[2022] FWC 2301
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Renee Royall
v
Aussie Kids Pty Ltd
(U2022/5812)

DEPUTY PRESIDENT MASSON

MELBOURNE, 31 AUGUST 2022

Application for an unfair dismissal remedy – jurisdictional objections raised – whether Applicant dismissed – whether minimum employment period met – jurisdictional objections dismissed – dismissal found to be unfair – reinstatement not appropriate - compensation ordered.

Introduction

[1] On 27 May 2022, Renee Royall (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with Aussie Kids Pty Ltd (the Respondent) on 23 May 2022 was unfair. The Applicant seeks an order for compensation. 

[2] On 15 June 2022, the Respondent filed its Form F3 response to the unfair dismissal application in which it raised two jurisdictional objections to the application, those being that the Applicant was not dismissed withing the meaning of s.386(1) of the Act and had not served the minimum employment period (the MEP). 

[3] Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 26 August 2022. After hearing from the parties, I determined to conduct a hearing pursuant to s.399 of the Act having regard to the number of witnesses called to give evidence.

[4] The Applicant was self-represented and gave evidence herself at the conference. The Respondent was represented by Amanda Both of DJMIR Advisory Services Pty Ltd
who was granted permission to appear pursuant to s.596(2) of the Act. Ms Both called the following witnesses for the Respondent;

Background and evidence  

[5] The Applicant commenced employment with the Respondent at its Mildura childcare centre (the Centre) on a casual basis as an ‘Early Childhood Educator’ in August 2020 1. At the time of the Applicant’s alleged dismissal, the Respondent employed thirty-three staff2, the Applicant was covered by the Children’s Services Award 20103 (the Award) and was in receipt of a casual hourly base rate of pay of $33.334.

[6] The Applicant states that when she commenced employment with the Respondent she initially agreed to work between 10.00am and 3.00pm on weekdays during periods when her partner was at home and not rostered to work at a mine site at which he was employed. She says that the hours arrangements initially agreed became untenable for the Respondent who told her that she would need to “lock in” set shifts and hours which were agreed as Monday to Thursday from 10.00am and 3.00pm each week. These more regular arrangements were implemented from February 2021. The Applicant’s fortnightly hours of work for the period from 24 August 2020 to 23 May 2022, as disclosed by the Applicant timesheet records 5 (the Timesheet Records), were as follows;

[7] The Applicant states that due to the premature birth of her son, she was forced to take unpaid parental leave from 13 January 2022. As she was a casual employee she was not entitled to paid parental leave from the Respondent 6 and applied for access to federal government funded paid parental leave, which she subsequently received. Following the birth of her son, the Applicant maintained contact with the Respondent, particularly in relation to her health which she says was compromised by a difficult pregnancy and a bout of COVID-197. She also confirmed that she held an expectation that she would return to work for the Respondent when her health and caring responsibilities allowed.

[8] Ms Perera and Mr Nelson both conceded during cross examination that in the period prior to 13 January 2022 when the Applicant ceased work due to the birth of her child, she had been engaged on a regular and systematic basis. They also confirmed that contact with the Applicant was maintained during the January-May 2022 period and that she was expected to return to work on a casual basis following the period of unpaid parental leave.

[9] In April 2022, the Applicant says she contacted Ms Perera, to advise her that she would be available to return to work as her partner had been able to secure three months paid parental leave. The Applicant says she told Ms Perera that she would be able to return to work from 1 May 2022. In response, the Respondent requested that the Applicant provide a medical clearance which was subsequently provided and confirmed the Applicant was able to return to work. The Applicant was advised by Ms Perera that there were no shifts available at the start of May 2022 but was subsequently contacted and offered shifts from 17 May 2022 to cover an increase in absences of staff due to illness.

[10] Ms Perera confirmed that the Respondent uses a “live” rostering application called Tanda which allows the Respondent to plan and communicate rosters, and changes to those rosters, to employees. According to Ms Perera, a ‘live’ roster system is necessary in circumstances where shift coverage requirements are constantly changing due to fluctuating child numbers at the Centre. The Applicant confirmed that she normally received notice via Tanda of her roster for a particular week in the prior week. Notwithstanding the notified rosters, Ms Perera stated that casual employees are often sent home early on particular days due to there not being enough children to justify the rostered staff numbers. The Applicant conceded that she had been sent home early on occasions due to not being required although she stated that she had never had an entire weeks’ roster cancelled.

[11] Ms Perera stated that while the majority of the Respondent’s employees use Tanda, its use is not a condition of employment and not all employees use the application due to its incompatibility with their phones or simply due to personal preference. Ms Perera further stated that these employees are informed of their shifts by text, email or by other means 8. Ms Perera did however concede that Tanda is an important tool used by the Respondent to communicate with staff on rosters and other issues.

[12] On Friday 20 May 2022, a large number of staff were absent from work which prompted Ms Perera to send an email 9 to all staff expressing general disappointment at the high rate of absenteeism that day and requesting that staff only take time off if they had a genuine reason. While the email did not single out any individual staff member, the Applicant states that the email provoked a negative reaction from certain staff towards absent staff members which the Applicant regarded as unfair.

