Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection -minimum employment period - casual employee - regular and systematic employment - jurisdictional objection dismissed - application to proceed

• [1] On 27 March 2025, Ms Meera Thomas applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy. Ms Thomas believes she was unfairly dismissed from her employment with Affinity Nursing Recruitment Pty Ltd (Affinity).

• [2] Sections 382 and 383 of the Act provide that a person is only eligible to make an unfair dismissal application if they have completed a minimum period of employment before their dismissal. Section 383 defines the minimum employment period to be either 6 months or 12 months, depending on whether the respondent was a small business employer at the time of the dismissal. Affinity has raised a jurisdictional objection to the application on the grounds that Ms Thomas does not meet the minimum employment period (MEP).

• [3] On 12 May 2025, I issued a Notice of Listing and Directions to the parties regarding the

jurisdictional objection. The parties confirmed that they did not intend to cross examine any witnesses, consequently confirming they do not contest the facts or credibility of the contents of the filed witness statements, noting that evidence provided by the witnesses related to legal matters, rather than issues of facts. Through the consent of the parties, I have decided to determine the matter on the papers without holding a hearing.

• [4] Having considered the relevant evidence and submissions of the parties, I find that Ms Thomas had served the minimum employment period and was protected from unfair dismissal at the time of her dismissal.

• [6] Affinity is a labour hire company that specialises in the placement of Registered Nurses at a range of hospitals and medical facilities.[1] Affinity are licensed to provide labour hire services, pursuant to the requirements of the Labour Hire Licensing Act 2017 (Queensland).

• [7] After completing the required application process Ms Thomas commenced her first assignment for Affinity as a casual registered nurse commencing 2 October 2023. Between 2 October 2023 and 6 March 2025, Ms Thomas performed work for Infinity on the following occasions:[2]

• [8] It is important to note that for each of the above periods, Ms Thomas was a casual employee of Affinity, assigned to provide labour to the host facility. For each assignment, Affinity required Ms Davis to sign a document titled "Affinity Nursing Recruitment - Employment Contract - Casual Engagement". This document outlined amongst other things, the start date, proposed end date and expected duration of the assignment as well as other host specific information including hours of work, rosters, and travel and accommodation arrangements.

• [9] Ms Thomas' final assignment for Affinity was with the Mildura Base Hospital (Mildura Hospital). This assignment was subject to a contract between her and Affinity which provided a start date of 10 February 2025 and an expected end date of 30 March 2025.

• [10] On 7 January 2025, whilst midway through an assignment with Murray Bridge Soldiers' Memorial Hospital (Murray Bridge) and well before the expected end date of her upcoming assignment at Mildura, Affinity advised Ms Thomas that her next assignment had been secured with Murray Bridge commencing 21 April 2025 with an expected end date of 1 June 2025.[3][4]

• [11] On 3 March 2025, Ms Thomas sent an email to Ms Amanda Rohwender, Placement Specialist for Affinity, advising that she had been asked to "talk to a nurse coordinator" about an incident that had occurred during her last shift. The email served to give Ms Thomas a "pre warning of any further action I may need to take" and noted that no written complaint had yet been made.[5]

• [12] On 6 March 2025, following a telephone conversation between the two, Ms Rohwender sent Ms Thomas an email, confirming Mildura Hospital had ended her engagement early (that same day).[6] The email provided instructions for Ms Thomas to vacate the provided accommodation and arrangements for her to return home from Mildura. The email went on to state:[7]

"Following on from our discussion regarding another contract option, unfortunately at this time, given this matter has not been reviewed or resolved, we would not be able to assist with another contract, as per our performance management procedures".

• [13] On 20 March 2025, Ms Thomas received a call from Affinity advising that she would be removed from the register due to unsatisfactory performance, and would not be offered any further contracts with Affinity.[8]

• [14] Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section

383 of the Act defines the minimum employment period:

(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."

• [15] As Affinity had more than 15 employees at the time Ms Thomas was dismissed,[9] the minimum employment period that applies in this case is 6 months.

• [16] The meanings of "service" and "continuous service" are relevant to assessing whether

an employee has completed the minimum employment period. Section 22 of the Act relevantly states:

"22 Meanings of service and continuous service

(1) A period of service by a national system employee with his or her national system

employer is a period during which the employee is employed by the employer, but does

not include any period (an excluded period) that does not count as service because

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2 - 2 (which deals with

(ii) a period of stand down under Part 3 - 5, under an enterprise

agreement that applies to the employee, or under the employee's contract

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee's continuous

service with his or her national system employer, but does not count towards the length

• [17] The issue of whether periods of casual employment are counted when assessing an

employee's period of employment is addressed in s.384 which relevantly states:

(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

(a) a period of service as a casual employee does not count towards

(i) the employment as a casual employee was as a regular casual

(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] There are three key elements to be determined in this matter.

