Applicant as a casual employee counts towards the minimum employment period. Therefore the period of employment of the Applicant for the purposes of calculating the minimum employment period is 27 weeks. This is greater than the six month period required by s.383(a).

[17] As the Applicant has served the minimum employment period, this application will be subject to further proceedings before the Commission.

Printed by authority of the Commonwealth Government Printer

var _gaq = _gaq || []; _gaq.push(['_setAccount', 'UA-9592794-1']); _gaq.push(['_trackPageview']); (function() { var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true; ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google-analytics.com/ga.js'; var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s); })();