Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - objection that minimum employment period not served - jurisdictional objection upheld - minimum employment period not completed.

[1] Ms Spinks, a former casual plant operator of Co-Operative Bulk Handling Limited (CBH), made an application to the Fair Work Commission for a remedy in respect of her dismissal.

[2] Ms Spinks had worked at CBH's grain terminal in the regional port town of Geraldton, Western Australian, for harvest periods dating back to 1999. In the last harvest period, around late November 2018, Ms Spinks was dismissed for serious misconduct after breaching a CBH Life Saving Rule that no employee performs work activities on an operational site with a blood alcohol concentration above zero. Ms Spinks had asserted that a combination of vanilla essence and mouthwash had resulted in the positive test result.

[3] Because Ms Spinks was employed as a casual employee, CBH objected to the application on that basis she was not protected from unfair dismissal.

[4] For a person to be protected from unfair dismissal they must have, among other things, completed a period of employment with their employer which is at least the minimum employment period.[1] The Fair Work Act (2009) (Cth) (the Act) describes an employee's period of employment with an employer as the 'period of continuous service the employee has completed with the employer at that time as an employee'.[2] Therefore, to meet the definition of 'minimum period of employment' the period of service with the employer must have been 'continuous'.[3]

[5] In the case of a casual employee, a 'period of service' with an employer will not count towards an employee's period of employment unless:

1. the employment was on a regular and systematic basis; and

2. the employee had a reasonable expectation of continuing employment on a regular and systematic basis.

[6] The parties' agreed that the issue to be resolved was whether Ms Spinks' period of service with CBH, over the course of some eighteen years, constituted a 'series of contiguous periods of service' such that the service formed a single 'period of continuous service' or 'period of employment' of at least 6 months.

[7] If Ms Spinks had completed a period of employment of 6 months then she was protected from unfair dismissal. If, however, she had not, then her application must be dismissed.

[8] CBH operates in the grain industry and manages the storage, handling and transportation for over 85% of Western Australia's annual grain harvest.[4] In its industry, CBH frequently experiences an increase in workload during harvest.[5] While the harvest period varies in length across Western Australia, CBH sites generally start receiving grain from the start of October each year; with the harvest season ending toward the end of the following January.[6] As a result, the period early October to late January is the busiest period at CBH's grain terminals, including Geraldton, where Ms Spinks worked.

[9] Ms Ross, Employee Relations Manager for CBH, gave evidence, which was not contested, that on or around 1 July each year CBH commenced its recruitment campaign for casual employees for the upcoming harvest period.[7] The recruitment process involved advertising casual harvest positions on CBH's website and through job search engines.[8]

[10] Persons wishing to express interest in casual harvest work for a particular harvest period were required to complete an online application.[9] The application process involved the applicant advising their preferred area of work, availability, whether they had accommodation in that area, whether they held a valid drivers' licence, whether they had a vehicle, and whether they had been previously employed as a casual, and if so, the most recent year of engagement.[10]

[11] Suitable applicants who had not worked for CBH in the past were generally invited to an interview through CBH's applicant tracking system.[11] Suitable applicants who had worked for CBH in the past were not required to attend an interview and were progressed immediately to on boarding through a system referred to as Red Carpet.[12]

[12] The on boarding process through Red Carpet involved the applicant completing a medication declaration form, permanent residency declaration, policy acknowledgement form, and an online safety induction.[13] Applicants were also required to submit tax and superannuation information.[14] The aforementioned information and safety induction was required each year, irrespective of prior work history with CBH.[15]

[13] Not all applicants who completed the on boarding process were engaged as casual harvest employees.[16] Final selection was said to be based on factors including the applicant's availability, experience, ability to attend training, preferred area/position, the size of the harvest, and the relevant site's operational requirements.[17]

[14] Because of the volume of employees employed for harvest period, letters of offer were not issued. Notification of a successful application was dependent on the relevant site.[18] At Geraldton successful applicants were told by their terminal supervisor the day before their first shift.[19] Thereafter, employees were notified verbally during their current shift when their next shift would be.[20] The day before an employee's last shift was when a supervisor informed the employee that the work had come to an end. However, the terminal supervisor would advise casual employees in advance when this was likely to happen.[21]

[15] Ms Spinks gave evidence that she was first employed by CBH in 1995 as a plant operator and as a sampler in quality control. Ms Ross said that it was from 2 November 1999, that Ms Spinks had worked eighteen harvest periods for CBH.[22]

[16] Each year, Ms Spinks applied for a casual position through the relevant application process.[23] Ms Spinks gave evidence that she would hear by word of mouth that applications would be closing by 30 June and that because applications were being made thick and fast, she must apply soon.

