Fair Work Act 2009

s.394 - Unfair dismissal

Spinifex Australia Pty Ltd T/A Spinifex Recruiting

Application for an unfair dismissal remedy; jurisdictional objection; whether the applicant had completed the minimum employment period.

[1] This decision concerns an application by Patrice Tait (the applicant) for an unfair dismissal remedy in relation to her alleged dismissal by Spinifex Australia Pty Ltd (the respondent).

[2] This decision solely concerns the respondent's jurisdictional objection that the applicant had not completed the minimum employment period. The hearing of the respondent's jurisdictional objection was held on 8 and 20 February 2018. The applicant represented herself, and the respondent was represented by a solicitor, Paul Macken.

[3] Section 382 of the Fair Work Act 2009 (Cth) (the FW Act) stipulates that for a person to be protected from unfair dismissal the person must, inter alia, have completed a period of employment with his or her employer of at least the minimum employment period.

[4] The meaning of 'minimum employment period' is contained in s.383 of the FW Act as follows:

(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;

• (ii) immediately before the dismissal; or

(b) if the employer is a small business employer - - one year ending at that time.'

[5] It is not in contention that the respondent is not a small business employer, and therefore the relevant minimum employment period for the applicant is 6 months.

[6] 'Period of employment' is relevantly defined in s.384 of the FW Act thus:

(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.

(2) However:

• (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...'

[7] Service is relevantly defined in s.22 of the FW Act:

(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 of subsection (2).

(2) The following periods do not count as service:

• (a) any period of unauthorised absence;

• (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 community service leave); or

  • (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 of employment; or

  • (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 of the employee's continuous service.'

[8] At the hearing Victoria Bila (Group Manager, Operations) gave evidence on behalf of the respondent and the applicant gave evidence on her own behalf.

[9] On 21 February 2017 the applicant signed a 'Temporary Employee Agreement' with the respondent. This agreement included the following:

'1. My employment with Spinifex Recruiting is as a temporary on an assignment by assignment basis, with each assignment constituting of (sic) a discrete period of employment. I may accept or reject any offer of an assignment from Spinifex Recruiting. On completion of an assignment, whether satisfactory, or otherwise, Spinifex Recruiting is under no obligation to offer me further assignments.

2. I understand that Spinifex Recruiting's customer (not Spinifex Recruiting) controls the length of any assignment and I accept that whilst Spinifex Recruiting may indicate to me in good faith the potential length of any assignment with a customer, the customer may vary the length of an assignment period or terminate my attendance at an assignment at their absolute discretion. I agree to notify Spinifex Recruiting without delay if I am informed by the customer of the completion date of an assignment

7. My remuneration with Spinifex Recruiting is on an hourly basis determined according to my classification and length of assignment. My hourly rate of pay incorporates all relevant provisions of any relevant Award, Site or Enterprise Agreement, and will include payments of, or in lieu of, benefits prescribed by relevant legislation or Awards (including annual holidays, loadings, public holidays and sick pay).'[1]

[10] On 6 March 2017 the respondent sent an email to the applicant confirming that she would be starting an assignment with the Department of Justice (DOJ) - NSW Trustee & Guardian as a Conveyancing Officer, commencing on 7 March 2017. The email said that the assignment would go to 30 June 2017 and that the role was for 35 hours per week Monday to Friday, with a half hour lunch break.[2]

[11] The applicant tendered in evidence all her timesheets for her assignment with DOJ. I have examined these timesheets and they indicate that the applicant worked continuously for the DOJ from 7 March to 26 October 2017, apart from weekends and public holidays and the following days:

• 20 March;

• 11, 28 April;

• 8, 23, 24 May;

• 2, 16, 30 June;

• 10, 16, 25 August;

• 5, 18 September;

• 2, 23 October 2017.

