Industrial Relations Commission of New South Wales CITATION : Larcombe and EBL Catering [2001] NSWIRComm 149 APPLICANT PARTIES : Fiona Jean Larcombe RESPONDENT EBL Catering FILE NUMBER: 6175 of 2000 CORAM: Sams DP Termination of employment - unfair dismissal - jurisdiction of the Commission - casual employment in the catering industry - whether applicant employed as a casual for a short period - s83(2)(c) of the Act and Reg 5B(1) - principles considered. CATCHWORDS : Held, applicant a casual employee - applicant not employed for a short period - expectation of continued employment - application within jurisdiction - further conciliation proceedings. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd t/as Dymocks Parramatta, 103 IR 390 HEARING DATES: 05/18/2001 DATE OF JUDGMENT: 07/06/2001 APPLICANT Mr I McCleary, Solicitor Addisons Solicitors and Attorneys LEGAL REPRESENTATIVES: RESPONDENT Mr A Duc Restaurant and Catering Industry Association of New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 6 July 2001 Matter No IRC00/6175 FIONA JEAN LARCOMBE AND EBL CATERING Application by Fiona Jean Larcombe re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION ON JURISDICTION 1 In this matter, the Commission has been moved by EBL Catering ("the respondent") to dismiss on jurisdictional grounds an application, pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), filed by Ms Fiona Jean Larcombe ("the applicant"). The applicant seeks compensatory relief from her alleged unfair dismissal on 8 December 2000. The reasons for dismissal are not materially relevant for the purposes of this decision; suffice to observe that the reasons might generally be characterised as performance related. 2 The basis of the jurisdictional challenge is that the applicant was a casual employee, precluded by s83(2) of the Act and associated regulations (Reg 5B(1)) from bringing, and having determined, an application for relief from alleged unfair dismissal. 3 The respondent employer is a catering company with three separate divisions - EBL Catering, Elegant Wedding Cuisine and EBL Patisserie. It employs three administration staff, two executive chefs, two to three casual pastry chefs, up to twenty-five casual chefs, a driver and one to two kitchen hands. The company is "function driven", depending on requests from clients to provide a variety of catering services for particular functions. 4 The applicant commenced employment on 23 September 1999 and was employed in preparing, delivering and presenting the food requirements for the company's clients. Her starting rate of pay was $18.50 an hour, and after two months the rate was increased to $20.00. She worked variable, but regular hours of between thirty-three and fifty-one hours a week on different days of the week. Her hours depended on client orders which were usually known a few days in advance. 5 Proceedings commenced by way of conciliation conferences on 2 March 2001, at which time Mr A Duc from the Restaurant and Catering Industry Association of New South Wales, representing the respondent, strongly put that the application should be dismissed for want of jurisdiction. Notwithstanding Mr Duc's submission, the Commission observed that the Act "not only positively encourages matters to be settled", but directs that (the Commission) should make "all endeavours to settle the matter" (T.p2). In the absence of the applicant, Mr McCleary (Solicitor), appearing for her, and Mr Duc, both agreed to discuss settlement and the matter was adjourned until 3 April. On that occasion, the matter remained unresolved and the Commission chaired private conciliation conferences. No settlement was reached and, pursuant to s87 of the Act, I determined that the jurisdictional issue should be decided as a preliminary matter. Directions were issued and a date set for hearing. The Evidence 6 Much of the evidence adduced by way of affidavit and oral testimony went to whether the applicant was employed as a casual. To the extent that the applicant herself did not contest her casual status, little of the evidence requires the Commission to make findings on conflicting evidence, or on matters of witness credit. As I will discuss later, the issue is not that the applicant was a casual employee simpliciter, but rather, using the language of the statute, whether she was employed on a casual basis for a short period. 7 Further, as this is a jurisdictional decision, I do not refer to, or make findings on those aspects of the evidence, which deal with the reasons for the termination of employment. That is properly a matter for further proceedings, should the jurisdictional hurdle be overcome. 8 The Commission found the evidence adduced from both parties to be generally uncontroversial and all the witnesses to be credible and truthful. Case for the Applicant 9 The applicant gave evidence that for the first two months of her employment she was on probation. In oral evidence, she said she was on trial for a month. Her hours commenced at thirty-three per week, increasing to about fifty-one. She was rostered to work five to seven days in advance; the roster being posted in the kitchen. In oral evidence, she said the roster had been posted throughout her employment. Her normal roster was four to seven days, although when "business was quiet" she would work less days per week. 10 In oral evidence, the applicant described her work as her only regular job and even during quiet periods (January, February and June) she had worked four days a week. 11 In the second half of January 2000, as the business was traditionally quiet, she had time off from 14 to 28 January. This time off was unpaid. 