DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Rebecca Purcell
v
Aspen Living Villages Pty Ltd t/a Darwin FreeSpirit Resort
(U2019/14134)

Termination of employment – application for an unfair dismissal remedy – Food and Beverage Attendant in Northern Territory tourism sector – casual then permanent employment periods – jurisdictional objection – whether employee a regular and systematic casual – minimum employment period – principles considered – period of casual employment regular and systematic – reasonable expectation of continuing employment – both employment periods taken into account – jurisdictional objection not made out and dismissed – further programming.

[1] This decision concerns a jurisdictional objection pressed by Aspen Living Villages Pty Ltd t/a Darwin FreeSpirit Resort (the ‘objector’ or ‘FreeSpirit’) to an application filed under s 394 of the Fair Work Act 2009 (the ‘Act’) by Ms Rebecca Jane Purcell (‘Ms Purcell’ or the ‘applicant’) in which she seeks orders from the Fair Work Commission (the ‘Commission’) for a compensatory remedy in respect to her alleged unfair dismissal on 6 December 2019. The crux of the jurisdictional objection will become evident from the following agreed factual circumstances.

[2] From 6 December 2018 to 17 June 2019, the applicant was engaged as a casual Food and Beverage Attendant under the FreeSpirit Employment Agreement 2015 and in accordance with an Employment Agreement (the ‘Casual Agreement’). The Casual Employment Agreement signed by the applicant contained the not unusual references to a casual employment arrangement as to hours of work and remuneration as follows:

‘3. HOURS OF WORK

3.1. As you will be employed on a casual basis, you will be offered work on an hourly basis as required by the Company.

3.2. Your hours of work will fluctuate depending on the needs of the business. The Company cannot guarantee you a minimum number, or any, hours of work.

4. REMUNERATION

4.1. You will be paid a casual rate of $24.8072 per hour which is inclusive of a 25% casual loading. The casual loading is paid to you in lieu of paid leave entitlements, redundancy pay, notice of termination and other entitlements not payable to casual employees under the Agreement.

4.2. You will also be paid any applicable penalty rates, allowances or loadings under the Agreement while it applies to your employment.

4.3. You will be paid in fortnightly instalments via EFT (Electronic Funds Transfer) to your nominated bank account.

4.4. The Company will deduct applicable taxes from your pay prior to paying the balance to you.’

[3] On 17 June 2019, the applicant commenced full time employment as a Guest Services Team Leader and signed a new Employment Agreement that day (the ‘Permanent Agreement’). The majority of her terms of employment were the same as the earlier Casual Agreement save, of course, for the Hours of Work and Remuneration provisions at Cls 4 and 5 respectively, which provide as follows:

‘4. HOURS OF WORK

4.1 Your hours of work will be determined in accordance with clause 11.3 of the Agreement. Your hours of work are 38 Hours (consider clause 11.3 of Agreement)

The hours above will be subject to ongoing review in accordance with business needs and the peak and non-peak season. You and the Company can agree to change this regular pattern of work at any time in writing.

4.2. You may also be required to work reasonable additional hours as required by the Company.

4.3. You will need to be. flexible about when you work. Given the nature of your role and the Company's business, you may be required to work hours at night, on weekends and public holidays.

5. REMUNERATION

5.1. Your salary will be $56,806.25 Annual ($28.7481 per hour) excluding superannuation. This is also known as your Rate of Pay.

5.2. You will be paid in fortnightly instalments via EFT (Electronic Funds Transfer) to your nominated bank account.

5.3. The Company will deduct applicable taxes from your pay prior to paying the balance to you.

5.4. Your pay will be reviewed in accordance with clause 27 of the Agreement.’

[4] However, unlike the Casual Agreement, the new Agreement provided for a probationary period at Cl 2 which reads:

‘2. PROBATIONARY PERIOD

2.1. Your position is subject to the successful completion of a six {6) month probationary period from your Start Date.

2.2. Prior to the conclusion of your probationary period, your Manager will review your performance.

2.3. During the probationary period, either party may terminate this employment agreement with one week's notice in writing. The Company may elect to pay you your Rate of Pay in lieu of your working part or all of your notice period.’

