[1] On 2 October 2012, Ms Jodie Nasarenko lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in relation to the alleged unfair termination of her employment with Natural Remedies Group Pty Ltd (the Respondent). Ms Nasarenko was employed by the Respondent from 17 February 2009 until 24 September 2012.

[2] Pursuant to s.394(2)(a), Ms Nasarenko filed her application within 14 days after the alleged unfair dismissal took effect.

[3] On 10 October 2012, the application was listed for Conciliation by telephone before a Conciliator of the Fair Work Australia Unfair Dismissals Team on 19 October 2012.

[4] On 11 October 2012, the Respondent filed an employer's response to the unfair dismissal application and raised jurisdictional objections to the application. The objections are: that Ms Nasarenko was a casual employee, who was not engaged on a regular and systematic basis; Ms Nasarenko was not dismissed. Rather, the Respondent submits, Ms Nasarenko reported her absence from work due to illness, in September 2012, and has not returned to work.

[5] The matter did not settle at the Conciliation.

[6] On 12 November 2012, directions were issued by the Fair Work Australia Unfair Dismissals Team to both parties for the filing of submissions and witness statements.

[7] The matter was listed for Conference/Hearing proceedings before Fair Work Australia (FWA) on 17 December 2012. The Conference/Hearing was held to deal with the jurisdictional objections taken by the employer.

[8] On 17 December 2012, Ms Nasarenko appeared unrepresented, and gave evidence as a witness. Ms Nasarenko sought to rely upon a statement which she had filed and served upon the Respondent.

[9] Mr Bruce Bell sought leave to represent the Respondent, however leave was denied. The Respondent was represented by Mr Brian Sullivan, Sales Manager, Natural Remedies Group Pty Ltd, who advanced the case in support of the jurisdictional objection made by the Respondent. Mr Sullivan also gave evidence as a witness. The Respondent sought to rely upon Mr Sullivan's statement which had been filed and served upon Ms Nasarenko.

[10] I determined the matter ex tempore and decided to dismiss the Respondent's jurisdictional objections. What follows are my reasons for doing so, edited for the purpose of publication.

[11] The jurisdictional objection raised by the Respondent in this instance involved the assertion that Ms Nasarenko was a casual who was not engaged by the Respondent on a regular and systematic basis. This objection arises from the provisions of section 384 of the Act 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 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.

[12] If Ms Nasarenko has not completed the minimum employment period of 6 months, as prescribed by s. 383 of the Act, she is not a person protected from unfair dismissal, in relation to her employment by the Respondent.

[13] The evidence in this matter has established that Ms Nasarenko was a casual employee engaged on a regular and systematic basis who had a reasonable expectation of such employment continuing. That regular and systematic employment commenced on 17 February 2009 with the Respondent and continued until 24 September 2012. During all of that time Ms Nasarenko was employed regularly and systematically for 37.5 hours per week. Ms Nasarenko was granted unpaid leave of absence for recreation leave, in respect of which forms were submitted and approved. Moreover, when Ms Nasarenko was absent due to illness medical certificates were provided for such absences. There was no indication that the employment relationship would not continue accordingly, until 24 September 2012.

[14] It is therefore evident that during Ms Nasarenko's period of service with the Respondent, she had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis.

[15] Ms Nasarenko submits that her employment was terminated at the Respondent's initiative on 24 September 2012 by an electronic message which is referred to further below.

[16] The Respondent submits that Ms Nasarenko has not been dismissed and is therefore not a person protected from unfair dismissal, in respect of her employment with the Respondent. The objection arises from the provisions of section 386 of the Act which relevantly state:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

[17] The evidence in this matter has established that Ms Nasarenko was, in the words of Mr Sullivan, "taken off the roster", which was effectively communicated by an electronic message on 24 September 2012 (Exhibit B). The contents of the message are set out below:

Please be advised that no hours have been allotted to you this week or in the next four week roster. As you are aware, NRG is presently undergoing a review of all casual hours and staffing requirements. As you fall within the 'casual' definition, no guarantee of future hours can be made.

[18] Having regard to the factual matrix revealed in the evidence, I am satisfied that it was the act of taking Ms Nasarenko "off the roster" which brought the employment relationship to an end. I am satisfied this was effected by the contents of Exhibit B, which make it clear that the employment relationship, which had been well established and highly systematic up to that time, would not continue. The employment on foot on 24 September would no longer continue, as a result of the initiative of the employer comprised of the message of 24 September 2012.

[19] The prospect of any future employment became, at the most, the possibility of a new and different employment relationship based on hours of work which would, more probably than not, bear no correspondence to the employment in place continuously since 17 February 2009 if, in fact, there would be any future employment at all.

[20] The consequence of the message of 24 September was to terminate the existing employment and offer no other employment. By implication, perhaps, the possibility of a new employment relationship arising at a time to be determined, with no specified hours of work, might be said to have been no more than, at the most, possible.

[21] It is also notable that in the days leading up to the message in Exhibit B, the Respondent expressed concern and dissatisfaction with Ms Nasarenko's conduct in the workplace. Since the message marked Exhibit B, the Respondent has not allocated any hours of work to Ms Nasarenko or communicated with her about further engagement as an employee, on any basis.

[22] I find that Ms Nasarenko was a casual employee employed by the Respondent on a regular and systematic basis between 17 February 2009 and 24 September 2012, who had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis, whose employment was terminated by the Respondent on 24 September 2012. Ms Nasarenko is therefore a person protected from unfair dismissal.

[23] An order will issue dismissing the Respondent's jurisdictional objections and the matter will be listed for a full Hearing on the merits.

Mr B. Bell and Mr B. Sullivan for Natural Remedies Group Pty Ltd.

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