12 From 28 January to June 2000, she had a number of sick days off which were not paid. In June she requested three weeks off to travel overseas with a friend; again, time off which would not be paid. She approached Nicki (the Head Chef), who expressed a view that she hoped she would return to work. The applicant said she just needed a rest and would return in three weeks. As business was quiet, the applicant was told that her request was "okay" and the Managing Director, Mr Fletcher was aware of, and approved, her time off. 13 Without reapplying for her job, she returned to work on 7 July and, although business was quiet, she was assured by Nicki and Mr Fletcher that her job was secure. About this time, a new chef, Deborah Whitebread, was appointed. Apparently she and the applicant "did not get on". However, the applicant continued to work regularly up to 7 December, when the new chef cut her hours. The following day, after forgetting to complete a job at Dural, she was told by Ms Whitebread that she was to be let go as she was "unreliable". 14 Attached to her affidavit were payroll advices disclosing hours of work and payments made, bank statements and a letter dated 18 April 2000 from the company's Executive Assistant, Leanne Wagner, disclosing that the applicant had been employed since 22 September 1999, as a Functions Chef on a salary of $45,000 per annum and that "Fiona's employment is secure at the time this letter is written". 15 In oral evidence, the applicant rejected Ms Whitebread's evidence that rosters had only been posted since December 2000. The applicant gave evidence that she understood the acronym "RDO", appearing on the time sheets, was an abbreviation for "rostered day off". 16 Mr Quentin Fletcher, Managing Director of EBL, has been involved in the restaurant and catering industry for twenty-seven years. In his affidavit (Ex'C') he describes the nature of his business and how the work is organised. He deposed that casual staff are employed on a needs basis for all positions, except Executive Chef. He said he does not expect to have continuing employment relationships with any staff. 17 Mr Fletcher gave evidence of the applicant's employment. He specifically put that the applicant: a) was a casual employee and had ticked the casual employee box on her employment declaration for the Tax Office; b) had three distinct periods of employment. She left for personal reasons after the first and left to travel overseas after the second. Mr Fletcher said the applicant told him " I'm travelling through Thailand and I don't know how long I am going away for "; c) was working hours which varied greatly, e.g. 72.75 hours one week and 22 hours the next. Starting times were also variable; e) paid a casual award loading according to the award; f) was contacted for work at short notice; often only two days in advance. Rosters did not appear until December 2000; g) was not required to give notice of her unavailability to work. 18 In oral evidence, Mr Fletcher said only permanent employees were put on probation and this had never been applied to the applicant. 19 Ms Deborah Whitebread is EBL's Executive Chef. She deposed that she would advise the applicant of future work, either by phoning her a day, or even a week, before, or asking her while she was at work. The applicant would refuse work if she had another engagement. No rosters were posted in the kitchen until December 2000. Ms Whitebread was not available for cross examination and her affidavit was admitted into evidence on a conditional basis. The primary issue of conflict with the applicant's evidence was whether rosters had been posted before December 2000. In view of my later findings, it is unnecessary for the Commission to make a finding one way or the other. 20 Ms Leanne Wagner is a function co-ordinator employed by EBL since March 1997. She gave evidence that her sole purpose in writing the 18 April 2000 letter of recommendation was to assist the applicant in securing a loan for a vehicle. Ms Wagner deposed that the applicant told her she was leaving in June 2000 to " travel abroad indefinitely" . In oral evidence she said she could not recall the exact words used and she was " under the impression she was going indefinitely due to some personal problems ". Ms Wagner denied telling the applicant " it was alright " to take time off work. 21 Mr Peter Seabrook, Vice President of the Restaurant and Catering Association, provided a witness statement, which was admitted without Mr Seabrook being required for cross examination. Mr Seabrook described the nature and characteristics of the catering industry, in particular the staffing issues for caterers. He stated that caterers tend to have a small full time staff and rely on a pool of casuals to meet the requirements of their clients. He said that casual staff are often booked for a particular function and paid a minimum of four hours. Many casuals are on the books of a number of catering companies and can fill three assignments per day, each for a different company. SUBMISSIONS 22 Mr McCleary, for the applicant, readily acknowledged that the applicant was a casual employee, employed in an industry in which hours of work and starting and finishing times are variable. However, the matters of significance in Ms Larcombe's case were that she worked regular and systematic hours of work, her hours were known in advance, according to a published roster. The real test, he said, was that the applicant had a reasonable expectation of continuity of employment. He said there was no ability for the applicant to pick and choose her hours of work. Her breaks in employment were known and approved of by the employer. Mr McCleary relied on the tests to be found in Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385. 