Tikkun v NSW Ministry of Health in respect of Northern NSW Local Health District

Case for the respondent

1. The applicant was employed on 17 June 2019 as a casual Diet Aide to cover short-term absences, primarily leave absences of staff. There was no intention by the respondent to provide the applicant with regular rostered shifts. It was the respondent's case that a temporary contract is offered in circumstances where an employee is required to work regular rostered shifts.

Notice of motion

1. By Notice of Motion filed on 6 September 2019, the respondent sought an order dismissing the applicant's Application for Relief in Relation to Unfair Dismissal filed on 25 July 2019 on the grounds that the Commission has no jurisdiction and lacks the power to hear and determine the application.
2. The respondent pressed the following grounds and reasons in support of the Order sought to dismiss the applicant's Application: 1. The application claims the respondent's failure to provide regular shifts to the applicant as a casual employee constituted a "dismissal" within the meaning of that term in s83(5)(a) of the Act. 2. The respondent has not dismissed the applicant. Accordingly, no dismissal has occurred for the purpose of s84 of the Act. 3. The invocation of the jurisprudence impugned is wholly misconceived, or, on analysis, lacks an unarguable legal foundation with which the applicant can advance this claim. 4. In the alternative, if the respondent's failure to provide the applicant with regular rostered shifts as a casual employee is characterised as a dismissal, it is not an effective dismissal as only the Chief Executive of the relevant Local Health District can terminate employment under s 8.2 of the NSW Health Managing Misconduct Policy Directive PD 2014_042 and s 116 of the Health Services Act 1997. 5. The applicant continued in her employment relationship after 3 July 2019 as if no dismissal had occurred. 6. In the alternative, if the applicant's claimed scope of "dismissal" were to be accepted, all operational rostering decisions for short-term casual employees (could be challenged) under s 84 of the Act.
3. The applicant was not eligible to raise an application under Part 6 of the Act as she was engaged as a casual employee for a short period: ss 83(2)(c), 83(2)(d) and Reg 6 of the Industrial Relations (General) Regulation 2015.

Mr Scott Wagner

1. An affidavit filed by Mr Scott Wagner, Manager Nutrition and Dietetics at Lismore Base Hospital was read and relied upon to support the Notice of Motion. Mr Wagner was the applicant's immediate manager. Mr Wagner was not required for cross examination.