[13] After speaking with some of her colleagues who had been absent on 20 May 2022, the Applicant sent a reply to Ms Perera on ‘Tanda’ over the weekend of 21-22 May 2022 which was visible (‘public’) to other staff. She says she made her reply ‘public’ for a number of reasons. Firstly, to point out that certain staff had a valid reason for their absence on 20 May 2022. Secondly, she wanted to communicate that staff should be commended for their efforts rather than criticised and finally, to ensure that staff knew they had done nothing wrong. In responding to Ms Perera, the Applicant disclosed the reason for the absences of certain colleagues and by doing so, states she felt that she needed to stand up for those staff. Following making the Tanda post, the Applicant also sent an email to Ms Perera over the same weekend to which she attached a copy of the Tanda post.

[14] Ms Perera gave conflicting evidence on the timeline of events on the morning of 23 May 2022. In her witness statement she stated that prior to seeing the Applicant’s email on the morning of 23 May 2022, she and Ms Russell undertook the normal daily process of balancing the rosters for the 23 May 2022, that being a process of reviewing and adjusting the staffing levels according to the number of children in attendance at the Centre that day. She said that in doing so, they found that they did not need the Applicant to complete her shift. It was only after completion of the roster balancing exercise she says she then saw the Applicant’s email, following which she asked Ms Russell to inform the Applicant that she could go home early and that Ms Perera would like to speak with her before she left 10.

[15] During cross-examination however, Ms Perera confirmed that she actually saw the Applicant’s email shortly after she arrived for work when she reviewed her emails at approximately 8.30am. It was only after Ms Russell’s arrival at work at approximately 9.45am that the roster balance review was conducted, at which point Ms Russell was instructed by Ms Perera to advise the Applicant she could go home but was to see Ms Perera before she left.

[16] The Applicant confirms that she was called into Ms Perera’s office during her shift on the morning of Monday 23 May 2022 just before 10.00am. Present at the meeting were the Applicant, Ms Perera and Ms Russell. It is uncontroversial that Ms Perera told the Applicant she was unhappy with the Tanda message the Applicant had sent. Specifically, the response was critical of Ms Perera’s email, had been made public by the Applicant and should not have been according to Ms Perera. The Applicant in the meeting defended her action by stating that Ms Perera’s email on 20 May 2022 had been hurtful to a number of staff and that the Applicant thought the email was “disgusting”. Ms Perera says she stated to the Applicant during the discussion that if the Applicant was concerned about Ms Perera’s 20 May 2022 email to staff, she should have raised it with her privately rather than publicly 11. Ms Russell who was present at the meeting stated that Ms Perera was not rude or aggressive towards the Applicant during the meeting.

[17] The meeting concluded when the Applicant stated to Ms Perera that she had nothing more to say at which point the Applicant states she was told by Ms Perera that she could leave and go home. When the Applicant indicated to Ms Perera that she wanted to give a bobby pin to one of the children she was advised by Ms Perera that “no your not allowed out there” and was told she could go home. The Applicant then left Ms Perera’s office at approximately 10.00am but according to Ms Perera returned shortly after to query whether she would receive any shifts for the rest of the week to which Ms Perera responded that she would be contacted if there were any shifts. Ms Perera also believes she told the Applicant to check the Tanda app for any roster updates 12. The Applicant denied having returned to Ms Perera’s office as claimed by Ms Perera and left the Respondent’s premises at 10.04am.

[18] During the afternoon of 23 May 2022, Ms Perera and Ms Russell “balanced the roster again” for the rest of the week commencing 23 May 2022. This Ms Perera says, was due to children of some families not attending that day and also notifying that they would not be attending for the rest of the week. This meant that the Respondent had an excess of staff rostered for the week. As a consequence, the Applicant’s remaining shifts for the week of 23 May 2022, of which she had been notified the previous week 13, were cancelled along with other staff according to Ms Perera14. When pressed during cross-examination, Ms Perera and Ms Russell were unable to identify any previous occasion where the Applicant’s shifts for an entire week were cancelled in advance of the rostered shifts. Nor were they able to identify whether any of the 17 other casual employees who were rostered to work in the week of the 23 May 2022 had their shifts cancelled like the Applicant. Rather, it was confirmed by Ms Perera that other casual staff had maintained their rosters but may have been sent home early on particular days according to the number of children attending the Centre. Ms Russell attributed the different treatment of the Applicant to the number of children attending the particular room of the Centre that the Applicant was rostered to work in.

[19] Ms Perera and Ms Russell both gave oral evidence that the impact of COVID-19 and other flu season infections had meant that the number of children attending the Centre each day had, around the time of the Applicant’s alleged dismissal, reduced and was also unpredictable. This led to casual employees being released to go home early on a regular basis. However, no evidence was led by the Respondent that established the numbers of children in attendance at the Centre during the week of 23 May 2022, the number of staff rostered to work or the number of casual staff that were sent home early on days during that week.

[20] The Applicant says that later in the day on the 23 May 2022 after she had left the Centre she checked Tanda and saw that her shift for Tuesday 24 May 2022, which had been previously rostered 15, had been deleted. She subsequently checked Tanda on the 24 May 2022 and saw that all of her shifts for the week of 23 May 2022 had been cancelled. On 25 May 2022, the Applicant again checked Tanda and found she was unable to log in, following which she contacted Tanda support who advised that she had an inactive account16. She then emailed Ms Perera to raise that she was unable to log in to Tanda and asked why her shifts had been removed. She says that she received no reply although Ms Perera claims not to have received such an email.

