FWA 8099
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Peter Harrison
Imperial Management Queensland Pty Ltd T/A Pacific Red Produce
SENIOR DEPUTY PRESIDENT RICHARDS
BRISBANE, 30 NOVEMBER 2011
Summary: unfair dismissal remedy - whether an employee - intention to enter into legal obligations - whether a casual employee - whether minimum period of employment served - whether service systematic - no evidence of plan or system - whether any reasonable expectation of continuing employment etc.
 This application was made by Mr Peter Dennis Patrick Harrison (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”) ostensibly on 2 August 2011.
 The Applicant seeks an unfair dismissal remedy in respect of the alleged termination of his employment by his (putative) employer, Imperial Management Queensland Pty Ltd (“the Respondent”). The relevant decision maker for the Respondent was Mr Frederick Muller, sole Director, Secretary and shareholder of the Respondent.
 The application under s.394 of the Act was challenged on various jurisdictional grounds. The fundamental challenge to the competency of the application initially was that the Applicant was at no time an employee of the Respondent.
 Section 386(1)(a) of the Act makes it clear that an applicant for a remedy under s.394 of the Act must be an employee of the employer who has effected his or her dismissal.
 The Respondent also contends that if the Applicant were found to be an employee of the Respondent, he was a casual employee who was not employed (or engaged) on a regular or systematic basis and who did not have any reasonable expectation of continuing employment with the employer. The relevant statutory provisions in this regard are cited below.
 The Respondent went on to contend that because the Applicant was not a casual employee of the requisite kind (if indeed he was an employee at all), he had not worked continuously with the Respondent for the applicable minimum period of employment. The applicable minimum employment period for the Respondent was 12 months, as the Respondent contended it employed fewer than fifteen employees at the time the dismissal took effect and as such was a small business employer (under s.23 of the Act).
 The Respondent contended further that in the event that the Applicant was an employee of the employer and was found to be a casual employee of the requisite kind, the application under s.394 of the Act was not lodged in compliance with s. 394(2)(a) of the Act.
 I turn now to the evidence taken at the hearing conducted on 3 October and 22 November 2011 and the subsequent materials filed as directed. Initially I will consider whether the Applicant was an employee of the Respondent.
 The evidence generally was somewhat clouded in respect of this concern, as with other concerns raised in this application. This is because both the Applicant (who is seemingly a retired marine and diesel mechanic whose lifestyle exhibits some measure of itinerancy) and the Respondent (whose business concerns growing capsicums) conducted themselves with a particularly high degree of informality.
 Be that as it may, the Applicant contends that on or about October 2008 the Applicant advertised himself as seeking a position as a caretaker, and was approached by Mr Muller to that end. Mr Muller claims that he never entered into any legal obligations (in effect) with the Applicant but simply allowed the Applicant to settle on the site as a charitable gesture (and no more), and never charged him for any power or water costs. Mr Muller added that he benefited from this arrangement as it provided another light on the property and addressed his passing security concerns.
 There was no evidence led that set out the duties the Applicant performed as a caretaker. The Applicant moved his double decker bus (in which he resided) and multiple motor vehicles, motor cycle, boats and boat engines onto the Respondent’s property and took up residence. But other than residing on the Respondent’s property, the relationship between the Applicant and the Respondent lacks all complexity.
 The Applicant did claim he received free rent and power in exchange for the provision of caretaker services. However absent any demonstration of the performance of any required duties and the formation of any relevant legal obligations between the parties, I cannot conclude that the caretaking role amounted to an employment relationship, or any form of contractual relationship.
 In Fox v. Kangan-Batman TAFE the Full Bench set out in summary form the essential elements of contract. The Full Bench stated, amongst other things, as follows:
We have earlier set out the facts in some detail. They clearly show that there was a relationship (a word used by Simmonds C in his decision and a word on which Mr Willoughby-Thomas placed considerable emphasis) between Ms Fox and Kangan. A relationship, however, is not necessarily a contract: see, for instance, the cases to which we refer in the following paragraphs. The elements of a contract are stated in Macken, McCarry and Sappideen's "The Law Of Employment" (4th edition, 1997 by the Hon James Macken, Paul O'Grady and Carolyn Sappideen) (Macken, McCarry and Sappideen), a text to which reference was made both before Simmonds C and us, as follows (p.74):
"The law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:
1. There must be an `intention' between the parties to create a legal relationship, the terms of which are enforceable.
2. There must be an offer by one party and its acceptance by the other.
3. The contract must be supported by valuable consideration.
4. The parties must be legally capable of making a contract.
5. The parties must genuinely consent to the terms of the contract.
6. The contract must be entered into for any purpose which is illegal."
In relation to the first of these elements, the learned authors say (p.74):
"The first element essential to the existence of any contract is the requirement that the parties have a mutual intention to create a legally enforceable bargain." 1
 In this matter, there appears to have been no demonstrated offer or acceptance of any particular terms or any express consideration provided. That is, there are no transactions between the parties to which I could ascribe any weight to the end that an employment relationship had been formed.
