Industrial Relations Commission of New South Wales CITATION : Devine v Gediminas [2002] NSWIRComm 38 PARTIES : Ms Sue Devine Gediminas General Services FILE NUMBER: IRC 6215 of 2001 CORAM: Harrison DP CATCHWORDS : Application for relief from alleged unfair dismissal - jurisdiction - whether status of employment casual Held - employment not casual - jurisdiction found - termination due to conduct not proven - inadequate and ineffective warning - compensation awarded LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations Regulations 1996 Ryde Eastwood Leagues Club v Taylor [1994] 56 IR 385 CASES CITED : Burcome v Oldham and Others T/as The Royal Hotel [1996] 71 IR 404 Reed v Blue Line Cruises Ltd [1996] 73 IR 420 HEARING DATES: 02/14/2002 DATE OF JUDGMENT: 03/12/2002 APPLICANT Ms S Devine LEGAL REPRESENTATIVES: RESPONDENT Mr N Butt JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 12 March 2002 Matter No IRC 6215 of 2001 SUE DEVINE AND GEDIMINAS GENERAL SERVICES Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 38 1 The applicant in this matter, Ms Sue Devine, was dismissed from employment with Gediminas General Services, the respondent, on 24 August 2001. The application was filed in time and subject to proceedings for the purpose of conciliation and directions, resulting in a conclusion that the matter could not be resolved by agreement between the parties and the issue of directions to bring the matter to arbitration. 2 On arbitration Ms Devine appeared on her own behalf and brought evidence in the form of a Statement (ex 1) and pay advice information (ex 2). Ms Devine also brought evidence from Ms Kylie McLeod, an employee of the respondent at the relevant time. 3 Mr Neil Butt, currently employed by the respondent as Practice Manager, appeared on behalf of the respondent. Mr Butt cross examined Ms Devine and Ms McLeod but did not bring any particular evidence, relying on an outline of submission (ex 4) going to the issue of jurisdiction in the circumstances of casual employment and asserting that the applicant had been warned concerning her work practices by the previous Practice Manager. 4 Ms Devine had been employed by the respondent, a service company providing clerical services to the Tweed City Medical Centre operated by a Dr Mikus. 5 Ms Devine's evidence, which is unchallenged, is that she had worked with and for Dr Mikus for two and a half years. She had initially been employed with the Healthpoint Medical Centre of which Dr Mikus was a co-owner. A partnership dissolution, said to be acrimonious, took place resulting in Dr Mikus leaving that practice and the applicant and other staff terminated on 26 February 2001. The applicant's evidence is that this termination of employment took place as a consequence of loyalty shown to Dr Mikus during the process of partnership dissolution. 6 Ms Devine's evidence is that she was contacted by Dr Mikus by telephone on 8 March 2001 and invited to work for him at a temporary medical centre, which he had established whilst in the process of building a new medical centre at the Tweed City Shopping Centre. She commenced employment on 12 March 2001. Employment was terminated on 24 August 2001. The applicant contends that the termination of employment was without notice and that no reasons were given at the time. Termination pay was later forwarded to the applicant. 7 Ms Devine's evidence is that on commencement of employment she worked from 4.00 pm to 8.00 pm Monday to Friday, with additional requirement to work Saturday and Sunday as demand required. Employment became more regular on completion of the new medical centre, the applicant then worked five days per week, Monday to Friday. At the time of her dismissal she worked Mondays from 9.00 am to 6.00/7.00 pm and Tuesday to Friday from 10.00 am to 6.00/7.00 pm. There is some dispute between the parties concerning particular finishing times. It is not disputed that the applicant worked a full day each day, Monday to Friday and was not subject to daily call in or was ever told she was not required for any particular day. The applicant attended work on a regular basis throughout her employment. 8 Ms Devine's evidence is that during the course of her employment her workload was constantly increased as the medical practice attracted more patients and initiated additional services. 9 Ms Devine's evidence is that she was never reprimanded in respect to the conduct of her work and never warned that her continued employment was in jeopardy. In her statement (ex 1) Ms Devine concedes that there were instances when Dr Mikus picked up errors she had made but there had never been an issue in respect to such matters. She acknowledges that Ms Hermes did speak to her about the volume of work outstanding and that her explanation, conveyed to Dr Mikus, was accepted. Ms Devine strongly refuted that she stockpiled work, putting that on transfer from HMC there were 1700 patient records to scan to computer. 10 The applicant's evidence is that Dr Mikus was at times volatile and prone to alter and contradict his own instructions. 11 The evidence of Ms McLeod is that she was not aware of any warning or reprimand to Ms Devine. On cross examination by Mr Butt, Ms McLeod conceded that she was not in a position to be aware of all conversations between the applicant and the practice manager. 12 Mr Butt contends that the previous practice manager, Ms Hermes, issued verbal warnings to the applicant at the direction of Dr Mikus on four occasions. These are detailed in annexure c to exhibit 4 in the following terms: 21st May, 2001: A reminder for Sue to commence work promptly when starting work in the new building next week, also that only designated morning tea breaks would be allowed. 