[21] Ms Perera confirmed that following a discussion on 24 May 2022 between herself and Mr Nelson regarding the Applicant’s misuse of Tanda and the lack of remorse over her actions, a decision was taken to remove the Applicant’s access to Tanda. Ms Perera conceded that following the decision to remove the Applicant’s access to Tanda, she did not take any steps to advise the Applicant of that decision, the reasons for that decision and what if any arrangements would be put in place to notify the Applicant of available casual shifts. She says that this was an oversight and explained by the fact that the Respondent had not previously confronted the situation of an employee misusing Tanda.

[22] The Applicant states that after receiving advice from Tanda support at 11.54am on 25 May 2022 that she had an ‘inactive account’, she telephoned Ms Perera and asked whether her shifts had been cancelled because of the meeting on 23 May 2022 to which she says Ms Perera replied, “pretty much”. Ms Perera confirmed in her evidence that she received a phone call from the Applicant on 25 May 2022 during which the Applicant asked why her shifts had been removed to which Ms Perera responded that there were currently no shifts available. Ms Perera agreed that she also confirmed to the Applicant during the discussion that the Applicant’s access to Tanda had been removed because of their meeting on 23 May 2022 17.

[23] Both Ms Perera and Mr Nelson rejected the proposition that the Applicant’s removal from Tanda constituted a termination of her employment by the Respondent. To illustrate this point, Ms Perera highlighted that a number of other employees do not have access to Tanda and yet remained employed by the Respondent, although she did not identify which employees or how many did not use Tanda 18. Mr Nelson also stated that any employment termination decisions are discussed by Ms Perera with himself and his wife as owners of the business. No such discussion took place in respect of the Applicant according to Mr Nelson19.

[24] It is noted that the payslip for the pay period ending 29 May 2022 indicates that employment ended 23 May 2022 20. Ms Perera explained this reference to the Applicant’s employment having been terminated on 23 May 2022 as being in response to the Applicant’s unfair dismissal application to the Fair Work Commission on 27 May 2022 and did not indicate that the employment had been terminated at the Respondent’s initiative.

[25] While maintaining that the Applicant was not dismissed at the Respondent’s initiative, Ms Perera variously stated during cross-examination that;

Relevant legislation

[26] The Respondent has raised two jurisdictional objections to the application, those being:

[27] An application for an unfair dismissal remedy is made pursuant to s 394 of the Act. Section 394(1) reads as follows:

[28] Section 386 of the Act prescribes when an employee has been dismissed and states as follows:

[29] Subject to the Commission being satisfied that an employee has been dismissed within the meaning of s.386(1) of the Act, it must then consider a number of initial matters which are set out at s.396 of the Act as follows:

[30] In so far as this application is concerned, ss.396(b) & 382(a) are relevant. Section 382(a) provides as follows:

[31] A “period of employment” is defined in s.384 of the Act as follows:

[32] The “minimum employment period” is defined in s 383 of the Act as follows:

Consideration

[33] Having regard to the above, it is necessary for me in dealing with the Respondent’s jurisdictional objections, to consider whether the Applicant was dismissed at the initiative of the Respondent within the meaning of s.386(1) of the Act and determine on what date the dismissal took effect. Should I find the Applicant was dismissed by the Respondent, I must then consider whether any of the periods of service of the Applicant as a casual employee can be counted in the Applicant’s period of employment. To do so, I must consider whether the Applicant was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis. If I find in the affirmative for all or any of her service, I must consider whether this service amounted to a period of employment that meets the MEP.

[34] I turn first to consider whether the Applicant was dismissed.

Has the Applicant been dismissed?

[35] As set out above, the Applicant responded via a post on Tanda to an email from Ms Perera sent to all staff on 20 May 2022 in which Ms Perera expressed disappointment at the number of staff absent on 20 May 2022. While not in evidence, the content and ‘public’ nature of the Applicant’s response to Ms Perera’s email was seen by the Respondent as inappropriate. The reaction of the Respondent to the Applicant’s Tanda post was to cancel her access to Tanda which was the app through which the majority of staff of the Respondent received notice of their shifts. At the same time as withdrawing the Applicant’s access to Tanda, the Respondent cancelled all of the shifts for which the Applicant was rostered to work in the week of 23 May 2022. This was in addition to her being told to go home early on 23 May 2022.

[36] The Applicant viewed the withdrawal of her Tanda access and cancellation of her shifts without explanation as constituting the termination of her employment. The Respondent denies those actions were intended to bring the employment relationship to an end and state that had it intended to end the employment relationship, Mr Nelson and his wife, as owners of the business, would have been engaged by Ms Perera. Further, formal communication of the termination of the Applicant’s employment would have been provided and a Separation Certificate would have been provided. Neither were provided by the Respondent.