 I was not taken to any point in time at which the Applicant and the Respondent had sought to codify or articulate their relationship, let alone any evidence that the parties intended to enter into any legal relationship with one another in respect of the alleged caretaker role.
 Moreover, and in addition, I found the evidence of Mr Muller about how the arrangements (as they were) came into effect to be compelling. Mr Muller’s evidence was that he had already formally engaged a caretaker when the Applicant appeared at his property months after their initial discussion, and simply acted sympathetically towards the Applicant at the time. Mr Muller said that he saw a benefit for himself in having another light on the property, and allowed the Applicant to set up camp on the property. Mr Muller was prepared to allow the Applicant to consume electricity as his processing plant was a large consumer of electricity and the Applicant’s consumption levels were in effect neither here nor there.
 In essence, the evidence of Mr Muller provided an authentic and coherent narrative explaining the origin of the arrangement that came into place between himself and the Applicant. Mr Muller’s evidence is to be preferred over that provided by the Applicant’s scant comments on the issue, and the absence of any articulation of the services he was purportedly required to perform in exchange for the modest consideration he received.
 But the resolution of the alleged caretaking role does not end the investigation concerning the nature of the relationship between the Applicant and the Respondent.
 It appears that at some point prior to March 2009, the Applicant and the Respondent entered into an agreement that the Applicant would be paid $20.00 an hour for the provision of services in relation to what is best described as general mechanical maintenance work.
 It appears to me that on the evidence, the terms of the arrangement indicate that the Respondent was prepared to utilise the services of the Applicant on a casual employment basis. This is not to say that some of the other evidence did not go another way. For example, the informality with which the Applicant worked and the fact that he used his own tools suggested more that the Applicant was engaged pursuant to a contract of service. The incidents that comprised the various engagements were informally struck, with the Applicant simply indicating on what days he had performed duties and the period of time the particular maintenance tasks allocated to him took.
 But on the whole I have concluded that the Applicant was engaged as a casual employee to perform certain mechanical tasks.
 The evidence for this resides in the payslips provided to the Applicant. These payslips demonstrate that the Applicant was paid a particular hourly rate; that taxation was deducted from this rate of pay; and that certain monies were paid into a superannuation fund on his behalf (until it was discerned that at that time the Applicant’s age did not necessitate the payment of superannuation contributions). Further, there was nothing that demonstrated that the Applicant had arranged his business affairs, could they ever be described as that, in any manner whatsoever that could be described as entrepreneurial.
 The Respondent appears to have struck an hourly rate of pay with the Applicant that corresponded with the hourly rate of pay that was applicable to the employees who were performing duties in relation to the harvesting of capsicums on his property.
 The evidence at hand, therefore, is sufficient in my view to conclude that the Respondent had engaged the Applicant as a casual employee from March 2009.
 But was this relationship such that I could conclude that the Applicant was engaged or employed on a regular and systematic basis that also gave him a reasonable expectation of continuing employment with the Respondent. Only if the period of casual employment can be so characterised can it be counted as service with the employer for purposes of meeting the minimum employment period required to have been served before an application under s.394 of the Act can be made.
 Section 382 of the Act reads relevantly as follows:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; [...]
 Section 383 of the Act provides the meaning of the minimum employment period and reads as follows:
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
 Section 384 of the Act, which concerns the manner in which an employee’s period of employment is defined, reads as follows:
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis
 The evidence led by the Respondent was that the Applicant was engaged on some 43 discrete occasions between 24 March 2009 and 24 May 2011. This is a period of some 26 months.
 The engagements that occurred were for variable durations. The payments for twelve or so engagements were for around $100.00 or so after tax. Four were for over $300.00 after tax. The engagements appear to have never been for any consecutive days.
