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[2020] FWC 4490
procedural. The respondent's jurisdictional objection was dismissed. The Commission found that Khedher had completed the required minimum employment period; the decision did not determine the merits of his...
1 cited instrument linked from this judgment.
The employer argued that Khedher's casual work did not count towards the qualifying period for an unfair dismissal application. The Commission accepted his undisputed account of a recurring weekly work pattern and an expectation that the work would continue. The employer did not provide the requested roster or payroll evidence. The Commission found that Khedher met the six-month minimum employment period and dismissed the employer's objection. It did not decide whether the dismissal itself was unfair.
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In Mr Aymen Khedher v Le Pre Cuit Pty Ltd T/A Le Bon Choix [2020] FWC 4490, Commissioner Hunt dealt with a preliminary jurisdictional objection to an unfair dismissal application. The issue was not whether the dismissal was harsh, unjust or unreasonable. It was whether Khedher had completed the minimum employment period required to bring such an application, given that the employer treated him as a casual employee.
Khedher applied under s 394 of the Fair Work Act 2009 on 15 June 2020 [1]. His application gave 14 August 2018 as his employment start date, 26 May 2020 as the end date, and 10 June 2020 as the date he was informed of his dismissal [2]. He described a recurring work pattern and said he had not been told of performance concerns before being removed from the roster. He also relied on discussions about a possible store manager role [2].
The employer objected on the basis that Khedher was a casual employee and had not met the requirements in s 384(2) [3]. It relied on Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709, quoting the proposition that each casual engagement may be a separate contract [3]. The Commission asked Khedher to explain why he considered his service to qualify. He said he generally worked Mondays and Tuesdays, sometimes Wednesdays, and usually 20–25 hours each week. He also relied on rosters and on his understanding that the work would continue [5]–[6].
The Commission directed the employer to provide material about the regularity of Khedher's shifts, including a weekly payroll record if available [8]. The employer missed the filing date, requested an extension after its representative had recorded the dates incorrectly, and then missed the amended date as well [10]–[14]. After a further opportunity to provide the material, it did not respond [15]–[16].
On the evidence before her, Commissioner Hunt accepted Khedher's account as uncontested. She found that he had met the minimum employment period and dismissed the employer's jurisdictional objection [21], [25]–[26]. That left the substantive unfair dismissal application unresolved.
The statutory starting point was s 384. As reproduced in the decision, an employee's period of employment is generally the period of continuous service completed with the employer. But casual service counts only if two conditions are met: the employment was on a regular and systematic basis, and the employee had a reasonable expectation of continuing employment on that basis [17].
The Commission proceeded on the basis that the applicable minimum employment period was six months because the employer had stated that it had 15 or more employees [17]. The decision does not set out a dispute about the employee-count threshold. It identifies the disputed point as whether Khedher's casual service qualified under s 384(2)(a).
On the first condition, Khedher's evidence described a recurring pattern rather than isolated, unpredictable engagements. He said he generally worked on Mondays and Tuesdays, sometimes Wednesdays, and worked 20–25 hours a week [5]. At [21], Commissioner Hunt summarised that evidence and noted that the employer had not disputed it. She also observed that, despite being directed to provide payroll evidence, the employer had not done so.
On the second condition, Khedher said he expected his employment to continue. He pointed to the absence of negative performance reviews, discussions about a possible management position, attendance at manager meetings, and communications about preparing a contract [5]. The Commissioner's concise finding at [21] was that his evidence of a reasonable expectation of continuing work was uncontested. At [25], she expressly found that both statutory conditions were satisfied.
The JobKeeper material was additional context. Khedher argued that the employer had nominated him as a long-term casual employee for JobKeeper, a category described in the decision as requiring regular and systematic employment during the preceding 12 months [22]. The Commissioner reasoned that the employer had identified Khedher to the ATO as a long-term casual, then concluded that it had correctly identified him that way as at 1 March 2020 [23]–[24]. The decision uses that circumstance to support its conclusion; it does not state that a JobKeeper nomination, by itself, determines a worker's status for every purpose.