[12] The applicant gave evidence that each of these days had been taken due to illness or other pressing personal circumstances and had been authorised by her supervisor at the DOJ.[3]

[13] The applicant continued to work for the respondent at the DOJ after 30 June 2017.[4] On 18 July 2017 the applicant received an email from the respondent advising her that the assignment would be extended until 30 September 2017.[5]

[14] When asked what happened on 30 September 2017 the applicant said:

'Spinifex never came back to us. We had work to do, we kept on going.'[6]

[15] The applicant explained that the reference to 'us' was to her and three other 'temporary employees' in her team who were also hired by the respondent, doing the same work.[7]

[16] The applicant's assignment with the DOJ was extended a second time in October 2017. According to the applicant:

'The confirmation of the assignment being extended and having no end date set was advised verbally by my supervisor Terry Saddick on 11 October 2017. This was subsequently confirmed when I attended a meeting with Gary Ostro Senior Recruiter for the respondent on 25 October 2017 between 12:15pm to 1:15pm at the respondent's office in Parramatta.'[8]

[17] When asked what happened on 30 September 2017 the applicant said:

'We just continued on. And then we had discussions with our supervisor around 10

October and that's when he said, "Look, we're looking to have this as a no end date."'[9]

[18] The applicant said that the work she had been doing was continuing, the job she had been doing had not been advertised for permanent filling, and 'all the girls in my team are still there.'[10] She said that after 30 September 2017 'I didn't have any dates, so I was unaware of when we would be finishing.'[11]

[19] The applicant said that her employment was terminated on 26 October 2017 first through a voicemail message left on her mobile phone by Mr Ostro and then through an email.[12] This included the following:

'I have been informed by Dept of Justice that your temporary assignment has been ceased as of today 26/10....

Your temporary employment has been ceased.'[13]

[20] Ms Bila gave evidence that the applicant was employed by the respondent as a casual employee 'for the purpose of temporary placements...The nature of each temporary placement was that it was discreet (sic) engagement which could be (and was) ended by either one of the parties at any time.'[14]

[21] Ms Bila said that 'the host employer in these various periods (the Department of Justice) notified the Respondent of the cessation of any temporary placement on 26 October 2017.'[15]

[22] Ms Bila stated:

'At the time that the Department of Justice made it clear that they were ending any temporary engagement, the Applicant was specifically told that while this assignment had ended we would put her forward for other suitable assignments as and when they became available.'[16]

[23] The jurisdictional issue can be broken into four separate questions:

1. Was the applicant a casual employee?
2. Was she employed on a regular and systematic basis?
3. Had she worked for 6 months?
4. Did she have a reasonable expectation of continuing employment by the employer on a regular and systematic basis?

[24] I am satisfied that the applicant was a casual employee. She was paid on an hourly basis and was not paid for any time not worked. She was not entitled to paid annual or personal leave.

[25] I am also satisfied that the applicant was employed on a regular and systematic basis. She worked 35 hours per week Monday to Friday with a half hour lunch break. The only days she had off were either public holidays or because of illness or other pressing personal circumstances. These had been authorised by her supervisor at the DOJ.

[26] I am also satisfied that the applicant had worked for six months. She started work on 7 March 2017 and worked to 26 October 2017. That is a period of seven months and 19 days. From this must be subtracted 16 days of unpaid leave taken by the applicant (equivalent to just over three weeks of work), which still leaves a period in excess of six months.

[27] The most difficult question to resolve is whether, during her period of service, the applicant had a reasonable expectation of continuing employment by the respondent on a regular and systematic basis.

[28] Certainly the 'Temporary Employee Agreement' signed by the applicant would tend to weigh against a reasonable expectation of continuing employment. It specifically stated that the employment was temporary and on an assignment by assignment basis. However, one must also look at how the employment evolved in practice.

[29] The applicant was first told by the respondent that her assignment with the DOJ would be until 30 June 2017. However, that date came and went and the applicant simply continued to work as normal. Some time later she was advised that she would work until 30 September 2017. However, again that date came and went. The applicant's uncontested evidence is that she was told by her supervisor at the DOJ (Terry Saddick) and the respondent's Gary Ostro that there was 'no end date' to the assignment with DOJ. Nor was there anything about the work itself that suggested the applicant's employment would do anything other than continue indefinitely.

[30] In the circumstances, I am satisfied that the applicant had a reasonable expectation of continuing employment on a regular and systematic basis.

[31] I am satisfied that the applicant had completed a period of employment with the respondent of at least the minimum employment period. The respondent's jurisdictional objection is therefore dismissed.

[32] Further directions will be issued shortly in relation to the application for an unfair dismissal remedy.

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