| [2019] FWC 2038 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Imogen Wylie
v
Szauer Holdings Pty Ltd T/A Robinsons Bookshop and Cafe
(U2019/314)
DEPUTY PRESIDENT MASSON |
MELBOURNE, 4 APRIL 2019 |
Application for an unfair dismissal remedy.
[1] On 9 January 2019, Ms Imogen Wylie (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of her alleged dismissal by Hammock Time Pty Ltd T/A Robinsons Bookshop (Hammock Time).
[2] The Applicant, immediately prior to the alleged dismissal, was employed on a casual basis as a Retail Assistant by Robinsons Bookshop at its Frankston store which is owned and operated by Szauer Holding Pty Ltd (the Respondent). The Applicant was advised on 29 December 2018 that she would not be offered further shifts with Robinsons Bookshop at that time.
[3] The Respondent objects to the application on three grounds. Firstly, that the Applicant was not employed by the entity identified in her original application, i.e. Hammock Time and was in fact employed by the Respondent. Secondly, that the Applicant was not dismissed by the Respondent and thirdly that the Respondent is a small business.
[4] Determination of the Respondent’s jurisdictional objections was listed for hearing on 29 March 2019.
[5] After taking into account the wishes of the parties as to the way in which the Commission would consider and inform itself in relation to the application, I decided to conduct a conference pursuant to s 398 of the Act to determine the jurisdictional objections raised by the Respondent.
[6] The Applicant was represented at the conference by her father, Mr J Wylie and gave evidence on her own behalf. Ms Susanne Horman appeared for the Respondent and also gave evidence in the matter.
[7] While the Applicant named “Hammock Time Pty Ltd Trading as Robinsons Bookshop” with the Australian Business Number (ABN) of 81103033150 as the Respondent in her Form F2, the Form F3 records the Respondent as “Szauer Holdings Pty Ltd” ABN 28156861516.
[8] The Respondent states that at the time of the Applicant’s initial employment with Robinsons Bookshops, the Applicant was employed by Hammock Time when she was engaged at the Robinsons Bookshop’s Carrum Downs warehouse. On her subsequent transfer to the Frankston Store, the Respondent’s outsourced payroll service failed to identify that the Applicant was no longer employed by Hammock Time and had transferred her employment to a different entity, that of the Respondent.
[9] Acting on the advice of its accountants, Ms Horman instructed that the Applicant’s payroll arrangements be corrected from 1 July 2018 so that the Applicant was properly identified as employed by the Respondent, that being the employing entity for staff employed at the Frankston store.
[10] I am satisfied that I should amend the application for an unfair dismissal remedy made by the Applicant so as to record “Szauer Holdings Pty Ltd” as the Respondent and I consider my so doing comes within the circumstances in which it has been held permissible pursuant to s 586 of the Act. 1
[11] On 23 February 2017, the Applicant was offered employment by Robinsons Bookshop as a casual Receiving Clerk. 2 She accepted that offer and commenced on 27 February 2017 based at the Robinsons Bookshop warehouse at Carrum Downs. The relevant employing entity at the time was Hammock Time.
[12] On 27 July 2017, Robinsons Bookshop offered the Applicant the position of casual Retail Assistant, following acceptance of which she commenced in that role on 28 July 2017 based at Robinsons Bookshop Frankston store. 3 The relevant employing entity at the point of commencement of the Applicant at the Frankston store was the Respondent.
[13] File notes were prepared by Ms Horman dated 10, 17, 21 and 23 December 2018 that record concerns held by Ms Horman and the Frankston store manager regarding the Applicant’s performance and conduct. 4 Ms Horman concedes that the file notes were prepared on or about 18 January 2018 and states they were prepared on the basis of handwritten notes made during December 2018. Ms Horman further states that she and the store manager variously spoke with and warned the Applicant during the period leading up to Christmas 2018 regarding their concerns.5 The Applicant denies that she was personally counselled or warned during December 2018 regarding the alleged performance concerns.6
[14] On 29 December 2018, Ms Horman sent an email to the Applicant in which the alleged performance and conduct concerns claimed to have been previously raised with the Applicant during the Christmas period were summarised. The email went on to relevantly state as follows:
“……….
As a casual employee there should be no expectation of ongoing work. As we have finished our busy Christmas period and there are fewer shifts available I am writing to advise that at this time we have no further shifts to offer you at Robinsons Bookshop.
