Industrial Relations Commission New South Wales Medium Neutral Citation: Khan v Industrial Relations Secretary in respect of the Department of Communities and Justice [2023] NSWIRComm 1084 Hearing dates: Determined on the papers Date of orders: 23 August 2023 Decision date: 23 August 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The application is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – casual employee dismissed after 17 days employment – whether exempt from Ch 2 Pt 6 of the Industrial Relations Act 1996 due to having been engaged for "a short period" Legislation Cited: Industrial Relations Act 1996 Ch 2 Pt 6, ss 83, 84 Industrial Relations (General) Regulation 2020 cl 6(1)(d) Industrial Relations (General) Regulation 1996 cl 5B(1)(d) Cases Cited: Forbes v Bega Valley Shire Council [2020] NSWIRComm 1055 Larcombe and EBL Catering [2001] NSWIRComm 149 Ozcan v Sydney South West Area Health [2008] NSWIRComm 1078 Reed v Blue Line Cruises Ltd (1996) 73 IR 420 Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta [2001] NSWIRComm 46 Temesvari and Divine Image Group Pty Limited [2005] NSWIRComm 1060 Tikkun v NSW Ministry of Health in respect of Northern NSW Local Health District [2021] NSWIRComm 1070 Wylie and Formula One Catering Services Pty Ltd [2003] NSWIRComm 207 Texts Cited: Nil Category: Procedural rulings Parties: Abdullah Khan (Applicant) Industrial Relations Secretary (Respondent) Representation: Counsel: M Foran (Respondent) Solicitors: Gilchrist Connell (Applicant) File Number(s): 2023/00186446 Publication restriction: No DECISION 1. On 15 May 2023 Abdullah Khan commenced employment in the Department of Communities and Justice ("Department") as a Casual Youth Officer at the Orana Youth Justice Centre. His employment was terminated on 31 May 2023. 2. Mr Khan subsequently filed an Application for Relief in Relation to Unfair Dismissal, purportedly pursuant to s 84 of the Industrial Relations Act 1996 ("Act"). In an Employer's Response to Unfair Dismissal Application filed by the Industrial Relations Secretary ("Secretary") it was contended, amongst other things, that the Commission "does not possess the jurisdiction to award relief to casual employees employed for a short period of time for unfair dismissal, as per s 83(2)(c) of the [Act]". 3. I listed the matter for conference. Having heard from the parties, I determined under cl 6 of Practice Note 17A that the Secretary's jurisdictional objection was to be dealt with as a threshold issue in advance of any conciliation in the proceedings. I made directions requiring the parties to file and serve the evidence and submissions on which they sought to rely in respect of the objection. I further directed, by consent, that on receipt of the parties' material the objection would be determined "on the papers". 4. Section 83 of the Act relevantly provides: 83 Application of Part … (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 2020 ("Regulation") relevantly provides: 6 Other exemptions from unfair dismissal provisions (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. There is no controversy that Mr Khan was employed in the Department on a casual basis. The question is whether he was engaged as such "for a short period". 2. The position advanced by Mr Khan is that the determination as to whether an employee is "engaged on a casual basis for a short period" is to be made by reference to the intention of the parties at the time of the engagement. Mr Khan led evidence as to the process by which he came to be employed at the Orana Juvenile Justice Centre. He referred to instances that had led him to believe that once he had secured casual employment there were "strong prospects for [him] to certainly secure a permanent role of Youth Officer in the foreseeable future". He stated that to take up employment with the Department he resigned from a permanent role and relocated from Broome to Dubbo. He further deposed to having worked 8 hours on each week day during his employment. 3. Irfan Walayat, Mr Khan's father, stated that he initiated a call to the Talent Acquisition Officer who was managing the recruitment process in respect of Mr Khan, to seek assurance that the opportunity to take up employment as a Youth Officer warranted Mr Khan resigning from his current employment and relocating from Broome to Dubbo. From this conversation, Mr Walayat understood that Mr Khan "was going to be transitioned into a permanent role in a few months and not in years". 4. Relying on this evidence, Mr Khan submitted that he was "employed in a casual position which was intended to be for an ongoing period where he would work on a regular and systematic basis. He was not engaged 'for a short period'." He further submitted that "it was the intention of both parties at the time of entering the contract that he be engaged for a period longer than 6 months" and that he had an expectation of continuing employment. 5. The Secretary submitted that cl 6(1)(d) of the Regulation required a two-step inquiry. First, the Commission is required to assess whether an employee was engaged as a casual for a short period "which is based on the facts at the time of engagement" (emphasis in original). Second, if the employee is found to have been engaged for a short period, "the Commission is required to assess whether the parties' conduct since the engagement has given rise to sufficient periods of employment (over 6 months), and otherwise gives rise to a reasonable expectation of continuing employment with the employer" (emphasis in original). 6. The Secretary submitted that the evidence demonstrated that the offer of casual employment to Mr Khan was for "a short period". His application could only be "saved", it was contended, if he had been engaged "on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months". On the facts of the case, Mr Khan was unable to meet this requirement. 