26th June, 2001: Sue was asked to tidy her office and have a more orderly approach to her work. 31st July, 2001: Sue was asked to bring all scanning, particularly patients histories, up to date. 20th August, 2001: Sue was told to bring all scanning up to date and to tidy her front desk area. 13 Mr Butt asserts that there were witnesses to a meeting between the applicant and Dr Mikus wherein her work was subject to review. The witnesses were not identified or called. 14 Mr Butt contends that there is no jurisdiction to admit the application on the basis that the applicant was employed and paid as a casual employee. He supports this contention on the basis that the applicant was paid as a casual employee pursuant to the Clerical and Administrative Employees (State) Award 296 IG 619; and that she completed a Tax File Number declaration ticking "Casual Employment" in answer to Question 7 on that form, which offers a choice of full time, part time, casual, labour hire, or superannuation pension or annuity. 15 Ms Devine deposes that she was instructed by Ms Hermes to tick casual employment. 16 The respondent asserts that the applicant was engaged in two separate periods; the first from 17 March 2001 to 27 May 2001 at the Temporary location; the second from 3 June 2001 to 24 August 2001 at the current premises. 17 The respondent contends that the applicant's working hours varied from 22 hours per week to a maximum of 37.25 hours per week; the hours worked at the temporary premises being usually out of consulting hours and at the current premises within surgery hours. The duties of the applicant are described as scanning patient records into a computer and typing medical reports. 18 The contention of Mr Butt in respect to hours of work are supported by time sheets completed by the applicant, tendered annexure B to exhibit 4. These documents record that hours worked daily varied from a minimum of 5½ to a maximum of 10¾; and weekly in the following amount: Week ending Hours Worked 3/6 35 ¼ 10/6 37 ¼ 17/6 27 ½ 24/6 33 1/7 33 8/7 34 ½ 15/7 34 22/7 35 ½ 29/7 31 ¾ 5/8 33 ¾ 12/8 33 ½ 19/8 21 ¼ 26/8 34 ¼ 19 This is confirmed by pay dockets tendered by Ms Devine (ex 2) for the fortnightly periods ending 24 June, 8 July, 22 July and 5 August 2001. The applicant contended that it was assumed by herself and her employer that she would work five days per week, Monday to Friday. Finishing times depended upon the time at which the day's consultations concluded, the applicant being required to stay as she had been given responsibility to lock up and secure the premises. The reduced hours in the weeks ending 17 June and 19 August arose from the applicant's need to take time off to attend to personal business. 20 In the course of cross examination by Mr Butt, Ms Devine conceded that her employment had been casual (TR p 9) and that she was spoken to by Ms Hermes about her work (TR p9). Ms Devine deposed that her discussions with Ms Hermes were always conversational and did not contain any element of warning or intimation of termination of employment. 21 Ms Devine submitted that she felt very poorly treated by Dr Mikus in that she had shown him loyalty which had been returned by instant dismissal without reason, later supported by allegations of poor work practice which were without foundation. 22 Ms Devine submitted that as a casual employee she believed that she had a right to adequate warning that her employment was at risk due to conduct. CONSIDERATION 23 Section 83(2) of the Industrial Relations Act 1996 ('the Act') provides for exemption from jurisdiction by regulation of certain categories of employees. S 83(2)(c) is the relevant exemption in this matter, which states "employees engaged on a casual basis for a short period". 24 The relevant regulation is Regulation 5B(1)(d), which states: 5B (1) [Classes of employees] 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. 25 The applicant's employment from 12 March 2001 to 24 August 2001 does not meet the requirement of six months prescribed by Regulation 5B(1)(d)(i) and on this basis would be excluded from jurisdiction. On the evidence there is a question whether in fact the applicant was engaged as a casual employee. That she was so called and paid the casual rate of pay prescribed by the Award is not the ultimate determinant of the matter. 26 An examination of the relevant law is found in Ryde Eastwood Leagues Club v Taylor [1994] 56 IR 385: A casual employee, in a real sense, and even though a term regularly used in the employment relationship, is not so well defined as to have a precise meaning for all circumstances; as was said by Starke J in Doyle (supra at 551) - "The description 'casual worker' is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact for the Commission". Dixon J in the same case held (at 555) casual employment to be "ill defined" and McTiernan J concluded (at 565): "Now the term 'casual worker' is not capable of exact definition. Hamilton LJ said in Knight v Bucknill (1913) 6 BWCC at 164, 165: 'I think that "casual" is here used not as a term of precision, but as a colloquial term.' Each case is to be determined on its own facts, consideration being given not only to 'the nature of the work but also the way in which the wages are paid, or the amount of the wages, the period of time over which the employment extends, indeed all the facts and circumstances of the case' (Stoker v Wortham [1919] 1 KB 499 at 503, 504, per Swinfen Eady MR). The question being one of fact, the Commission's finding should not be set aside if there was evidence to support it." (pp 393 and 394) A finding that a dismissal has taken place depends on