[17] Ms Ross gave evidence that in recent years the application process had been provided online. As some applicants were not computer literate, CBH staff in Geraldton would assist an applicant to complete his or her online application on a computer at the terminal.[24] To the best of Ms Ross' understanding, Ms Spinks was assisted in this manner when completing her application; [25] Ms Spinks confirmed this was the case.

[18] On 29 October 2018, Ms Spinks started work again for CBH for the harvest season. This was not disputed. She was required to complete the on boarding process and undertake formal safety training. Ms Ross' evidence was that for each period of casual engagement with CBH, there had been no consistency with length of employment, number of days, nor number of hours worked by Ms Spinks during a harvest period. Ms Spinks was verbally notified of her hours during the shift prior to the next, and was never provided with an ongoing roster.

What are the relevant legislative provisions and how do we interpret them?

[19] A person is protected from unfair dismissal if they have completed the minimum employment period.[26] The meaning of 'minimum employment period' for the purpose of this application is a period of six months.[27]

[20] Section 384 of the Act is concerned with how an employee's period of employment is calculated for the purpose of determining if the employee has satisfied the minimum employment period. The relevant part reads:

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) [When casual employment counts toward period of employment]

(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... (underlining my emphasis).

[21] The starting point is that a period of employment is also referred to as a period of continuous service. When we step through this in more detail below, it is important to keep that at the forefront of one's mind.

[22] Section 22 defines the terms 'service' and 'continuous service'; the relevant subsections read:

(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).

(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) [Excluded period does not break continuous service]

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...

[23] A period of continuous service can be made up of a series of periods of service.[28] An employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment (period of continuous service) with that employer.[29]

[24] However, contiguous series, or periods of service, will only count towards the employee's period of employment if the requirements in s 384(2)(a)(i) and (ii) are met. Those requirements are, in short, that the employment was on a regular and systematic basis, and during the period of service the employee had a reasonable expectation of continuing employment with the employer, on a regular and systematic basis.

[25] In the decision of Ponce it was observed that 'it is the "engagement" that must be regular and systematic; not the hours worked pursuant to such engagement'.[30] It was further explained that it was not necessary to establish that shifts and start and finish times were regular or rostered to establish that the employment was on a regular and systematic basis.[31]

[26] Turning to the word 'engagement', at common law, absent an agreement to the contrary, each occasion that a casual employee worked was viewed as a separate engagement under a separate contract of employment. Therefore, in those circumstances no casual employee had a continuous period of employment beyond any single engagement.

[27] In Yaraka Holdings, Madgwick J noted with respect to the phrase 'regular and systematic', that a 'regular... basis' may be constituted by frequent though unpredictable engagements, and that a 'systematic basis' did not have to involve predictability concerning those engagements or an assurance of work.[32] With regard to 'systematic basis' he said that if regularity were to refer to frequency, it implied something more than regularity. The basis of engagement, said Madgwick J, had to exhibit something that could fairly be called a system, method or plan.[33]

Was Ms Spinks' period of employment six months?

[28] Disappointingly for Ms Spinks, who has worked some eighteen harvests for CBH, the answer is that her period of employment was not six months, and therefore she has not met the minimum employment period. The ramification of this finding is that Ms Spinks is not protected from unfair dismissal. It is important then to explain why this is the case.

[29] Ms Spinks' representative submitted that CBH had employed Ms Spinks to work the harvest period all but once since 1995, and therefore it was clear she had been employed regularly to work over a planned period each year. This work pattern, according to Ms Spinks' representative, could be no better demonstration of 'regular and systematic work'.

[30] Ms Spinks' representative continued that continuous service would only be broken in circumstances where, by words or conduct, CBH indicated that there would be no further engagements. As there were no such words or conduct, it followed that Ms Spinks' service was continuous over that eighteen year period, such that service constituted the 'period of continuous service' for the purpose of s 384(1).

[31] It is, however, duly observed that the position of Ms Spinks was qualified when Ms Spinks' representative acknowledged that in 2014, due to the illness of her husband and a desire to be close to him, Ms Spinks worked for a year with an aged care provider. Ms Spinks' representative submitted that in those circumstances it could be said that the continuity had ceased but the clock had effectively been reset from 2015 such that there was nevertheless satisfaction of the minimum employment period.