23 For the respondent, Mr Duc correctly, in my view, submitted that the test to be applied in this case is whether the applicant was engaged as a casual for a short period. See Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta, 103 IR 390. He said that Ryde-Eastwood identified two categories of casuals; the true casual and a casual with regular and systematic employment. He submitted that the applicant was a true casual. The nature of the catering industry is that casuals are employed from shift to shift with their employment being terminated at the end of each shift. The applicant considered herself a casual by ticking the casual box on the employment declaration and was paid a casual rate of pay. Her hours of work fluctuated widely, her starting and finishing times varied and there was no corroborative evidence of a roster published in advance. Mr Duc submitted that it was wrong to conclude that the applicant had an expectation of continuing employment. Her own evidence was to the contrary, when she said that she would work when work was available and took time off when business was quiet. CONSIDERATION 24 The relevant statutory provision for determining this matter is to be found in s83(2) of the Act: 83(2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt special classes of employees included in any of the following classes: a) employees engaged under a contract of employment for a specified period of time or a specific task, b) employees serving a period of probation or qualifying period, c) employees engaged on a casual basis for a short period , d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances, e) employees in relation to whom the operation of the provisions of this Part causes or would cause substantial problems because of: i) their particular conditions of employment, or ii) the size or nature of the undertakings in which they are employed. 25 The reference to the regulations in s83(2) is referrable to reg 5B(1) of the Act which for present purposes subpara (d) is pertinent: 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. 26 The proper construction of s83(2)(c), read in conjunction with reg 5B(1), has been recently and authoritatively determined by a Full Bench of the Commission in Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta. At para 26-28, the Full Bench observed: In our view, any regulation made to give effect to that statutory facility to exempt from coverage must be limited to casual employees engaged for "a short period". Put another way, any regulation made to exempt a casual employee must be restricted to that authorised by the statute, and within its terms, but not so as to extend the authorising provisions of the statute to exempt persons not included within its permitted limits: see Carbines v Powell (1925) 36 CLR 88 AT P 92 per Isaacs J and at p 95 per Higgins J where his Honour shortly stated that the offending regulation there "oversteps the Act". In that same case, Starke J commented that "the regulations they refer to must be regulations convenient for carrying out the purposes of the Act, that is, the transmission and receipt of wireless messages, and not the purpose of manufacturing plant" (36 CLR at p97). Applying that reasoning to the instant case, a purpose of the Industrial Relations Act is to enable a casual employee to bring a claim for unfair dismissals except where a regulation be made exempting a casual employee engaged "for a short period". Any extension or restrictive refinement of that fundamental purpose by a regulation would result, in our view, in the regulation being invalid. So viewed, cl 5B(1)(d) may properly be construed in a manner consistent with s 83(2)(c). The construction we place on the clause in terms of its plain meaning may be stated for the purposes of s 83(2)(c) of the Industrial Relations Act - Employees engaged on a casual basis for a short period may be exempted from Pt 6 of Ch 2 by the regulations: s83(2)(c). - Employees engaged on a casual basis for a short period, except if the casual employee meets certain specified conditions, are exempt from the unfair dismissals provisions: cl 5B(1)(d). - A casual employee otherwise so exempt by being engaged for a short period is nevertheless able to bring an unfair dismissal claim if two specified conditions in cl 5B(1)(d) are satisfied, namely: (i) the employee concerned is 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 (sub-para(i)), and (ii) would, if not dismissed, have had a reasonable expectation of continuing employment with that employer (sub-para(ii)). 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. Viewed in that way, we see no support for the proposition that the provision in the Regulation excludes a casual employee engaged for a short period unless the employee is saved by having had regular and systematic periods of employment during a period of at least 6 months (and even though such period may be "a short period") and had a reasonable expectation of continuing employment. In other words, the executive in making the Regulation has, as we think it is entitled to do, granted a limited exemption from the benefits of the statute in relation to casual employees engaged fro a short period. What the Regulation has not done, and what we do not think it could do, is to say that engagement on a casual basis for a period of less than 6 months is necessarily engagement for a short period. 27 In my opinion, this decision, which I am bound to follow, makes clear that two inquiries are necessary for determining whether a casual employee is exempted from the unfair dismissal provisions of the Act. 28 The first inquiry is to determine whether the employee had been engaged for "a short period". Clearly, there is no definition in the Act of what constitutes a short period, nor has it been held to be prescriptive. As was observed in Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta, such a finding will be "a mixed question of law and fact to be determined in all the circumstances of a case arising" (para 29). 