7. Contrary to the position advanced by both parties, I do not consider that the question as to whether a casual employee is engaged "for a short period" is confined to ascertaining the intention of the parties when entering into the employment relationship. That has not been the approach adopted by the Commission. Rather, it is a matter to be determined by reference to the duration of the applicant's employment with the employer. The cases to which the parties drew my attention bear this out. 8. Both parties relied on Shop Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta [2001] NSWIRComm 46 ("Dymocks"). In that case, after referring to s 83(2)(c) of the Act and cl 5B(1)(d) of the Industrial Relations (General) Regulation 1996 ("1996 Regulation") (which was relevantly identical to cl 6(1)(d) of the Regulation), the Full Bench observed: "28 Shortly stated, that means a casual employee engaged for 'a short period' and who would therefore be exempt is saved if the employee satisfies both sub-paras (i) and (ii). The essential enquiry, however, is whether the casual employee has been engaged for a short period - if not, then the specified conditions do not have to be considered as the employee concerned is not exempted from bringing a valid claim. … 29 Whether any particular period of employment is within the statutory phrase of 'a short period' is, of course, a mixed question of law and fact to be determined in all the circumstances of a case arising… However, where a statute, as here, uses the words 'a short period' according to their common understanding, then whether Ms Wilding's employment over a period of 11 weeks was or was not a short period makes the ultimate question one of fact where it is not unreasonable in the circumstances to hold either way…" (Emphasis added) 1. Mr Khan referred me to Temesvari and Divine Image Group Pty Limited [2005] NSWIRComm 1060. In that case the Commission determined that an applicant with a period of employment of 15 weeks was not exempted from the unfair dismissal jurisdiction. Commissioner Murphy observed: "26 The applicant in his witness statement to the Commission, talked of his engagement over a three and a half month period – it was actually 15 weeks – and receiving three to five regular shifts per week, usually on the same nights, and the same locations. … 27 So the question for the Commission was essentially related to the jurisdictional issue of whether the period of some 15 weeks where the applicant enjoyed a reasonably steady number of engagements which he says in his application varied slightly over shifts, and whether that escapes the exemption of this legislation. 28 In all the circumstances and the evidence before me, I believe the applicant is not exempted by regulation 5B, having regard to the Full Bench decision in the Dymocks case." 1. In support of the submissions summarised at [10] above, the Secretary relied on Larcombe and EBL Catering [2001] NSWIRComm 149. In that case, Sams DP referred to Dymocks as having made clear that two inquiries are necessary for determining whether a casual employee is exempted from the unfair dismissal provisions of the Act (at [27]). The first was to determine whether the employee had been engaged for "a short period" (at [28]). The second, which is only required if the Commission determines "that the period of employment was a 'short period'" (noting the use of the past tense), is whether the application may still be within jurisdiction having regard to the tests then found in cl 5B(1)(d)(i)-(ii) of the 1996 Regulation (at [29]). 2. In making the first enquiry, Sams DP observed: "39 The applicant claims she was continually employed from September 1999 to December 2000. Even if I was to ignore the first two periods, the last period of employment was over five months. Is this a 'short period' for the purposes of s83(2)(c) of the Act? Having regard to the facts and circumstances in this case, I think not. 40 In my opinion, five months of employment, in the notoriously casualised catering industry, cannot be characterised as a short period. …" 1. Other instances of the Commission determining whether a casual employee had been engaged for "a short period" by reference to the duration of their employment are Wylie and Formula One Catering Services Pty Ltd [2003] NSWIRComm 207 at [19]; Ozcan v Sydney South West Area Health [2008] NSWIRComm 1078 at [27]; Forbes v Bega Valley Shire Council [2020] NSWIRComm 1055 at [12]; and, Tikkun v NSW Ministry of Health in respect of Northern NSW Local Health District [2021] NSWIRComm 1070 at [84]. 2. I observe that in further support of the submissions summarised at [10] above, the Secretary relied on Reed v Blue Line Cruises Ltd (1996) 73 IR 420. Contrary to the Secretary's submissions, I do not see that case as standing as authority for the proposition that the Commission is required to assess the facts at the time of the engagement in assessing whether an applicant was engaged for "a short period". As Moore J observed in that case, the legal issue that arose before him was "what is contemplated by the expression 'engaged on a casual basis'", as reflected in the relevant legislation (at 424). To the extent that his Honour referred to the need to examine the facts at the time of the engagement, it was to determine the nature of the relationship itself as opposed to whether it was intended to be for a short period. 3. The "essential enquiry" that I am required to make, consistent with the observations of the Full Bench in Dymocks, was whether Mr Khan was engaged for a short period. He was employed for 17 days. I find this to be a short period. In the circumstances, the requirements of cl 6(1)(d)(i)-(ii) of the Regulation do not arise for consideration. 4. It follows that Mr Khan is exempt from Ch 2 Pt 6 of the Act. The application must be dismissed for want of jurisdiction. I so order. Damian Sloan Commissioner ********** 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: 23 August 2023