The employer's failure to comply with the directions mattered to the evidentiary setting. It meant that the Commission had no competing payroll evidence and no employer submission addressing the regularity of shifts. The Commissioner did not state that procedural non-compliance automatically establishes the employee's case. Rather, she relied on the evidence that was before her and described it as uncontested [21], [25].
The result was therefore a focused application of the statutory test to the evidence in this case: recurring weekly work, a stated expectation of ongoing work, and no contrary evidence from the employer. The Commission found the qualifying period satisfied and dismissed the objection [25]–[26].
The decision does not announce a new statutory test or say that it changed the law. It applies ss 383 and 384 of the Fair Work Act and relies on the Full Bench decision in Shortland [17], [19]. The legal framework described in the decision was therefore already in place when Commissioner Hunt determined the objection.
The employer relied on one part of Shortland concerning separate casual engagements [3]. Commissioner Hunt reproduced paragraphs [10]–[13] of that decision, including the explanation that the statutory concept of a period of employment is not necessarily identical to the common-law treatment of each casual engagement as a separate contract [19]. In the passages reproduced, Shortland explains that a sequence of service can contribute to a period of employment where the statutory conditions are met, and that gaps between engagements do not necessarily break continuity. The Commissioner noted that the Full Bench had concluded in Shortland that the employee there had met the minimum employment period [20].
The significance of Khedher is its application of that statutory framework to the uncontested evidence before the Commission. The decision confirms, for its particular facts, that a casual employee's regular weekly shifts and reasonable expectation of continuing work can satisfy the statutory conditions even though the work is casual. It does not state that every recurring roster will necessarily satisfy the test, nor that casual status is irrelevant.
The decision's conclusion is confined to the jurisdictional threshold. It established that Khedher had completed the qualifying period for the application to proceed. It did not decide whether the employer had a valid reason for dismissal, whether the dismissal was procedurally fair, or whether any remedy should be granted.
At [17], the decision sets out the statutory conditions for casual service to count. In plain English, casual service is not automatically excluded from the qualifying period. It counts only if the work was regular and systematic and the employee reasonably expected further work on that basis.
At [19], Commissioner Hunt reproduces Shortland's explanation that casual engagements can be analysed as separate engagements at common law, while the statutory calculation of a period of employment can still take account of qualifying service across a sequence of engagements. The practical point for this case was that the label “casual” did not, by itself, answer whether Khedher had completed the qualifying period.
At [21], Commissioner Hunt says that Khedher's evidence of regular Monday and Tuesday work, sometimes on Wednesdays, and 20–25 hours a week was uncontested. In plain English, the employer had an opportunity to provide material that could contradict or qualify his account but did not provide it.
At [24], the Commissioner says she accepted that the employer had correctly identified Khedher to the ATO as a long-term casual as at 1 March 2020. That finding connected the employer's JobKeeper nomination with the statutory regular-and-systematic question being considered. It was part of the factual reasoning, not a separate statutory test.
At [25]–[26], the Commissioner states the conclusion: Khedher's casual employment was regular and systematic, he reasonably expected it to continue on that basis, and he had completed the required minimum employment period. The consequence was dismissal of the employer's objection, not a final ruling that the dismissal was unfair.
This decision is most relevant to a preliminary dispute about whether casual employment counts towards the minimum employment period for an unfair dismissal application. The statutory conditions identified at [17] are the starting point: regular and systematic employment, plus a reasonable expectation of continuing employment on that basis.
The factual features that mattered here included a recurring pattern of workdays, a relatively consistent weekly number of hours, and Khedher's evidence that he expected work to continue [5], [21]. His account also included circumstances he said supported that expectation, such as discussions about further responsibilities and a possible management role [5]. The Commissioner did not need to decide the substantive unfair dismissal allegations to determine the threshold issue.
The case also illustrates the significance of evidence in a jurisdictional objection. The Commission specifically asked the employer to provide material about the regularity of shifts and suggested a payroll record showing weekly hours [8]. The employer provided none, despite further opportunities [14]–[16]. The employee's evidence was consequently treated as uncontested [21].
The decision does not establish that a particular number of weekly hours, fixed weekdays, JobKeeper nomination, or proposed promotion is independently sufficient to meet s 384(2)(a). Nor does it decide how the test would apply to a materially different pattern of intermittent work or conflicting evidence. Its application is tied to the record before Commissioner Hunt.
