Alyssia Trait v Oliver’s Real Food [2019] FWC 1271

1 Fair Work Act 2009 s.394—Unfair dismissal Alyssia Trait v Oliver’s Real Food (U2018/11453) DEPUTY PRESIDENT COLMAN MELBOURNE, 27 FEBRUARY 2019 Application for an unfair dismissal remedy – minimum employment period – whether casual service regular and systematic with reasonable expectation etc. – application dismissed [1] This decision concerns an application by Ms Alyssia Trait for an unfair dismissal remedy made pursuant to s 394 of the Fair Work Act 2009 (Act). Ms Trait was engaged by Euroa Pty Ltd, which trades as Oliver’s Real Food (Oliver’s), as a casual employee on 8 April 2018. On 18 July 2018 she became a permanent part-time employee. On 23 October 2018 she was dismissed. Ms Trait claims that her dismissal was unfair and seeks an order for compensation. [2] Oliver’s objected to the application on a jurisdictional ground. It contended that Ms Trait had not completed the minimum employment period required by the Act, which, as Oliver’s is not a small business, is six months. The period from her first engagement as a casual to the termination of her part-time employment was six months and 16 days. However, Oliver’s contends that Ms Trait’s casual employment was not on a regular and systemic basis, and that during this period she did not have a reasonable expectation of ongoing employment. Therefore, the company says, Ms Trait’s period of casual service does not count towards her period of employment, which is accordingly less than the minimum period of six months. [3] The company’s jurisdictional objection in relation to the question of the minimum employment period was heard before me on Friday, 1 February 2019. Ms Kelly Pumpa, the company’s chief people officer, appeared and gave evidence for Oliver’s, together with Ms Karen Farmer, the company’s business development manager. Ms Trait appeared for herself and gave evidence. The central issue in contest was whether some or all of Ms Trait’s period of service as a casual employee counted towards the six month minimum employment period. The company contended that none of this service should count, whereas Ms Trait submitted that all of this period should be included. Statutory framework [4] The Commission can only order an unfair dismissal remedy if the applicant was a person ‘protected from unfair dismissal’ (s 390). This in turn requires the person to have completed a period of employment that is at least the minimum period of employment [2019] FWC 1271 DECISION -- 1 of 5 -- [2019] FWC 1271 2 (s 382(a)). Section 383 provides that, if an employer is not a ‘small business employer’, the minimum employment period is six months, ending at the time when the person is given notice of dismissal, or immediately before the dismissal, whichever is earlier. [5] Section 384(2) of the Act provides that a period of service as a casual employee does not count towards the employee’s period of employment unless the employment as a casual was on a ‘regular and systematic basis’ and ‘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.’ [6] In Bronze Hospitality Pty Ltd v Jannell Hansson a Full Bench stated that a particular period of service as a casual employee only ‘counts’ towards the minimum employment period if the period of casual employment was regular and systematic and the employee had a reasonable expectation of continuing employment throughout that period.1 Further, the days on which a person worked and the hours worked on those days are relevant to the consideration of whether the casual employment was regular and systematic, and also whether the person had a reasonable expectation of ongoing employment.2 Consideration [7] The facts that are relevant to the determination of the jurisdictional objection are largely uncontested however there are several matters that require explanation and findings. [8] First there are the questions of precisely when the employment started and ended. Ms Trait stated in her application that her employment as a casual commenced on 4 May 2018, however she explained in the proceedings that this was a mistake, and that she intended to state 4 April 2018. The company said that in fact Ms Trait commenced employment on 8 April 2018, and submitted payroll records showing that her first shift occurred on this date. Ms Trait said that she believed her employment started on 4 April 2018 because her first payslip covered the pay period commencing on that date. The company explained that the reference to 4 April 2018 in the pay slip simply reflected the payroll cycle, and had nothing to do with Ms Trait’s commencement of employment. Ms Trait did not contest this explanation and I accept it. [9] Ms Trait also stated in her application that her employment finished on 24 October 2018. The company submitted that in fact it ended on 23 October 2018 and that this is reflected in its pay records. Ms Trait said during the