[37] For the reasons that follow I am satisfied that the conduct of the Respondent in cancelling the Applicant’s shifts and also withdrawing her access to the rostering app, Tanda, had the probable result 21 of bringing the employment relationship to an end, even if was not the intention of the Respondent to do so. I am also satisfied that had the Respondent’s actions not been taken, the Applicant would have remained employed22.

[38] The Respondent confirmed that Tanda was an important tool used for communicating rosters and other information to staff. While claiming it was not a condition of employment that staff must use Tanda, the Respondent’s assertion that some staff did not use Tanda did not rise above a general assertion with no evidence led as to the actual numbers of staff who did not use Tanda. I consequently accord that assertion limited weight. Given the conceded importance of Tanda as a roster communication tool, the Respondent was unable to properly explain why, in terminating the Applicant’s access to Tanda, it had failed to notify the Applicant of the decision to remove her access or the reasons for that decision. Critically, no steps were taken by the Respondent to advise the Applicant of what other steps would be taken to notify her of rostered shifts.

[39] The Respondent sought to characterise its failure to notify the Applicant of her Tanda access withdrawal as an oversight due to it not having had to deal with the misuse of Tanda by a staff member previously. I found this explanation unconvincing in circumstances where Ms Perera believes she told the Applicant in their meeting on 23 May 2022 to monitor Tanda for updates on her rostered shifts in the week of 23 May 2022 and where she and Mr Nelson made a conscious decision to withdraw the Applicant’s access to Tanda on 24 May 2022. At the very least, the failure of the Respondent to notify the Applicant of her Tanda access withdrawal was extremely poor management. Coupled however with a failure to notify the Applicant of alternate shift notification arrangements, it would in my view reasonably lead to the Applicant concluding that she would not be offered further shifts.

[40] Turning to the cancellation of the Applicant’s rostered shifts for the week of 23 May 2022, the following points are telling in favour of a finding that the action had the probable result of terminating the Applicant’s employment.

[41] There was no evidence adduced by the Respondent that the Applicant had on any previous occasion had her rostered shifts for an entire week cancelled. Nor could the Respondent identify any other casual employee that, having been notified of rostered shifts in a particular week, then had their entire weeks’ roster cancelled. The Respondent sought to explain this apparent inconsistency by pointing to the impact of COVID and flu infections in the period around the date of the Applicant’s alleged dismissal as having had a significant impact on the attendance of children and staff at the Centre. That explanation might have had force were the Respondent able to identify any other casual employee who was treated similarly to the Applicant in the week of 23 May 2022 or any other week for that matter. It was unable to do so.

[42] As stated, the evidence discloses that other casual employees did not have their rostered shifts cancelled in advance, as occurred in the case of the Applicant. Rather, their rosters remained in place and in the event that the number of children did not justify rostered staffing levels on a particular day, the practice of roster balancing was applied, that being that staffing requirements on a daily basis were reviewed by Ms Russell in conjunction with Ms Perera and any surplus casual staff would be released to go home early.

[43] The Respondent sought to explain the different treatment of the Applicant compared to other casual employees in the week of 23 May 2022 as follows. The number of children notified as attending in the week of 23 May 2022 who would have been in the room the Applicant was allocated to, was such that the Applicant was not required according to the Respondent. I discern from this argument that the Respondent had certainty as to its staffing requirements for the week of 23 May 2022 to the extent that it impacted on the Applicant, that being it knew it did not require her for the rest of the week. However, it had no such certainty with the other casual employees of which there were 17, with the consequence that their rosters were preserved, albeit they may have been sent home early on particular days depending on the number of children attending the Centre.

[44] I find the attempts of the Respondent to justify the Applicant’s different treatment in the week of 23 May 2022 wholly unconvincing. It must be recalled that on Friday 20 May 2022, Ms Perera felt so strongly about the absenteeism of staff, which severely impacted the Centre’s ability to accept children on that day, that she sent a note to all staff expressing her disappointment. In the space of one working day, the treatment of the Applicant suggests that whereas on the preceding Friday there had been a serious staff shortage, come Monday there was a surplus of staff. Not only that, but the Respondent had also acquired a certainty over the course of one working day that they did not need the Applicant for the rest of the week of 23 May 2022. That certainty was not effectively reconciled by the Respondent with the different treatment of other casual staff, the preceding Friday’s staff shortfall and the general uncertainty experienced regarding the number of children and staff attending the Centre due to the impact of COVID, flu and other infections/illnesses that were prevalent at the time of the Applicant’s alleged dismissal.

[45] Termination at the initiative of the employer means a termination brought about by an employer and which is not agreed to by the employee. A termination of employment can occur at the initiative of the employer even if it is not done by the employer. 23  It requires the action of the employer to be the principal contributing factor which leads to the termination of the employment relationship.

[46] I am satisfied that the principal contributing factor to the dismissal of the Applicant was the decision of the Respondent to cancel her shifts in the week of 23 May 2022 in conjunction with the unnotified and unexplained withdrawal of the Applicant’s access to the Tanda roster app used by the Respondent. It necessarily follows that the Applicant was dismissed at the initiative of the Respondent and that her date of dismissal was 23 May 2022, and I so find.

Has the Applicant completed the minimum employment period as at the date of her alleged dismissal?