29 If the Commission determines that the period of employment was not a "short period", the second inquiry need not be undertaken. Ipso facto, the applicant's claim will be within jurisdiction. However, if the finding is that the period of employment was a "short period", the application may still be within jurisdiction, provided the employee satisfies the tests found in sub paras (i) and (ii) of the Regulation. 30 It is plainly obvious from this discourse, that the fact an employee is a casual employee and is engaged and paid as such, will have little bearing on whether such an employee can make an application for relief under Pt 6 ch 2 of the Act. Put another way, a casual employee will not be automatically barred from bringing an unfair dismissal claim by the fact alone of his/her casual status. 31 In this matter, I have no doubt that the applicant was a casual employee. Conclusive to this finding is the following evidence: The applicant: 1) worked different days a week, with different start and finish times; 2) had three periods of employment, which disclose she worked 73 out of 109 days in the first period, 80 out of 132 days in the second and 111 out of 163 days in the third; 3) was not entitled to paid annual leave or sick leave, but received a casual loaded rate of pay; 4) ticked the casual box on her employment declaration for the tax office; 5) gave evidence that she would be rostered " when work was available" and not rostered " when business was quiet " (T.p8); 32 There was some disagreement as to whether the applicant was on probation. However, in view of the aforementioned criteria, nothing turns on this issue. 33 The Commission accepts the evidence of Mr Fletcher that his business, and the catering industry generally contains a mixed ratio of casuals and permanent employees. I also accept that the permanent employees are mostly management and executive chefs, with a large pool of casual employees required to meet the vagaries of the catering industry. 34 As earlier discussed, the finding that the employee was a casual employee simpliciter does not of itself dispose of the matter. The Commission must now examine the period of employment and make a finding as to whether it was for a "short period". 35 The respondent contended that the applicant had three periods of employment: 23 September 1999 to 9 January 2000 27 January 2000 to 6 June 2000 30 June 2000 to 8 December 2000 The second and third periods of employment were broken by periods of unpaid leave. 36 There was some evidentiary conflict as to whether the applicant told the employer she was leaving to go on a holiday and would be away indefinitely. In view of Ms Wagner's concession in oral evidence, that she was " under the impression " the applicant would be overseas indefinitely, I am satisfied that the applicant told no one she would be away indefinitely and would never have intended to be. It is more likely that Ms Wagner simply misunderstood the conversation with the applicant. In any event, little turns on this matter. 37 Whatever might be said as to the reasons for Ms Wagner's 18 April 2000 letter of recommendation, it seems plain enough that the respondent regarded the applicant's employment as continuous from 22 September 1999 to at least 18 April 2000. In my view this letter refutes the claim that the break in January 2000 resulted in two distinct employment periods. Presumably, Ms Wagner would not have provided such a letter if she did not have the authority to do so or, in the alternative, she had sought permission to do so. 38 Ms Wagner's letter refers to the applicant's salary as $45,000 per annum. Ordinarily, a casual's rate of pay would be described as an hourly rate. It is curious that the applicant's salary was so described and lends credence to the view that the applicant had been continuously employed for some time. 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. I am satisfied that I could comfortably make such a finding on this basis alone. However, I have also taken into account the particular circumstances of this case, most notably: 1) That the applicant's three periods of employment were only broken by periods of three weeks in each instance. 2) The applicant's employment was over the peaks and troughs of the business cycle for the catering industry. 3) The applicant was never required to be re-employed after each break. 4) There was only one employment declaration, dated September 1999. 5) The respondent expressly accepted that her employment was continuous (see Ms Wagner's letter of recommendation). 41 These circumstances confirm in my opinion, that the applicant's employment fell within the second class of casual employment discussed in Ryde-Eastwood Leagues Club Limited v Taylor which would not ordinarily be excluded from the Commission's unfair dismissal jurisdiction; that is, "where there is a continuing relationship which amounts to an ongoing or continuing contract of employment" (p401). 42 Having found the applicant was not prevented by virtue of s83(2)(c) of the Act, from making an unfair dismissal claim, it is unnecessary for the Commission to undertake the second inquiry under the Regulation. I therefore make no findings under reg 5(B)(1). 43 The application is competently before the Commission and further conciliation proceedings are listed for 10.00am on Friday, 20 July 2001. Peter Sams 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.