DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Linzi Kennedy
v
D Petrie & D C Petrie
(U2020/16465)

Application for an unfair dismissal remedy – minimum employment period – regular and systematic employment – Small Business Fair Dismissal Code – application dismissed Application for an unfair dismissal remedy.

Introduction

[1] An application was filed on 24 December 2020 (the Application), by Ms Linzi Kennedy (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), following her dismissal on 9 December 2020. The Applicant seeks an unfair dismissal remedy of compensation.

[2] The Applicant commenced employment with B Petrie & DC Petrie (the Respondent) on 15 April 2019. The Respondent is a partnership of Mr David Petrie and Ms Bette Petrie, with the ABN 73 139 986 491, which was formed to employ casual support workers to support their son Jon Petrie (Jon). The Respondent receives and applies National Disability Insurance Scheme (NDIS) funding. The Applicant was employed as one of the casual support workers.

[3] On 27 July 2021, this matter was allocated to my Chambers. On 29 July 2021, directions were issued to program the manner in which the Application was to proceed to hearing (the Initial Directions). The Initial Directions were amended on 10 August 2021 granting both parties an extension of time within which to file their submissions and other materials (the Amended Directions). The Amended Directions are as follows:

1. Linzi Annette Kennedy (the Applicant) is directed to file with the Fair Work Commission, and serve on D Petrie & D C Petrie (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 10 August 2021.

2. The Respondent 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 4pm on 20 August 2021.

3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 23 August 2021.

4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 20 August 2021.

[4] The parties complied with the Amended Directions. In particular:

(a) On 7 August 2021, the Applicant filed statements from the Applicant, the Applicant’s partner Mr Colin Waters, Ms Fiona Anthony-Payne, Ms Karen Brown, Mr Phil Balsdon, and the Applicant’s father Mr Terry Jones;

(b) On 20 August 2021, the Respondent filed an Outline of Submissions (the Respondent’s Submission), a statement of Mr David Petrie with two annexures, and a statement of Ms Bette Petrie with one annexure;

(c) On 22 August 2021, the Applicant sent a brief email in reply.

[5] The hearing of the matter occurred on 25 August 2021 (the Hearing). Neither party sought to cross-examine the deponents of statements, and in agreement with the parties, the matter was heard as a determinative conference.

[6] The Respondent raised two jurisdictional objections to the Application. Those objections were:

(a) The Applicant was not unfairly dismissed and the Fair Work Commission (the Commission) does not have jurisdiction to consider the Application as the Applicant was employed as a casual employee as required from time to time and was not employed on a regular and systematic basis. Therefore, the Applicant’s period of service as a casual employee does not count towards the Applicant’s period of employment and the Applicant did not complete the minimum employment period as required by s 382(a) of the Act and is unable to make a claim for unfair dismissal (the Minimum Employment Period Ground); and/or

(b) The Applicant was not unfairly dismissed and the Commission does not have jurisdiction to consider the Application as the dismissal was consistent with the Small Business Fair Dismissal Code in accordance with s 385(c) of the Act (the Small Business Code Ground).

Background

[7] There were only a limited number of factual disputes between the parties, and the determination of those factual disputes is undertaken where those facts relate to the various issues for determination. While there was no cross-examination, I asked a number of questions of each of the Applicant, Ms Petrie and Mr Petrie. They each provided considered, candid and honest answers to those questions greatly assisting the determination of this matter.

[8] Jon has an intellectual disability. Jon has Developmental Delay as part of his disability so at times he functions with a mental age of 8 to 12 years old. Jon’s former Paediatrician, Dr Paul Hutchins describes Jon as having “one of the most complex styles of thinking that I have seen.” Jon also has a vision impairment and sometimes carries a cane. He is 37 years old.

[9] Jon lives independently in the community in social housing. He needs assistance with the quality of personal care, shopping, house cleaning, and cooking. While Jon and his parents managed these matters before the NDIS even existed, the arrival of the NDIS has allowed funding to engage support workers to help Jon with his day to day living.

