[2012] FWA 3453

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leslie Holland
v
UGL Resources Pty Ltd T/A UGL Resources
(U2011/11538)

DEPUTY PRESIDENT MCCARTHY

PERTH, 23 APRIL 2012

Termination of employment - casual employee - minimum period of employment - continuous period of service - regular and systematic employment.

Background

[1] Mr Leslie Holland (the Applicant) was employed on a casual basis by UGL Resources Pty Ltd T/A UGL Resources (UGL) for various periods during 2003-2011.

[2] Between 2003 and 2011, UGL was contracted by Verve Energy to provide onsite mechanical and electrical maintenance work at their Kwinana and Muja Power Stations. UGL performed outage work on boiler turbine and associated equipment for Verve Energy (Verve). “Outage work” is major shut down work to complete statutory compliance work and to carry out essential maintenance work to ensure the reliability of the unit until its next planned major outage. Verve Energy is owned by the Western Australian Government and generates about 60% of all the electricity in the Western Australian market.

[3] The number of major outages that UGL performs each year varies but is usually one or two per year. Outage work usually lasts about six to eight weeks. The number of employees required for each major outage varies. On average, UGL requires 180-220 employees on each major outage.

[4] It is not in dispute that the nature of the Applicant’s engagements involved employment on a casual basis and that he had been employed by UGL for outages at Muja and for periods of work at other sites since 2003 for varying periods. It is also not disputed that the Applicant has been employed by a number of other employers throughout the period of 2003 to 2011.

[5] The complete work history of the Applicant with UGL was summarised by UGL in the following table:

Year

Date

Site

2003

17 October - 13 November

Muja

2004

20 - 27 February

Cape Lambert

 

29 March - 28 April

Kwinana

 

4 June - 23 July

Hismelt

 

6 September - 20 November

Kwinana

2005

11 April - 14 May

Kwinana

 

10 October - 9 November

Muja

2006

8 September - 5 December

Muja

2007

2 April - 1 June

Muja

 

10 September - 11 October

Muja

2008

27 March - 3 May

Muja

2009

9 July - 11 September

Muja

2010

16 February - 22 March

Worsley

 

19 April - 4 May

Muja

2011

17 January - 18 February

Worsley

 

18 May - 22 July 2011; 22 - 27 August

Muja

[6] Some of the periods of employment are disputed but none of those since 2009.

[7] UGL asserts that the Applicant does not satisfy the requirements of the Fair Work Act 2009 (the FW Act) asserting that he was not employed for a minimum period of six months. They argue that:

[8] The Applicant asserts that he had continuous service with UGL for the period from 9 July 2009 until his dismissal on 27 August 2011. He also asserts that he was a casual employee engaged on a regular and systematic basis throughout that period and that he had a reasonable expectation of further employment.

[9] The total time worked, if all of the work undertaken since 9 July 2009 is included, is about 28 weeks. The total time worked, if only the periods since 17 January 2011 are included, is 14 weeks. If only the periods of work at Muja are included, the total time for all periods since 9 July 2009 is 21 weeks. Therefore, for the Applicant to achieve the six month minimum he must have been in continuous service since 9 July 2009 and periods of work must include work at Muja and at Worsley.

The Legislation

[10] The FW Act provides that a person who is protected from unfair dismissal includes a person who is an employee who has completed a period of employment with his or her employer of at least the minimum employment period. 1 The relevant minimum period of employment for this matter is six months.2

[11] The FW Act defines period of employment in s.384(1) as follows:

[12] The FW Act then goes on to provide in s.384(2) that:

[13] The determination of whether an employee’s period of employment “at a particular time” meets the six month minimum requirement of s.383 is prescribed by s.384(1). If “the” period of “continuous” service “at that time” is six months, then the requirement of s.383 is met.

[14] Section 384(2) provides which periods of casual service should count in ascertaining the employee’s period of employment. A period of casual service may only count in that calculation if the circumstances of (a)(i) and (ii) exist.

[15] The FW Act, thus in this matter, requires a determination as to:

[16] The wording in s.384 with respect to various times and periods is specific. Firstly, s.384 refers to “a” period of employment “at a particular time”. It also states that “the” period of employment is “the” period of service completed “at that time”. The period of employment clearly must be “a” singular period of service and not multiple or a plurality of periods of service. That singular period also must be a singular “continuous” period of service “at that time”. The meaning of a period of service then envisages different periods of service but only the last of those periods of service count for the purpose of ascertaining the length of the period. Other periods, which may be previous periods of service, do not count.

[17] What s.384(2) then specifies is that “a” period of service as a casual does not count towards the employee’s period of employment unless it has the characteristics of being regular and systematic and expected to continue on that basis. The period of service referred to in s.384(2)(a) is “a” singular period. What s.384(2)(a) and (b) do is to regard regular and systematic engagements as “a” period of service.

[18] Importantly, s.384(2) does not refer to a plurality of periods of service to determine the nature of the relationship but rather, the nature of the relationship is determined by the nature of the one singular period. There is no notion of counting discrete periods of prior service. Thus, s.384(2) does not alter the condition attached to s.384(1) viz; that the period of service at a particular time needs to be a continuous period.