The supplied judgment contains no account of later decisions citing, following, distinguishing, or otherwise treating Khedher. It was issued on 26 August 2020 [heading]. On this source alone, later treatment cannot be verified, and no claim about subsequent judicial acceptance or limitation can responsibly be made.
The judgment itself discusses the earlier Full Bench authority Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709. Commissioner Hunt reproduces paragraphs [10]–[13] and uses that authority to address the employer's reliance on the separate-engagement proposition [19]–[20]. This shows the relationship between Khedher and Shortland, not how later courts treated Khedher.
For research purposes, the source-supported proposition is limited: Commissioner Hunt applied the statutory requirements in s 384(2)(a), in light of the explanation in Shortland, to accepted evidence of regular casual work and a reasonable expectation of ongoing employment. Any account of later treatment would require sources beyond the judgment supplied here.
The decision leaves the merits of Khedher's unfair dismissal application open. It does not determine whether the dismissal was harsh, unjust or unreasonable, whether the employer had a valid reason, or whether a remedy was appropriate. Those were not the questions decided in this jurisdictional ruling [1], [26].
It also does not comprehensively define what degree or pattern of work is “regular and systematic” for all cases. The decision accepted Khedher's particular account of recurring weekdays and weekly hours [21], but did not create a numerical threshold or a checklist applicable to every casual employee.
Similarly, the decision does not detail how competing evidence would be assessed where an employer produces payroll records that differ from an employee's recollection. Here, the employer's failure to provide the requested records meant the evidence was uncontested [21]. The reasons do not decide how much weight such records would receive in another case.
The reasonable-expectation finding was also made on the evidence presented in this matter. Khedher relied on his work history and communications about possible future responsibilities [5]. The decision does not state that an expectation must be based on any particular type of assurance, or that discussions about promotion are necessary.
Finally, the Commissioner considered the employer's JobKeeper nomination as evidence relevant to how the employment had been characterised [22]–[24]. The decision does not determine the effect of such a nomination in other statutory contexts or establish that it is conclusive proof of the s 384 test. The safe reading is that it formed part of the material considered alongside Khedher's uncontested evidence.
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[4] On 27 July 2020, Vice President Catanzariti wrote to Mr Khedher including the following:
"If you consider that you have completed the minimum employment period (i.e. while casual, you were employed on a regular and systematic basis and you did have a reasonable expectation of ongoing employment), then you need to provide a statement within seven days, explaining why you consider you have met the minimum employment period."
[5] On 3 August 2020, Mr Khedher replied to the Vice President and provided a statement as requested. It is reproduced below:
"I believe I have completed the minimum employment period with Le Bon Choix (company name Le Pre Cuit) while employed as a casual because:
• I was employed on a regular and systematic basis (see below for further information as well as attached sample of rosters as evidence)
• I had a reasonable expectation of ongoing employment (see below for further background)
I started working for Le Bon Choix (company name Le Pre Cuit) in August 2018 as a food and beverage attendant on a casual basis. From the beginning I had negotiated my regular days of work, as I needed to balance this job alongside another job that I had at the time. My regular days of work had mostly always been Monday and Tuesdays (and sometimes Wednesdays) from August 2018 up until COVID-19 restrictions in Queensland. I also regularly worked between 20-25 hours per week. This highlights there was a clear pattern of work due to the days and hours mentioned above.
Once the COVID-19 restrictions came in, I had a dip in hours for a short time, but once I was put onto Job Keeper my hours jumped up to between 25-30 hours a week. I was grateful to have this as it meant I was receiving a regular income, as I was 'paused' by my other job at the time. Job Keeper meant I could continue to pay my bills. During this time, there was only about three employees in the Queen St cafe that could work because we were eligible for Job Keeper.
Because I was eligible and nominated by Le Bon Choix to receive Job Keeper as a long-term casual employee (as at 1 March 2020), this shows Le Bon Choix recognised that I was employed on a regular and systematic basis for at least 12 months prior and they affirmed this to the relevant authorities in nominating me for Job Keeper.
