[2017] FWC 2937 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Janet Allan
v
Celesty Pty Ltd ATF Celesty Family Trust T/A Toukley Family Doctor
(U2017/2673)
COMMISSIONER SAUNDERS |
NEWCASTLE, 1 JUNE 2017 |
Application for an unfair dismissal remedy – minimum employment period – transfer of business – service as a casual employee - minimum employment period satisfied - jurisdictional objection dismissed.
[1] Ms Janet Allan was employed by Celesty Pty Ltd (Respondent) in the period from 6 June 2016 until 22 February 2017, at which time Ms Allan contends that she was dismissed harshly, unjustly and unreasonably. The Respondent denies those allegations. In addition, the Respondent denies that Ms Allan was dismissed, and contends that she was not employed for the minimum employment period. This decision is solely concerned with the question of whether Ms Allan had completed at least the minimum employment period at the time of her alleged dismissal on 22 February 2017.
Jurisdictional hearing
[2] On 31 May 2017, a hearing was conducted in relation to the jurisdictional question of whether Ms Allan had completed at least the minimum employment period at the time of her alleged dismissal. Ms Allan gave evidence in support of her case. Dr Younes Ismail gave evidence on behalf of the Respondent, as did Mr Michael Doueihi, solicitor for the Respondent.
Non-contentious matters
[3] There is no real dispute between the parties and I am satisfied on the evidence that:
(a) Ms Allan was employed on a casual basis by Shivalik Pty Ltd ATF Suri Superannuation Fund (Shivalik) to work as a registered nurse in the Toukley Family Doctor Medical Practice (Business) from 7 January 2014 to 3 June 2016. Dr Rahul Suri was the owner of the Business and the sole general practitioner working in the Business during that time;
(b) When Dr Suri owned the Business it was conducted from premises at 1A Eden Street, Toukley, New South Wales (Premises), which were owned by Shivalik;
(c) Dr Suri is, and was during the period from 7 January 2014 to 3 June 2016, one of two directors and a 50% shareholder of Shivalik. The other director and shareholder of Shivalik is Dr Suri’s wife, Ms Anu Suri;
(d) On 20 May 2016, Dr Suri entered into a written contract with the Respondent to sell the Business to the Respondent. The purchase price for the Business was comprised of two components: goodwill, which accounted for almost all of the purchase price, and equipment worth $8,856. The contract for the sale of the Business was conditional on the sale of the Premises from Shivalik to the Respondent;
(e) It was a term of the contract for the sale of the Business (clause 34.2) that:
“The purchaser must elect whether or not the purchaser recognises service with the vendors for the purposes of the FW Act, and in doing so calculate the period of employment in accordance with Division 2 of Part 3-2 of the FW Act (which deals with access to unfair dismissal) …”
(f) Mr Doueihi gave evidence, which I accept, that on 18 May 2016 he wrote to Ms Anu Suri, stating that the employees working in the Business would not be recognised as transferring employees and requesting that Dr Suri give notice to terminate the employment of each employee. There is no suggestion in the evidence that a copy of that correspondence was provided to Ms Allan at any time;
(g) On 23 May 2016, Mr Doueihi sent an email to Ms Suri in the following terms:
“As we emphasised on Friday evening, the employees of either the practice or of the service company which you and your husband utilised for the practice, is a matter that you must address.
We specifically removed the list of employees from the sale of business contract and we specifically [sic] and that the contractor to make it very clear that our client is under no legal obligation to take over any employment arrangements.
It is a matter for our client if they wish to employ any of the existing staff.
As you kept on emphasising, you wish to keep the ‘humane’ aspect as your palm and concern. I’m sure that our client also agrees and that the two of you would work collectively in the best interests of the employees.”
(h) Later on 23 May 2016, Ms Suri responded to Mr Doueihi’s email set out in the previous subparagraph by stating “Noted”;
(i) On 23 May 2016, Shivalik gave Ms Allan written notice of the termination of her employment. In that notice, Shivalik informed Ms Allan that:
“We are writing to inform you that Dr Younes Ismail has made an offer to take over the practice as the principal, from Monday the 6th of June 2016. It is with a heavy heart that we have decided to accept this offer.