proceeding that she did not take issue with this. I find that her employment ceased on 23 October 2018. [10] It was common ground that Ms Trait commenced a period of permanent part-time employment on 18 July 2018, and that all of the period of employment from this date until the end of the employment counts towards the minimum employment period. [11] As to her period of employment as a casual, Ms Trait gave evidence that she considered her work in this period to have been regular and systematic and that she had an expectation, which she considered to be reasonable, of ongoing employment. She said that each week employees uploaded their availability onto Oliver’s online system and that this 1 [2019] FWCFB 1099 at [29] 2 Ibid at [24] -- 2 of 5 -- [2019] FWC 1271 3 data was then used by Oliver’s to allocate work. She stated that she was consistently given work when she indicated her availability and that this meant she regularly worked a minimum of 25 hours per week. [12] In a note submitted to the Commission the day before proceedings, Ms Trait said that within two weeks of commencing work as a casual, her manager, Ms Amanda Atkins, offered her an arrangement in which she could work 4.00am to 9.00am on any five days of the week of her choice. During the proceeding, Ms Trait said that Ms Atkins offered her this arrangement ‘two to three weeks’ after she started. In response to questions from me, Ms Trait said she could not remember exactly what date the conversation occurred, but that the 4.00am to 9.00am shifts started on the next roster following her discussion with Ms Atkins; that is, the next shift that she worked following the conversation was a shift commencing at 4.00am and finishing at 9.00am, reflecting the arrangement that had been offered to her by Ms Atkins. I note that the company representatives said that they were not aware of Ms Trait’s discussion with Ms Atkins, but did not contend or lead evidence to suggest that the discussion did not occur. [13] The company submitted payroll records showing the days and times Ms Trait worked during the period of her casual employment. From these it is clear that Ms Trait commenced working in accordance with the arrangement established by Ms Atkins on 2 May 2018. On this day she commenced at 4.00am and ended at 9.00am, and on each casual engagement thereafter, with minor variations, Ms Trait continued to work these hours, on five days of the week. From the payroll records and Ms Trait’s evidence it is clear therefore that her discussion with Ms Atkins occurred not in the first two weeks of her casual employment, or even in the first ‘two to three weeks’, but immediately before the commencement of the arrangements proposed in the discussion, namely on 1 May 2018. From this time Ms Trait had a reasonable expectation of continuing employment as a casual employee. The arrangement established by Ms Atkins was open-ended and hence continuing; Ms Trait could choose the five days she wanted to work. It is also quite clear that the casual working arrangement established by Ms Trait was regular, in the sense that the casual engagements were frequent, and systematic, as there was an obvious pattern. [14] Accordingly, I find that Ms Trait’s employment as a casual from 2 May 2018 was on a regular and systematic basis and accompanied by a reasonable expectation of continuing employment. All of her period of casual service from this date must count towards the minimum employment period. When this period (2 May 2018 to 17 July 2018) is added to Ms Trait’s period of permanent part-time employment, the total period is 5 months and 21 days. [15] But what of the period of casual employment before 2 May 2018? The company’s payroll records show the following:  From 8 to 10 April, Ms Trait worked on three days, each time for eight hours, starting at 6.00 am each day, with a total of 24 hours worked.  From 11 to 17 April, Ms Trait worked on four days, for between six and a half and eight hours each day, starting at 8.00 am on two days and 1.00 pm and 2.00 pm on the other days, totalling 29 hours worked. -- 3 of 5 -- [2019] FWC 1271 4  From 18 to 24 April 2018, Ms Trait worked on four occasions, twice for four hours, once for three hours, and once for nine hours. Twice she commenced at 9.00 am, once at 5.00 am and once at 10.00 am, giving total of 20 hours worked.  