…………” 7
[15] Payroll records 8 reveal the that in the period from 28 December 2017 to 29 December 2018, the Applicant’s hours of work pattern had the following features:
(i) In the 52 week period there were only two weeks in which she did not work;
(ii) She worked on 37 Sundays in that period;
(iii) She worked 26 Saturdays in that period;
(iv) She worked additional shifts on week-days on 14 occasions;
(v) Of the 50 weeks during which she worked, on 49 occasions she worked either a Saturday or a Sunday and on 14 occasions she worked both a Saturday and Sunday in a particular week; and
(vi) Her shifts varied in length between three and five hours.
[16] The Applicant states that in the period between 28 July 2017 when she commenced at the Frankston Store and 28 December 2017, she worked a similar pattern of hours of work each week to that that disclosed by the payroll records available from 28 December 2017 that were in evidence. Ms Horman did not contradict the Applicant’s evidence on this point.
[17] The Applicant states that at the time of her dismissal on 29 December 2018, she had been rostered to work on Sunday, 6 January 2019 9 but that rostered shift was cancelled as a result of her dismissal. Ms Horman states that her removal from the rostered shift on 6 January 2019 was a consequence of reduced hours of work available for juniors and that there was a more senior casual staff member preferred for the available shift. The Applicant further states that during her period of employment with the Respondent, she had an expectation of ongoing casual employment on the basis of her historical hours of work pattern and that she had not been personally counselled or warned regarding her performance prior to the dismissal.
[18] Ms Horman described the process by which rosters are prepared each week in advance and that in preparing the rosters regard is had to the availability of staff. She further states that casual staff rostering was made difficult by the negative reaction of casual staff to any reduction in their rostered hours of work.
[19] Ms Horman states that the Applicant was not dismissed but was simply not offered shifts in the immediate aftermath of Christmas 2018 because of the reduction in hours per week available to staff, that reduction being from 450 hours down to 120 hours. Further, Ms Horman believed that the Applicant had gone away with her family during the New Year period. She also states that the Applicant had not been removed from the payroll system and that offers of continuing employment were made to the Applicant during the conciliation conference conducted in January 2019, offers that were again repeated during the jurisdictional hearing.
[20] Ms Horman gave evidence as to the ownership structure of the Respondent and its relationship to Hammock Time. She states that the Respondent is a family trust in which she is the principal shareholder. It owns and operates the Robinsons Bookshop Frankston store. It also owns and licenses the Robinsons Bookshop brand name. Hammock Time is a separate company that owns and operates several Robinsons Bookshops and its warehouse/distribution facilities under license to the Respondent.
[21] Ms Horman further states that she has one of two shares in Hammock Time and is consequently a 50% joint shareholder in that company. She states that the operations management of Hammock time fall under the responsibility of the other shareholders of Hammock Time and that she is not involved in its day to day operations.
[22] Ms Horman provided evidence that at the time of the Applicant’s dismissal on 29 December 2018, there were 14 employees of the Respondent. 10 She further states that Hammock time employs approximately 80 employees.
[23] Having dealt with the preliminary matter of the identification of the correct employer there remains two jurisdictional matters to be determined in the application, those being:
(i) whether the Applicant was dismissed by the Respondent; and
(ii) whether the Applicant has completed the minimum employment period as at the date of the alleged dismissal having regard to the claim by the Respondent that it is a small business employer.
[24] An application for an unfair dismissal remedy is made pursuant to s 394 of the Act. Section 394(1) reads as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.”
[25] Section 386 of the Act prescribes when a an employee has been dismissed and states as follows:
“386 Meaning of dismissed
(1) [When a person has been dismissed]
A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[26] The initial matters to be considered are contained in s.396 of the Act as follows:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Section 396(b) requires the Commission to consider whether the person making the application is protected from unfair dismissal.”
[27] In order to be protected from unfair dismissal, a person must have completed a period of employment with his or her employer of at least the minimum employment period as per s.382(a) of the Act which relevantly states 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.
……………”
[28] A “period of employment” is defined in s 384 of the Act which provides:
“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.”
[29] The minimum employment period is one year for a small business employer and six months for other employers as provided by s.383 of the Act which states as follows:
“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.
The “minimum employment period” is one year for a small business or 6 months for an employer which is not a small business.”
[30] Section 23 of the Act relevantly defines a small business as follows:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
[31] Necessary for the determination of whether there are associated entities for the purpose of s 23(3) of the Act is section 50AAA of the Corporations Act 2001 (Corporations Act) 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
(a) 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.”
[32] 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.”
[33] Having regard to the legislative framework stated above, it is necessary for me to consider whether the Applicant was dismissed at the initiative of the Respondent, and if so determine on what date the dismissal took effect. Should I find the Applicant was dismissed by the Respondent, I must then consider whether any of the periods of service of the Applicant as a casual employee can be counted in the Applicant’s period of employment. To do so, I must consider whether the Applicant was employed on a regular and systematic basis and whether she had a reasonable expectation during that period of employment of continuing employment on a regular and systematic basis.