Your employment with Shivalik Pty Limited will therefore by [sic] terminating, and you will be fully paid out all your dues up to and including Friday 3rd of June.
We understand Dr Ismail will be providing you with an independent offer of employment commencing 6th of June 2016.
I would like to take this opportunity to thank you for your excellent work, professionalism and loyal service to the practice and the patients.
With warm regards and best wishes.
Yours sincerely,
Anu Suri
Per: Dr Rahul Suri”
(j) On Friday, 3 June 2016, the sale of Business settled and Ms Allan’s employment with Shivalik came to an end;
(k) On Monday, 6 June 2016, Ms Allan commenced employment with the Respondent on a casual basis as a registered nurse. Ms Allan was not provided with a written offer of employment by the Respondent, nor did the Respondent inform Ms Allan in writing, whether before or after the commencement of her employment with the Respondent, that her period of service with Shivalik would not be recognised;
(l) Ms Allan gave unchallenged evidence, which I accept, that Dr Ismail verbally informed her that her casual employment as a registered nurse would “continue as per Dr Suri, at the practice but with added responsibilities.” Ms Allan’s employment with Shivalik included “spirometry, ECG’s, wound care, nurse education, vaccinations, and health assessments in patient’s homes.” During her employment with the Respondent, Ms Allan undertook the same duties as she had performed during her employment with Shivalik but also undertook additional duties to “assist with reception as required, and in September 2016 payroll duties were also included.” Ms Allan continued to be based at the Premises after the sale of Business to the Respondent;
(m) On 14 June 2016, the Respondent’s accountant wrote to Mr Doueihi and noted, amongst other things, that the Respondent “employed the staff as new employees when the practice was taken over excluding any previous entitlements… The staff will be on new employment agreements, and they are in the process of completing all other employment related matters/registrations - such as TFN declarations etc”;
(n) On 7 July 2016, Ms Suri wrote to Mr Doueihi to “confirm all staff employed by the practice were terminated on the settlement date of the sale”;
(o) On 22 February 2017, Ms Allan’s employment with the Respondent came to an end. She was therefore employed by the Respondent on a casual basis as a registered nurse for about eight months and two weeks; and
(p) the Respondent was a small business employer at the time of Ms Allan’s alleged dismissal. As a result, the minimum employment period for her is one year.
Issues in dispute
[4] The following issues require determination in this matter:
(a) Whether Ms Allan’s service with Shivalik counts as service with the Respondent?
(b) Whether any or all of Ms Allan’s period of service as a casual employee (i) with Shivalik and/or (ii) the Respondent counts towards her period of employment (s.384(2(a) of the Act)?
Legislative regime
[5] Section 382 of the Act provides:
“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....”
[6] Section 383 of the Act provides:
“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.”
[7] Section 384 of the Act defines “period of employment” 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.
(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; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
[8] “Service” is defined by s.22 of the Act as follows:
“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) 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.
Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2
(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2:
(a) 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:
(i) any period of unauthorised absence; or
(ii) any other period of a kind prescribed by the regulations; and
(b) a period referred to in subparagraph (a)(i) or (ii) 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; and
(c) subsections (1), (2) and (3) do not apply.
...
(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.
When service with one employer counts as service with another employer
(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:
(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and
(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.
...
Meaning of transfer of employment etc.
(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:
(a) the following conditions are satisfied:
(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;
(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or
(b) the following conditions are satisfied:
(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;
(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.
Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.
(8) A transfer of employment:
(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and
(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.”
[9] Section 311 of the Act governs when a transfer of business occurs:
“311 When does a transfer of business occur
Meanings of transfer of business, old employer, new employer and transferring work
(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
Meaning of transferring employee
(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.
Transfer of assets from old employer to new employer
(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer;
the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in connection with, the transferring work.
…
New employer is associated entity of old employer
(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.”