[5] On 29 November 2019, the applicant attended a meeting with Mr Emmanuel Couch, Resort Manager, and Ms Laura McArthur, Sales and Event Manager. It is described as a Notice of Termination meeting. Ms McArthur’s notes of the meeting record as follows:

‘Position Termination Notice - Guest Services Team Leader

Attendees
Rebecca Purcell (Staff member)
Emmanuel Couch (Resort Manager)
Laura McArthur (Sales & Events Manager)

Today Emmanuel Couch & Laura McArthur had a closed meeting with staff member Rebecca Purcell to advise that her role, Guest Services Team Leader, was being terminated.

Emmanuel was very clear that the role was not what was needed in the department. The department requires a Department Manager to take charge of the area and to allow Emmanuel to work on other departments and manage the Park.

Rebecca was also told that she could be still employed at the park and was offered a Casual Position in the Bar area and Reception if needed, as she was originally employed as. Emmanuel was very persistent on the fact that he was happy to keep her on board.

Rebecca understood what she was told and was asked numerous times did she have any queries. It was explained to Rebecca that the role needed in the department is a Department Manager, as discussed when the Team Leader Role was offered it was a trial to see if it could be managed this way.

Rebecca left with no response on if she wanted to continue working with DFSR, she was sent messages, phone calls followed up on potential hours that could be offered.

Rebecca also communicated to the F&B Manager that she was interested in hours in the Bar but nothing was confirmed.’

[6] An Employee Exit Form, dated 6 December 2019, describes the applicant as working out her notice to that date (although the applicant said her employment ended on 29 November 2019). Either way, it will be apparent that her full time engagement was for less than six months, by either one or two weeks.

[7] FreeSpirit’s objection is that the applicant had not been employed for the minimum employment period of six months, pursuant to s 383 of the Act, and therefore the Commission has no jurisdiction to determine the merits of her unfair dismissal claim. Unsurprisingly, Ms Purcell submits that her casual employment should be counted towards the minimum employment period, as it was regular and systematic casual employment, and she had a reasonable expectation that her employment would continue, despite the objector’s claim that her full time role was redundant.

[8] Notwithstanding the objector’s preference to proceed directly to arbitration on the jurisdictional issue, in accordance with my usual practice, I listed the application for a telephone conference on 22 January 2020, and issued directions for a hearing on a date to be fixed, in the expectation of the matter being listed in Darwin in the Commission’s regular Northern Territory arbitration list. The conciliation conference did not resolve the matter. However, the ensuing dramatic worldwide repercussions of the COVID-19 pandemic, and the lockdown and restrictions on all travel, obviously meant the hearing was conducted by telephone on 2 April 2020.

[9] Mr Rod Hearn of Aspen Living Villages, appeared with Mr E Couch for the objector, and Ms Purcell appeared for herself (although it is clear from her early communications with the Commission that she had received some advice and support from the Northern Territory Working Women’s Centre). Short evidence was received from:

•  Mr Rod Hearn;

•  Ms Laura McArthur

•  Mr Emmanuel Couch; and

•  Ms Rebecca Purcell.

The bulk of the material relied on by both parties was in documentary form and referred to in their respective submissions.

Case for the objector

[10] Mr Hearn said that as the respondent’s business is seasonal, peak periods are handled by the engagement of casual employees. Ms McArthur attended the meeting with the applicant and Mr Couch on 29 November 2019, and confirmed her notes are a true and correct record of that meeting; see [5] above.