[34] If I find in the affirmative for all or any of the Applicant’s service, I must then consider whether this service amounts to a period of employment that is at least the minimum employment period of six or twelve months. Relevant to determination of the required “minimum employment period” is whether the Respondent was a “small business employer” for the purpose of s 383(b) of the Act at the time of the Applicant’s dismissal. In reaching a conclusion on this point, it will be necessary for me to consider whether there are any associated entities for the purposes of s 23(3) of the Act.
[35] I turn first to consider whether the Applicant was dismissed.
Was the Applicant dismissed?
[36] The Applicant submits that there were no formal performance warnings issued to her prior to her dismissal; that she worked on a regular and systematic basis over the previous 17 months in the Frankston Store; and regarded the email of 29 December 2018 as a dismissal at the Respondent’s initiative. She also pointed to the cancellation of her rostered 6 January 2019 shift as further evidence in support of her submission that the termination was at the Respondent’s initiative.
[37] The Respondent characterised the Applicant’s reaction to the 29 December 2018 letter as a misunderstanding, states that the Applicant had not been dismissed, that she remains on the payroll system of the Respondent and that the Respondent remains willing to offer her ongoing shifts. The fact that the Respondent did not make contact with the Respondent during January 2018 regarding available shifts was explained by the Respondent as due to Ms Horman’s belief that the Applicant was on holidays.
[38] I find the evidence and submissions of the Respondent unconvincing for the following reasons.
[39] Taken at its highest, the evidence of the Respondent is that it held concerns regarding the Applicant’s conduct and performance during the December period. So much is clear from the content of the 29 December 2018 email to the Applicant which for the most part deals with the Applicant’s alleged performance shortcomings. Tellingly, there is no reference within that email to measures to be taken to require or assist the Applicant meet the performance expectations of the Respondent.
[40] Furthermore, the Applicant was abruptly advised in the email that she should have no expectation of ongoing employment and that due to the post-Christmas reductions in shifts available to casual staff, there are no further shifts available to be offered to her “at this time”. There was no indication that contact would be made with her at some future point regarding shifts to be offered or that she should maintain contact regarding her availability. The final line in the email also has a strong ring of finality where it states……“I wish you all the best for the future”.
[41] The clear message in the email is that the Respondent was unhappy with the Applicant and the strong inference which I draw is that the Respondent decided to cease offering the Applicant shifts. It is to be noted that that the abrupt cessation of shifts offered to the Applicant was against the backdrop of the Applicant’s regular and systematic hours of work over the preceding 17 months in the Frankston Store. In all of these circumstances, I find no support in the email of 29 December 2018 for the submissions made by the Respondent.
[42] Termination at the initiative of the employer means a termination brought about by an employer and which is not agreed to by the employee. A termination of employment can occur at the initiative of the employer even if it is not done by the employer. 11 It requires the action of the employer to be the principal contributing factor which leads to the termination of the employment relationship.
[43] In circumstances where the Applicant had been regularly and systematically engaged over a period of at least 17 months, I am satisfied that the principal contributing factor to the dismissal of the Applicant was the decision of the Respondent to not offer her any further shifts. It necessarily follows that the Applicant was dismissed at the initiative of the Respondent and that her date of dismissal was 29 December 2018, and I so find.
[44] While the Respondent now indicates a willingness to offer the Applicant shifts in the future, I note that such offers were made only after the Applicant made her unfair dismissal remedy application. I am not persuaded that the cessation of offering shifts to the Applicant from 29 December 2018 was other than a termination of her employment at the Respondent’s initiative.
Were there any associated entities?
[45] In order to determine whether the Respondent was a “small business employer” at the time of the Applicant’s dismissal, it is necessary to consider whether there are any associated entities of the Respondent that must be considered for the purpose of calculating the aggregate number of employees.
[46] Ms Horman’s evidence was that Hammock Time is an entity in which she holds a 50% share. She states, however, that day to day management of the operations of Hammock Time is overseen by the other joint shareholders in Hammock Time.
[47] I am satisfied on the evidence that subsections 50AAA (2), (3), (4), (5) and (6) of the Corporations Act are not satisfied or relevant in the present case. Section 50AAA (7) may, however, be relevant and I now turn to consider whether that subsection is satisfied.