[10] The relevant statutory regime insofar as it relates to the present case may be summarised in the following way:
(a) An employee must have completed at least the minimum employment period to be eligible to bring an unfair dismissal claim against their former employer (ss.382, 390 & 396 of the Act);
(b) For a person employed by a small business employer, the minimum employment period is one year (s.383 of the Act);
(c) An employee’s period of employment with an employer is the period of continuous service the employee has completed with their employer (s.384(1) of the Act);
(d) For a casual employee, the employee’s period of employment must satisfy particular criteria in order to count to the employee’s period of employment (s.384(2)(a) of the Act);
(e) The expression “continuous service” is not defined in the Act. The ordinary meaning of “continuous service” is the period of unbroken service by an employee with an employer. 1 However, the ordinary meaning of “continuous service” is affected by s.22 (s.12 of the Act);
(f) A period of “service” by an employee with their employer is a period during which the employee is employed by the employer, but does not include certain “excluded periods” (ss.12 & 22 of the Act);
(g) An “excluded period” does not break an employee’s “continuous service” with their employer, but does not count towards the length of the employee’s “continuous service” (s.22(3) of the Act). “Excluded periods” include a period of unauthorised absence and a period of unpaid leave or unpaid authorised absence, subject to certain exceptions (s.22(2) of the Act);
(h) Subsections 22(5) and (7) of the Act alter the ordinary meaning of “continuous service”. In effect, in particular circumstances they deem 2 service by an employee with one employer to be service with another employer if there is a transfer of employment within the meaning of s.22(7) of the Act.3 In addition, those provisions stipulate that, in the event of such a transfer of employment, the period between the termination of employment with the first employer and the commencement of employment with the second employer does not break the employee’s “continuous service” with the second employer, but the “gap” does not count towards the length of the employee’s “continuous service” with the second employer (s.22(5)(b) of the Act); and
(i) In order for an employee’s service with a previous employer to be deemed to be part of their “continuous service” with a subsequent employer as a result of a “transfer of employment”, one of the following sets of conditions must be satisfied (s.22(7) of the Act):
● First, the first and second employers must be “associated entities” and the “gap” in employment must not be more than three months; or
● Secondly, the first and second employers are not “associated entities” and the employee is a “transferring employee” in relation to a “transfer of business” within the meaning of s.311 of the Act. However, even if these conditions are satisfied, there is an exception which must be considered. In particular, the employee’s period of service with the first employer will not count towards the employee’s period of employment with the second employer for the purpose of the unfair dismissal provisions of the Act if the second employer informed the employee in writing before the new employment started that a period of service with the first employer would not be recognised (s.384(2)(b) of the Act).
Transfer of employment
[11] There is no dispute that the Respondent and Shivalik were not associated entities when Ms Allan became employed by the Respondent on 6 June 2016. Accordingly, it is necessary to determine whether Ms Allan was a transferring employee in relation to a transfer of business from Shivalik to the Respondent (s.22(7)(b) of the Act).
[12] As to the requirements for a transfer of business within the meaning of s.311(1) of the Act, there is no real dispute between the parties and I am satisfied on the evidence that:
(a) the employment of Ms Allan with Shivalik terminated on 3 June 2016 (s.311(1)(a));
(b) within 3 months after the termination of Ms Allan’s employment with Shivalik (3 June 2016), she became employed by the Respondent (6 June 2016) (s.311(1)(b)); and
(c) the work Ms Allan performed for the Respondent was substantially the same as the work she performed for Shivalik (s.311(1)(c)).
[13] The real issue in relation to whether there has been a transfer of business within the meaning of s.311(1) of the Act is whether there is a connection between the old employer, Shivalik, and the new employer, the Respondent, as described in any of subsections 311(3) to (6) of the Act (s.311(1)(d)). Subsections 311(4), (5) and (6) are clearly not relevant to this case. That leaves subsection 311(3) of the Act for consideration.
[14] The parties to the contract for the sale of Business were Dr Suri, as the vendor, and the Respondent, as the purchaser. Ms Allan’s previous employer, Shivalik, was not a party to that contract, nor is there any evidence of an arrangement of the relevant kind between Shivalik and the Respondent. However, paragraphs 311(3)(a) and (b) of the Act will be satisfied if there was an arrangement between the Respondent and an associated entity of Shivalik. That gives rise to a question as to whether Dr Suri was an associated entity of Shivalik at the relevant time.