Engagement of applicant

1. The applicant was engaged on 17 June 2019 as a casual Diet Aide under the NSW Health Service Allied Health Assistance (State) Award 2019 (the Award).
2. Mr Wagner contended the applicant had misconstrued the nature of her employment. It was his evidence that the expectation that the role was casual was clearly indicated in the position advertisement, during the applicant's interview and subsequent interactions with her. Mr Wagner subsequently referred to the following annexures to his affidavit: 1. Annexure A - a copy of the job advertisement dated 7 March 2019 for the position of Diet Aide Casual Pool - Lismore. The advertisement states "Employment Type: Casual". 2. Annexure B - a copy of the applicant's application for the position dated 18 March 2019. The application contains an acknowledgement that the applicant "understood the inherent job requirements and job demands for the role".
3. Mr Wagner stated the intention of advertising the position was to provide short term cover for the unexpected absence of existing staff on an hourly basis consistent with the definition of a casual employee contained in Clause 1.3 of the Award. There was no intention that the position would provide the incumbent with regular rostered shifts. In that regard, Annexure B shows the applicant was aware of the inherent requirements and demands of the role.
4. Mr Wagner referred to Annexure C, which contained interview notes taken during the applicant's interview for the role on 1 April 2019. Specifically, the following question was put to the applicant: Q: This casual diet aide position may include 8 hr shifts (from 7:30 am or 8:00 am) and possible 6hr shifts on weekends (until 2:30 pm). If you were successful in being appointed to this casual position what is your interest and/or availability to be called in at short notice for shifts? Annexure C contains the following handwritten notations summarising the applicant's response to this question: Existing monthly roster or roster (8hr/week) @ Byron Would like stability going forward, willing to drop Byron shift for longer LBH blocks OK for shifts in the short term
5. Mr Wagner contended Annexure C indicated the applicant "would like some stability going forward, but was prepared to accept casual shifts in the short-term"
6. The applicant subsequently met the selection criteria and passed all relevant employment checks. The applicant was required to be trained prior to a Diet Aide supervisor going on leave late July 2019.
7. Mr Wagner disagreed with the applicant's contention that in an email dated 27 May 2019, he "seem to agree with discussions in the interview … saying there was a need for casuals to do rostered hours".
8. Mr Wagner stated the purpose of his 27 May email was to ensure the applicant was trained prior to the supervisor taking leave. He did not commit to provide or offer the applicant "a pattern of shifts". In support of the proposition that the applicant would be employed on a casual basis, Mr Wagner referred to the Letter of Appointment set out under Annexure E attached to his affidavit: Position You will be employed on a Casual basis as a Diet Aide, Allied Health Assistants Year 1. Hours of Work You will generally be required to work casual hours per week. It may be necessary to change the hours of work, any shift times and any on-call availability from time to time as required by the demands of the position. Remuneration Your remuneration will be determined in accordance with the Allied Health Assistants. You're commencing rate of pay will be $25.88 per hour. Mr Wagner stated the applicant subsequently accepted the offer set out in Annexure E which also included her "accepting the conditions applicable to (her) appointment".
9. Mr Wagner denied the applicant's claim that he had verbally confirmed she would be "getting regular rostered shifts". Mr Wagner also denied the applicant's claim that he had confirmed her understanding that she would receive regular rostered shifts and would be rostered with "plenty of shifts".
10. The applicant completed mandatory orientation training on 17 and 18 June 2019. She was subsequently rostered to complete training shifts in her new role on 24 and 25 June 2019 with the expectation that she would be available to be called in as required from 28 June 2019.
11. Mr Wagner stated significant concerns relating to the applicant's performance and conduct had been raised with him by senior clinical staff in the short period between 28 June and 2 July 2019. He subsequently set out brief details related to those concerns:

Mr Peter Alexander, physiotherapist

1. Mr Alexander complained that a clinical conversation was interrupted by the applicant in a rude, disrespectful and unprofessional manner at 10:00 am on 29 June 2019. Full details were set out in Annexure F to his affidavit.

Ms Alison Gould, Occupational Therapy Manager

1. Ms Gould's complaint was that the applicant had used an argumentative and dismissive tone with an elderly female patient on 1 July 2019. Full details of the matter which related to a food order were set out in Annexure G to his affidavit.