[11] Mr Couch claimed that at the time the applicant took up full time employment, he had advised her that her full time engagement would be reviewed after six months’ probation. He believed she understood what he had told her. Mr Couch had also attended the ‘notice of dismissal’ meeting on 29 November 2019, during which he had offered to re-employ the applicant in a casual role. Documents provided by the respondent included:

•  a settlement offer from the applicant of 26 January 2020 in which she had also made claims that the employer had breached the Agreement in respect to Cls 8.2.1 and 22.3.1;

•  the Causal and Full Time Employment Agreements;

•  the two employee exit forms at the conclusion of the above Agreements;

•  the applicant’s full time employee timesheet report from 6 December 2018 though to 8 December 2019; and

•  the applicant’s payslips.

[12] In cross examination, Mr Couch acknowledged that he was not employed by the respondent until 3 May 2019, and only had responsibility for preparing the business’ rosters since that time. By reference to the payroll report, Mr Couch noted that applicant had not been available to work casual shifts from 15 March 2019 to 3 April 2019. In his submissions, Mr Hearn set out the parties’ respective positions, the factual background to the matter and the relevant legislative provisions at ss 385 and 383 of the Act.

[13] Mr Hearn relied on the timesheet report of 30 January 2020 to demonstrate that the hours worked by the applicant were not regular and systematic. The records show that she worked varying hours and varying shifts from 12 to 42 hours a fortnight. The shifts varied from week to week and the days of the week varied from week to week; see: Chandler v Bed Bath and Table Pty Ltd FWCFB 306. Mr Hearn said that the distinguishing feature of this case is that the applicant’s shift patterns were determined by guest occupancy, which varied day to day and week to week. Although the applicant may have worked three hours in one week, this could not constitute regular and systematic work patterns. There must be a clear pattern of regular and systematic employment; see: Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339 and Ponce v DJT Staff Management Services t/a Daly’s Traffic [2010] FWA 2078 (‘Ponce’).

[14] Mr Hearn submitted that even if it was found that the applicant worked on a regular and systematic basis, there was no evidence the applicant had a reasonable expectation of continuing employment. Her only comment in her statement was ‘I worked regular and systematic shifts throughout my time in this role.’ Other objective and subjective factors confirm the applicant could have had no reasonable expectation of continuing work. These were:

•  the nature of the work was highly seasonal;

•  a roster was only issued every week and the applicant could not have known what shifts she would be working beyond a week; and

•  the applicant had a holiday from 16 March – 2 April 2019.

The applicant’s case

[15] The applicant provided a chart of the number of shifts she worked and when they were worked when she was engaged as a casual employee from December 2018 to 17 June 2019 (a total of 26 weeks). I reproduce this chart below:

[16] This chart discloses that the applicant worked two to six shifts every week on various days of the week being on:

•  Mondays – 18;

•  Tuesdays – 18;

•  Wednesdays – 12

•  Thursdays – 13;

•  Fridays – 22;

•  Saturdays – 18; and

•  Sundays – 12.

[17] The applicant was working on a weekly roster published in advance. A  text message from Mr Couch, dated 26 November 2018, reads as follows:

‘Hi thanks for the medical certificate hope you get better soon. Don’t forget I will need a clearance certificate before you come back so I can roster you back on and take the person who is doing your shifts off the roster so we don’t double up on the shifts.’

[18] In respect to her holiday in March 2019, the applicant provided the following Facebook Messenger exchange with Mr Cartwright:

‘Ms Purcell: My holiday in march [sic] I remember u [sic] approved it, for three weeks and put me on the roster the day I come back didn’t u [sic] and u [sic] also knew I was coming back right?

Mr Cartwright: Last March?

Ms Purcell: Ye [sic] when I went home for my birthday

Mr Cartwright: Ahh yea [sic] I believe so

Ms Purcell: Sorry while ago but just curious because I’m pretty sure I filed the paperwork and reminded u [sic] I was away, u [sic] also tried giving me as many [hours] as u [sic] could I when I was working in the bar? Is that right

Mr Cartwright: Yea [sic] I’m pretty sure you [filed] the paperwork out and yes I tried to give you as many hours as I could’

[19] In cross examination, the applicant explained that the table referred to above is for the weeks she was at work and did not include the period she was on leave between 16 March to 2 April 2019. The purpose of this trip was to visit her immediate family in Cairns. The applicant said that this leave had been approved by the Food and Beverage Manager. When she returned to Darwin at 7.50pm on 3 April 2019, she was called in to work two hours after she disembarked from the plane, as it was behind schedule.