[15] The expression “associated entity” has the meaning given by s.50AAA of the Corporations Act 2001 (Cth) (Corporations Act), 4 which provides as follows:
“Associated entities
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b) the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(c) the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(c) the interest is material to the principal.
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.”
[16] Section 50AA of the Corporations Act defines “control” as follows:
“(1) For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity's financial and operating policies.
(2) In determining whether the first entity has this capacity:
(a) the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and
(b) any practice or pattern of behaviour affecting the second entity's financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).
(3) The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity's financial and operating policies.
(4) If the first entity:
(a) has the capacity to influence decisions about the second entity's financial and operating policies; and
(b) is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity's members
the first entity is taken not to control the second entity.”
[17] The concept of “control” is concerned with the practical ability of an entity to determine the outcome of decisions of another entity, taking into account any relevant practice or pattern of behaviour. 5
[18] Except in chapter 2E of the Corporations Act (related party transactions), a reference to an “entity” in the Corporations Act is a reference to “a natural person, a body corporate (other than an exempt public authority), a partnership or a trust” (s.64A of the Corporations Act). Accordingly, Dr Suri is an “entity” within the meaning of the Corporations Act.
[19] Ms Allan gave evidence, which I accept, that during her employment with Shivalik:
(a) Dr Suri was the sole general practitioner working in the Business;
(b) Dr Suri made decisions about who would be employed in the Business, how much they would be paid, what hours and duties employees would undertake in the Business, and how the Business would be conducted;
(c) as the owner of the Business and sole general practitioner working in the Business, Dr Suri was the person who exerted practical influence over the decisions and affairs of Shivalik; and
(d) Dr Suri was the person who made decisions about Shivalik’s financial and operating policies.
[20] In light of the matters referred to in the previous paragraph, coupled with the fact that Dr Suri was the sole owner of the Business and in that capacity he obviously decided to use Shivalik, a company in which Dr Suri is a 50% shareholder and one of two directors (Dr Suri’s wife being the other shareholder and director), to own the Premises and employ the staff working in the Business, I am satisfied that Dr Suri controlled Shivalik at the time the Business was sold to the Respondent. Further, given that Shivalik was both the entity Dr Suri used to employ staff in his Business and the trustee of the Suri Superannuation Fund, I am satisfied that the operations, resources and affairs of Shivalik were material to Dr Suri at the time the Business was sold to the Respondent. It follows that subsection 50AAA(4) of the Corporations Act is satisfied, with the result that Dr Suri and Shivalik were “associated entities” at the time the Business was sold to the Respondent.
[21] Having found that subsection 50AAA(4) of the Corporations Act is satisfied, I need not consider subsections 50AAA(2), (3), (5), (6) or (7). However, in the event that there is a challenge to my finding concerning subsection 50AAA(4) of the Corporations Act, I also find that subsection 50AAA(5) of the Corporations Act is satisfied in this case, because, at the time of the sale of the Business to the Respondent, Dr Suri had a qualifying investment in Shivalik (being his 50% shareholding in Shivalik), Dr Suri had significant influence over Shivalik (for the reasons set out in the previous two paragraphs), and Dr Suri’s interest in Shivalik was material to him (also for the reasons set out in the previous two paragraphs).
[22] The contract for the sale of the Business is clearly an arrangement between Dr Suri, being an associated entity of the old employer, Shivalik, and the new employer, the Respondent. In accordance with that arrangement, the Respondent became the owner, and had the beneficial use, of assets that Dr Suri owned, and had the beneficial use of, prior to the sale of Business, namely the items of equipment referred to in the inventory of equipment attached to the contract for the sale of Business and the goodwill of the Business. Further, I am satisfied that those assets relate to, and are used in connection with, the work Ms Allan has at all material times performed in the Business. By way of example, the ECG machine, steriliser, vaccination fridge, computers, medical software, and telephones relate to, and were used in connection with, the work Ms Allan did in the Business both prior to the sale on 3 June 2016 and thereafter. It follows that subsection 311(3) of the Act is satisfied.