Ms Sara Mazzaracca, Senior Diabetes Dietician

1. Ms Mazzaracca's complaint was that the applicant confrontationally challenged her clinical governance with respect to a patient's diet. Full details were set out in Annexure H to Mr Wagner's affidavit.
2. Mr Wagner observed that clinicians do not ordinarily raise issues concerning staff members directly with him. Rather, they seek to resolve workplace issues directly with the staff member concerned. Accordingly, the immediate escalation of concerns related to the applicant's conduct and performance was "most unusual" and heightened his concern that the applicant's observed behaviour may pose possible risk to patient safety and well-being. Mr Wagner also expressed concern about the applicant's "readiness to work in the Diet Aide role".
3. The applicant was asked to fill relief shifts on 5,8 and 13 July 2019. Mr Wagner subsequently conducted an initial review of the allegations and a risk assessment. Mr Wagner decided not to offer the applicant any further shifts until she had "the chance to respond to the concerns and appropriate remedial measures were put in place".
4. The applicant was informed by text message on 4 July 2019 there would be changes to the shifts she was working. These arrangements were also confirmed in an email to the applicant also dated 4 July 2019. Full details of that email were set out in Annexure I to his affidavit. Mr Wagner stated in part: … in the space of a few weeks I have developed concerns related to your work readiness in the Diet Aide position. This relates to your professional boundaries, and your manner with patients and other staff.
5. The 4 July 2019 email include a brief account of the complaints from clinicians raised above. Mr Wagner continued: I understand that I haven't yet had the opportunity to directly raise this with you, nor give you the opportunity to respond to the issues. This is unfortunate but has been a result of my illness and absence from the middle of last week. However, as a manager of a service in which one of my senior staff is soon to take extended leave, I have made a decision to progress the training of another casual staff member to ensure service continuity. There will be no contract for set hours going forward with you, though I am happy to keep you on our casual pool for leave relief shifts. As you are a casual staff member, if I have this many concerns so early in your employment and am quite entitled to do what I consider is best for the patients, the Department and the service. I am, in the interests of your professional growth happy to make arrangements to discuss these matters that have been raised, should you wish to do so.
6. It was Mr Wagner' evidence that the applicant had not been dismissed and would remain in the casual pool.
7. The applicant's manager, Ms Hendriksen endorsed the decision to postpone the allocation of further shifts. The applicant had been invited to respond to the alleged conduct. Mr Wagner and Ms Hendriksen met with the applicant on 17 July 2019 to discuss the alleged incidents and seek her response. A summary of that meeting was set out in Annexure J to his affidavit.
8. The meeting summary states the respondent had at no time offered the applicant "contracted work" and was unable to accommodate her desire to work two or three days per week as a casual Diet Aide. Nor were there any "contract opportunities" currently available for the position. Mr Wagner suggested the applicant advise the respondent of her availability and when relief opportunities arise, he would check her availability "and shifts would be assigned at that time".
9. During the meeting on 17 July 2019, the applicant questioned whether her situation was in fact "a case of unfair dismissal". Mr Wagner expressed the view that it was not an unfair dismissal case as the applicant was still employed and consistent with his email dated 4 July 2019, he would consider her for future casual relief work.
10. The applicant's shifts scheduled on 5, 8 and 13 July 2019 were cancelled as a risk management measure with the expectation that further shifts would be provided after those risk concerns had been addressed. Mr Wagner stated this plan was paused following the applicant's email to Mr David Holmes, Human Resources Manager also dated 17 July 2019 and set out under Annexure K to his statement: I have just met with Scott and his Manager Jacqui. At the end of the discussions we ascertained there would be no shifts for me going forward. Therefore, based on expectations established during recruitment I asked his (sic) if you could see this as effectively unfair dismissal. After saying no, at this point he closed the meeting. Based on our discussions I saw a positive way forward as most things were related to unclear expectations which could have been made clear during the training period. I look forward to hearing from you regarding how you can assist.
11. Mr Wagner referred the applicant's email to Ms Munro, also a Human Resources Manager. Ms Munro advised the applicant by email on 18 July 2019 (Annexure L) that she was seeking further information and would provide a reply to her concerns when the information sought was received. In correspondence dated 30 July 2019, Ms Munro wrote to the applicant (Annexure M to Mr Wagner's affidavit) and the following terms: I write further to telephone and email exchanges with you regarding your employment with Northern NSW Local Health District (NNSWLHD) in the position of Diet Aide. I am aware that you met with Scott Wagner (Manager Nutrition and Dietetics) and Jacqui Hendriksen (Manager Lismore Community and Allied Health) on 17 July 2019. This meeting was to discuss feedback regarding some work performance incidents, and to seek your response to these matters. I have reviewed with Scott and Jacqui, the nature and details of that discussion. It was acknowledged that Scott had not had the opportunity to first discuss these matters with you in person, prior to his email 4 July 2019. On the basis of the information provided to me, it is clear that your employment as a casual Diet Aide remains ongoing. There is no commitment to casual staff to provide regular, contracted shifts. I understand that the areas of concern with respect to your workplace interactions have been clarified with you, such that the expectations NNSWLHD has of you in the delivery of your role are understood. I encourage you to ensure Scott is advised of your availability that he can assign shifts when required.
12. Mr Wagner stated he was keen to have suitably skilled and competent staff available to fill gaps presented by the leave of Diet Aides and remained "happy to provide shifts and further training going forward to address the concerns about (the applicant's) conduct.
13. On 25 July 2019, the applicant filed her unfair dismissal claim and accordingly, "No further shifts have been offered to the (applicant) whilst this matter progresses".
14. Ms Gallagher for the respondent submitted the applicant relocated from the area shortly after the reallocation of her casual work to another employee and was therefore unavailable for further casual work.