[20] In her final submissions, the applicant emphasised that there was not a single week when she was in Darwin where she was not rostered for a minimum of two shifts and she had always accepted these shifts. The applicant relied on the Decision in Ponce in which it was held that where the employer regularly offers work to an employee, who has generally made themselves available to work, such work is not occasional or irregular. Further, there was positive evidence of Mr Couch offering regular shifts, even after her full time role had ended.

[21] The applicant submitted that it was not the case that she did not have a reasonable expectation of ongoing work, because of seasonal peaks in the industry, as she was actually offered casual bar work in the off-peak season, after she was dismissed from full time employment. The applicant put that the three weeks she had off in March/April 2019 did not constitute a break in service; see: Tilbrook v Willall Industries Pty Ltd [2011] FWA 6300. This decision makes clear that continuous service is broken only when the employer or employee makes it clear to the other party, by words or actions, that there will be no further engagements i.e. reasonable time off or ‘leave’ does not break service. By offering her work immediately after returning from leave, there was a clear intention of both parties that further engagements would be offered.

CONSIDERATION

Relevant statutory provisions and principles

[22] Section 383 of the Act reads as follows:

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.

[23] The relevant provisions of the Act concerning the assessment of the minimum employment period to qualify for access to the Commission’s unfair dismissal jurisdiction under Part 3-2 of the Act (s 383(a) (in this case, 6 months), is set out in s 384(2) which reads:

(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.

[24] The correct approach the Commission is to apply in cases of this kind, was recently outlined in Chandler v Bed Bath N’ Table Pty Ltd [2020] FWCFB 306 (‘Chandler’) at [11]-[13], where the Full Bench said:

‘[11] It is apparent on the face of the decision that the Deputy President’s determination as to whether Ms Chandler’s casual employment was regular and systematic was attended by a significant error of principle. In her application of s 384(2)(a) to the facts of the case, the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic. We do not consider this to be the correct approach. In Yaraka Holdings Pty Ltd v Giljevic, the Court of Appeal of the ACT gave consideration to the proper construction of s 11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as workers for the purpose of that Act casual workers if their “engagement, under the contract or similar contracts, has been on a regular and systematic basis” taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work. Crispin P and Gray J observed that the concept of employment on a regular and systematic basis was drawn from the Workplace Relations Act 1996, and went on to say (emphasis added):

“[65] It should be noted that it is the "engagement" that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent.

…

[67] Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.

[68] The term "regular" should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for "frequent" or "often". However, equally, it is not used in the section as a synonym for words such as "uniform" or "constant". Considered in the light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.

[69] Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. The concept of engagement on a systematic basis does not require the worker 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 upon the worker’s services as an incident of the business by which he or she is engaged.”

[12] Similarly, Madgwick J said (emphasis added):

“[89] … 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.

[90] The respondent’s work for the appellant was certainly frequent enough to be termed ‘regular’ within an acceptable understanding of that term, which may, even in ordinary speech, be used to denote ‘frequent’.

[91] 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).”

[13] The reasoning in Yaraka Holdings has been applied to the concept of casual employment on a regular and systematic basis in the FW Act. In WorkPac Pty Ltd v Skene, the Federal Court Full Court favoured (without needing to finally adopt) the view that the construction in Yaraka Holdings should be applied to the definition of “long term casual employee” in s 12 of the FW Act (which includes a requirement that the employee has been employed “on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months”). The Commission in its own decisions has consistently applied Yaraka Holdings to s 284(2)(a), including in the Full Bench decisions in Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell and Bronze Hospitality Pty Ltd v Janell Hansson as well as in numerous first instance decisions.’ (footnotes omitted)

[25] Mr Heard distinguished Chandler from the facts and circumstances of this case, which was that the shift patterns were determined by variable guest occupancy. In my view, the facts and circumstances of this case are ‘on all fours’ with the Full Bench’s conclusions in Chandler, in particular, the Full Bench’s endorsement of the comments in Yaraka.

