Hancock v Promotechnics Entertainment Pty Ltd

Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd t/as Dymocks Parramatta [2001] NSWIRComm 46 CASES CITED: Ryde-Eastwood Leagues Club Limited v Taylor [1994] 56 IR 385

APPLICANT: Mr W Purdon, Solicitor LEGAL REPRESENTATIVES: RESPONDENT: Mr P Hayward, Solicitor Haywards Solicitors

DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Jessica Leigh Hancock and Promotechnics Entertainment Pty Ltd

Application by Jessica Leigh Hancock re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application by Jessica Leigh Hancock for unfair dismissal against Promotechnics Entertainment Pty Ltd pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). The application shows that Ms Hancock was employed as a children's entertainer/suit operator from 2000 to 22 April 2005. She described herself as a long term casual employee. 2 Ms Hancock's employment involved putting on shows in clubs, shopping centres and other venues, usually dressed as a character such as Bob the Builder, Lisa Simpson or Hop the Easter Rabbit. The work was usually on weekends or during school holidays. 3 Ms Hancock said the respondent's Events Manager, Ms Lisa Currey, offered her employment with the Barney "We're All Friends" Tour from 4 April 2005 until July 2005. On the evening of Friday 22 April, Ms Currey telephoned Ms Hancock and told her she was no longer required for the tour. When pressed for reasons, Ms Currey mentioned that Ms Hancock had worn black pants on one occasion, had worn a black headband and had left her nose stud in on one occasion. Ms Hancock was not satisfied with these reasons and tried unsuccessfully to make an appointment with Ms Currey over the next several days. 4 The issues to be determined at this time, by consent of the parties, relate only to questions of jurisdiction. 5 Mr Haywood for the respondent argued that the application was not within the jurisdiction of the Commission because Ms Hancock had been employed on a casual basis. Further, Mr Haywood submitted that the matter is excluded from jurisdiction because it was a contract of employment for a specified time and because the applicant was employed to do specified tasks. Mr Purdon for the applicant argued that the applicant was employed as a casual employee on a regular and systematic basis for a period over six months and that the applicant had a reasonable expectation of continuing employment with the respondent. 6 Part 6, Unfair Dismissals of the Act at s 83 reads relevantly: (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specific task, (b) ... (c) employees engaged on a casual basis for a short period, (d) ... (e) ....

7 The regulation referred to in s 83(2) is Regulation 6 which states: (1) For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: (a) employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months, (b) employees engaged under a contract of employment for a specific task, (c) ... (d) employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer. (2) This clause applies only with respect to dismissals under contracts of employment entered into on or after 1 October 1997. 8 I note briefly that the period of six months referred to in the regulation at (1)(d)(i) has been found to be beyond the provision set out in the Act (Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd t/as Dymocks Parramatta [2001] NSWIRComm 46). For present purpose the evidence goes to casual employment over an extended period and is claimed by the applicant to be regular and systematic since at least the middle of 2004, being well beyond the "short period" as required by s 83. The respondent's claim that the employment was limited to the period from 18 April to 14 May raises the question of whether that was a short period but, as will become apparent later in this decision, I do not need to consider that question. 9 Ms Hancock's evidence and that of her mother Mrs Jann Hancock were provided in affidavit form without cross-examination. Ms Jacinta Purvis, the Business Manager for the Group of companies to which the respondent belonged, was the only witness for the respondent. Ms Purvis was cross-examined on the contents of her affidavit evidence. 10 During the first three years of her employment with the respondent Ms Hancock was a student and restricted her work to weekends, holiday periods and after school hours. In 2004 she also worked occasionally for another agency, and accepted offers of work from whichever employer contacted her first. She said there were only two occasions when she declined offers of school holiday work for the respondent, both being because of jury duty. Ms Hancock said she was employed regularly by the respondent in 2005 until her termination and she expected to be employed each month on tours. 11 Ms Hancock provided in evidence a copy of a contract for casual work for rehearsal and then performances from 25 September 2004 to 10 October 2004, said to be the standard form of contract used by the respondent. Ms Hancock's evidence was that she was told by Ms Currey about two years ago that: I don't need a contract from you as you are reliable and will not let us down.