• was Ms Thomas a "regular casual employee"?
• would it have been reasonable for her to have held the expectation that her employment would continue on a regular and systematic basis? and
• subject to the above, has she been employed for six months or more?

• [19] Affinity submits that Ms Thomas' employment was characterised as a series of distinct engagements, each for a defined and finite period. The first contract between Ms Thomas and Affinity commenced on 2 October 2023.

• [20] Over the course of the proceeding 1 year and 5 months (to 6 March 2025, the date they say that notice of dismissal was given), Ms Thomas worked for 301 days across 9 distinct contracts at 6 different medical facilities.[10] That is, Ms Thomas was only engaged to perform work for approximately 58% of the period between 2 October 2023 and 6 March 2025.[11]

• [21] They argue that the period between each of these distinct engagements, Ms Thomas was not, and could not have been, a casual employee. They say Ms Thomas was not employed by Affinity at all during the following periods:[12]

(a) 13 November 2023 to 10 December 2023 (28 days);

(f) 18 November 2024 to 8 December 2024 (21 days); and

• [22] Relying on John Burke v University of Technology Sydney (UTS),[13] Affinity say it follows that even if Ms Thomas was found to have been a regular casual employee for the duration of each distinct engagement, each of the Unemployed Periods severs her continuity for the purpose of calculating the MEP.

• [23] Relying on the above, they say that Ms Thomas' final engagement, with Mildura Hospital which commenced on 10 February 2025 should be counted as the first day of Ms Thomas' service for the purpose of calculating the MEP. It then follows that Ms Thomas had a total of 24 days service, and does not meet the MEP.

• [24] Ms Thomas submits that whilst her engagement with host employer Mildura Hospital came to an end on 6 March 2025, her employment relationship with Affinity did not cease until 20 March 2025, when it was made clear that she would be provided no further work.

• [25] Ms Thomas disputes Affinity's contention that the gaps between her placements with host employers brought each separate engagement to an end. Rather she draws my attention to Wayne Shortland v The Smiths Snackfood Co Ltd (Shortland) in which the Full Bench points out that the effect of s.384 of the Act is that casual employment does not start and end with each engagement as understood in the common law.[14]

• [26] It is therefore argued that there can be no doubt in this matter that a series of contiguous periods of service count towards a period of employment that meets the minimum requirements of the MEP. In this case, Ms Thomas says that there appears to be around 46 weeks of service, over a period of some fifteen months, which is significantly higher than the 6 months required by the Act.[15]

• [27] To the first limb of s 384 (2)(a) it is argued that Ms Thomas's employment was regular and systematic. Ms Thomas was employed for substantial periods of time and was required to work full-time hours. Drawing a distinction between the work itself and the offering of the work, it is submitted the offering of work was clearly following a system that could be described as regular.

• [28] To the second limb of s 384(2)(a), it is Ms Thomas's submission that after being advised that her engagement with Mildura Hospital would end early, she still held the expectation of ongoing employment due to the Murray Bridge placement she had been advised would commence on 21 April 2025.

• [29] A key consideration in this matter is the distinction between Ms Thomas's employment relationship with Affinity and her length of service as a casual employee. Affinity contend that, the consequence of the employment contracts signed at the commencement of each assignment, is that each assignment is a separate contract of employment. In this regard, they suggest that Ms Thomas's last engagement stands alone and as such her period of continuous service is only 24 days.

• [30] As noted by Ms Thomas, pursuant to the views of the Full Bench in Shortland, the effect of s.384 is that casual employment does not start and end with each engagement as understood in the common law.[16] The Full Bench also noted that it was common for casual employees to transition between the period in which their engagements with a particular employer are intermittent and periods in which the engagements are regular and systematic. With respect to the operation of s 384 the Full Bench stated that:[17]

"... s384 is concerned with how an employee's period of employment is calculated for the purposes of s384(2)(a) ... it is clear from the language of s384(2) that an employee may have a 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 periods of employment only if the requirements on s 384(2)(a)(i) and (ii) are met...

[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..."

• [31] Considering the above, Affinity's argument cannot succeed. I do not consider any term in Ms Thomas's contract, can justify a conclusion that the employment relationship started and finished with each separate casual engagement or assignment.

• [32] Noting the Full Bench's comment that continuous service by a casual employee is broken only when the employer or employee make it clear to the other that there will be no further engagements, I find that the employment relationship was ended by Affinity on 20 March 2025.

• [33] In all of the circumstances of this matter, I find that Ms Thomas's employment relationship with Affinity covers the entirety of the period 2 October 2023 through 20 March 2025.

• [34] The Act provides that a casual employee who has been employed on a regular and systematic basis is a "regular casual employee" per s.12 of the Act.

