Industrial Relations Commission New South Wales Medium Neutral Citation: Forbes v Bega Valley Shire Council [2020] NSWIRComm 1055 Hearing dates: Matter was determined on the papers Date of orders: 25 August 2020 Decision date: 25 August 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Jurisdictional objection by the respondent is rejected Catchwords: UNFAIR DISMISSAL – casual employee - regular and systematic basis for a sequence of periods of employment during a period of at least 6 months – reasonable expectation of continuing employment with the employer Legislation Cited: Industrial Relations Act 1996 Industrial Relations (General) Regulation 2015 Cases Cited: Chandler v Bed Bath N' Table Pty Ltd [2002] FWCFB 306 Harry Grives v Aura Sports Ply Ltd [2012] FWA 5552 Kamanda v House with No Steps [2016 FWC 767 Larcombe and EBL Catering [200 1] NSWIRComm 149 Ponce v DJT Staff Management Services Pty Ltd trading as Daly's Traffic [2010] FWA 2078 Ryde-Eastwood Leagues Club Ltd v Taylor [1994] 56 IR 385 Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta [2001] NSWIRComm 46 Smajlagic and Heidi and Ellis Karhunan [1999] NSWIRComm 117 Texts Cited: Nil Category: Procedural and other rulings Parties: Randall Forbes (Applicant) Bega Valley Shire Council (Respondent) Representation: Mr S Geddes, United Services Union (Applicant) Mr B Robson, Local Government New South Wales (Respondent) File Number(s): 2020/00151335 Publication restriction: Nil DECISION 1. The applicant, Randall Forbes, was employed by the respondent, Bega Valley Shire Council, as a Waste Facility Team Member (Casual Pool). The letter of offer of employment dated 31 January 2019 contained the following: As a casual employee you will be engaged on a day to day basis as required. 1. The applicant thereafter worked as a casual employee up until 14 May 2020 when he received an email from his supervisor, Kurt Marsh, which stated: Afternoon Randall Just so your aware your services will not be needed moving forward. Thought we would give you the courtesy of letting you know rather then not roster you on. We will need to collect your keys so could you please nominate a meeting place and I'll arrange for myself or someone to collect them from you. Alternatively you could drop them at Bermagui transfer station if that's suitable All the best for the future 1. On 20 May 2020, the applicant filed in the Office of the Industrial Registrar an Application for Relief in relation to Unfair Dismissal ("the Application"). On 22 May 2020, the respondent filed an Employer's Reply to the Application in which it raised a jurisdictional objection to the Application on the basis that, according to the respondent, the applicant was not engaged on a regular and systemic basis and, as such, would not be entitled to make a claim under the Industrial Relations Act 1996 ("the Act"). The legislative scheme 1. The unfair dismissal provisions of the Act are contained within Part 6 of Chapter 2. Subsection 82(2), which is contained within that part, relevantly states: (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes— ………………………….. (c) employees engaged on a casual basis for a short period, 1. Clause 6 of the Industrial Relations (General) Regulation 2015 relevantly states: (1) For the purposes of section 83(2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act— ……………………………….. (d) employees engaged on a casual basis for a short period except employees who— (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer. 1. The issue for determination is whether or not the applicant was engaged by the respondent on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months and would, but for the dismissal, have had a reasonable expectation of continuing employment with the respondent. The respondent's case 1. The respondent's jurisdictional objection was supported by an affidavit of David Screen, the respondent's Waste Coordinator. Mr Screen deposed that the respondent provides waste services at eight sites across the Bega Valley Shire. The waste services operational team consists of 15 permanent staff and 6 casual employees. Team members are required to work across all sites included in the rosters, which are developed on a monthly basis. Permanent employees are allocated their respective hours in the first instance. Casual employees are then allocated shifts on a needs basis to fill the remaining shifts available. Casual shifts are allocated based on service requirements, competency of available staff, as well as their availability to work. 2. Rosters for the casual pool are prepared monthly with changes incorporated on a needs basis. Rosters are updated and distributed when changes occur. This is to facilitate continuity of service and management of staff leave. 