Ms Purvis agreed that the contract provided was typical of the contracts provided to employees from time to time. I accept therefore that, except for the increase in rate of pay, similar terms were inferred into the verbal contracts between the applicant and the respondent. 12 From the evidence of Ms Purvis and Ms Hancock and the form of the contract, it would appear that the respondent's practice was to engage the applicant for particular shows or tours. At the time of the dismissal, Ms Hancock was working on the Barney "We're All Friends" Tour. Ms Hancock claimed that the tour was from 2 April till July 2005, that is, the entire period of the tour. It commenced in Victoria from Monday 4 April to Friday 15 April and ran in Sydney from Monday 18 April, with a brochure showing fixtures at various venues through to Saturday 14 May. 13 Ms Purvis said that Ms Hancock was employed as the character of "Bob the Builder", as a dresser assisting others into costumes and as an usherette. Ms Hancock said she also was involved with rehearsals and assisted with setting up and closing the show, known as the "bump in" and 'bump out". Ms Hancock said her role did not include that of an usherette, but that aspect of her role is incidental to the question of jurisdiction and I do not need to say any more about it. 14 Ms Purvis gave evidence as to dates worked by Ms Hancock over the previous six months, in support of her assertion that Ms Hancock had not been employed on a regular and systematic basis. The information had been provided to Ms Purvis as Business Manger. It was shown in evidence to be wrong and, in fact, misleading as to the real nature of the employment. For example, a summary list showed no hours worked in November 2004 prior to 22 November, yet the payroll advice showed that work had been performed on 12 November. Further, the payroll advice showed that the work on November 12 had been for one hour paid at $114. On other occasions, according to the payroll advice records, one hour's work was paid at $57, $76, $80, $100, $228, $300 or $627.50. It is inexcusable that a Business Manager would rely on such information on face value to provide evidence to the Commission without some proper analysis. 15 It follows that I cannot accept the evidence of the respondent as to work done over the previous six months and must accept the only alternative on offer - that of the applicant. 16 The applicant said she was employed on a regular and systematic basis. As she was not required for cross-examination there is little detail associated with these assertion other than examples of specific shows and the requirements of the work. In the absence of any credible alternative, I am bound to accept Ms Hancock's statement as to her work history and expectations of continuing employment. If I am to consider the whole of the employment relationship over a period of time, or at least back to 2004, the respondent has not made out a case that the claim is excluded from jurisdiction on the basis of the casual nature of the work performed. 17 The question of jurisdiction is not one that depends on the interpretation of the facts by the parties themselves, as on an objective analysis of all the available material. On the basis of the evidence in these proceedings, I am not satisfied that the applicant was employed on a regular and systematic basis since 2004. Rather, she had an expectation of ongoing employment based on her frequent employment by the respondent. Her employment had been for different amounts of time over differing periods of time. I find that she does not satisfy jurisdiction on the basis of being a casual employee since 2004 who satisfies the legislative and regulatory requirements. Her employment over the period was that of a "true casual" (see Ryde-Eastwood Leagues Club Limited v Taylor [1994] 56 IR 385). 18 As to the other questions of jurisdiction raised by the respondent, the evidence shows that the applicant was employed for a period of work that was to run for a specified period of time or for a specific task, being the Barney "We're All Friends" Tour. If Ms Hancock's employment had been terminated at the end of the tour the jurisdictional impediment would arise. As the dismissal occurred during the tour, specifically during the Sydney leg of the tour, the question of jurisdiction needs to be examined. 19 Ms Purvis gave evidence that Ms Hancock had previously been employed for the Victorian leg of the tour from 4 to 15 April and the commitment the respondent made to the applicant was for employment from 18 April to 14 May, being the New South Wales part of what was billed as a national tour. Ms Purvis said that the shows were always billed as national tours although it was never known when they started if there would be bookings made in other states. She said that many parts, especially minor parts, were filled by local employees on interstate tours to minimise costs. 