[23] Because there is a connection between Shivalik and the Respondent as described in s.311(3) and the other requirements of s.311(1) of the Act have been satisfied, there was a transfer of business from Shivalik to the Respondent within the meaning of s.311 of the Act and Ms Allan was a transferring employee in relation to that transfer of business (s.311(2)). As a consequence, there was a transfer of employment of Ms Allan from Shivalik to the Respondent within the meaning of s.22(7) of the Act. It follows that, subject to the outcome of the following two issues, Ms Allan’s period of service with Shivalik counts as service of Ms Allan with the Respondent and the period between the termination of Ms Allan’s employment with Shivalik on 3 June 2016 and the start of her employment with the Respondent on 6 June 2016 does not break her continuous service with the Respondent, but does not count towards the length of Ms Allan’s continuous service with the Respondent (s.22(5) of the Act):
● the first issue is whether the Respondent informed Ms Allan in writing before her employment with the Respondent started that a period of service with Shivalik would not be recognised. If the Respondent did so inform Ms Allan, her period of service with Shivalik would not count towards her period of employment with the Respondent (s.384(2)(b)); and
● the second issue concerns the fact that Ms Allan was employed by Shivalik and the Respondent as a casual employee, with the result that s.384(2)(a) must be satisfied for any part of her period of service with either Shivalik or the Respondent to be counted towards her period of employment.
[24] The Respondent did not inform Ms Allan of anything in writing before her employment with the Respondent started, let alone that her period of service with Shivalik would not be recognised.
[25] The Respondent relies on the termination letter from Shivalik to Ms Allan dated 23 May 2016 to satisfy s.384(2)(b)(iii) of the Act. I reject that argument for the following reasons:
(a) the letter dated 23 May 2016 was from Shivalik to Ms Allan. It does not constitute the provision of information in writing by the Respondent to Ms Allan. Instead, the letter anticipates the provision of “an independent offer of employment commencing 6th of June 2016” to Ms Allan by Dr Ismail or his company, the Respondent; and
(b) in any event, the letter dated 23 May 2016 did not inform Ms Allan that her period of service with Shivalik would not be recognised. The statement in the letter to the effect that Ms Allan’s employment with Shivalik would be terminating and she would “be fully paid out all your dues up to and including Friday 3rd of June” did not convey any information about whether or not her service with Shivalik would be recognised by the Respondent. In my view, a reasonable person in the position of Ms Allan would construe the reference to being “paid out” all her “dues up to and including Friday 3rd of June” as a promise or representation by Shivalik that it would pay her all amounts owing to her as at 3 June 2016. As a casual employee, that would include her wages, superannuation contributions and possibly long service leave. The letter gave no information to Ms Allan about whether or not her service with Shivalik would be recognised by the Respondent.
[26] Accordingly, Ms Allan’s period of service with Shivalik counts as service with the Respondent, subject to the outcome of the casual employment issue addressed below. The fact that the Respondent elected that it did not wish to recognise the service of an employee such as Ms Allan with Dr Suri, it informed Dr Suri and Shivalik of its position in that regard, and it ensured that Shivalik gave written notice of the termination of the employment of Ms Allan prior to employing her on 6 June 2016 does not alter my conclusion in relation to these matters. The Respondent did not notify Ms Allan in writing of the matters required by s.384(2)(b)(iii) of the Act.
Service as a casual employee
Legal principles concerning s.384(2)(a) of the Act
[27] It is the employment that must be on a regular and systematic basis, not the hours worked. 6 However, a clear pattern or roster of hours is strong evidence of regular and systematic employment.7
[28] The absence of any contractual requirement for the employee to work at set times or of any assumption that the employee be present on a daily, weekly or monthly basis unless told otherwise does not preclude a finding that the employee’s engagements were regular and systematic. 8
[29] The term “regular” should be construed liberally. 9 It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant.10 Employment on a “regular” basis may be constituted by frequent though unpredictable engagements.11
[30] The term “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”. 12 The concept of engagement on a “systematic” basis does not require the employee to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance on the employee’s services as an incident of the business by which he or she is engaged.13
[31] In Ponce, Commissioner Roe stated (at [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 the employee, then evidence of regular and systematic employment can be established where:
[32] I agree with the approach taken by Commissioner Roe in Ponce, subject to the following caveat identified by Vice President Lawler in Burke v Marist Brothers St Joseph’s College t/a St Joseph’s College (at [18]): 14
“That caveat is that 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’.”