[47] As made clear from the statutory provisions set out above, in order for the Applicant to establish that she has satisfied the MEP as a casual employee, it is necessary that her period of employment with the Respondent meets two tests:

(i) that she was regularly and systematically engaged for an aggregate period of service of at least 6 months; and

(ii) during that period of service, she had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[48] I understand the Applicant to contend that her period of employment met the MEP, that her casual employment was on a regular and systematic basis and that she had a reasonable expectation of continuing employment on a regular and systematic basis during her period of service.

[49] The Respondent submits that the Applicant did not meet the MEP. While it accepts that the Applicant’s period of engagement as a casual employee between 1 February 2021 and 12 January 2022 was on a regular and systematic basis, it asserts that the 18-week break in casual engagements from 13 January to 17 May 2022 had the effect of terminating the employment relationship. It follows therefore, according to the Respondent, that the Applicant’s service prior to 17 May 2022 would not be counted for the purpose of calculating the Applicant’s period of employment.

[50] Before turning to consider the contentions of the parties it is useful to highlight the observations of the Full Bench in Wayne Shortland v The Smiths Snackfood Co Ltd 24 (Shortland) where they said the following concerning what will constitute the minimum employment period of a casual employee;

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.” 25

[51] From the above statutory provisions and on the authority of Shortland I discern the following must be established to determine the Applicant’s period of employment in order to ascertain whether she had met the relevant MEP at the date of her dismissal;

[52] It was uncontroversial that the Respondent employed approximately 33 staff at the date of the Applicant’s alleged dismissal and was therefore not a small business employer. It follows that the MEP required to be served by the Applicant was that of 6 months.

[53] Turning to the Applicant’s hours of work, the following may be gleaned from the Timesheet Records and Attendance Records;

[54] The record of the Applicant’s engagements reveals less regularity in the period between 24 August 2020 and 25 January 2021, which was explained by the Applicant as due to her only being available in those periods when her partner was not working. Any doubts as to her being regularly and systematically engaged on a casual basis is removed by an examination of the 49-week period from 1 February 2021 to 12 January 2022 in which she worked in all bar 5 weeks of that period. I am satisfied that the 49-week period counts towards the Applicant’s period of employment. I am also satisfied that the period between 17-23 May 2022 also counts towards the Applicant’s period of employment.

[55] What is at issue in this matter is whether the 18-week period between 13 January 2022 and 17 May 2022, in which the Applicant did not work, acted to break the continuous service of the Applicant as contemplated by the Full Bench in Shortland (at paragraph [13]). It does not in my view for the following reasons. Firstly, it was a period of ‘leave’ to deal with the birth of the Applicant’s child. A period of ‘leave’ was clearly contemplated by the Full Bench in Shortland as not breaking continuous service. Secondly, as also made clear by the Full Bench in Shortland, the series of a casual employee’s engagements is broken only when either party makes clear to the other party that there will be no further engagements. In the present matter, both parties maintained contact with each other during the Applicant’s period of maternity ‘leave’ and both parties expected a resumption of shifts by the Applicant when her caring responsibilities allowed. There was no communication or action taken by either the Applicant or Respondent in the period between 13 January – 17 May 2022 that made clear there would be no further engagements.

[56] While the period from 13 January to 17 May 2022 does not count towards the calculation of the Applicant’s period of employment it does not break the Applicant’s continuous service. It therefore follows that as that at the date of the Applicant’s termination of employment on 23 May 2020, her period of employment exceeded six months thereby comfortably meeting the MEP.

[57] I turn now to consider whether the Applicant had, during her period of service, a reasonable expectation of continuing employment on a regular and systematic basis.

[58] In the context of casual employees pursuing an unfair dismissal remedy, Commissioner Roe considered the meaning of the terms “regular and systematic” engagement and “reasonable expectation of ongoing employment” in Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 26 (Ponce). Commissioner Roe specifically considered at what point the expectation of ongoing employment must be determined and relevantly stated as follows:

“[57] The other significant change is that the WR Act required that for a casual to achieve jurisdiction:

“the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer (Section 638(4) (b)).”

[58] Whilst the 2009 Act requires that:

“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 (Section 384(2) (a) (ii)).”

[59] The focus on the reasonable expectation of continuing employment is not now about the expectation at the point of termination but about the expectation during the period of service that is to count towards achievement of the minimum employment period to achieve jurisdiction.

……………..

[64] So it is clear that a period of continuous service for the purposes of Sections 22 and 383 and 384 of the Act can include a period of casual employment notwithstanding the fact that the employee may be engaged and re-engaged on a daily or even an hourly basis during that period of casual employment. The test is simply whether or not during a period of at least six months prior to the dismissal the employment as a casual employee was on a regular and systematic basis and the employee had, during that period, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.” 27 (emphasis added)

[59] I regard Ponce as authority for the proposition that it is not at the point of termination that one must assess whether there is a “reasonable expectation of continuing employment on a regular and systematic basis.” Rather, the focus is on whether such an expectation existed during the period of service. Based on Ponce with which I respectfully concur, it is not the test to assess whether the Applicant had a reasonable expectation of continuing casual employment on a regular and systematic basis as at the 23 May 2022. Rather, the assessment is to be made during the Applicant’s period of continuous service that counts towards the 6 month MEP.

