DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Samantha Bridge
v
Amstel Golf Club Incorporated
(U2016/6899)

Application for relief from unfair dismissal.

[1] Ms Samantha Bridge was employed as a casual Food & Beverage Attendant/Waitress by Amstel Golf Club Incorporated (Amstel) from 2 November 2015 until her employment was terminated on 5 May 2016. Ms Bridge has lodged an unfair dismissal application (Application). Amstel has lodged an objection to the Application on the basis that Ms Bridge was a casual employee not employed on a regular and systematic basis and is therefore not a person protected from unfair dismissal under the Fair Work Act 2009 (Cth) (the Act).

[2] Section 396(b) of the Act requires me to decide whether Ms Bridge was protected from unfair dismissal before the merits of the Application can be considered.

Preliminary procedural matter

[3] In the Application, Ms Bridge named ‘Amstel Golf Club’ as the Respondent. In the Form F3-Employer Response to Unfair Dismissal Application, the legal name of the business was recorded as ‘Amstel Golf Club Incorporated.’ Mr Anthony Perry, Venue Manager, confirmed that the Respondent is in fact ‘Amstel Golf Club Incorporated.’ I therefore amended the Application to this effect and I note my doing so comes within the circumstances in which it has been held this can be done pursuant to s.586 of the Act. 1

[4] I will now consider the jurisdictional objection raised by Amstel.

Is Ms Bridge protected from unfair dismissal?

[5] Section 382 of the Act outlines when a person is protected from unfair dismissal:

“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; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[6] It was not disputed and I am satisfied that Ms Bridge was covered by the Registered and Licensed Clubs Award 2010 (s.382 (b)(i) of the Act). Therefore, the only issue I must determine in order to be satisfied that Ms Bridge is protected from unfair dismissal is whether she has completed a period of employment with Amstel of at least the minimum employment period (s.382 (a) of the Act).

[7] The “minimum period of employment” is defined in s.383 of the Act:

“383 Meaning of minimum employment period

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.

[8] In this case, Amstel is not a small business employer, employing approximately 50 people. As such, the minimum employment period in the case of Ms Bridge is six months.

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

“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.

(2) However:

(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;

…”

[10] Section 22 of the Act provides:

“22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly
…”

[11] Accordingly, under s.384(2) of the Act, I must consider whether any of Ms Bridge’s service as a casual employee can be counted in her period of employment. This requires me to determine whether Ms Bridge was employed on a regular and systematic basis and during the period of service, had a reasonable expectation of continuing employment on a regular and systematic basis. Should I find that any or all of Ms Bridge’s service is counted in her period of employment, I must be satisfied this is of at least six months’ duration.

Commission Proceedings

[12] At the hearing, Ms Bridge gave evidence, was cross examined and made submissions. Mr Anthony Perry, Venue Manager, and Mr Daniel Muir, Finance & Administration Manager, gave evidence for Amstel and made submissions.

Evidence

[13] Ms Bridge commenced employment with Amstel as a Waitress on 2 November 2015, having completed a trial on 29 October 2015. She acknowledged she was employed on a casual basis until terminated on 5 May 2016. Ms Bridge said that at the beginning of her employment with Amstel, she also performed work for another employer at different times but she ceased after a few months and from then, only worked for Amstel.

[14] When she first started working at Amstel, Ms Bridge said she told Mr Perry she was available to work any day and most nights, with notice. As to the system of rostering, Ms Bridge said staff had to fill out an availability sheet and when she did this, she would mark off the times during which her son would have karate lessons and the weekends she could not work. Ms Bridge said Amstel generally created rosters one to two weeks in advance and they were displayed on a noticeboard in kitchen.

[15] Ms Bridge said that in April 2016, she had a conversation about her shift preferences and the times she was not available to work with Ms Naelene Perry, who was by then supervising the bistro. She said she told Ms Perry that she was available to work any night of the week except for Monday and Wednesday nights or, if necessary, after 6.30pm on Wednesday nights. Ms Bridge said she told Ms Perry that she preferred Tuesdays, Thursdays and Fridays due to her child-caring responsibilities. Ms Bridge said that before this April 2016 discussion with Ms Perry, she was available to work at whatever hours she did not mark off the availability sheet.

[16] Ms Bridge said that during the period up until her dismissal on 5 May 2016 she worked an average of three and a minimum of two shifts per week, although on one or two occasions, it was one shift per week. She provided copies of all but one of the payslips issued to her during her employment with Amstel. 2

[17] An email dated 21 July 2016 was also submitted by Ms Bridge. 3 The email was from Ms Rachel Johnson who stated that Ms Bridge had worked her regular shifts on a Wednesday and Saturday and if she was required to fill a shift for someone, she would come in. Ms Johnson was not, however, available for cross-examination.