I have attached copies of my various rosters before COVID-19 restrictions (ie. prior to April 2020) and also during COVID-19 (ie. from April-May). I believe these rosters are evidence of my regular and systematic employment. You will see I was regularly rostered Mondays and Tuesdays, and also sometimes Wednesdays. In April-May 2020, I mostly kept working Tuesdays and Wednesdays, but I was also getting more shifts on other days of the week.
I also had a reasonable expectation of continuing employment with Le Bon Choix for several reasons. I never had any bad performance reviews during my time at Le Bon Choix and at the end of April the owner Savico Basset-Rouge continued to talk about promoting me to manage the Edward St café, which implies he had future plans for me.
I started attending some manager meetings and taking on more responsibilities in the Queen St café in preparation for the transfer. As included in the evidence attached to my unfair dismissal application, Sheila from head office communicated to me that they were organising my new contract and the necessary paperwork. She also confirmed to me that the manager of Edward St would start to train me up in preparation (as there was talk this manager was going to be transferred to the new Gold Coast café). Please see evidence below including text messages that:
• Show Sheila from head office talking about me being trained up at Edward St café and that she was preparing my contract for the management position
In conclusion, I believe my unfair dismissal application meets the criteria as I completed the minimum employment period with Le Bon Choix while employed as a casual because: I was employed on a regular and systematic basis and I had a reasonable expectation of ongoing employment, as outlined above. I believe my treatment at Le Bon Choix was harsh and unjust. It was especially disappointing that I wasn't even informed of my dismissal until weeks later...."
[6] Rosters of various weeks throughout 2019 worked by Mr Khedher were provided by him, together with those since April 2020 in a period affected by the COVID-19 pandemic.
[7] The matter was allocated to my chambers on 4 August 2020 to determine the jurisdictional objection.
Directions for determination of jurisdictional objection
[8] On 5 August 2020, I issued directions to the parties, noting that Mr Khedher had provided a witness statement to the Commission and requiring the Respondent to, by no later than 10 August 2020, file material relevant to the jurisdictional objection that Mr Khedher has not met the minimum employment period. The directions required the Respondent to specifically address the regularity of shifts and suggested that a payroll record of all shifts worked on a weekly basis, including weekly hours would be helpful.
[9] Mr Khedher was directed to file material no later than 17 August 2020 in reply to the Respondent's material.
[10] By Monday, 10 August 2020 the Respondent did not file any materials in compliance with directions that had been issued. As such, on 11 August 2020 my Associate corresponded with the legal representative of the Respondent, as below:
Reference is made to direction [1] issued by Commissioner Hunt on 5 August 2020 (per the below correspondence) requiring the Respondent to file and serve materials by no later than Monday, 10 August 2020.
It is noted that chambers has not received any materials in compliance with the above directions. Chambers follows up the Respondent with respect to the above matter."
[11] No response was received from the Respondent. On 12 August 2020 my Associate telephoned the Respondent's legal representative and spoke with Ms Mouritz. During the telephone conversation Ms Mouritz explained that the dates for filing materials had been diarised incorrectly and that the Respondent would write to chambers proposing amended directions.
[12] On 13 August 2020, the below correspondence was received from Ms Mouritz:
As per our telephone discussion yesterday, we respectfully request an extension on the directions issued by Commissioner Hunt on 5 August, 2020.
The request for an extension is on the basis that due to representative's error, the representative had incorrect filing dates for the representative's material.
If the Commissioner is agreeable, we would request the following variations to the directions:
Submission relevant to its jurisdictional objection that the Applicant had not completed the minimum applicable employment period, specifically addressing the regularity of shifts worked by the Applicant. A payroll record of all shifts worked on a weekly basis, including weekly hours would be helpful.
We apologise to the Applicant and the Commissioner for the miscommunication."
[13] I considered the Respondent's representative's correspondence and on 13 August 2020, I wrote to the parties issuing the following directions:
Submission relevant to its jurisdictional objection that the Applicant had not completed the minimum applicable employment period, specifically addressing the regularity of shifts worked by the Applicant. A payroll record of all shifts worked on a weekly basis, including weekly hours would be helpful.
[14] By 12:00pm Tuesday, 18 August 2020 the Respondent did not file any material in compliance with amended direction [1] above to my chambers.