Case for the applicant

1. As stated above, the applicant was self-represented. The applicant's case against the motion to dismiss the application was largely based on her concern that she was not afforded procedural fairness to remedy the various concerns raised about her performance. It also deals with the merit of her claim that she was unfairly dismissed after working a total of five casual shifts.
2. The applicant's employment as a Dietary Aide at Lismore Base Hospital commenced on 17 June 2019. The applicant stated she worked five shifts from 17 June to 2 July 2019. The Application filed on 25 July 2019 stated in part: With the advice that one of his full-timers was going on extended leave on 27 May, Scott asked via email: "if you could please advise your availability between June 19 in July 21". I responded that "My current contract hours at BCH are only 10 per week. I'm thinking I could only do contract hours there between June 19 in July 21. (Mr Wagner responded) I trust there is flexibility for this. I hope this works for you. If not, I'll be prioritising your roster". This seem to agree with discussions in the interview that took place, saying there was a need for casuals to do rostered hours after the recruitment was completed. An impending large gap in staffing was identified by Scott, which was the purpose of the recruitment process. Once started, I also confirmed verbally with Scott that I would be getting regular rostered shifts and he confirmed my understanding, saying yes casuals get rostered shifts and he intended to roster me.
3. The applicant advanced six reasons for her alleged dismissal: 1. I interrupted a consultation. 2. I walked in on a naked man in a shower. 3. I challenged clinical reasoning. 4. I insisted on not providing a patient a sandwich. 5. I argued with a work colleague. 6. I don't fit in.
4. The Application stated the applicant's Manager, Mr Wagner, considered the applicant experienced problems with the communication: After 2 days of very poor quality training, I was sent to work alone and after three days my shifts were cut by text with no explanation. I emailed my manager for reasons for the shifts being cut. He responded with a list of false accusations and bullying. For example: I walked in on a naked man in the shower, I challenged clinical reasoning and I don't fit in. I have met with him and his manager since he emailed me these things and they appear to see issues as my communications problem, which not only do I consider naïve, but an abuse of position of authority. The conditions of my employment as casual do not relieve my manager of his responsibilities as a Public Sector Manager or his obligations to work in accordance with the Code of Conduct. My last shift was on 2 July 2019 and I've been without work since. In the meeting which took place on 17 July, Scott verified I would not be getting any shifts, this was in the witness of his Manager, Jacqui. On 24 July, the Manager of HR, Linda Munro advised me she had nothing to offer me to date and wouldn't be in a position to contact me to the week commencing 29 July. I do not only require this situation to be rectified going forward, but the delay in taking action needs to be corrected as well. I can't make any claim as to Scott's motives to seemingly be trying to get rid of me, however he may have intuitively sensed my discomfort when he suggested lunch or coffee prior to my first shift.
5. On 4 July 2019, the applicant made some enquiries by email with Mr Wagner concerning her work arrangements: I've now looked at the roster and see my shifts completed are not showing up. You have previously mentioned my shifts need to be in the roster for me to be paid. Also I have no shifts rostered, could you please let me know why as this wasn't either of ours intention. The only incident I'm aware of where something could have gone wrong, is my previous email to you regarding Gayle inappropriately touching a patient. I understand I'm obliged by my signing of the code of conduct to disclose such incident to you.
6. Mr Wagner provided an email response to the applicant the same day: The lack of shifts rostered is unrelated to your email to me regarding Gayle. However, in the space of a few weeks I have developed concerns related to your work readiness in the Diet Aide position. This relates to your professional boundaries, and your manner with patients and other staff. Mr Wagner subsequently set out details of the applicant's performance to date broadly along the lines relied upon by the applicant. Mr Wagner further stated: I understand that I haven't yet had the opportunity to directly raise this with you, nor give you the opportunity to respond to the issues. This is unfortunate, but has been a result of my illness and absence … However, as a manager of service in which one of my senior staff is soon to take extended leave, I have made a decision to progress the training of another casual staff member to ensure service continuity. There will be no contract for set hours going forward with you, though I am happy to keep you on our casual pool for leave relief shifts. As you are a casual staff member, if I have this many concerns so early in your employment and am quite entitled to do what I consider is best for the patients, the Department and the service. I am, in the interests of your professional growth happy to make arrangements to discuss these matters that have been raised, should you wish to do so.
7. The applicant subsequently sent a number of emails to Mr Wagner and Mr David Holmes, Human Resources Manager concerning the decision to stop offering her casual work. Shortly stated, the applicant expressed her disappointment that "there would be no shifts for me going forward" which in her view, was contrary to the "expectations established during recruitment". Accordingly, the applicant considered she had been unfairly dismissed.
8. In a statement filed on 20 September 2019, the applicant confirmed she had completed two days of on-the-job training and three rostered shifts in the Dietary Aide position at Lismore Base Hospital.
9. Under the heading, "Jurisdictional Justification", the applicant proceeded to rely upon the respondent's Policy Directive for managing performance and as referred to below, Rules 35 and 36 of the Government Sector Employment (General) Rules 2014 which deal with performance management and unsatisfactory performance respectively.
10. The statement sets out the applicant's defence concerning the six reasons broadly relied upon by the respondent.
11. The statement also set out the details of seven statements drafted by the applicant and sent to work colleagues for signature in support of her unfair dismissal claim. Those persons were Peter Alexander, Phil Bowman, Sara Mazzaracca, Alison Gould, Anika Howard, Gayle Foster and Jacqui Henriksen. None were subsequently returned to the applicant for inclusion in her case materials to be filed in the Commission.
12. In short, the applicant considered she had been poorly treated by respondent and had been dismissed following certain allegations related to her performance and work practices which in her view were without foundation. The applicant also considered that as a casual employee she had the right to adequate warning that her employment was at risk due to those work performance and practice issues. Throughout the proceedings, the applicant consistently maintained that she had been dismissed by the respondent.