[18] Ms Bridge said she had a conversation with Ms Perry on 5 May 2016 about the shifts she had been allocated and that later that day, her employment was terminated by Mr Perry when he called her and advised she had been taken off the roster for the rest of the week and no longer had a job from the following week.

[19] Ms Bridge said there were no breaks in her employment during the period 2 November 2015 and 5 May 2016. She said there were only two or three occasions when she could not come in for a shift and that she had otherwise structured her availability so it was compatible with her other commitments. This seems to have been entirely consistent with the rostering system for casual employees, which appears to have contemplated there would be times when casual employees could indicate they were not available. Ms Bridge’s assertion that there were no breaks in her employment was not disputed by Amstel, nor did it submit there were any other periods that should be subtracted from Ms Bridge’s period of service.

[20] Ms Bridge said that staff had a feeling that business would drop when the golf course closed, but there was still decent work available while she was an Amstel employee.

[21] Mr Perry confirmed Ms Bridge began work for Amstel in the role of a casual Food & Beverage attendant on 2 November 2015 and was employed until 5 May 2016. Mr Perry’s evidence relating to the system for rostering was consistent with the evidence Ms Bridge gave:

• the Duty Manager or other key staff would write up the rosters in conjunction with an ‘availability sheet’;



• employees were required to mark on it the days or times they were not available to work;



• from this, the rosters would be drawn up two weeks in advance; and



• if there were functions, Amstel would call for more staff.

[22] Mr Perry recalled the hours of Ms Bridge originally being during weekdays and then her availability changed. He also recalled her having been unavailable on some occasions.

[23] Mr Muir said he commenced employment with Amstel on 21 April 2016. He said that he was hired by Amstel as an emergency measure after ongoing organisational losses due to poor performance over a number of years. Mr Muir’s evidence was that Amstel as a whole had reported losses for over six consecutive years and the bistro had recorded a loss each month for over six months from January to June 2016.

[24] Mr Muir said that the closure of the public golf course surrounding the club on 2 May 2016 had further impacted the financial results of the organisation and that food and beverage sales had dropped more than 12% since the start of May 2016, following the golf course closure.

[25] Mr Muir said that after an initial assessment of Amstel’s performance, he approached Mr Perry and requested that he reduce casual labour. Mr Muir said that while there had been a meeting with duty managers in which the need to reduce wages was outlined, casual employees of Amstel had not been at this meeting.

[26] Mr Muir gave evidence that during May 2016, Amstel terminated the employment of four casual bistro staff and then a further three members of staff were terminated during the following two months. He said he did not have anything to do with the selection of the staff who were terminated but noted that each of these seven casual bistro staff members had under 12 months’ service with Amstel and advised that there were still six casual employees employed in the bistro. Mr Muir conceded in cross-examination that there had also been other staff departures which had resulted in replacement staff being engaged by Amstel during the same period.

[27] Mr Muir said that of the 18 weeks Ms Bridge worked during the period from January to May 2016, there were seven during which she had only worked one shift and these shifts were on different days of the week. Mr Muir also drew attention to the low number of hours worked during some weeks and submitted that in these weeks, Ms Bridge could not have worked more than one shift.

Consideration

[28] There was no dispute that Ms Bridge was a casual employee. However, as Commissioner Roe indicated when deciding Ponce v DJT Staff Management Services Pty Ltd (Ponce), 4 a “number of cases established that just because a worker was engaged as a casual and was a casual employee for the purposes of an award did not mean that the worker was a casual for the purposes of the unfair dismissal jurisdiction” (footnotes omitted).5

[29] The evidence established Amstel had a group of casual Food & Beverage attendants who were required to indicate their availability for rosters set two weeks in advance and who could be called upon to work at functions. In Ms Bridge’s case, there were occasions when she was engaged for longer periods of time and there were engagements of shorter duration.

[30] The hours Ms Bridge worked during her employment with Amstel were detailed in the payroll records tendered by Amstel and the payslips tendered by Ms Bridge. There was no discrepancy between these in terms of the total hours worked each week during the course of the employment relationship or the wages Ms Bridge received. They indicate Ms Bridge worked every week during her employment. From these records, in the weeks Ms Bridge attended work from the pay period ending 8 November 2015 to the pay period ending 8 May 2016, she worked on average approximately 9.5 hours per week, with a range of between 2.5 and 20.5 hours duration. 6 In the post-Christmas 2015 period from the pay period ending 10 January 2016 to the pay period ending 8 May 2016, Ms Bridge worked on average approximately 7.25 hours per week, with a range of between 2.5 and 13 hours duration.