[60] As earlier set out, the Applicant commenced casual employment with the Respondent in August 2020. From February 2021, the Applicant agreed to ‘lock in’ her days and hours of availability to work shifts for the Respondent which resulted in her working on a regular and systematic basis over the next 12 months prior to her taking a period of ‘leave’ for the birth of a child. It is telling that during the period from 13 January to 17 May 2022, the Applicant maintained contact with the Respondent and expected to return to work when her caring responsibilities allowed. Witnesses for the Respondent also confirmed their expectation during that same four month period that the Applicant would return to work.

[61] The full period of casual employment of approximately 20 months is particularly relevant in considering whether the Applicant could have had a reasonable expectation of continuing employment. That period during which she maintained her casual employment, combined with the “regular and systematic” nature of her engagements, would in my view lead to an entirely reasonable expectation on the part of the Applicant of continuing employment on a regular and systematic basis.

[62] In all the circumstances, I conclude that the Applicant was a casual employee who was employed on a “regular and systematic” basis and that during her period of service as a casual employee, had a reasonable expectation of continuing employment on a regular and systematic basis. The period of the Applicant’s employment was in excess of the MEP of 6 months at the time of her dismissal as required by s 382 of the Act.

Initial matters

[63] Having dealt with the two jurisdictional objections raised by the Respondent, it is now necessary for me to turn to the remaining preliminary matters. Those matters are set out under section 396 of the Act which obliges the Commission to decide the following matters before considering the merits of the application:

[64] Relevant to the determination of the preliminary matters I am satisfied that;

[65] Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.

Was the dismissal harsh, unjust, or unreasonable?

[66] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)?

[67] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”28 and should not be “capricious, fanciful, spiteful or prejudiced29.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer30.

[68] Both Ms Perera and Ms Russell concede that the Applicant’s conduct in sending a public response to Ms Perera’s email of 20 May 2022, did not justify her dismissal even though they characterised the conduct as a misuse of Tanda. It is not possible for me to determine whether the Applicant’s conduct of posting a response to Ms Perera’s email of 20 May 2022 on Tanda constituted misconduct of any kind let alone a kind that would justify dismissal. That was because the post referred to by both parties was not in evidence. In these circumstances I am not satisfied that the Applicant engaged in misconduct that would establish a valid reason for her dismissal. This weighs against a finding that the dismissal was not unfair.

Notification of the valid reason – s.387(b)

[69] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,31 and in explicit32, plain and clear terms33.

[70] The Respondent properly concedes that absent a valid reason for the Applicant’s dismissal it could not have complied with the requirement to notify the Applicant of a valid reason for her dismissal. This weighs against a finding that the dismissal was not unfair.

Opportunity to respond to any reason related to capacity or conduct – s.387(c)

[71] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.34

[72] The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly.35 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.36

[73] While a meeting was conducted on 23 May 2022 at which the Applicant’s Tanda post was discussed, it was not put to the Applicant that the Respondent was considering the termination of employment. In these circumstances I am not satisfied that the Applicant was afforded an opportunity to respond to the reasons relied on by the Respondent for her dismissal. This also weighs against a finding that the dismissal was not unfair.

Support person – s.387(d)

[74] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. The Applicant was not offered, nor did she request to be accompanied by a support person in the disciplinary meeting held on 23 May 2022. This criteria is a neutral consideration in the circumstances.

Warnings regarding unsatisfactory performance – s.387(e)

[75] The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.

Impact of the size of the Respondent on procedures followed – s.387(f)

[76] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed 33 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.

Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)

[77] The evidence in this matter indicates that the Respondent did not have access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration.

Other relevant matters – s.387(h)

[78] No other matters were raised by either party, nor am I aware of any other matters that may be relevant to my consideration of whether the Applicant’s dismissal was harsh, unjust or unreasonable.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?

[79] I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable. 37   

[80] I have found that the Applicant’s dismissal was not supported by a valid reason. This weighs against a finding that the dismissal was not unfair. There were also significant procedural failures of the Respondent in effecting the dismissal. Other factors were either neutral or not relevant. Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal was unjust, unreasonable, and thereby unfair.

Remedy

[81] Being satisfied that the Applicant:

I may, subject to the Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.

[82] Under s.390(3) of the Act, I must not order the payment of compensation to the Applicant unless:

Is reinstatement of the Applicant inappropriate?

[83] The Applicant submitted that reinstatement was not appropriate in the circumstances as she felt that were she returned to the Respondent’s employ she would be a target. While the Respondent did not agree that the Applicant had or would be targeted, it agreed that reinstatement would be inappropriate in circumstances where the Applicant felt uncomfortable about returning to its employ. I also note that the business employs a small number of employees.

[84] Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[85] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”38.

[86] The Applicant submits that payment of compensation is appropriate because she had been unfairly dismissed and has so far been unable to secure alternate employment since her dismissal, whereas the Respondent argued that any compensation should be limited to that sought by the Applicant in her outline of submissions.

[87] Having found that the Applicant was unfairly dismissed and noting that the Applicant remains unemployed, in these circumstances, I consider that an order for payment of compensation is appropriate. There is nothing in the material filed by the Respondent in the substantive proceedings, which was not tested in an evidentiary sense in any case, that persuades me that a payment of compensation would be inappropriate.