Government Sector Employment Rules 2014

1. During the hearing on 28 September 2020, the applicant sought to rely upon the respondent's Policy Directive for managing performance and Rules 35 and 36 of the Government Sector Employment (General) Rules 2014 which deal with the core requirements of performance management and unsatisfactory performance respectively.
2. Shortly stated, the applicant sought to rely upon the Rules to support her proposition that the respondent had acted in a procedurally unfair manner in terminating her employment and had bypassed the requirements:

• to set and clarify expectations for employees
• to monitor employee performance
• to guide and review employee performance
• to recognise employee achievements
• to resolve unsatisfactory employee performance

1. The applicant noted it was open to the "Commissioner" to determine the essential elements of the above core requirements. Whilst is not clear from the applicant's submissions, reference to the "Commissioner" within Rule 35 is a reference to the Public Service Commissioner.
2. In relation to Rule 36, the applicant contended the respondent had dismissed her without first determining that her performance was unsatisfactory in accordance with the relevant performance management system, advising her the basis upon which her performance was unsatisfactory and affording her a reasonable opportunity to respond.
3. During her submissions, the applicant submitted: When I submitted my application, I already knew that Scott hadn't followed the performance management system, but I located the Government Sector Employment Rules 2014 for New South Wales, and I found that the Commissioner may determine the essential elements of core requirements. These requirements pertaining to space setting clarify expectations for employees; monitoring employee performance; planning and reviewing employee performance; developing employee capacity; and resolving unsatisfactory employee performance. As Lismore Base Hospital has failed to do this within the identified reasonable timeframe, and I had sought legal advice, it appears to me that the Commissioner is the only one with the jurisdiction to uphold the public sector management system in my situation. In addition to the rules of employment that I just mentioned above, it appears that bullying has been used to get rid of me. This is in the form of using unjustified complaints and claims that I don't fit in. These issues were also not addressed by Lismore Base Hospital. My contract states that I would be generally required to do casual work on a weekly basis. As the LHD failed to correct the situation, I'm unaware of any other jurisdiction this matter falls within. I therefore request that the Commissioner consider my cancelled employment in the matter of fair and reasonable compensation which the documentation says can be up to 6 months' wages.
4. In researching her case, the applicant has misconstrued the role of the "Commissioner" within the meaning of the Government Sector Employment Rules 2014. The term "Commissioner" here refers to the Public Service Commissioner and not a member of the Industrial Relations Commission of NSW.
5. For completeness, Rule 14 deals with termination of employment. Specifically, the employment of a public service non - executive employee may not be terminated unless the employee is notified of the proposed termination and given a reasonable opportunity to respond by way of submission. Prior to termination, the relevant public sector agency head must take such submissions into consideration prior to making any final determination.
6. Following submissions on 28 September 2020, the respondent advised the Commission (and the applicant) the applicant was employed as a NSW Health Employee under s 115(1) of the Health Services Act 1997: Persons employed under this part are not employed in the Public Service of New South Wales.
7. The respondent further submitted that Rule 14 did not apply to the applicant as she was not a public service employee.