[10] When Jon received an NDIS plan, Mr and Ms Petrie decided to self-manage the plan and directly employ casual workers to assist Jon. They employ a group of casual support workers through the Respondent. Usually there are four to five people across the week who provide this support across Monday to Saturday, and the Applicant was one of those employees.

[11] It was agreed that the actual hours worked by the Applicant were as follows:

[12] The parties appeared to accept that in the instances where the Applicant worked weekdays in a week but not the Saturday, it would have been likely that Jon’s family would have gone away for the weekend and the Applicant’s Saturday booking was cancelled. The parties also accepted that where there were no hours worked in a week, that Jon and his family would have gone on holidays, or to visit his elderly Grandmothers who lived outside of Sydney.

[13] In February 2020, as part of the Respondent’s ongoing plan to increase the independence and quality of Jon’s life, Jon was assessed by a Senior Clinical Neuropsychologist Dr Shelley Simpson. Dr Simpson strongly recommended Pleasant Event Scheduling (PES). PES is not simply socialising and going visiting or on outings, it is a Behavioural Technique to help individuals engage in activities that give them a sense of pleasure and achievement in a structured way. Dr Simpson’s recommendations were included in Jon’s NDIS Assessment.

[14] The casual support workers were not trained in PES and had never been asked to observe and record Jon as required to confirm that PES has been included in his care. On 17 March 2020, Ms Petrie sent a group email to Jon’s casual support workers including the Applicant. That email advised as follows:

“Important Notice re: Jon Petrie

Once again, we need to explain that depending on the contents of Jon’s NDIS Plan which we will hopefully receive on/near the 8th of April, we may/may not need to adjust the amount of support for Jon”

[15] Due to various difficulties the PES was not implemented until the end of November 2020. On 12 November 2020, the Applicant and other casual support workers were notified that Jon would not be needing their support for 4 weeks over the Christmas Break from Friday 11th December 2020, until Tuesday 12th January 2021.

[16] On Tuesday 8th December 2020, the Applicant was verbally informed by Ms Petrie that in the 2021, the Respondent would focus on a PES program for Jon as set out in the email of 27 March 2020. Ms Petrie explained to the Applicant that on Saturdays in 2021, another Support Worker would work with Jon and that her focus would be implementing PES with Jon and reporting of results of that PES. Ms Petrie advised the Applicant that she would continue to be offered work on weekdays as required. Ms Petrie also told another support worker named Anna that she would no longer be required to work with Jon on Saturdays.

[17] The Applicant worked with Jon on Wednesday 9 December 2020. Later, in the evening of Wednesday 9 December 2020, apparently after completing work with Jon, the Applicant sent several texts to Jon asking that he give the Applicant the new Support Worker’s telephone number. In those text messages the Applicant accused Jon of not telling the truth when he said he did not have the number.

[18] During the above text exchange Jon contacted Mr Petrie and told him that the Applicant had telephoned Jon and was quite aggressive and intimidatory on the phone asking for the phone number again. Mr Petrie told Jon to send a text back to the Applicant saying “I have spoken to Dad about this. And said talk to him.” The Applicant responded to Jon by text asking “Why.”

[19] Jon also telephoned Ms Petire and expressed his concern, as he was distressed. Jon told Ms Petrie that he did not wish to work with the Applicant any further as he was fearful of her.

[20] In the Hearing the Applicant was asked why she had texted Jon. The Applicant answered that enquiry honestly and truthfully stating:

(a) She knew Jon would get upset by the texts;

(b) She hurt Jon and was sorry for that;

(c) She should have spoken to Mr Petire and/or Ms Petire; and

(d) She did the wrong thing but did not think it warranted dismissal.

[21] I accept that Mr and Ms Petrie were very concerned for Jon’s mental health as he was very distressed and was fearful of working with the Applicant. They believed that the Applicant had overstepped the mark and was in breach of the principles of the NDIS where the rights and wellbeing of participant should be protected at all times.