3. Mr Screen stated that the applicant's rosters fluctuate in terms of total shifts per month; hours worked each shift; days of the week worked; and location. The hours worked per shift were either 3¾ hours, 4¾ hours, or 8.5 hours. His start times were either 7:30 am, 10:00 am, or 1:00 pm. His finish times were either 2:45 pm or 4.45 pm depending on the shift. He did not work a set day of the week. In terms of total shifts per month, the applicant ranged from no shifts in the month to 14. Mr Screen claimed that he was aware that there have been 20 separate occasions when the applicant has emailed the respondent noting his unavailability to work. 4. The respondent relied upon the following written submissions: 7. As the jurisdictional objection has been raised by the Respondent Council, it bears the evidentiary onus of demonstrating the substance of the argument. Engaged on a regular and systematic basis 8. In the decision of Smajlagic and Karhunan (Smajlagic and Heidi and Ellis Karhunan [1999] NSWIRComm 117), Sams DP defined the terms "regular and systematic" with reference to the Macquarie Dictionary terms: "Regular" Observing fixed times or habits "Systematic" Having, showing, or involving a system, method or plan 9. Determining whether an employee was employed on a regular and systematic basis requires an objective assessment of the evidence at hand (Harry Grives v Aura Sports Ply Ltd [2012] FWA 5552). 10. The Full Bench in Ryde-Eastwood Leagues Club Ltd v Taylor, RJ ([1994] 56 IR 385) identified the relevant tests to assist in determining whether a casual is engaged on a regular and systematic basis: • the number of hours worked per week; • whether the employee worked according to a roster system that was published in advance and whether the employment pattern was regular; • whether there was reasonable mutual expectation of continuity of employment; • whether notice was required by an employer prior to the employee being absent or on leave; • whether the worker reasonably expected that work would be available; and • whether the worker had a consistent starting time and set finishing time. 11. For the purpose of determining whether or not the employee worked on a regular and systematic basis, it is most appropriate to look at the time sheets completed by the Applicant… 12. The Respondent Council notes that the time sheets completed by the Applicant vary from the rosters which were prepared in advance of hours being worked. As a matter of practicality, the rosters were frequently varied to reflect changes in circumstances for employees and in response to the operational needs of Council. 13. A review of the timesheets demonstrates that the Applicant did not work regular shifts, nor did he work regular days each week. It also submitted that the total weekly hours worked by the Applicant varied throughout the period of employment. Reasonable expectation of ongoing employment 14. Consistent with the Applicant's letter of offer dated 31 January 2019, he was engaged as a Waste Facility Team Member in the 'casual pool'. With respect to hours of work, the letter of offer notes: "As a casual there is no regularity of hours and hours will depend on the varying needs of the business." 15. Clause 26 (i.) of the Local Government (State) Award 2017 defines causal employment as an "employee engaged on a day to day basis". The Applicant was aware of and understood the nature of his employment and accepted it on this basis. 16. Given the Applicant's frequent unavailability for shifts and refusal to work across all work locations, it is questionable as to whether there was a reasonable expectation of ongoing employment… 17. Council's evidence will demonstrate that whilst the Applicant was employed for a period greater than 6 months, his casual employment was not 'regular and systematic'. 18. As such, the application should be dismissed for want of jurisdiction. The applicant's case 1. The applicant filed an affidavit in the proceedings in which he disagreed with the assertions made by Mr Screen to the effect that his employment was irregular and ad hoc. He stated that, while his week to week hours varied he was included on a weekly roster. Rosters are produced a month in advance and he was required to notify periods of unavailability. He claimed that in each week he has worked over the last two years, he has on average worked 20 hours a week. While his work location varied site to site and his hours varied, he claimed that there was an ongoing employment relationship. The applicant disputed the number of times claimed by Mr Screen when he turned down work. He also claimed that he had a reasonable expectation of ongoing employment. 