Statutory context

1. The jurisdictional gateway to the Commission hearing and determining an application brought pursuant to s 84 under Ch 2 of Pt 6 of the Act is that there has been a dismissal of an employee. The words of ss 83 and 84 make that abundantly clear. It therefore follows that the Commission cannot exercise any of its relevant powers unless there has been a dismissal.
2. In the event the Commission determines that the applicant was dismissed, the issue for determination shifts to whether or not the applicant was engaged by the respondent on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months and would, but for the dismissal, have had a reasonable expectation of continuing her employment with the respondent.

Was the applicant dismissed?

1. There was no argument that the applicant was a casual employee. There is no evidence of any written contract of employment which held out the guarantee of regular and continued employment. Annexure B clearly states the position was "Diet Aide Casual Pool - Lismore and acknowledges the applicant has "understood the inherent job requirements and job demands of the role".
2. The status of an employee as a casual is one of fact.
3. The proper characterisation of a "casual" employment can be problematic. It is well established that in Australian law "casual employee" and "casual employment' are expressions with no fixed meaning: Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545; Australasian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd t/as Sunland Wholesale Meats (1988) 24 IR 467; Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385.
4. The decision in Reed v Blue Line Cruises Ltd (1996) 73 IR 420 is authority for the proposition that casual employment may involve: ... informality, uncertainty, and irregularity of an engagement that gives it the characteristic of being casual". A casual employee can decline work or make themselves unavailable to work at any time.
5. Conversely regular and systematic engagements with a reasonable expectation of continuing employment are usually not characteristic of casual employment.
6. There is no evidence in this matter that the applicant was required to accept every casual shift offered to her.
7. Notwithstanding there is no set definition of what constitutes casual employment, I consider the decision of the High Court in Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 provides a commonly accepted definition of the term: A casual employee shall mean an employee who is engaged by the hour and who may terminate employment or be discharged at any moment without notice. This definition reflects the traditional distinctive feature of casual employment where every shift is a separate contractual engagement as opposed to permanent ongoing employment.
8. The applicant's casual shifts set down for 5, 8 and 13 July 2019 were cancelled because of a risk management measure as set out above. That work was subsequently allocated to another employee. There is no doubt the applicant was looking forward to this work and felt bitterly hurt and disappointed at that decision. However, there is no evidence, written or oral, that the respondent terminated her employment.
9. During the meeting held on 17 July 2019, the applicant advised the respondent that she wished to work two or three days per week. At that time, Mr Wagner advised the applicant that at no time had any promise been made concerning future or contracted work. He also advised there were no current opportunities available and the applicant should inform her manager of her availability should opportunities for relief work become available.
10. During the meeting on 17 July 2019, the applicant sought clarification as to whether her case could be considered "an unfair dismissal". Mr Wagner subsequently informed the applicant in his opinion, the applicant's reduction of shifts could not be considered unfair dismissal. Mr Wagner also sought to rely upon his email to the applicant dated 4 July 2019 (Annexure I) where he stated: … as a manager of a service in which one of my senior staff is soon to take extended leave, I have made a decision to progress the training of another casual staff member to ensure service continuity. There will be no contract for set hours going forward with you, though I am happy to keep you on our Casual pool for leave relief shifts.
11. The applicant was also aware from Ms Munro's email dated 30 July 2019 (Annexure M) that her employment as a casual Diet Aide was regarded to be "ongoing" and accordingly, she should advise Mr Wagner of her availability to enable the allocation of casual shifts as required by the nature of the position.
12. In considering this question, I have considered all the material put by the parties in support of their relative contentions and determined there is no evidence before the Commission that the respondent dismissed the applicant. Rather, it is plain to me that the applicant was a bona fide casual employee.
13. The applicant was available to work approximately three casual shifts per week and that was her preference in the longer term. There was no guarantee that she would be offered casual work on any of the days that she was available. Having been offered work on 5, 8 and 13 July 2019 does not equate to a guarantee that the applicant would be offered every shift that she was available to perform during the course of the respondent's requirement to fill the Dietary Department leave position.
14. The Letter of Offer specifies casual employment and makes no promise or reference to a continuing and indefinite work arrangement or a regular pattern of hours. It was a leave relief position. Nor was there a requirement for the applicant to accept any casual work offered. It must therefore follow that the applicant was able to reject work offered in the event an available casual shift did not suit her.
15. I have considered all the material before the Commission with respect to whether the applicant was dismissed and determined there was no dismissal by the respondent. Accordingly, the Commission has no jurisdiction to consider this application and the application no longer needs to be dealt with. Should I be wrong here and to avoid any doubt, I have also considered whether the applicant was engaged for a short period pursuant to the Act and the then Industrial Relations (General) Regulation 2015.

