Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2014] FWC 6095 of Vice President Catanzariti at Brisbane on 3 September 2014 in matter number U2014/10195.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 3 December 2014.

[2] This is an appeal, for which permission to appeal is required, by Affinity Education Group Limited (Affinity Education) against a decision of Vice President Catanzariti issued on 3 September 2014. 1 In that decision, the Vice President rejected a jurisdictional objection by Affinity Education against an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) by Mrs Yvette Kogler.

[3] The jurisdictional objection was made on a number of grounds, but only one of those grounds is pressed by Affinity Education on appeal.

[4] It is not in dispute that Mrs Kogler was employed by Affinity Education on a casual basis from 12 December 2013 until 17 June 2014. Notwithstanding that length of time, which amounts to 6 months and 5 days, Affinity Education contended at first instance and on appeal that Mrs Kogler had not served the minimum employment period of 6 months prescribed by s.383(1) so as to come within jurisdiction because she had taken a number of days off work, totalling ten in number, which did not count as service. It relied in that connection upon s.22(2)(b) of the FW Act, which provides that any period of unpaid leave or unpaid authorised absence does not count as service (although under s.22(3) it does not break continuity of service).

[5] In the decision, the Vice President correctly found that the ten identified days relied upon by Affinity Education did not break Mrs Kogler’s continuity of service. However it does not appear that his Honour dealt with the separate issue of whether the days counted as service.

[6] Because the argument raised by Affinity Education goes to jurisdiction, appears reasonably arguable, and was not dealt with at first instance, we consider that permission to appeal should be granted. We are satisfied for the purpose of s.400(1) that it is in the public interest for permission to be granted.

[7] It is therefore necessary for Affinity Education’s jurisdictional objection to be determined. However, we do not consider that the evidence as it currently stands permits this Full Bench to undertake this task. We consider that the expressions “unpaid leave” and “unpaid authorised absence” in s.22(2)(b) connote periods of time off work which, but for the permission or authorisation of the employer, would have been expected if not required to have been worked by the employee. In the case of a casual employee, this raises issues of some complexity, since according to normal legal concepts of casual employment a casual employee is offered and may accept or reject work on a day by day basis. When a casual employee does not work on a given day, it may be difficult absent appropriate evidence to determine whether the day was taken off as leave or an absence authorised by the employer, or whether the employee simply chose not to make himself or herself available for work that day.

[8] In relation to the ten days not worked by Mrs Kogler upon which Affinity Education relies, the evidence adduced at first instance simply did not deal with these matters. In particular, the evidence did not deal with a continuous eight day period which was not worked from 5 to 14 May 2014. We have heard differing explanations for the basis upon which these days were not worked given from the bar table in the appeal but we are not prepared to decide the matter on that basis.

[9] We consider in the circumstances that the appropriate course is to refer the matter under s.607(3)(c) of the FW Act to Commissioner Johns for a further hearing on this issue. This will allow the parties an opportunity to adduce appropriate evidence concerning the basis upon which the days in question were not worked, and thus allow Affinity Education’s jurisdictional objection to be determined on a proper factual foundation. The further hearing will be listed for 19 December 2014.

[10] We also note that this matter has not yet been the subject of a conciliation conference. We can indicate that, if the parties agree, Commissioner Johns will be available to conduct such a conciliation immediately after we adjourn. We hope the parties would favourably consider availing themselves of this opportunity.

VICE PRESIDENT

Appearances:

C. Kogler representative for Y. Kogler

J. Laboo and L. Caroll for Affinity Education Group Limited

Hearing details:

2014.

Brisbane:

3 December.

 1   [2014] FWC 6095

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