[33] The evidence revealed the following in relation to Ms Allan’s working arrangements in the Business, both when Dr Suri owned the Business and when it was owned by the Respondent:
(a) Ms Allan was not provided with a roster of the hours she would work in the Business each week. Instead, there was an arrangement in place whereby Ms Allan would attend and commence work in the Business at about 9am on Monday, Tuesday, Wednesday, and Thursday each week. Ms Allan would see patients who had been booked in to see her for that day and would finish work on each day when she had seen all the patients booked in for her on that day. Those bookings were entered into a computer, to which Ms Allan had access in the Premises. Although Ms Allan’s finishing times each day from Monday to Thursday inclusive varied according to when the patients were booked in to see her, she often left work on those days between about 3pm and 3:30pm;
(b) in addition to seeing patients in the Premises, from time to time Ms Allan also made home visits to see some patients of the Business. Those home visits usually took place on a Friday, but some took place on a Monday, Tuesday, Wednesday or Thursday after Ms Allan had finished seeing patients in the Premises; and
(c) save for occasions when Ms Allan was unwell and could not work, there were no times of the week (Monday to Friday) when she was not available to work in the Business.
[34] The payslips tendered by Ms Allan demonstrate that she worked the following hours each fortnight in the Business in the period from 31 December 2015 until 3 June 2016:
Fortnight period |
Hours worked |
31 December 2015 to 13 January 2016 |
30 |
14 January 2016 to 27 January 2016 |
26.5 |
28 January 2016 to 10 February 2016 |
52.5 |
11 February 2016 to 24 February 2016 |
43.5 |
25 February 2016 to 9 March 2016 |
46 |
10 March 2016 to 23 March 2016 |
48.5 |
24 March 2016 to 6 April 2016 |
41 |
7 April 2016 to 20 April 2016 |
47 |
21 April 2016 to 4 May 2016 |
43.5 |
5 May 2016 to 18 May 2016 |
36.5 |
19 May 2016 to 1 June 2016 and 2 to 3 June 2016 |
57.5 |
Total hours |
472.5 |
Average hours per fortnight |
42.2 |
[35] The payslips tendered by Ms Allan demonstrate that she worked the following hours each fortnight in the Business in the period from 6 June 2016 until 8 February 2017:
Fortnight period |
Hours worked |
6 June 2016 to 15 June 2016 |
34 |
16 June 2016 to 29 June 2016 |
54.5 |
30 June 2016 to 13 July 2016 |
53 |
15 July 2016 to 27 July 2016 |
49 |
28 July 2016 to 10 August 2016 |
46 |
11 August 2016 to 24 August 2016 |
50.5 |
25 August 2016 to 7 September 2016 |
50.5 |
8 September 2016 to 21 September 2016 |
55 |
22 September 2016 to 5 October 2016 |
50 |
6 October 2016 to 19 October 2016 |
54 |
20 October 2016 to 2 November 2016 |
58 |
3 November 2016 to 16 November 2016 |
59.5 |
17 November 2016 to 30 November 2016 |
61.5 |
1 December 2016 to 14 December 2016 |
59 |
15 December 2016 to 28 December 2016 |
60.5 |
29 December 2016 to 11 January 2017 |
57 |
12 January 2017 to 25 January 2017 |
49 |
26 January 2017 to 8 February 2017 |
70 |
Total hours |
971 |
Average hours per fortnight |
54.6 |
[36] On the basis of the evidence summarised in the previous three paragraphs, together with subparagraph [3(l)] above, I am satisfied that Ms Allan’s employment as a casual employee throughout the periods from 7 January 2014 to 3 June 2016 and 6 June 2016 to 22 February 2017 was on a regular and systematic basis, for the following reasons:
(a) First, there was a clear repetitive pattern of Ms Allan’s hours of work, both as to the days (Monday to Thursday) and starting time (about 9am) of work on those days. Ms Allan’s employment in the Business was constituted by frequent engagements, although the number of hours worked by her each day was unpredictable;
(b) Secondly, Ms Allan was engaged by Dr Suri and later by the Respondent pursuant to a system or method. In particular, the arrangement was that Ms Allan would attend the Premises at about 9am each day from Monday to Thursday inclusive and see the patients booked in to see her, as well as conducting home visits from time to time;
(c) Thirdly, Dr Suri and later the Respondent regularly offered work to Ms Allan when suitable work was available at times when Dr Suri and later the Respondent knew that Ms Allan had generally made herself available;
(d) Fourthly, work was offered by Dr Suri and later by the Respondent and accepted by Ms Allan sufficiently often that it could no longer be regarded as simply occasional or irregular; and
(e) Fifthly, the pattern of engagement by Dr Suri and later by the Respondent of Ms Allan occurred as a consequence of an ongoing reliance on Ms Allan’s services as an incident of the Business by which she was engaged.