whether or not there is a continuing contract of service. The following tests, going to issues of fact, can be applied in determining the nature of the contract of service: • 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. • Whether the worker had a consistent starting time and set finishing time. (p397) The authorities are clear that where a continuing relationship is found, and a worker has been dismissed, albeit the worker has been called a casual, then jurisdiction exists to order re-employment. (p397-398) (emphasis added) It is apparent that two classes of employee colloquially described as "casual" can readily be identified in the organisation of industrial relationships. The first class refers to those employees who are truly casual in the sense that there is no continuing relationship between the employer and the employee. The second class is where there is a continuing relationship which amounts to an ongoing or continuing contract of employment; it is this second class of contract which, for the reasons set out earlier by us, is of such a nature as to attract the Commission's jurisdiction under Pt 8 of Ch 3 of the Act. (p401-402) 27 The issue of determination of the true nature of the employment was also considered by Marshall J of the Industrial Relations Court of Australia in Burcombe v Oldham and others Trading as the Royal Hotel [1996] 71 IR 404. At p406 his Honour said: There is no settled meaning of the words "casual employee". The true nature of any employment relationship depends on the facts of each case. As Starke J said in Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 at 551: "The description 'casual worker' is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact…" See also at 555, where Dixon J said: "…unfortunately what is casual employment is ill defined. Indeed it is scarcely too much to say that it seems open to a tribunal of fact to treat most forms of intermittent or irregular work as casual. Where the employment involves a contract of service lasting some weeks followed by a long interval of idleness and then another such contract of service and so on, more difficulty arises, if the view is taken that the employee is a casual worker." 28 The characteristics of casual employment are also considered by Moore J of The Industrial Court of Australia in Reed v Blue Line Cruises Ltd (1996) 73 IR 420 at 425 where his Honour states: A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual. 29 There is no letter of appointment or any evidence of the formation of the contract of employment to assist in a determination of the intent of the parties. It is necessary to apply the tests identified in Ryde Eastwood Leagues Club v Taylor.. 30 The relevant employment is that at the current premises commencing on or about 3 June 2001. Nothing particular turns on the differences between the parties in respect to start date or whether there was a break in employment on the move from temporary to current premises so far as the issues arising in this matter. 31 The applicant was engaged for a substantial period of time each day and each week of her employment. There is no evidence of a roster system. The facts support a finding that the employment pattern was regular as there was a mutual expectation that the applicant would work five days per week Monday to Friday. 32 The facts also support the conclusion that there was a reasonable mutual expectation of continuity of employment emphasised by the assertion of the employer that employment was terminated due to conduct not lack of work or completion of a task or project for which the employee had been engaged. This also supports the conclusion that the applicant could reasonably expect work to be available. 33 There is no evidence that notice was or was not required when the applicant was to be absent or on leave, however reminders concerning punctuality issued by the Practice Manager when employment commenced at the current premises are indicative that the applicant required approval for a departure from the nominated starting time. 34 The applicant worked regular hours, five days per week, with reasonable expectation that this arrangement would continue. 35 The applicant's employment cannot be properly categorised as casual, and accordingly is not within the exclusion of Regulation 5B(1). 36 I find that the applicant was not a casual employee and accordingly is not prevented from jurisdiction. 37 The warnings relied upon by Mr Butt are not of the nature that could be regarded as a warning that the employee's conduct was of the character that termination was contemplated by the respondent. These "warnings", if they took place, are ineffectual and inadequate for the purposes of compliance with s 88(c) of the Act. 38 The termination of the applicant's employment is properly characterised as capricious, without foundation or appropriate warning. The allegation that the applicant was slow in her work and untidy in her work habits is simply not made out. 39 I find the termination of employment to be harsh, unreasonable and unjust. I conclude that neither reinstatement nor re-employment are practical and assess compensation at $1,500.00 oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 12 March 2002 Matter No IRC 6215 of 2001 SUE DEVINE AND GEDIMINAS GENERAL SERVICES Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ORDER Pursuant to section 89(5) of the Industrial Relations Act 1996 Gediminas General Services is ordered to pay to Ms Sue Devine the amount of $1,500 (one thousand five hundred dollars) within 21 days of the date of this decision. I so order. The Hon. R W Harrison Deputy President 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.