[48] As succinctly summarised by Commissioner Saunders at paragraph [21] of his decision in Ms Janine Budden v Finke Enterprises Pty Ltd ATF M&L Carlson Family Trust T/A Fused Cafe Pender Place 12 an “entity” is defined to include a “natural person”:
“[21] Section 64A of the Corporations Act defines “an entity” to include “a natural person”. It follows, in my view, that Mrs Carlson is “an entity (the third entity)” within the meaning of subsection 50AAA (7) of the Corporations Act. My conclusion in this regard is supported by a decision of Judge Riley of the Federal Circuit Court of Australia in Director of the Fair Work Building Industry Inspectorate v Vic Metro Brick and Blocklaying Pty Ltd [2015] FCCA 2266. In that case, Judge Riley held (at [85]) that a natural person who was the sole director and shareholder of two corporations was “an entity [who] controls both the principal and the associate” within the meaning of subsection 50AAA (7) of the Corporations Act.”
[49] It follows from the above that Ms Horman may be a “third entity” for the purpose of establishing whether s 50AAA (7) of the Corporations Act is satisfied, if it can be established that she controls both the Respondent and Hammock Time.
[50] While it may be true that Ms Horman is not involved in the day to day management of Hammock Time, it is the case that she owns 50% of it and is also the principal shareholder in and manager of the Respondent which is the licensee of the brand name “Robinsons Bookshop” which, importantly, Hammock Time is licensed to operate under. In these circumstances it is inconceivable, in my view, that Ms Horman would not be in a position to exercise “control” over decisions relating to Hammock Time.
[51] I am satisfied on the limited material before me that Ms Horman has the capacity to jointly determine the outcome of decisions about Hammock Time and the Respondents financial and operating policies. To find otherwise would be to ignore the reality that she both owns the Company that licenses Hammock Time to use the name “Robinsons Bookshops” and also owns 50% of Hammock Time.
[52] In the above circumstances, I am satisfied that Hammock Time is an associated entity for the purposes of s 23(3) of the Act.
Is the Respondent a small business employer?
[53] Having found Hammock Time to be an associated entity of the Respondent, it is necessary for the employee numbers of both of those companies to be included in the calculation of employee numbers for the purpose of determining whether the Respondent was a “small business employer”.
[54] I am satisfied on the evidence of Ms Horman that, at the time of the Applicant’s dismissal, there were 14 employees of the Respondent and approximately 80 employees of Hammock Time. It follows that the total number of employees of the associated entities was between 90 and 100 employees at the time of the Applicant’s dismissal.
[55] Having regard to my findings in respect of associated entities and the aggregate employee numbers, I am satisfied that the Respondent and its associated entities employed 15 or more employees at the time of the Applicant’s dismissal. I am consequently satisfied that the Respondent was not a “small business employer” at the time of the Applicant’s termination of employment.
[56] As a consequence of these findings, the minimum employment period that must have been served by the Applicant is six months. If I am wrong in my conclusion regarding Hammock Time being an associated entity, the Applicant will have been required to serve a minimum employment period of 12 months.
Has the Applicant completed the minimum employment period as at the date of her alleged dismissal?
[57] In order for the Applicant to establish that she has satisfied the minimum employment period as a casual employee, it is necessary that her period of service with the Respondent meets two tests:
(i) that she was regularly and systematically engaged for an aggregate period of service of at least six months; and
(ii) during that period of service she had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
[58] The Applicant submits that she was regularly and systematically engaged as a casual employee up until her final shift on 26 December 2018 and that such period of regular and systematic employment was over a period of approximately 17 months. The Applicant also contends that during that period of employment she could have had a reasonable expectation of ongoing employment on the basis of the pattern of hours worked by her and the absence of any formal counselling and/or warnings.
[59] The Respondent submits that the pattern of casual engagement revealed by the pay slips fails to disclose a “regular and systematic” basis of engagement. The Respondent points to the variability in hours worked per week and that the Applicant did not work every Saturday or every Sunday. I reject the Respondent’s submission for the reasons that follow.
[60] The pattern of engagement could not, in my view, be described as irregular or occasional even though the actual days and hours worked each week varied. Based on the pay records over a 12 month period, there is a clear pattern in that the Applicant invariably worked either a Saturday or Sunday each week and on some occasions worked both Saturday and Sunday. The fact that her hours fluctuated from time to time with some additional hours worked during some weeks does not alter the pattern of regular rostered weekend shifts.