2. In written submissions filed by the United Services Union ("USU") on behalf of the applicant, reference was made to the decision of Sams DP in Larcombe and EBL Catering ([200 1] NSWIRComm 149) in which his Honour considered the decision of the Full Bench in Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta ([2001] NSWIRComm 46 which dealt with the question of what constitutes a "short period" for the purposes of subsection 82(2)(c) of the Act. As the respondent did not canvass this issue as part of its jurisdictional objection, I do not propose to consider it further, other than to indicate that I am well satisfied that the applicant, having commenced as a casual employee with the respondent in January 2019, was not, at the time of his dismissal in May 2020, "engaged on a casual basis for a short period". 3. The applicant's submissions continued as follows: 9. We disagree with the submissions of the respondent stating that the applicant to the proceedings has not been engaged on a basis that can be considered to be systematic with a reasonable expectation of work into the future. We contest the nature of the work pattern of the applicant with a clear history of rostering as attached to the affidavit of the applicant, and consistent employment the submissions of the respondent are clearly incorrect. 10. While in the past the definition of systematic engagement as provided by Smajlagic and Karhunan (Smajlagic and Heidi and Ellis Karhunan (1999] NSWIRComm 117) and the decision of Ryde-Eastwood Leagues Club Ltd v Taylor ([1994] 56 IR 385) could be provided a reasonable test to determining regular systematic employment, they must be read in conjunction with some more recent decisions that have amended the understanding of what is regular and systematic.. 11. The decision of Ponce v DJT Staff Management Services Pty Ltd (Ponce v DJT Staff Management Services Pty Ltd trading as Daly's Traffic ([2010] FWA 2078) recognised that Regular and systematic does not necessarily mean the hours and days must be regular and systematic with Roe C stating: 'regular and systematic' means that there must be "sufficient evidence to establish that a continuing relationship between the employer and the employee has been established where: a) The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and b) Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular" The employment pattern of the applicant clearly reflects this test regularly being available and rostered within a schedule of recognised availability, and the length and consistency of the employment was such it could not be simply considered to be occasional or irregular. 12. For this reason the test as established in Ryde-Eastwood Leagues Club Ltd v Taylor prior to the existing Industrial Relations act, still applies besides the test that the hours of work be regular, and that there is consistent start and finish times. Ponce reinforces that consistency of work hours or regular start and finish times are not required to demonstrate the existence of an ongoing working relationship. 13. The decision of Ponce has been supported and reinforced more recently with the decision of Kamanda v House with No Steps ([2016 FWC 767). This case reinforced the determination of Ponce with the a liberal application of the definition of regular and systematic. The term "regular" should be construed liberally. It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant. Employment on a "regular" basis may be constituted by frequent though unpredictable engagements without a consistent roster or set hours. The term "systematic" requires that the engagement be "something that could fairly be called a system, method or plan". The concept of engagement on a "systematic" basis does not require the employee 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 on the employee's services as an incident of the business by which he or she is engaged. In the circumstances of the applicant the rostering, and timesheets, showing the engagement clearly reflects the establishment of this relationship. 14. In considering the other tests provided by the respondent in relation to Ryde Eastwood Leagues Club Ltd v Taylor, the applicant clearly meets each of these tests. The applicant has had consistent rostered work as demonstrated in the affidavit he has provided at Annexure A, based on the length and nature of the employment there is a clear reasonable expectation for the continuing work to be provided were it not for the actions of the respondent, the applicant was required to provide notice for periods of unavailability and/or leave, and the applicant could reasonably expect that this work would be available considering his own roster pattern and the patterns of the other casual employees. 