[32] Ms Ross gave evidence of the hours Ms Spinks worked each week for periods extending from financial year 1999/2000 until the financial year of 2018/2019. For each financial period during that time span, with the exception of 2013/14, Ms Spinks had worked for a time in each period.

[33] It is further evident that in each financial year, there was a period where Ms Spinks worked for CBH at a time that aligned with the operational demands arising from the harvesting period. At times, the work would carry over past December, and in other harvest periods, it would not. There was no evidence of the days worked, or start and finish times, but there was a record of hours having been worked each week during the period. These hours fluctuated; on occasion the weekly hours may have been 45 hours, and on others they may have been 12 hours. Further, the evidence of Ms Ross was that Ms Spinks was verbally informed of her next shift, on her preceding shift.[34]

[34] I have observed that in Ponce it was said that 'it is the "engagement" that must be regular and systematic; not the hours worked pursuant to such engagement'.[35] The Commission in Ponce explained further that it was not necessary to establish that shifts and start and finish times were regular or rostered, to establish that the employment was on a regular and systematic basis'.[36]

[35] The word 'engagement' at common law was understood to be each occasion that a casual employee worked. In Shortland, the Full Bench observed that casual employee may be engaged from week to week, day to day, shift to shift, and so forth.[37] Therefore, no causal employee has a continuous period of employment beyond any single engagement.[38] The Full Bench continued that it was common for a casual employee to transition between a period in which their engagements with an employer are intermittent and a period in which the engagements are regular and systematic. It was against that background, said the Full Bench, that s 384 must be construed.[39]

[36] In each week of work during harvest period it was apparent that Ms Spinks was allocated varying hours of work.[40] Those hours may not have fallen on each day of the week, they may have been commenced and finished at different times, but on each occasion that Ms Spinks worked a shift for CBH, there was an engagement. While the representative for Ms Spinks' submitted that Ms Spinks engagement was by the week given that she was paid weekly, I do not consider this to be the case. After all, the uncontested evidence was that Ms Spinks was informed from shift to shift, when her next shift would be.

[37] Over the period of the harvest, for two to three months, or sometimes four, there was a series of those engagements during the course of each week. Such that as each week passed, the engagements were occurring regularly and it was apparent that there was a plan or system in place. Those engagements therefore culminated into what can be considered contiguous periods of service that counted toward a single period of employment. That is, during each financial year since 1999, Ms Spinks served a period of continuous service with CBH, each year.

[38] However, it is important to emphasise the preceding words 'each year'. It is correct to say that each year Ms Spinks served a period of continuous service with CBH. That is she served a period of employment two, three, or sometimes four months in duration. But, between each harvest period Ms Spinks was not employed by CBH. So much is clear from the evidence.

[39] The general meaning of 'service' refers to a period during which the employee is employed by the employer. There was no evidence before me to show that in between harvest periods Ms Spinks remained an employee of CBH.

[40] As has been observed, a period of service by a national system employee with her or his national system employer, is a period during which the employee is employed by the employer.

[41] Prompted or not, each harvest period Ms Spinks applied to CBH for employment. While Ms Spinks' expectation may have been that she would be employed each year to perform such work as an operator, and as each harvest period approached, she did in fact enjoy another period of employment (save the one exception), there was an irrefutable break between the periods of employment.

[42] The test is not whether there is a contiguous series of periods of employment. What is required is contiguous periods of service amounting to 6 months preceding dismissal. That requirement was not met.

[43] Ms Spinks has not completed the minimum period of employment with CBH in order to be a person protected from unfair dismissal pursuant to s 382.

[44] The unfair dismissal application of Ms Spinks must therefore be dismissed and an order to that effect will be issued with this decision.

[1] Fair Work Act 2009 (Cth) s 382.

[2] Ibid s 384(1).

[3] Holland v UGL Resources Pty Ltd. T/A UGL Resources [2012] FWA 3453, [16].

[4] Witness Statement of Nadine Ross dated 20 March 2019 (Ross Statement).

[26] Fair Work Act 2009 (Cth) s 382(a).

[27] Ibid s 383(a).

[28] Wayne Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709 (Shortland) .

[30] Ponce v DJT Staff Management Services Pty Ltd t/as Daly's Traffic [2010] FWA 2078.

[32]Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6; (2006) 149 IR 339, [89], [91].

[33] cf the definition of 'systematic' in the Macquarie Dictionary, revised 3rd ed, 2001

[35] Ponce v DJT Staff Management Services Pty Ltd t/as Daly's Traffic [2010] FWA 2078.

[36] Ibid, [87].

[37] Shortland [2010] FWAFB 5709 [10].

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