[61] I have found it unnecessary to consider in detail the entire 17 month period of the Applicants casual employment given the evidence of the Applicant, which was not challenged by the Respondent, that the period between July 2017 and December 2017 featured a similar pattern of hours to the subsequent 12 month period. The entire period serves to reinforce the pattern of regular weekend work that I have described above. I am satisfied that the Applicant was clearly engaged as a casual employee on a “regular and systematic” basis for a period in excess of 12 months. Consequently, if I am wrong in my finding that Hammock Time is an associated entity, thus meaning that the Respondent is a “small business employer” it is clear that the Applicant would still satisfy the greater minimum employment period of 12 months.
[62] I turn now to consider whether the Applicant had, during her period of service, a reasonable expectation of continuing employment on a regular and systematic basis.
[63] In the context of casual employees pursuing an unfair dismissal remedy, Commissioner Roe considered the meaning of the terms “regular and systematic” engagement and “reasonable expectation of ongoing employment” in Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 13 (Ponce). Commissioner Roe specifically considered at what point the expectation of ongoing employment must be determined and relevantly stated as follows:
“[57] The other significant change is that the WR Act required that for a casual to achieve jurisdiction:
“the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer (Section 638(4) (b)).”
[58] Whilst the 2009 Act requires that:
“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 (Section 384(2) (a) (ii)).”
[59] The focus on the reasonable expectation of continuing employment is not now about the expectation at the point of termination but about the expectation during the period of service that is to count towards achievement of the minimum employment period to achieve jurisdiction.
……………..
[64] So it is clear that a period of continuous service for the purposes of Sections 22 and 383 and 384 of the Act can include a period of casual employment notwithstanding the fact that the employee may be engaged and re-engaged on a daily or even an hourly basis during that period of casual employment. The test is simply whether or not during a period of at least six months prior to the dismissal the employment as a casual employee was on a regular and systematic basis and the employee had, during that period, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.” 14(emphasis added)
[64] I regard Ponce as authority for the proposition that it is not at the point of termination that one must assess whether there is a “reasonable expectation of continuing employment on a regular and systematic employment”. Rather, the focus is on whether such an expectation existed during the period of service. Based on Ponce with which I respectfully concur, it is not the test to assess whether the Applicant had a reasonable expectation of continuing casual employment on a regular and systematic basis as at the 29 December 2018. Rather, the assessment is to be made during her period of continuous service that counts towards the six month minimum employment period.
[65] The full period of casual employment of 17 months is particularly relevant in considering whether the Applicant could have had a reasonable expectation of continuing employment. That period during which she maintained her casual employment, combined with the “regular and systematic” nature of her employment, would in my view lead to an entirely reasonable expectation on the part of the Applicant of continuing employment.
[66] In all the circumstances, I conclude that the Applicant was a casual employee who was employed on a “regular and systematic” basis and that during her period of service as a casual employee, had a reasonable expectation of continuing employment. The period of the Applicant’s employment was in excess of the minimum period of employment of six months at the time of her dismissal as required by s 382 of the Act. Furthermore, the period of the Applicant’s employment was in excess of 12 months which would be the relevant minimum employment period if my conclusion on Hammock Time being an associated entity of the Respondent is incorrect.
[67] I am satisfied that the Applicant was dismissed at the initiative of the Respondent.
[68] I am also satisfied that the Applicant was a casual employee who was employed on a regular and systematic basis by the Respondent and that during her period of service as a casual employee, had a reasonable expectation of continuing employment.
[69] The period of the Applicant’s employment was in excess of the minimum period of employment of six months at the time of her dismissal as required by s 382 of the Act.
[70] The jurisdictional objections of the Respondent are dismissed. The application will be referred for further programming by the Commission.
DEPUTY PRESIDENT
Appearances:
J Wylie on behalf of the Applicant.
S Horman on behalf of the Respondent.
Hearing details:
2019.
Melbourne.
March 29.
Printed by authority of the Commonwealth Government Printer
<PR706285>
1 Mr David Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371.
2 Exhibit A2, Letter of Engagement, dated 23 February 2017.
3 Exhibit A3, Letter of Engagement 2017.
4 Exhibits R3, R4, R5, R6.
5 Exhibit R1, Witness Statement of Ms Susanne Horman, dated 7 March 2019.
6 Exhibit A1, Witness Statement of Ms Imogen Wylie, dated 18 March 2018, at paragraph [9].
7 Exhibit A8, Email from Ms. Horman to Imogen Wylie, dated 29 December 2018.
8 Exhibit A7, Summary of Hours of Work for period 7 July – 26 December 2018; Exhibit R15, Payroll Advice Slips for pay periods 31 December 2017 to 24 June 2018.
9 Exhibit A9, Frankston Schedule December 31st 2018 – January 6th 2019.
10 Exhibit R8, PAYG Withholding Statement.
11 Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162.
14 Ibid at paragraphs [57]-[64].