[31] Consistent with the observation of Crispin P and Gray J of the Court of Appeal of the Australian Capital Territory in Yaraka Holdings Pty Ltd v Giljevic (Yaraka Holdings) that “it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement,”  7 Commissioner Roe stated in Ponce:

“[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic…The previous authorities have also established that employment or engagement can be regular and systematic even…where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.” (footnotes omitted)

[32] This led Commissioner Roe to find in Ponce:

“[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:

• The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and

• Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.

[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.”

[33] Ultimately, the finding in Ponce was that “it is not necessary to establish that shifts and start and finish times are regular or rostered to establish that the employment is on a regular and systematic basis.” 8

[34] While in Burke v Marist Brothers St Joseph’s College, 9 Vice President Lawler, in adopting the approach of Roe C in Ponce suggested caution be exercised:

“one must not treat the summary of Roe C as a substitute for the language of the statute: the ultimate question always remains whether the employment was ‘regular and systematic’ within the meaning of section 384(2)(a) and care must be taken not to invert the test to one which asks the question whether the employment was ‘occasional or irregular’.” 10 (emphasis added)

[35] Meaning to ‘regular and systematic’ was given in Yaraka Holdings, where Madgwick J concurred with the majority and as part of his consideration of examples of individuals who were workers in the context of that case stated:

“It is clear from the examples that a ‘regular ... basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all…

Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3^rd edn, 2001).” 11

[36] Relevantly for this case, and as referred to in paragraph [31] above, the Australian Industrial Relations Commission concluded the employment of a casual employee who worked hours ranging from three to 39 hours per week was both regular and systematic in Summerton v Jabiru Golf Club Inc., 12stating:

“The hours were irregular but occurred regularly. Ms Summerton was advised in advance of her hours and this was done on a regular basis. Once allocated, she had to observe those hours. While informal, it was a roster in so far as she knew in advance when she was required. She was regularly engaged and sought the employer's permission when she was not available…” 13

Conclusion

[37] I am satisfied the evidence supports a conclusion that Ms Bridge’s employment as a casual employee, with hours ranging from 2.5 to 20.5 per week, was on a regular and systematic basis and that during her period of service, she had a reasonable expectation of continuing employment by Amstel on a regular and systematic basis, because:

• Ms Bridge was offered work regularly, every week during her employment;



• There was an established system of employment whereby the Duty Manager or other key staff members would write up the rosters two weeks in advance in conjunction with an ‘availability sheet’ completed by staff, who were required to indicate when they could not work;



• With two or three exceptions, Ms Bridge accepted the work on offer within her identified periods of availability; and



• There was no evidence of any issues with Ms Bridge’s performance up until the incident that resulted in her termination and there was work available while she was still an employee such that she had a reasonable expectation of continuing employment on this regular and systematic basis.

[38] It is open for me to conclude that Ms Bridge would have had a reasonable expectation that her employment would continue, because she did not receive the briefing Mr Muir gave regarding the need to reduce wages and she considered there was decent work available while she was still an Amstel employee.

[39] Ms Bridge was employed by Amstel from 2 November 2015 to 5 May 2016, a period of just a few days over six months. There was no evidence of periods of absence during Ms Bridge’s employment which could lead to a finding the minimum employment period had not been served. Given the length of service exclusive of the perhaps two or three occasions when she could not work, I find Ms Bridge has served the minimum employment period and I am satisfied that the period of continuous service extends to the point of termination.

[40] For the reasons set out above, I am satisfied Ms Bridge was a casual employee employed by Amstel on a regular and systematic basis and that during her period of service, she had a reasonable expectation of continuing regular and systematic employment. I am also satisfied Ms Bridge’s period of service of just over six months counts towards her period of employment and that she has therefore served the requisite minimum period of employment.

[41] An Order will be issued dismissing the jurisdictional objection of Amstel and the Commission will now make directions for further programming.

DEPUTY PRESIDENT

Appearances:

S Bridge on her own behalf.

A Perry & D Muir for the Respondent.

Hearing details:

2016.

Melbourne:

July 22.

 1   Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 (unreported, Catanzariti VP, Harrison SDP, Bull C, 12 May 2015) at [28].

 2   Exhibit A1 - Attachment SB-1.

 3   Exhibit A3.

 4   [2010] FWA 2078.

 5   Ibid at [54].

 6   Exhibit R1.

 7   Yaraka Holdings Pty Ltd v Giljevic 149 IR 339 at [65].

 8   [2010] FWA 2078 at [87].

 9   [2015] FWC 7324.

 10   Ibid at [18].

 11   Yaraka Holdings Pty Ltd v Giljevic 149 IR 339 at [89] & [91].

 12   (unreported, AIRC, Duncan SDP, 6 June 2001) Print PR 904938.

 13   Ibid at [18].

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