CONSIDERATION
23 The first issue for consideration involves the respondent's submission that the applicant was exempt from access to the unfair dismissal provisions of the Act. Ms Clark who appeared for the respondent, referred to section 83(2) of the Act and the exemptions provided therein. Ms Clark stressed the evidence of the very informal manner in which engagement of the applicant occurred. It was submitted that engagement on this basis, involving a high degree of informality, would deprive the applicant of access to the unfair dismissal provisions of the Act.
24 The evidence provided clear basis for establishing that the applicant's employment was truly engagement on a casual basis. The actual pattern of employment as set out in attachment CT8 to Exhibit 3, provided clear evidence of employment that fluctuated significantly in terms of the number of engagements per month. On at least three months there was no engagements at all, and on one month a maximum number of engagements of twenty one. Further, evidence of the way in which the applicant provided an early indication of potential availability which could then subsequently be reversed, established a further aspect of significant informality regarding the applicant's employment.
25 Consequently both the manner in which any particular engagement might ultimately be fixed, together with the monthly fluctuations of actual engagements worked, compels a finding that the applicant was engaged on a casual basis. Further, the casual basis of engagement of the applicant with the respondent was neither regular nor systematic.
26 Although the applicant was what is sometimes described as a "true casual" and that his employment displayed no regular or systematic basis, he would not be exempt from access to the unfair dismissal provisions of the Act.
27 Section 83(2)(c) of the Act exempts access to unfair dismissal provisions for employees engaged on a casual basis for a short period. The applicant's irregular and unsystematic casual employment extended for a period of about four years. Therefore the significant informality of the applicant's casual employment would not exempt him from access to the unfair dismissal provisions of the Act because he had been engaged over a period of about four years. Support for this approach to consideration of the operation of section 83(2)(c) of the Act can be found in the Decision of a Full Bench of this Commission in the matter of Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta Shop Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta, [2001] NSWIRComm 46, Full Commission of Industrial Relations Commission of NSW, [Walton VP Hungerford J & Patterson C.]
(Librus), the following extract from paragraph 28 of the Decision in Librus is relevant:
"The essential enquiry, however, is whether the casual employee has been engaged for a short period - if not, then the specified conditions do not have to be considered as the employee concerned is not exempted from bringing a valid claim."
28 The applicant therefore has a valid claim for Determination. The second issue requiring consideration logically involves the alleged unfairness attached to the applicant's dismissal.
29 The decision to dismiss the applicant was taken by Mr Bobridge on or about 14 January 2008, when he returned from annual leave. The applicant was not told of this decision until about 4 April 2008. This delay in part occurred by deliberate action which sought to deprive the applicant of any engagements for an extended period such that this absence of engagement might assist to validate or justify the dismissal.
30 Further, the evidence established that in addition to the applicant not being advised of the decision to dismiss, the decision was taken without providing the applicant any opportunity to be heard regarding the underlining concern about the level of instances where the applicant rejected offers of engagement. This aspect of the matter represented the applicant's primary objection. The applicant repeatedly asserted that had he been advised that his level of unavailability was providing concern to the respondent, he would have either taken action to remedy that matter or address the concerns in some other fashion.
31 A dismissal that is implemented in the manner adopted by Mr Bobridge would, prima facie, offend sub-sections 88(b) and (c) of the Act. Although the reason for the applicant's dismissal had a basis in fact, the applicant was never given an opportunity to make out a defence or provide explanation in respect of the level of unavailability that had been identified by the respondent. In addition the applicant was never given any warning that the level of his unavailability was unsatisfactory such that the respondent might contemplate dismissal.
32 Therefore the dismissal of the applicant would clearly offend at least two of the provisions of section 88 of the Act. Sub-section 88(f) of the Act also permits the Commission to consider other relevant matters not specifically mentioned within section 88.
33 An important countervailing issue involved the highly informal arrangements for engagement of the applicant which he had insisted upon. The applicant had twice rejected conversion of his casual employment to permanent part-time employment. It was the applicant rather than the respondent that insisted upon the very informal engagement arrangements.