20 Ms Hancock agreed that the person who replaced her when she was dismissed did not go to Perth. Ms Hancock said she had left Sydney and travelled by van with the tour to commence in Victoria on 4 April, presenting two shows a day and returning to Sydney to continue from 18 April. Following her dismissal on 22 April, Ms Hancock's uncontested evidence was that her replacement continued the Sydney tour, was not required for the two weeks in Perth, recommenced on 21 June for shows on the New South Wales north coast and in Queensland and commenced a final Sydney leg which was completed on Saturday 16 July. Ms Hancock said this was the same as the commitment given to her by Ms Currey. 21 Ms Currey was not called to give evidence in these proceedings and Ms Purvis had no direct knowledge of the discussions between Ms Currey and the applicant. Nor was Ms Hancock's evidence challenged by the respondent. 22 I accept that Ms Hancock was offered a verbal contract of employment, as part of her ongoing casual employment with the respondent, under the respondent's usual terms and conditions for the whole of the Barney "We're All Friends" Tour with the exception of the two weeks in Perth. That is, her engagement as a casual employee was for an agreed period from April 4 to July 16, with a two week break in June. Ms Hancock's expectation of ongoing employment during this period was specifically put in place by the respondent through the person of Ms Currey, the person who was charged with making such arrangements on behalf of the respondent. 23 I do not accept that the work in Victoria and the work in New South Wales were different and separate tours, as submitted by Mr Haywood. Such an assertion is not consistent with the evidence that all staff, including cast, sound operator and crew were employed throughout the tour from April 4 to July 16, with the exception of Perth. Nor is there any direct evidence, apart from Ms Purvis' assertion, that the separate legs of the tour should be regarded as different periods of employment. Because Ms Purvis has relied on information conveyed to her without substantiating it for herself, I have to prefer the evidence of Ms Hancock in regard to the agreement reached between herself and Ms Currey. 24 The absence of a written contract was the choice of the respondent which did not put the offer in writing for its own convenience. Ms Hancock did all that she could to fulfil the expectation of ongoing employment, at least to 16 July, including giving up other casual work (sales and cheerleading) to ensure her availability over the period of the tour. She also understood the usual terms of employment with the respondent was for the length of a tour. As was said earlier, she was known by the respondent to be reliable. 25 Apart from Ms Purvis' statement, the evidence points to an ongoing expectation by both the applicant and the respondent that Ms Hancock would perform throughout the tour, with the exception of Perth. 26 The terms of the verbal agreement between Ms Hancock and the respondent were for a fixed period, namely, the length of the tour, or for a specific task - the tour. The term "casual" was used to denote the rate of pay and the conditions of work. The contract is in the nature of a temporary engagement and I accept it as such. 27 For ultimate caution, I should add that, while the employment for the duration of the tour was nominated as casual, I find that the period from April to July was not a short period, particularly as it involved two shows a day, generally on Monday to Saturday or Tuesday to Saturday each week, and included travelling on weekends and between shows, and included a definite expectation of ongoing employment to the end of the tour. The relevant period of employment at the time of dismissal is not an ongoing period since 2004 or earlier, but the period from 4 April 2005 only. 28 If Ms Hancock's employment was for the tour, being a specific task or project, she was dismissed before the project was complete. Alternatively, if it was for a specified time as Ms Hancock said, being approximately twelve weeks, the dismissal occurred before that time had elapsed. That is, while the contract was for a specified period of time or a specific task, the dismissal within that specified period and/or prior to the completion of the task was in breach of the arrangement and therefore falls within the jurisdiction of the Commission. 29 It follows that Ms Hancock's claim for unfair dismissal is not excluded from jurisdiction through the application of s 83(2). In regard to the employment since 4 April 2005, the claim is within jurisdiction. 30 Leave is granted to either party to seek the matter to be re-listed within 21 days for the purpose of progressing the claim.

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