• [35] The ACT Court of Appeal has previously confirmed in Yaraka Holdings Pty Ltd v Giljevic that it is the casual employee's engagement that must be regular and systematic, not the hours worked pursuant to the engagement.[18] The reasoning of the Court of Appeal in that matter was endorsed by a Full Bench of the Commission in Chandler v Bed Bath N' Table Pty Ltd.[19]

• [36] In Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic, Commissioner Roe identified that where there is not a clear pattern or roster of hours and days worked or clear agreed engagements, a regular and systematic engagement can still be found where the evidence establishes that:[20]

• 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

• work is offered and accepted sufficiently often that it could no longer be regarded as

• [37] Commissioner Roe also identified that:[21]

• Periods of casual employment can be added to periods of full-time or part-time

employment when calculating the period of employment. And,

• Where the minimum employment period is six months, it is not only casual

engagements during the six months prior to the dismissal taking effect that can be

considered. Prior periods of casual employment can be considered as long as the

• [38] Having reviewed the evidence regarding her engagements during her period of employment with Affinity, there is a clear pattern of engagements being offered to Ms Thomas when available. There was often very little break between engagements, and her next engagement was regularly locked in before the present engagement had ended. I was provided no evidence to suggest that Ms Thomas refused such assignments when offered or that she sought to end the employment relationship with Affinity at any stage.

• [39] Considering the above, and all of the circumstances of this matter, I find that over the nearly 18 months of her employment relationship with Affinity, Ms Thomas was regularly offered work when suitable work was available, and I am satisfied that such work was offered and accepted regularly enough to no longer be regarded as occasional or irregular.

Was it reasonably likely that Ms Thomas' regular and systematic casual employment would continue?

• [40] The test to determine whether the jurisdictional requirement in s.384(2)(a)(ii) of the Act

has been met has two limbs. It is the examination of both subjective and objective criteria, the first being whether the employee held the required expectation; and the second, whether that

expectation was objectively reasonable.[22] Importantly, s 384(2)(a)(ii) concerns the employee's expectation of on-going work, not the employers.

• [41] As considered above, there was a pattern of engagement being offered to Ms Thomas when available, and until the events that led to the ending of the employment relationship occurred, she had no reason to presume that this pattern would not continue.

• [42] Perhaps the most telling evidence as to Ms Thomas's expectation of ongoing casual employment is that Affinity had, in January 2025, advised that her next assignment had been secured with Murray Bridge for the period 21 April to 1 June 2025.[23] Further, I consider it reasonable for Ms Thomas to have presumed that this pattern of engagement would continue and that at some stage prior to the ending of this next contract (1 June, 2025), she would have been offered another.

• [43] In all of the circumstances of this matter, I am satisfied that it was reasonable for Ms Thomas to have held the expectation that the established pattern of being offered regular casual assignments by Affinity would continue.

• [44] For the purpose of unfair dismissal, it is the period of service rather than the period of employment that is relevant.[24] If the conditions of s.384(2)(a) are satisfied, which I find they are, then a period of service by a casual employee will count towards the period of continuous service.[25] Noting that once continuous service is established, the employer or employee may only break continuous service by making it clear to the other party that there will be no further engagements.[26]

• [45] Based on the days Ms Thomas worked, minus the periods in which she was not working, Ms Thomas had continuous service for 300 days with Affinity. Consequently, Ms Thomas had worked more than 6 months for Affinity.

• [46] I find Ms Thomas had at least 6 months of continuous service with Affinity. Ms Thomas had completed the minimum employment period of 6 months when she was dismissed on 20 March 2025. As such, Ms Thomas was a person protected from unfair dismissal.

• [47] Affinity's jurisdictional objection is dismissed.

• [48] Ms Thomas' unfair dismissal application will be listed for case management conference via Microsoft Teams on a date to be confirmed. A notice of listing will be issued in due course.

[1] P.61 of the DCB - Witness Statement of Symone Devenport.

[2] P.136 of the DCB - Annexure A - Chronology of Events.

[6] P.24 to 25 of the DCB - Attachment MT-1.

[8] P.12 of the DCB and P.42 of DCB - Applicant Submissions and Form F3.

[10] P.58 of the DCB - Respondent Submissions.

[13] [2019] FWC 3190.

[14] [2010] FWAFB 5709.

[15] P.16 of the DCB - Applicant Submissions.

[16] [2010] FWAFB 5709.

[18] (2006) 149 IR 399 at [65].

[19] [2020] FWCFB 306 at [11] to [13].

[20] [2010] FWA 2078 at [76].

[22] Liting Gu v Geraldton Fishermen's Co-operative Pty Ltd [2022] FWC 1342 at [41].

[23] P.26 of the DCB - Attachment MT-2.

[24] Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709 at [12].

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