[19] Section 12 of the FW Act prescribes that “continuous service” has a meaning affected by s.22. “Service” and “continuous service” are dealt with in s.22 as follows:

[20] Continuous service is not expressly defined by either s.12 or s.22. Rather, s.22(3) deems what would otherwise be service that is not continuous, to be continuous for periods of particular types of “absences”. Therefore, other than for the deeming effect of s.22(3), “continuous service” should be given its ordinary meaning. The Macquarie Dictionary gives two meanings to “continuous” relevant here:

[21] In addressing the meaning of continuous the service at the time of the termination I should consider answers to questions such as whether it had parts in immediate connection? Was it unbroken? Was it uninterrupted in time? Was it without cessation? The services cannot be continuous if there were periods of absence. But if the absences were of a type within the meaning of s.22(2), then the service is deemed to be continuous.

[22] Whether “a” period of service which is casual counts for that calculation and purpose, depends on whether it meets the requirements of s.384(2).

[23] I have gone to some lengths to explain my reasoning of the construction of the FW Act because on the face of it, it might be regarded as being at odds with the findings of the Full Bench in Shortland v The Smiths Snackfood Co Ltd. 3 However, the circumstances there and the issue under consideration were markedly different to here. There, the Applicant had been employed almost every week for over three years. His only time off was for four isolated weeks, presumably as a period of authorised absence. Shortland sustained an injury in 2009 and had been on worker’s compensation or other absences since that time until his employment was terminated. Here, the periods of work and the periods of absences are significantly different.

Consideration

[24] Here, the “particular time” was 27 August 2011. The period of employment at that time was one week.

[25] The nature of the period between 22 July and 22 August is unclear. For the purposes of this determination I will treat it as a period deemed to be continuous with the period employment immediately prior to that period (i.e. 18 May 2011 to 22 July 2011) by operation of s.22. Indeed, as UGL has contended that the service is continuous from January 2011, I will also treat the period of absence from 18 February to 18 May as a period of a type deemed to not break continuity of service for the same reason. I doubt that either of those periods of absence in 2011 do actually satisfy the requirements of s.22 but as UGL regard it in that way, then I will accept their concession of that.

[26] Given that the Applicant conceded that the period of continuous service commenced on 9 July 2009, it is not necessary to examine the nature of those periods before that time. The periods that require consideration for the purposes of s.384 then are these:

2009

9 July - 11 September

Muja

2010

16 February - 22 March

Worsley

 

19 April - 4 May

Muja

2011

17 January - 18 February

Worsley

 

18 May - 22 July 2011; 22 - 27 August

Muja

[27] The particular time that the Applicant was dismissed from his employment was 27 August 2011. So the question that must be answered is whether, on 27 August 2011, the Applicant had been in the continuous service of UGL for six months? The period of service the Applicant says is that period since 9 July 2009. UGL says the period of service is from 17 January 2010.

[28] It is not in dispute that by operation of s.22, the aggregate of the service, if UGL is correct, is less than six months and whereas the aggregate of service, if the Applicant’s contentions are correct, is more than six months. For the periods to meet those requirements the periods must not only be continuous but they must be of the nature described in s.384(2). Firstly, the employment must be on a regular and systematic basis. “Regular” 4 is not defined and nor is “systematic”.5

[29] In the circumstances here, the five or six separate engagements over three years, to some minds, would be regarded as regular and systematic. To others it would not. It depends on ones perception of timeframes. A person that has greater reliance on the income derived from the work might also have a different view of it than a person who had less reliance. Similarly, one person may have a reasonable expectation of receiving income from engagements and others may not.

[30] It thus becomes a judgement based on the circumstances and ordinary meaning of the relevant words in the FW Act.

[31] Here, the periods were discrete; the engagements were of different durations; there was not an established pattern of when the work was to be performed, and the engagements were clearly expressed on each occasion as being discrete. Importantly, there were also extensive absences between periods of employment. Certainly, the shutdowns were planned as it would be impossible for them not to be. But the character of the planning for the shutdowns does not turn the discrete periods into regular and systematic employment.

[32] Even if the periods of employment were regular and systematic, I do not consider the Applicant should have had a reasonable expectation of continuing employment on that basis. UGL made it clear on each occasion that there should be no expectation.

[33] In the circumstances and facts here, I do not regard the periods of employment involved as regular and systematic. The requirement of s.384(2)(a) is thus not met. I regard each of these periods to be discrete separate periods with no regular and systematic nature of the type s.384(2) refers.

[34] However, even if the various engagements did meet the requirements of s.384(2), only those engagements in 2011 should count. In May 2010, UGL asserts that the Applicant resigned. The Applicant asserts that he did not, but rather, left the employment because no work was being performed because of a safety dispute. To me the Applicant either resigned, terminated his employment or abandoned his employment but it matters not whichever of those circumstances occurred. The fact is that the Applicant’s employment came to an end when there was still work to be performed. The employment and the service at that juncture came to an end. It recommenced in 2011 but in my view recommenced as a new period, not as a period that could be regarded as continuous service. That being the case, the aggregated periods of service that can count for the purposes of s.383 do not amount to six months.

Conclusion

[35] The application is dismissed as the Applicant is not a person who is protected from unfair dismissal by the FW Act in respect of his employment with UGL. The period of service at the particular time was not six months; his employment from January 2011 was not continuous with previous periods of employment; his service did not involve a regular and systematic basis of employment and the Applicant should not have had a reasonable expectation of continuing employment on that basis, even if it had been on a regular and systematic basis.

DEPUTY PRESIDENT

Appearances:

Mr T Kucera on behalf of the Applicant.

Mr N Ellery and Ms C Tsang on behalf of UGL.

Hearing details:

2011.
Perth:
January, 17; March, 7.

 1   s.382

 2   s.383

 3   [2010] FWAFB 5709

 4   The Macquarie Dictionary gives the following meanings to regular:

 5   The Macquarie Dictionary gives the following meanings to systematic:

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