[37] Ms Allan gave evidence that, throughout her service as a casual employee in the Business from January 2014 to February 2017, she had an expectation of continuing employment by Dr Suri and later by the Respondent on a regular and systematic basis. In my view, Ms Allan’s expectation in that regard was reasonable for the following reasons:
(a) First, there was a clear arrangement pursuant to which Ms Allan knew that she was to turn up for work in the Business at about 9am on each day from Monday to Thursday inclusive each week. This arrangement continued throughout December 2016 and January 2017, even though Dr Ismail informed Ms Allan in December 2016 that he intended to sell the Business or close it and he did not work in the Business for about six weeks. During that time a locum general practitioner was engaged to work in the Business while Dr Ismail worked in Murrurundi. From about 6 February 2017, Dr Ismail worked 3 days per week in the Business and 2 days per week in Murrurundi; and
(b) Secondly, the hours worked by Ms Allan in the Business did not fall below 26.5 in any fortnight in the period from 31 December 2015 to 3 June 2016 and did not fall below 34 in any fortnight in the period from 6 June 2016 to 8 February 2017.
[38] For the reasons set out above, I am satisfied that, throughout the periods from 7 January 2014 to 3 June 2016 and 6 June 2016 to 22 February 2017:
(a) Ms Allan’s employment as a casual employee in the Business was on a regular and systematic basis; and
(b) Ms Allan had a reasonable expectation of continuing employment by Dr Suri and later by the Respondent on a regular and systematic basis.
[39] It follows that Ms Allan’s period of service as a casual employee in the periods from 7 January 2014 to 3 June 2016 and 6 June 2016 to 22 February 2017 count towards her period of employment. These periods combine to exceed one year.
Conclusion
[40] For the reasons set out above, I am satisfied that Ms Allan completed a period of employment with the Respondent of at least the minimum employment period at time of her alleged dismissal (s.382(a) of the Act). I therefore reject the Respondent’s jurisdictional objection concerning the minimum employment period. The matter will shortly be listed for further directions to deal with the balance of the issues in dispute between the parties in the proceedings.
COMMISSIONER
Appearances:
Allan, J, on her own behalf
Dr Ismail, on behalf of the Respondent
Hearing details:
2017
Newcastle
31 May
1 Holland v UGL Resources Pty Ltd [2012] FWA 3453 at [20]; Butterworths Australian Legal Dictionary, 1997, 263.
2 “Deem” in the sense of being used as a device “for the purpose of extending the meaning of some term to a subject matter which it does not properly designate.” (Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696)
3 Subject to the exception in s.384(2)(b) of the Act (transfer of business between non-associated entities where the new employer notifies the employee in writing that a period of service with the old employer would not be recognised).
4 Section 12 of the Act
5 Amcor Ltd & Ors v Barnes & Ors [2016] VSC 707 at [1275]-[1282]
6 Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 399 (Yaraka) at [65]; cited in Ponce v DJT Staff Management Services Pty Ltd t/a Daly’s Traffic [2010] FWA 2078 (Ponce)
7 Ibid
8 Yakara at [67]
9 Yaraka at [68]
10 Yaraka at [68]; cited in Grives v Aura Sports Pty Ltd [2012] FWA 5552 at [32]
11 Yaraka at [89]
12 Yaraka at [68]
13 Yaraka at [69]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR593303>