[22] The NDIS Code of Conduct (the NDIS Code) requires workers and providers who deliver NDIS supports to:

a. act with respect for individual rights to freedom of expression, self-determination, and decision-making in accordance with relevant laws and conventions;

b. respect the privacy of people with disability;

c. provide supports and services in a safe and competent manner with care and skill;

d. act with integrity, honesty, and transparency;

e. promptly take steps to raise and act on concerns about matters that might have an impact on the quality and safety of supports provided to people with disability; and

f. take all reasonable steps to prevent and respond to all forms of violence, exploitation, neglect, and abuse of people with disability.

[23] Having regard to the communications between the Applicant and Jon and having regard to Jon’s mental state and his anxiety about the Applicant’s conduct, Mr and Ms Petrie decided that it would be in Jon’s best interests if he no longer worked with the Applicant, and that they had no option but to terminate the Applicant’s employment.

[24] The Applicant was due to work with Jon on Thursday afternoon 10 December 2021. Mr Petrie tried to telephone the Applicant in the morning but there was no answer, and he left a text message for her to call him. The Applicant telephoned Mr Petrie and he explained to her that based on her conduct towards Jon we were going to have to terminate her employment effective immediately. I accept that Mr Petrie would have preferred that the termination be in person, however, that was not possible in the circumstances.

[25] While the Applicant’s employment was terminated effective immediately, she was paid five days of average wages in lieu of notice as well as wages that were owing. The Applicant was paid for Thursday 10^th, Friday 11^th, Saturday 12^th, and Monday 14^th of December despite not being required to work those days.

Consideration

(a) Minimum Employment Period Ground

[26] The Respondent submitted that the Applicant is not a person protected from unfair dismissal under s.382(a) of the Act because she had not completed a period of at least the minimum employment period (being 12 months) given that her period of service as a casual employee does not contribute to the period of employment. A period of service does not count towards the period of employment if the employee’s engagement as a casual was neither regular nor systematic, and the employee had no reasonable expectation of continuing employment on a regular or systematic basis.

[27] In applying the test of “regular and systematic” employment to the case at hand, the Respondent submitted as follows:

“3.1. The Applicant was employed by the Respondents as a casual employee and whilst the Applicant was regularly offered employment by the Respondents she was not employed on a systematic basis by the Respondents.

3.2. During the period of service as a casual employee the Applicant did not have a reasonable expectation of continuing employment by the Respondents on a regular and systematic basis as the Respondent was regularly varying the hours, times and days of work by the Applicant and at times it did not offer the Applicant work. At no time did the Applicant work consistent hours each week and any hours worked were as required by the Respondents from time to time based on the needs of Mr Petrie at the time.

3.3. The period of service by the Applicant did not count towards the Applicant’s period of employment as the Applicant was employed as a casual. Therefore, the Applicant did not have a period of continuous service which is at least the minimum employment required under section 382 of the Fair Work act.

3.4. Accordingly the Fair Work Commission does not have jurisdiction to consider the Application.”

[28] I have no difficulty in rejecting the Respondent’s submissions, and conclude, in respect of s.384(2)(a)(i) and (ii), that the Applicant’s employment as a casual employee was on a regular and systematic basis, and she had a reasonable expectation of continuing employment.

[29] In Yaraka Holdings Pty Ltd v Giljevic, 1 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 casual workers as workers for the purpose of that Act 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 1996,2 and went on to say:

“[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.”

[30] Similarly, Madgwick J found:

“[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 3rd edn, 2001).”

[31] In Chandler v Bed Bath N’ Table Pty Ltd, 3 the Full Bench of the Fair Work Commission observed that the reasoning in Yaraka Holdings has been applied to the concept of casual employment on a regular and systematic basis in the Act. The Commission, in its own decisions, has consistently applied Yaraka Holdings to s.384(2)(a), including in the Full Bench decisions of Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell,4 and Bronze Hospitality Pty Ltd v Janell Hansson,5 as well as in numerous first instance decisions.

