Wilson –v- B.A.R.B Trading t/a Gelatissimo Townsville [2016] FWC 3841 (4 July 2016)

A decision of Senior Deputy President (“SDP”) Richards of the Fair Work Commission (“Commission”) highlights the importance that Applicants lead thorough and carefully considered evidence in support of any application for unfair dismissal in circumstances where s382(a) of the Fair Work Act 2009 (“the Act”) is in issue.

Ms Wilson lodged an application for unfair dismissal with the Commission. She alleged that the Respondent terminated her employment unfairly. The termination arose from alleged performance issues in her capacity as a shop manager of the Respondent employer. The employer maintained a jurisdictional objection to the proceedings, specifically under s382(a) of the Act.

Section 382(a) provides that an employee only has access to a claim for unfair dismissal if they have completed the “minimum employment period” with an employer. The minimum employment period is defined by s383 of the Act to be 12 months unless the employer is a “small business employer” in which case the period is 6 months.

Section 23 of the Act defines a small business employer to be an employer that employs fewer than 15 employees at the time of the dismissal.

Ms Wilson alleged that her employer in fact employed more than 15 employees. However, evidence lead during the course of the hearing of Ms Wilson’s case revealed that a significant number of those employees were casual employees. For the purposes of calculating the number of employees, s23(2)(b) of the Act provides,

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.[my emphasis]

SDP Richards emphasised in his decision of 4 July 2016 that “regular” and “systematic” bear separate meanings. SDP Richards drew extensively from the decision of the Court of Appeal of the Australian Capital Territory in Yaraca Holdings Pty Limited –v- Giljevic [2006] ACTCA6.

At paragraph 23, SDP Richards stated,

Regular should be construed liberally and noted the term may rightly be used for a synonym for “frequent” or “often” but not however for “uniform” or “constant”.  

He noted that,

The Commission is required to examine the engagement of the casual employees and determine that the engagement is made with an element of regularity by the employer at the particular time, in this case, the time of Ms Wilson’s dismissal.

He stated in relation to the requirement that employment be systematic,

The basis of engagement must exhibit something that can fairly be called a system, method or plan.

In Ms Wilsons case, SDP Richards went on to find that a number of backpackers and school students who were employed by the Respondent could not meet the systematic test because their employment was contingent upon the needs of the employer on any particular day, arising from the nature of the business. The employer lead evidence particularly in relation to the school students that it was disclosed to those employees at the time of the commencement of their employment that they could not be guaranteed regular hours of work and that their work was subject to the needs of the business.

Some of the features of the employment that SDP Richards reasoned to conclude that it was not systematic included:

    1. The availability of shifts for casual workers was contingent upon whether permanent part time employees were being allocated shifts, which depended upon performance issues.
    2. The availability of shifts for any given casual worker depended upon what shifts were being allocated across the pool of casual employees. That was a highly variable element because many of the casuals had commitments outside of work and poor attendance. Shifts were frequently swapped and changed.
    3. External events such as whether caused variability in the trade of the business and the need for workers on any given day.

SDP Richards found that the backpackers and school students were not employees within the meaning of the Act because it could not be said, in those circumstances, that the basis of the engagement or employment of the workers was grounded upon any system. As Ms Wilson had been employed for less than 12 months, her claim for unfair dismissal was dismissed.

The decision illustrates that s23(2)(b) represents a high bar for Applicant’s to meet, particularly because of the requirement that employment by “systematic”. The reasoning of SDP Richards demonstrates that merely being employed as a casual by an employer over a long period and working an arbitrary minimum number of hours, or for that matter a high average number of hours, does not of itself make employment systematic. Of course, the longer the duration of a casual workers employment, the more likely it will be that they have an established routine with their employer as to the hours they work, and the harder it would be for an employer to argue that the basis of the engagement is not systematic. SDP Richards noted that the nature of the employment relationship can change over time. It is important to appreciate that the many of the casual workers referred to in this case were employed only for a matter of weeks. That fact, the circumstances of their engagement and the nature of the employer’s premises made it very difficult for Ms Wilson to demonstrate their employment was systematic.

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