Compensation – what must be taken into account in determining an amount?

[88] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:

[89] I consider all the circumstances of the case below.

Effect of the order on the viability of the Respondent’s enterprise

[90] While the Respondent submits that it is not a large employer, there was no material filed or evidence adduced by it that would support a finding that an order for compensation would have an effect on the viability of the employer’s enterprise. I consequently find that an order for compensation is unlikely to have an effect on the viability of the employer’s enterprise.

Length of the Applicant’s service

[91] The Applicant commenced employment with the Respondent in August 2020 and was terminated on 23 May 2022 a period of some 20 months which was served as a casual employee. I consider that the Applicant’s length of service is such that it does not favour an adjustment to the compensation otherwise calculated.

Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed

[92] As stated by a majority of the Full Court of the Federal Court, “in determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.” 39

[93] The Applicant contends that she would have continued to work for the Respondent on an indefinite basis but for her dismissal. That statement is not easily reconciled however with her expressed discomfort at the prospect of returning to the Respondent’s employment following the events on and around the 20-23 May 2022. The Respondent made no submissions on how much longer the Applicant would have remained employed but for her dismissal.

[94] I find that while the relationship between the Applicant and Ms Perera may have been strained by the Tanda post made by the Applicant in the lead up to the termination of her employment, the relationship was not so poor as would have made it inevitable that the Applicant would have resigned or been dismissed for other reasons in the near term had she not been dismissed on 23 May 2022. Having said that, the Applicant was a casual employee and had only been employed in the business for less than 2 years which weighs against a finding that her employment would have continued for a lengthy period of time. I am unwilling to accept on the basis of the Applicant’s relatively short period of casual employment, that she would have continued to work indefinitely for the Respondent.

[95] I am satisfied that, had the Applicant not been dismissed, it is likely that she would have remained in the Respondent’s employment for a further 6 months. In reaching this conclusion I have had particular regard to the Applicant’s length of employment with the Respondent as a casual employee and the inherent uncertainty of predicting the likelihood of long term casual employment.

[96] Turning to the weekly remuneration, the evidence as to the Applicant’s earnings reveals that in the period from her commencement of employment in August 2020 to 25 January 2021 she worked an average of 9.7 hours per week. From 1 February 2021 to 12 January 2022, she worked an average of 13.3 hours per week. The difference reflects that from 25 January 2021 the Applicant had agreed to ‘lock in’ more regular rostered hours. The Applicant then took a period of maternity ‘leave’ from 13 January 2022, on return from which she was not initially rostered to work shifts due to the lack of available shifts. The Respondent says that the regularity of shifts that the Applicant enjoyed before her maternity ‘leave’ could not be assured moving forward. That was because of the greater uncertainty of hours of work due to the prevalence of COVID and flu season infections within the community. Added to that impact was the fact that other casual employees had moved ahead of the Applicant in terms of rostering of shifts in her absence on leave.

[97] Having regard to the above, I approach the task of calculating the Applicant’s estimated earnings with considerable caution. I am not prepared to assume that had the Applicant remained employed she would have worked hours consistent with the hours she worked in the 12 month period immediately preceding her maternity ‘leave’, that being an average of 13.3 hours per week. I regard it is as more likely that had she remained employed there would have been less certainty in the hours of work. My view on this point is fortified by the fact that after making herself available for shifts from 1 May 2022, she was not rostered to work until 17 May 2022. This leads me to conclude that a safer assumption would be that her hours of work would have been more likely to reflect the average hours she worked in the period from August 2020 until February 2021, that being an average of 9.7 hours per week.

[98] Based on the above I estimate that the Applicant’s earnings for the anticipated period of employment of 6 months would be that of 26 weeks x 9.7 hours x $33.33 per hour. This equals $8,405.82.

Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal

[99] The Applicant must provide evidence that she has taken reasonable steps to minimise the impact of her dismissal.40 What is reasonable depends on the circumstances of the case.41

[100] The Applicant submits that she has taken reasonable steps to minimise the impact of the dismissal by making employment inquiries with other childcare centres in Mildura since her dismissal. The Applicant’s claim of having sought alternate employment was not however supported by any evidence of formal job applications made or job interviews participated in. In the circumstances of an absence of substantive evidence of employment seeking efforts I am not satisfied that the Applicant has taken reasonable steps to mitigate her loss, which warrants a reduction of 70% in compensation.

Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation

[101] The Applicant’s evidence is that she has not earned income from any other source since her dismissal on 23 May 2022. That evidence was not challenged by the Respondent.

[102] I am satisfied that the Applicant has not earned any income from employment or other work during the period since her dismissal on 23 May 2022. As a consequence, no deduction is to be made in respect of earnings since dismissal.

Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation

[103] The Applicant’s evidence is that she is unlikely to earn income in the period between the making of the order for compensation and the payment of compensation. That evidence is not challenged by the Respondent.

[104] I am satisfied that the Applicant is unlikely to earn income between the making of an order for compensation and the payment of the compensation. As a consequence, no deduction is to be made in respect of likely earnings in that period.

Other relevant matters

[105] No other relevant matters were raised by the parties going to an order for compensation.