From 25 April to 1 May 2018, she worked on four occasions, once for five hours and fifteen minutes, once for four hours, once for nine hours and once for eight hours. She started twice at 5.00 am, once at 10.00 am and once at 4.00 pm, totalling 26 hours and 15 minutes worked. [16] In my opinion, Ms Trait’s employment as a casual employee over this period was regular. She worked three days in the first week and four days in each of the subsequent four weeks. Her engagements in this period were reasonably frequent. Ms Trait’s first engagement, and perhaps her first several engagements, could not at the time have been considered ‘regular’.3 However, it would be wrong to consider initial casual engagements in isolation and discount them on the basis that they were not yet regular if subsequently they form part of a larger period of regular engagement. The early period of casual employment must be assessed in the context of what followed it. In this case, Mr Trait’s casual employment in the first four weeks was regular. [17] To be ‘systematic’, the casual employment does not need to be predictable.4 Some system or apparent pattern may be sufficient. For the period between 8 April and 1 May 2018, there is no fixed or detailed pattern such as the one associated with the arrangement that applied from 2 May 2018. However, although there was variability in the days and hours worked, it is possible to discern a general pattern, namely that Ms Trait usually worked shifts of at least four hours in the morning. [18] Nevertheless, I cannot identify any basis for a conclusion that Ms Trait had a reasonable expectation of ongoing employment as a casual in respect of any of the period between 8 April and 1 May 2018. In response to a question from me, Ms Trait said that in the initial period of her casual employment, she expected to continue to be engaged because she kept being offered shifts, and she was a good worker. In my view however, these facts are not sufficient in this case to found a reasonable expectation of ongoing employment. Perhaps at some point, the fact that a casual has been continuously offered shifts would provide a reasonable basis to expect more, but I do not consider there was any basis in the first four weeks of her casual employment for Ms Trait to have this expectation. [19] The company’s evidence was that casual employees were engaged according to the company’s needs. Ms Farmer stated that this was due to the nature of the business, which is affected by seasonality and the location of the business on an arterial highway in country Victoria. She stated that this requires casual employees to be rostered on an ad hoc basis, often seeing employees called in on short notice or rosters amended based on the company’s changing demand and that each casual employee’s hours are variable. There was no evidence of anything done or said by the employer prior to 1 May 2018 that would ground a reasonable expectation in Ms Trait that she would have continuing employment on a regular and systematic basis. 3 See Bronze Hospitality, above, at [33] 4 Yaraka Holdings Pty Ltd v Giljevic, above, at [68] and [69] -- 4 of 5 -- [2019] FWC 1271 5 [20] I note that Ms Trait had earlier raised with the company a concern that she had worked additional time that was not reflected in the pay and hours records. The company requested Ms Trait to provide details of the additional hours. She produced four sheets, showing how many unpaid hours and minutes she had worked on which days. The company agreed to pay Ms Trait for this additional time. During the proceedings, the parties agreed that I should take into account this additional time when considering the work that Ms Trait performed during her casual employment. I note that there was no suggestion that the pay and time recording system was faulty; rather, Ms Trait said, and the company accepted, that she had performed additional work outside of the hours between the times she had clocked-on and clocked-off. [21] Of the additional hours Ms Trait worked, four days in the period 8 April to 30 April 2018 are affected. However, the additional time worked is not significant and does not affect the analysis of whether Ms Trait’s casual employment in this period was on a regular and systematic basis with a reasonable expectation of ongoing employment. Conclusion [22] Ms Trait’s period of service as a casual from 2 May 2018 counts towards the minimum employment period because it was on a regular and systematic basis and she had during this period a reasonable expectation of continuing employment on a regular and systematic basis. Her period of permanent part-time employment also is to be included. But Ms Trait’s period of casual service from 8 April 2018 to 1 May 2018 does not count, because she did not have a reasonable expectation of continuing employment over this period. Her period of employment with the company was therefore less than six months. [23] Based on my findings above, I conclude that Ms Trait has not served the required minimum employment period of six months. She is therefore not a person protected from unfair dismissal. The company’s jurisdictional objection is upheld, and Ms Trait’s unfair dismissal application is dismissed. DEPUTY PRESIDENT Appearances: A. Trait for herself K. Pumpa and K Farmer for Oliver’s Real Food Hearing details: 2019 Melbourne (by telephone): 1 February Printed by authority of the Commonwealth Government Printer <PR705334> -- 5 of 5 --