Was the applicant engaged for a short period

1. A purpose of the Act is to enable a casual employee to bring a claim for unfair dismissal except where a regulation is made. Section 83(2) provides for exemption for certain categories of employees from the unfair dismissal jurisdiction by regulation. Section 83(2)(c) specifically provides an exemption for employees engaged on a casual basis for a short period:
2. Section 83(2)(c) relevantly states: (2) This part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: … (c) employees engaged on a casual basis for a short period, …
3. Section 83(2) must be read in conjunction with Clause 6 of the Industrial Relations (General) Regulation 2015: (1) For the purposes of section 83(2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act - … (d) employees engaged on a casual basis for a short period except employees who - (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer.
4. The essential question for determination here is whether a casual employee has been engaged for a short period and if not, the specified conditions contained in Cl 6(1)(d)(i) and (ii) do not require consideration as the employee is able to pursue a valid claim. Accordingly, the Commission must first make findings as to whether the employee was engaged for a short period and secondly, whether the two specified conditions found in the Regulation have been satisfied.
5. With reference to the first enquiry, the Act does not define what constitutes a "short period". Whether a period of employment is a short period is a question for determination having regard to the circumstances of the individual case, any arrangement entered into between the parties and the purpose for which the person is engaged amongst other sundry matters.
6. In this matter, the applicant was engaged for a matter of days and by virtue of that duration, it must constitute a short period for the purposes of s 83(2) and the Regulation. In making that finding, the Commission is required to consider the specified conditions contained in Cl 6(1)(d)(i) and (ii) of the Regulation and be satisfied that the employee was engaged on a regular and systematic basis for a sequence of periods of at least six months and had a reasonable expectation of continuing employment. Both conditions specified in the Regulation must be met.
7. Notwithstanding my determination above that the applicant was not dismissed by the respondent, the factual position is that the applicant was also not engaged on a regular and systematic basis for a sequence of periods of employment of at least six months. It follows that the nature of the applicant's brief employment by the respondent at Lismore Base Hospital was demonstrably casual employment of short duration and is therefore exempt by the Industrial Relations (General) Regulation 2015 from Part 6 Unfair Dismissals of Chapter 2 of the Act.
8. Following consideration of all the material submitted by the parties, the inescapable result is that the Commission must dismiss the application for want of jurisdiction.
9. The Motion is granted and I am satisfied that the following order should be made.

ORDER

1. The Commission orders that: 1. NSWIRC Proceedings 234765 of 2019 be dismissed for want of jurisdiction. J D Stanton Commissioner

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2021