Compensation – how is the amount to be calculated?

[106] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 42 This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages43.”44

[107] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Step 1

[108] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated her employment to be $8,405.82 on the basis of my finding it is likely the Applicant would have remained in employment for a further period of 6 months. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”. 45

Step 2

[109] I have found that the Applicant has not earned any amount of remuneration since the date of her dismissal, and that she is unlikely to earn any remuneration between the making of the order for compensation and the payment of compensation.

[110] Only monies earned since termination for the anticipated period of employment are to be deducted. 46 Consequently, no deductions are to be made for earnings.

[111] I have also found however that the Applicant has failed to take reasonable steps to mitigate her losses and as a consequence I intend to deduct 70% to reflect that. This reduces the amount of compensation to $2521.75.

Step 3

[112] I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment. 47

[113] I do not consider it appropriate to deduct an amount for contingencies.

Step 4

[114] I have considered the impact of taxation but have elected to settle a gross amount of $2521.75 which is to be subject to normal taxation.

[115] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.” 48

[116] I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the Act.

Compensation – is the amount to be reduced on account of misconduct?

[117] If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.

[118] I am satisfied that misconduct of the Applicant did not contribute to the employer’s decision to dismiss. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.

Compensation – how does the compensation cap apply?

[119] Section 392(5) of the Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

(a) the amount worked out under section 392(6); and

(b) half the amount of the high income threshold immediately before the dismissal.

[120] The amount worked out under section 392(6) is the total of the following amounts:

(a) the total amount of the remuneration:

(i) received by the Applicant; or

(ii) to which the Applicant was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the Applicant was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the Applicant for the period of leave is in accordance with the regulations.

[121] Based on the Timesheet Summary I find that the total amount of the remuneration received by the Applicant during the 26 week period from 1 December 2021 to 23 May 2022 was approximately $3,710.62.

[122] The high income threshold immediately before the dismissal on 20 February 2019 was $158,500. Half of that amount is $79,250.

[123] The amount of compensation ordered by the Commission must therefore not exceed $3,710.62.

[124] In light of the above, I will make an order that the Respondent pay $2521.75 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision.

Conclusion

[125] I am satisfied that the Applicant was dismissed at the initiative of the Respondent. 
 
[126] I am further satisfied that the Applicant was a casual employee who was employed on a regular and systematic basis by the Respondent and that during her period of service as a casual employee, had a reasonable expectation of continuing employment on a regular and systematic basis. The period of the Applicant’s employment was in excess of the MEP of 6 months at the time of her dismissal as required by s 382 of the Act. 

[127] Having been satisfied in respect of the other initial matters, I have considered and determined that the Applicant’s dismissal was unjust, unreasonable and thereby unfair. I am further satisfied that reinstatement would be inappropriate and that an award of compensation is appropriate.

[128] Finally, I have determined to make an order that the Respondent pay $2521.75 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision. An order giving effect to this decision will be issued separately in conjunction with this decision.

Seal and signature of Deputy President Masson

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR745300>

Appearances:

R Royall, Applicant

A Both for the Respondent.

Hearing details:

2022.

Melbourne (by Microsoft Teams):

August 26.

 1   Exhibit R1, Witness Statement of Melisa Perera, at [1]

 2   Form F3 – Employer response to unfair dismissal application, Question 1.7

 3   MA000120

 4   Exhibit A2, Applicant Payslip for pat period ending 29 May 2022

 5   Exhibit R4, Applicant Timesheet Summary

 6   Exhibit R1 at [3]

 7   Ibid at [4]

 8   Exhibit R1, at [5]-[6]

 9   Exhibit A3, Email from Melissa Perera titled ‘Disappointing Friday’, dated 23 May 2022

 10   Ibid at [9], Exhibit R2, Witness Statement of Davina Russell at [4]

 11   Exhibit R1 at [10]

 12   Ibid at [11]

 13   Exhibit A5, Tanda Roster screenshot for week commencing 23 May 2022

 14   Exhibit R1 at [12]

 15   Exhibit A5

 16   Exhibit A4, Email from Tanda Support to Applicant, titled ‘Re: Password change”, dated 25 May 2022

 17   Exhibit R1 at [13]-[14]

 18   Ibid at [15]

 19   Exhibit R2, Witness Statement of Mr Gregory Nelson at [4]

 20   Exhibit A2

 21   Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 (Watson VP, O’Callaghan SDP, Cargill C, 8 July

2011) at para. 24, [(2011) 212 IR 248]; citing O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J,

Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].

 22   Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at

p. 205].

 23   Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162.

 24   [2010] FWAFB 5709.

 25   Ibid at [10]-[13].

 26   [2010] FWA 2078.

 27   Ibid at paragraphs [57]-[64].

28 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

29 Ibid.

30 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

31 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

32 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

33 Ibid.

34 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

35 RMIT v Asher (2010) 194 IR 1, 14-15.

36 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

 37   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

38 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

 39   He v Lewin [2004] FCAFC 161, [58].

40 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

41 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

 42   (1998) 88 IR 21.

 43   [2013] FWCFB 431.

 44   Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].

 45   Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].

 46   Ibid.

 47   Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].

 48   Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].