15. Similarly the recent appeal in Chandler v Bed Bath N' Table Pty Ltd ([2002] FWCFB 306) the full bench again recognised in testing as to whether employment was regular and systematic and if there was a reasonable expectation of ongoing work, it is simplistic and an incorrect application of the tests as to whether a casual employee has a right to unfair dismissal based on recent hours work and availability, rather to assess the nature of the employment relationship the entire engagement of employment must be considered. Again the pattern of work held by the applicant for the entire period of employment reflects the ongoing nature of the work relationship as seen in the rosters and timesheets attached to the applicant's affidavit. 16. Regarding the provisions of casual employment provided in Clause 26 (i.) of the Local Government (State) Award 2017 while it is true the intent of casual employment is to be on a day to day basis, the system of rostering for not only the applicant but other casuals employed within this division of council do not reflect employment on this basis, with an active consistent employment relationship for casual employees. The reality is based on this definition it is likely the respondent is in fact in breach of the Local Government (State) Award 2017 and inappropriately engaging casual staff in positions that should be classified as permanent, in fact based on this definition it could be considered that these casual staff are permanent employee with an inappropriate classification in an attempt to undermine employment security. 17. While the respondent argues that the request for flexibility and reduced capacity to work across all sites following the loss of his home in the fires, would provide reason that there shouldn't be expectation for ongoing employment, the reality is the submissions of Mr Screen's affidavit should be brought under scrutiny as it is clear that the employment process ceased following the receipt of an email, stating the applicant's services were no longer required. Were it not for this action there would remain an ongoing employment relationship. 18. The applicant's employment cannot be considered to be for a short period as defined by Section 83(2)(C) and therefore should not be excluded from the right to relief from unfair dismissal. Were the commission to find that employment has been for a short period the employment can not be considered anything but regular and systematic with a reasonable expectation of ongoing work, and considering the engagement has been greater than a period of 6 months, the applicants application meets the tests provided by Regulation 6 (d) Industrial Relations (General) Regulation 2015. 19. The commission should recognise and sustain the application for relief from unfair dismissal made by the applicant and allowing the substantive matter to progress to hearing. Determination 1. As stated, the parties filed evidence and submissions in support of their respective positions. Both parties requested that the respondent's jurisdictional objection be determined "on the papers". The filed material included rosters showing the applicant's shifts and his time sheets for the whole period of his employment. Following receipt of that material, I requested that the USU prepare, file and serve a document in the form of 2019 and 2020 calendars which clearly indicates each day on which the applicant worked for the respondent and the number of hours worked on each day. The document which was received in response to this request is annexed to this decision and marked "Annexure A". 2. What Annexure A demonstrates is that during the 30 fortnightly periods shown, the applicant worked on between 1 and 10 days, but mostly on 6 days or more, which occurred during 18 of the 30 fortnightly periods. The number of hours worked per fortnight varied between 4.5 (on one occasion) and 60.5, but mostly in excess of 20 (during 28 of the 30 fortnightly periods). The number of hours worked each shift varied between 3.75 and 8.5, with the latter number of hours being the most common shift duration occurring on 89 of the 179 shifts worked by the applicant. 3. Based on these numbers and having regard to the authorities cited by the parties, I have no doubt that the applicant was engaged by the respondent on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months and would, but for the dismissal, have had a reasonable expectation of continuing employment with the respondent. 