[15] On 21 August 2020, my Associate wrote to the parties as follows:
Reference is made to the amended directions issued by the Commissioner on 13 August 2020, which the Respondent has failed to comply with.
The Commissioner provides the Respondent until 10:00am Monday, 24 August 2020 to file materials in accordance with amended direction [1] of 13 August 2020. If no material is filed by the Respondent, the jurisdictional objection will be determined "on the papers" with the information the Commission currently has before it. The Commissioner's decision will be reserved as at 10:00am Monday, 24 August 2020 if no material is filed.
If materials are filed by 10:00am Monday by the Respondent, the Applicant will be provided with a further opportunity to respond and correspondence from chambers will follow."
[16] No correspondence has been received from the Respondent. No explanation has been offered to the Commission for the Respondent's continued failure to comply with the amended directions. I consider this to be very disappointing given the Respondent is represented by a law firm and in fact proposed the timetable the Commission adopted, but for the Commission bringing forward the requirement to file the material by one day.
[17] Section 383 of the Act defines the meaning of "minimum employment period" which in Mr Khedher's case, given the Respondent has stated that it has 15 or more employees, is 6 months. Section 384 relevantly provides:
(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; ..."
[18] If the minimum employment period has not been met, Mr Khedher's application must be dismissed.
[19] In its Form F3 the Respondent has cited the Full Bench decision in Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709. The Respondent has cited only a part of paragraph [10] of that decision. The Respondent did not, however, cite the following paragraphs which are on point in the matter before me. It is appropriate to reproduce [10]-[13] of the Full Bench decision:
"[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.
[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee's period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.
[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee's period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s. 384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee's period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which in such a contiguous series count toward the employee's with the employer for the purposes of
[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee's period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of 'leave' or an absence due to illness or injury." [authorities omitted]
[20] It is disappointing that the Respondent's representative has selectively chosen only one part of one paragraph of the authoritative decision and not sought to, it seems, comprehend the decision. In the decision at [18] the Full Bench concluded that Mr Shortland had, in fact, met the minimum employment period and found error in the decision at first instance.
[21] Mr Khedher has provided uncontested evidence to the Commission that since August 2018 he regularly worked Monday and Tuesday each week. He occasionally worked Wednesdays. His evidence is that he worked 20-25 hours per week. This has not been disputed by the Respondent, and despite the Commission's directions to the Respondent to provide a payroll report for Mr Khedher, the Respondent has ignored such direction. Mr Khedher's uncontested evidence is that he had a reasonable expectation of the work continuing.
[22] Mr Khedher makes the point that he was in receipt of JobKeeper payments, and accordingly, the Respondent has, in order to have enrolled him in JobKeeper, informed the Australian Taxation Office (ATO) that Mr Khedher was, as at 1 March 2020, a long-term casual employee (employed on a regular and systematic basis during the 12 month period that ended 1 March 2020. The relevant eligibility criteria for casual employees for the first tranche of JobKeeper payments is produced below from the ATO website:
This test requires that you met all of the following criteria on 1 March 2020:
[23] This begs the question; to which institution has the Respondent correctly identified the nature of the employment relationship - the ATO or the Commission?
[24] I conclude that the Respondent has correctly identified to the ATO that Mr Khedher was, as at 1 March 2020 a long-term casual employee (employed on a regular and systematic basis during the 12 month period that ended 1 March 2020.) I do not accept the Respondent's position put to the Commission.
[25] On the uncontested evidence before me, which I accept, I find that at the time of dismissal, Mr Khedher's period of employment was at least six months. Mr reasons for this finding are that Mr Khedher's employment as a casual employee was on a regular and systematic basis, and he had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis.
[26] Accordingly, Mr Khedher has completed the required minimum employment period. The Respondent's jurisdictional objection is therefore dismissed.
Printed by authority of the Commonwealth Government Printer
Mr Aymen Khedher
Le Pre Cuit Pty Ltd T/A Le Bon Choix [2020] FWC 4490
(2010) 198 IR 237
The respondent's jurisdictional objection was dismissed. The Commission found that Khedher had completed the required minimum employment period; the decision did not determine the merits of his unfair dismissal claim.