 After the engagement on 19 October 2010, no further engagement occurred until 24 May 2011; a period of over seven months. In fact, the engagement on 24 May 2011 was the only engagement before the alleged dismissal of the Applicant on 22 July 2011 in the prior seven month period.
 It does not appear to me that I can reasonably consider the period of employment between 24 March 2009 and 19 October 2010 inclusive as being a period of continuing service with the Respondent when it was severed by a period of over 7 months from the next engagement on 24 May 2011. The lengthy period in which work was not offered to the Applicant means the casual employment could not be characterised as being regular (if indeed it could in the context of the entire 22 month period, which is subject to further discussion below). That is, the break in the casual employment was not due to the ordinary operation of the business, such as a shut down period, or because the Applicant took holidays etc.
 As a consequence, in my view, the relevant period of continuous service leading up to and including the date on which the alleged dismissal took effect is 24 May 2011 to 22 July 2011; a period less than both the six month and 12 month periods stipulated under s.383of the Act as the minimum period of employment that must be served with the employer.
 If I am wrong in this regard, other considerations arise, but with the same ultimate effect.
 The first of those considerations is whether, taking the period of service as a whole, (and irrespective of the seven month gap) the Applicant’s period of employment as a casual employee (for purposes of s.384(2) of the Act) was on a regular and systematic basis and whether during that period of service the Applicant had a reasonable expectation of continuing employment on a regular and systematic basis.
 Initially, it does not appear to me on the evidence that there was any ongoing reliance upon the Applicant’s services as an incident of the Respondent’s business. The engagements on which the Applicant performed services for the Respondent were not systematic in structure nor did they exhibit any pattern or plan.
 Over the two years and two month period the Respondent engaged the Applicant, there was a seven day gap between the Applicant’s engagements on some 19 occasions. But only eleven or so of these engagements were consecutive (and these were mostly in the middle of 2009).
 For the remainder of the period, the gaps between the engagements varied from 20-30 days (on some five or so engagements), 10-19 days on about five other occasions, and between one or six days on another five or so occasions.
 The frequency of these engagements is not suggestive of a system or a plan, indeed quite the opposite for the most part.
 For this reason, I cannot conclude that the Applicant’s employment with the Respondent meets the requirement of s.383 of the Act as the employment was not regular and systematic.
 Further, and for purposes of completion, with the engagements having been mostly erratic in their frequency over the relevant period, and the final engagement having been seven months since the penultimate engagement, I cannot find that the Applicant had a reasonable expectation of continuing employment with the Respondent over the course of his employment. Indeed, given the lengthy period of time that elapsed between the final engagements, any such expectation could not have a reasonable basis.
 I also note that the unchallenged evidence of Mr Gary Muller was that the Applicant could have availed himself of more work had he wanted to do so, but appeared to have taken umbrage at being informed that he could not work in the processing shed on his own, on account of his age, and presumed frailties. Mr Muller’s evidence was that after being informed of this requirement the Applicant did not make himself available for anymore work.
 This might explain why the evidence of Mr Gary Cummings was that the Applicant in late May or June 2011 appeared disgruntled and had indicated to him that he was looking for another place to live; an admission buttressed by the Applicant's subsequent advertisement in the Bowen Independent newspaper.
 This wider evidence, therefore, does little to support a finding that the Applicant possessed a reasonable expectation of continuing employment with the Respondent.
 I note the Respondent claimed to be a small business employer for purposes of s.23 of the Act. This claim was made in the context of s.383(b) of the Act, which states that a 12 month minimum employment period applies to a small business employer of the requisite kind.
 Given my findings above, there is no requirement to determine whether the Respondent is a small business employer. Nor is there any requirement to make a finding as to whether the application under s.394 of the Act was made within the statutory timeframe stipulated at s.394(2)(a) of the Act.
 The application under s.394 of the Act is dismissed, therefore, for reason the Applicant had not served the minimum period of employment with the Respondent. This was because his period of service as a casual employee did not count towards the minimum employment period because his period of service as a casual employee was not on a regular and systematic basis and did not give rise to a reasonable expectation of continuing employment with the employer over the course of that period of service (however defined). There being no other period of service, the Applicant cannot be said, therefore, to have served the minimum period of employment with the Respondent.
SENIOR DEPUTY PRESIDENT
Mr B. Mitchell for the Applicant
Mr R. Hall for the Respondent
3 October and 22 November.
1 Fox v. Kangan-Batman TAFE, Print S0253, 25 October 1999, Giudice J, McIntyre VP, Redmond C at PN 49.
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