[2010] FWAFB 5709

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Fair Work Act 2009
s.604—Appeal of decision

Wayne Shortland
The Smiths Snackfood Co Ltd



Appeal against decision [2010 FWA 2826] of Commissioner Cloghan at Perth on 26 May 2010 in matter number U2010/5459.

[1] This is an application for permission to appeal and an appeal, from a decision 1 of Commissioner Cloghan. Commissioner Cloghan ordered that Mr Shortland’s application be dismissed for want of jurisdiction.

[2] At the hearing of the appeal Mr Shortland appeared on his own behalf. Mr Van de Hoef, with Mr McGhee, appeared for the Smiths Snackfood Company Ltd (Smiths).

[3] Permission to appeal from a decision made following upon an application of this kind is governed by s.604 and s.400 of the Fair Work Act 2009 (the Act). This is a new approach to the grant of permission to appeal which has been discussed in GlaxoSmithKline Australia Pty Ltd v Colin Makin, 2 a recent Full Bench decision of this Tribunal. The application for permission to appeal is to be determined by a consideration of whether or not the issues for determination are of such importance that, in the public interest, permission should be granted and also, to the extent that the appeal is based on an alleged error of fact, whether or not the decision involved a significant error of fact. In this case Mr Shortland alleges errors of fact but also alleges that the Commissioner’s exercise of discretion to summarily dismiss Mr Shortland’s application for relief is affected by error. To this extent, the much quoted discussion of judicial error in House v King is pertinent. It is set out below.

[4] The question for resolution by Commissioner Cloghan was whether or not Mr Shortland’s application was excluded from the jurisdiction of Fair Work Australia (FWA) by the operation of the Act because Mr Shortland was not an employee who had completed the minimum employment period of six months as an employee of Smiths and/or whether Mr Shortland’s application ought be summarily dismissed because it was frivolous, vexatious and/or had no reasonable prospects of success.

[5] Regarding the minimum employment period Commissioner Cloghan made the following findings:

[6] The Commissioner held:

[7] With respect, we think that the Commissioner misunderstood the effect of s.384 in reaching his conclusion and was consequently led into error.

[8] A person is not protected from unfair dismissal unless the requirement in s.382 is met. The requirement in s.382(a) is:

[9] Section 383 defines the meaning of “minimum employment period” which, uncontroversially in Mr Shortland’s case, is 6 months. Section 384 relevantly provides:

[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. 4 In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[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.

[14] The Commissioner did not find that Mr Shortland’s employment was not continuous and correctly so. Prior to June 2009 Mr Shortland worked almost every week. There were a total of 4 isolated weeks in the period of almost three years prior to June 2009 when Mr Shortland performed no work. Those breaks should not be treated as a discontinuity in Mr Shortland’s employment such that periods of service before them should be discounted. The pattern of work disclosed by the evidence suggests that Mr Shortland’s employment in the period was regular and systematic. On any view, Mr Shortland had a reasonable expectation of continuing employment on a regular and systematic basis. In June 2009 Mr Shortland ceased work as a result of an injury that he claimed was work-related and for which he has now lodged a claim for workers compensation. Smiths has disputed that claim on the basis of causation. Mr Shortland’s absence from work from June 2009 was due to that injury and incapacity.

[15] A letter from Smiths dated 22 September 2009 informed Mr Shortland:

[16] It is clear from subsequent events that Smiths took the view that Mr Shortland was still a casual employee but he was not being allocated work because he was not fully fit for work.

[17] On the evidence before the Commissioner, Mr Shortland had a period of continuous service within the meaning of s.384 that commenced in July 2006 and continued until his employment was terminated by Smiths’ letter of 11 January 2010.

[18] For these reasons we find that the Commissioner erred in finding that the requirement in s.382(a) was not met and that consequently Mr Shortland was not protected from unfair dismissal within the meaning of s.382.

[19] In relation to the Commissioner’s conclusion that the application was vexatious, frivolous or commenced without reasonable cause we have considered the oft quoted judgement of the High Court in Dey v Commissioner for Railways 5.

[20] When considering this issue Commissioner Cloghan took into account the fact that the applicant had made a number of previous applications. He specifically relied on adverse comments concerning Mr Shortland made by another Member in a decision arising from one of those other applications.

[21] The applicant has not been declared a vexatious litigant by any superior Court of Record in Western Australia or anywhere else so far as this Full Bench is aware. Mr Shortland’s previous applications cannot be relevant to a consideration of whether this present application is vexatious. This was an error.

[22] Commissioner Cloghan also relied on erroneous factual findings in determining whether the application was frivolous or commenced without reasonable cause. The Commissioner found that Smiths had not heard directly from the applicant regarding his fitness for work and had therefore terminated his casual employment on 11 January 2010. He referred to the fact that an up to date medical certificate from the applicant was not forthcoming. 7 This was a reference to a medical certification, required by Smiths, that the applicant was fully fit to return to normal duties. However, the applicant had in fact provided medical certificates demonstrating an improvement in his condition. These certified an increase in the weight that Mr Smith was able to lift. Those certificates were not adverted to in the Commissioner’s decision.

[23] Inherent in the Commissioner’s conclusion on this aspect of Mr Shortland’s application is an acceptance that there was evidence establishing what lifting weight the applicant’s normal work with Smiths entailed. However, there was no evidence before the Commissioner as to what the lifting weight was for the work that the applicant was required to do. There is no evidence on which the Commissioner could have had any established understanding on this issue. The certification provided by the applicant’s treating general practitioner as to Mr Shortland’s increased lifting capacity may well have been a certification of fitness for work within the lifting requirement for Mr Shortland’s tasks.

[24] Moreover, the decision of the Full Bench of the Australian Industrial Relations Commission in Iliadis v Rail Corporation New South Wales 8 is authority for the proposition that where an employee is rendered incapable of performing their job because of an injury caused by the employer, the employee will ordinarily have an arguable case that a dismissal based on such incapacity is harsh, unjust or unreasonable. Mr Shortland contends that his incapacity was caused by Smiths (a matter apparently denied by Smiths). Applying Iliadis, Mr Shortland has not been shown to have no arguable case that his dismissal was harsh, unjust or unreasonable even in the absence of the certification sought by Smiths.

[25] The facts of this case disclosed by the evidence before Commissioner Cloghan do not demonstrate that Mr Shortland’s case was so obviously untenable that it could not possibly succeed. We are satisfied that there was a real question to be determined on the facts.

Permission to Appeal

[26] We are satisfied that the issues raised by Mr Shortland’s grounds of appeal are of sufficient importance that permission to appeal should be granted. To the extent that the appeal is based on alleged errors of fact, we are satisfied that Commissioner Cloghan’s decision contained significant errors of fact. We grant permission to appeal and allow the appeal.

[27] The application will be referred to the relevant Panel Head for allocation to a Member for arbitration.


 1   PR997197

 2   PR999462 - 23 July 2010

 3   (1936) 55 CLR 499 at 504

 4   Andison v Woolworths Limited, IRCA, N1522 of 1994, 8 August 1995 per Moore J at pp3-4

 5   78 CLR 1949 62 at 91

 6   (1908) 7 CLR 76 at 92

 7   PR997197 para 51

 8   [2007] AIRCFB 1041, PR980205

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