[32] That the employment was “regular” in the sense of being frequent is amply demonstrated by the actual hours worked by the Applicant referred to in paragraph [11] above. It shows the Applicant was employed in almost every week of her employment. The instances where the Applicant worked weekdays in a week but not the Saturday occurred when Jon’s family would have gone away for the weekend and the Applicant’s Saturday booking was cancelled. The weeks where there were no hours worked in a week occurred where Jon and his family would have gone on holidays, or to visit his elderly Grandmothers who lived outside of Sydney. Otherwise, the engagements were regular.

[33] The employment can also be characterised as “systematic” in that it was arranged pursuant to an identifiable system. But for weeks where the engagements were cancelled, be they weekdays and/or weekends, they ordinarily involved engagements of two weekdays and a Saturday shift.

[34] The regular and systematic nature of the employment identified above, including sheer regularity of engagement, leads me to the conclusion that the Applicant had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis (s.384(2)(a)(ii)).

[35] I determine that the Applicant’s period of service from the commencement of her employment until its termination counted towards his period of employment, and the Applicant had therefore completed the minimum employment period.

(b) The Small Business Code Ground

[36] The Respondent was clearly a small business employer. 6 It employed only four to five casual employees.

[37] Section 385 of the Act provides, in effect, that a dismissal is not unfair if the Commission is satisfied that it was consistent with the Small Business Code. The Small Business Code provides:

“Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[38] It is clear that the dismissal in question is covered by the section of the Small Business Code entitled ‘Summary Dismissal.’ While the Applicant was paid for a number of unworked shifts after her dismissal, it is clear that she was summarily dismissed as the Respondent considered she had misconducted herself. How the Commission should approach dismissals such as this was dealt with by a Full Bench in John Pinawin v Mr Edwin Domingo  7 (Pinawin). The Full Bench found:

“Senior Deputy President O’Callaghan in Harley v Rosecrest Asset Pty Ltd T/A Can Do International said:

“[8] For an employer to believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer to establish that the employer did in fact hold the belief that as a matter of fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal. This is to be contrasted to the provisions of s.387(a) where FWA, in determining whether there was a valid reason for the dismissal, must find whether the conduct in fact occurred.

[9] Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquires or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.”

[39] There is no doubt that the relevant conduct of the Applicant, involving texting and telephoning the Applicant occurred. The Conduct was undisputed. I have no difficulty in finding that conduct to be serious, and that it was conduct that justified the Applicant’s dismissal. The Applicant herself described her conduct as misconduct, but asserted that it did not warrant her dismissal.

[40] There were clearly reasonable grounds for the Respondent to hold the belief that the conduct occurred, was serious, and justified dismissal. I have accepted that Jon expressed his distress to Ms Petrie, and that he did not want to work with the Applicant any further as he was fearful of her. In those circumstances the Respondent had no other choice but to dismiss the Applicant.

[41] In light of the heartfelt contrition so genuinely expressed by the Applicant I have some sympathy for her plight, however the Small Business Code is concerned with the subjective beliefs of the Respondent and the reasonableness of those beliefs, rather than the beliefs of the Applicant.

Conclusion

[42] The dismissal of the Applicant was compliant and consistent with the Small Business Code, and the termination thereby was not, within the meaning of the Act, an unfair dismissal. As such, it is unnecessary to consider the other elements as to the Application.

[43] The Application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms Linzi Kennedy, on her own behalf.
Ms Sallie Emmett, for the Respondent.

Hearing details:

2021.
August 25
Sydney (via videoconference)

Printed by authority of the Commonwealth Government Printer

<PR733391>

 1    [2006] ACTCA 6; 149 IR 339.

 2   Ibid at [64].

 3   [2020] FWCFB 306.

 4   [2006] FWCFB 4438, at [15] to [17].

 5   [2019] FWCFB 1099 at [24].

 6   S.23 of the Act.

 7   [2012] FWAFB 1359 at [28].