34 In the circumstances, the employer may not have needed to particularise the reason for no longer providing offers of shifts, and might have simply sought to rely upon the "true casual" nature of the arrangements that the applicant had insisted upon. If and when the applicant then challenged the respondent about an extended period when there had been no offer of shifts, the respondent may simply have resorted to its previous identification that the applicant clearly wanted to have truly casual arrangements for his engagement such that there would be no on-going guarantee that any engagements might be provided.
35 These hypothetical circumstances did not eventuate and the respondent clearly provided the applicant with the reason for dismissal by way of correspondence of 4 April 2008.
36 Despite the highly informal arrangements for engagement of the applicant, including that it was the applicant rather than the respondent that sought such arrangements, the basis upon which the decision to dismiss the applicant was taken offends the notion of natural justice and therefore the dismissal of the applicant was unreasonable and unjust.
37 One further matter requiring consideration introduces certain unfortunate complexity with the employment of the applicant. The Commission was advised that the applicant's employment was governed by two particular Industrial Instruments. As an uncontested proposition the Commission was advised that the applicant's employment was governed by the Health Industry Status of Employment (State) Award, (the Status of Employment Award) and the Health Employees Conditions of Employment (State) Award, (the Conditions of Employment Award). Copies of these two Awards were provided to the Commission during the proceedings. Unfortunately there was no detailed argument about the operation of the Industrial Instruments as it might impact upon the applicant's employment. Two particular issues have significant potential impact upon the applicant's employment and his dismissal.
38 Firstly, Clause 20 Termination of Employment contained in the Conditions of Employment Award provides that one week's notice of termination or payment of one week's salary in lieu thereof would be required for the termination of employment of the applicant. The provisions of Clause 20 of this Award do not make any distinction for the termination of a casual employee. This unusual absence of reference to some different treatment for the termination of employment of a casual employee as opposed to any other employee, would likely establish that the applicant's dismissal was implemented contrary to the provisions of Clause 20 of the Conditions of Employment Award.
39 A second issue regarding the applicant's employment arises by way of the apparent application of the Status of Employment Award. The definitions contained within Clause 1 of the Status of Employment Award would likely establish that the applicant was properly categorised as an exempt employee as identified in Clause 1.6.
40 The Status of Employment Award further states that exempt employees do not attract casual or temporary pay loadings. Curiously, Clause 5 of the Status of Employment Award contains two sub-clauses number 6.1 and 6.2 which operate to establish that the Status of Employment Award prevails over the Conditions of Employment Award to the extent of any inconsistencies. The corollary of the application of the respective provisions in both the Status of Employment Award and the Conditions of Employment Award would likely lead to a finding that the applicant's engagement as a casual employee was unavailable. Instead he may be correctly held to have been engaged as an exempt employee as defined in Clause 1.6 of the Status of Employment Award.
41 The operation of the relevant Industrial Instruments would prevail over the arrangements that the applicant and the respondent sought to make in respect of the on-going casual employment which was something that occurred at the applicant's insistence. In simple terms, it would seem that the manner in which the applicant had been engaged could not be permitted under the provisions of the relevant Industrial Instruments. The respondent had acquiesced to the applicant's insistence upon remaining as a casual employee. However the Industrial Instruments would not permit such an arrangement.
42 The issues arising from the apparent application of the relevant Industrial Instruments give rise to clear concern regarding any potential remedy for reinstatement of the applicant. It would be highly undesirable and more likely invalid, if the Commission reinstated the applicant to a position that was not permitted by the relevant Industrial Instruments. The obvious alternative of re-employment immediately arises. However there was little or no evidence provided about the availability of other positions or, for that matter, the desirability of the applicant to be re-employed in arrangements which he had previously firmly rejected.
43 Further concerns regarding appropriate remedy arise from evidence that the applicant obtained alternative full time employment and that the employment with the respondent was of a secondary nature at least during the latter part of his period of employment. In addition, the applicant provided no evidence of attempts to find alternative employment and/or the remuneration received in alternative employment. Consequently a variety of issues impact upon the availability of any appropriate remedy for the applicant's unfair dismissal.