4. It follows that the respondent's jurisdictional objection to the Application must be rejected and I so order. John Murphy Commissioner ********** ANNEXURE A Randall Forbes dates and hours worked Date 2019 Hours Location Total hours per fortnight 26/01/2019 8.5 Merimbula 30/01/2019 8.5 Cobargo 31/01/2019 8.5 Bermagui 2/02/2019 4.75 Eden 3/02/2019 4.75 Eden 4/02/2020 8.5 Wallagoot 7/02/2019 8.5 Wallagoot 8/02/2019 8.5 Eden 60.5 9/02/2019 4.75 Bermagui 10/02/2019 4.75 Bermagui 13/02/2019 8.5 Cobargo 14/02/2019 8.5 Eden 15/02/2019 3.75 Cobargo 16/02/2019 4.75 Wallagoot 17/02/2019 4.75 Wallagoot 20/02/2019 4 CWF 21/02/2019 8.5 Candela 22/02/2019 3.75 Cobargo 55 23-Feb 4.75 Bermagui 24/02/2019 4.75 Bermagui 26/02/2019 7 CWF 27/02/2019 8.5 Cobargo 28/02/2019 8.5 CWF 2/03/2019 4.75 Bermagui 4/03/2019 8.5 Bermagui 5/03/2019 8.5 Wallagoot 55.25 12/03/2019 7.5 Organics 16/03/2019 4.75 Wallagoot 17/03/2019 4.75 Wallagoot 18/03/2019 6 Organics 19/03/2019 8.5 Organics 22/03/2019 8.5 Organics 40 23/03/2019 4.75 Bombala 30/03/2019 4.75 Wallagoot 31/03/2019 4.75 Candelo 3/04/2019 8.5 Merimbula 22.75 6/04/2019 4.75 Bermagui 7/04/2019 4.75 Bermagui 9/04/2019 8.5 Eden 11/04/2019 8.5 Bermagui 12/04/2019 8.5 Merimbula 13/04/2019 4.75 Bemboka 15/04/2019 8.5 Wallagoot 18/04/2019 8.5 Wallagoot 56.75 22/04/2019 4.75 Wallagoot 23/04/2019 8.5 Bermagui 24/04/2019 8.5 Wallagoot 26/04/2019 8.5 Wallagoot 28/04/2019 4.75 Bermagui 29/04/2019 4.75 Bermagui 01/04/2019 8.5 Bermagui 3/04/2019 8.5 Bermagui 38.75 4/05/2019 4.75 Wallagoot 6/05/2019 8.5 Bermagui 11/05/2019 4.75 Cobargo 12/05/2019 4.75 Bermagui 14/05/2019 8.5 Wallagoot 31.25 18/05/2019 4.75 Cobargo 19/05/2019 4.75 Bermagui 21/05/2019 8.5 Wallagoot 23/05/2019 8.5 Bermagui 25/05/2019 4.75 Cobargo 26/05/2019 4.75 Bermagui 28/05/2019 8.5 Eden 30/05/2019 8.5 Wallagoot 53 1/06/2019 4.75 Candelo 6/06/2019 8.5 Bermagui 7/06/2019 8.5 Merimbula 9/06/2019 4.75 Candelo 26.5 20/06/2019 2 Team Meeting 21/06/2019 3.75 Cobargo 23/06/2019 4.75 Candelo 25/06/2019 8.5 Wallagoot 27/06/2019 8.5 Bermagui 27.5 4/07/2019 8.5 Bermagui 9/07/2019 6.5 Workers comp 10 July 2019 6.5 Workers comp 11/07/2019 6.5 Workers comp 28 15/07/2019 8.5 Workers comp 16/07/2019 8.5 Workers comp 17/07/2019 6 Workers comp 18/07/2019 3 Workers comp 22/07/2019 8.5 Workers comp 23/07/2019 8.5 Workers comp 24/07/2019 6 Workers comp 25/07/2019 3 Workers comp 51 31/07/2019 8.5 Cobargo 01/08/2019 8.5 Eden 03/08/2019 4.75 Eden 06/08/2019 8.5 Wallagoot 07/08/2019 8.5 Cobargo 08/08/2019 4.5 Wallagoot 48.25 10/08/2019 4.5 Bemboka 13/08/2019 8.5 Wallagoot 14/08/2019 8.5 Cobargo 15/08/2019 8.5 Bermagui/team meeting 22/08/2019 8.5 Bermagui 24/08/2019 4.75 Bermagui 26/08/2019 8.5 Bermagui 29/08/2019 8.5 Bermagui 1/09/2019 4.75 Eden 2/09/2019 8.5 Bermagui 5/09/2019 8.5 Bermagui 43.5 7/09/2019 4.75 Cobargo 9/09/2019 8.5 Bermagui 10/09/2019 8.5 Bermagui 11/09/2019 8.5 Bermagui 12/09/2019 3 Team meeting 14/09/2019 4.75 Wallagoot 16/09/2019 8.5 Bermagui 18/09/2019 8.5 Cobargo 55 21/09/2019 4.75 Cobargo 22/09/2019 4.75 Bermagui 24/09/2019 8.5 Bermagui 26/09/2019 8.5 Bermagui 1/10/2019 8.5 Bermagui 4/10/2019 3.75 Cobargo 38.75 5/10/2019 4.75 Cobargo 8/10/2019 8.5 Bermagui 9/10/2019 8.5 Merimbula 10/10/2019 8.5 Bermagui 11/10/2019 3.75 Cobargo 12/10/2019 4.75 Wallagoot 15/10/2019 8.5 Bermagui 16/10/2019 8.5 Cobargo 18/10/2019 3.75 Cobargo 59.5 21/10/2019 8.5 Wallagoot 22/10/2019 8.5 Bermagui 25/10/2019 3.75 Cobargo 26/10/2019 4.75 Wallagoot 28/10/2019 8.5 Bermagui 29/10/2019 8.5 Bermagui 42.5 2/11/2019 4.75 Wallagoot 5/11/2019 8.5 Bermagui 7/11/2019 4 Team meeting 8/11/2019 8.5 Merimbula 9/11/2019 4.75 Cobargo 10/11/2019 4.75 Wallagoot 12/11/2019 8.5 Bermagui 47.5 16/11/2019 4.75 Bermagui 19/11/2019 8.5 Bermagui 21/11/2019 8.5 Wallagoot 21.75 30/11/2019 4.75 Cobargo 1/12/2019 4.75 Candelo 5/12/2019 4 Team meeting 12/12/2019 8.5 Candelo 13/12/2019 3.75 Cobargo 25.75 14/12/2019 4.75 Cobargo 17/12/2019 8.5 Bermagui 18/12/2019 8.5 Cobargo 19/12/2019 5 Cadelo 22/12/2019 4.75 Bermagui 24/12/2019 8.5 Wallagoot 26/12/2019 8.5 Bermagui 27/12/2019 3.75 Cobargo 52.25 25/01/2020 4.75 Bermagui 26/01/2020 4.75 Wallagoot 30/01/2020 8.5 Bermagui 02/02/2020 4.75 Bermagui 04/02/2020 8.5 Bermagui 06/02/2020 8.5 Bermagui 39.75 09/02/2020 4.75 Bermagui 11/02/2020 8.5 Bermagui 20/02/2020 8.5 Wallagoot 21/02/2020 4 Bermagui 25.75 23/02/2020 4.75 Bermagui 24/02/2020 8.5 Bermagui 3/03/2020 3.75 Bermagui 16.5 8/03/2020 4.75 Bermagui 10/03/2020 8.5 Bermagui 12/03/2020 8.5 Bermagui 19/03/2020 4.5 Bermagui 26.25 26/03/2020 4.5 Bermagui 4.5 18/04/2020 4.75 Bermagui 21/04/2020 8. 5 Bermagui 23/04/2020 8. 5 Bermagui 21.75 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2020