[26] There is no dispute that the applicant worked a minimum of 2 shifts and up to 6 shifts in every week she was in Darwin, from 6 December 2018 – 17 June 2019 uninterrupted, save for 3 weeks when she was on approved absence (leave). In my view, this pattern of employment fits comfortably within the definition of casual employment on a regular and systematic basis, in accordance with the authorities and the policy intention of the statutory provisions.

[27] The submission that the applicant’s ‘break’ to take a holiday in March/April 2019 demonstrates that her employment was not regular or systematic, cannot be accepted. Such a submission is contrary to continuing employment as described in the authorities above. Further, I would add that such an argument is absurd. To accept it would mean that any casual who took any holiday at all, or any break for personal reasons, would forfeit their unfair dismissal rights. This does not make sense, and could not possibly have been the intention of the legislature. In any event, the ‘break’ was only 18 days – hardly an indicator that the applicant was ‘done’ with her casual employment. Accordingly, the first leg of the respondent’s objection is dismissed.

[28] In respect to whether the applicant had a reasonable expectation of continuing employment, the respondent claimed that as the applicant did not expressly say she had such an expectation, then there was no evidence that this was her view. This was a rather flimsy ‘life raft’ for the respondent to cling to in support of its objection.

[29] Firstly, an applicant, particularly one who was unrepresented, could hardly be expected to recite the express language of the statute to demonstrate he/she had a reasonable expectation of continuing employment. In my view, a reasonable expectation of continuing employment, might be readily discerned from other evidence, including the conduct of both parties. Secondly, the fact the work is seasonal and that guest occupancy is higher in the dry season (May to September), does not advance the objector’s case very far. The applicant had already worked during the 2019 busiest period. She would have had no reason at the time, to believe that a similar pattern of employment and rosters would apply in the next year’s busy period (although COVID-19 might now make that prospect less likely, which obviously could not possibly have been known in late November 2019).

[30] Thirdly, in any event, the applicant actually commenced working for the respondent in December 2018 – the off season in the Territory. Having been hired in the off season, the applicant would have had a reasonable expectation of working again in the 2019 off season.

[31] Fourthly, the intention of both parties was apparent when in the 29 November 2019 meeting, there was discussion about the redundancy of the applicant’s full time role, including by reversion to a casual bar role. Notwithstanding the applicant did not accept that casual role, the mere fact it was offered is evidence that ongoing, regular and systematic employment was available, and she was told so by the objector. Given these circumstances, it was understandable for the applicant to have held a reasonable expectation of ongoing casual engagements. Accordingly, the second leg of s 384(2) of the Act is satisfied.

[32] For the above reasons, I dismiss the respondent’s jurisdictional objection to this application, and therefore the matter will proceed to consideration of its merits. I find that the applicant’s period of service met the minimum employment period as required by s 383(a) of the Act, being in excess of 6 months. I issue the following directions:

1. The applicant (Ms Rebecca Purcell) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the applicant intends to rely on in support of their application in this matter by no later than 4.00pm on 10 August 2020.

2. The respondent (Aspen Living Villages Pty Ltd t/a Darwin FreeSpirit Resort) is directed to file with the Fair Work Commission, and serve on the applicant, an outline of submissions, witness statements and other documentary material the respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 24 August 2020.

3. The applicant (Ms Rebecca Purcell) is directed to file with the Fair Work Commission, and serve on the respondent, any witness statements and other documentary material in reply to the respondent's material by no later than 4.00pm on 31 August 2020.

4. The matter will be listed for Hearing to determine the merits of the application at 10.00am AEST Wednesday 2 September 2020.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for herself.

Mr R Hearn and Mr E Couch appeared for the respondent.

Hearing details:

2020.

Sydney/Darwin (by Telephone):

2 April.

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