DOUBT ABOUT STATUS OF CASUAL EMPLOYMENT

A recent decision of the Federal Circuit Court has cast doubt on whether casual employment is in fact that: Skene v WorkPac Pty Ltd [2016] FCCA 3035.

Mr Skene was employed as a dump truck operator by WorkPac, a labour hire company, which supplies workers to mines. His contract of employment with WorkPac designated him as a casual employee and he was paid a fixed hourly rate.

During his employment with WorkPac he had two placements at mines in Queensland. The second mine operator removed him from the mine and he did no further work for WorkPac.

After his employment terminated Mr Skene issued proceedings against WorkPac seeking payment of accrued annual leave, other consequential entitlements and pecuniary penalties.

Judge Jarrett found that, according to his contract of employment with WorkPac, Mr Skene was a casual employee. This, however, did not mean that Mr Skene could not be entitled to annual leave and other entitlements. Although section 86 of the Fair Work Act states that provisions relating to annual leave apply other than to casual employees Mr Skene needed only to establish that his employment was something other than casual to receive entitlements associated with permanent employment.

Judge Jarrett identified six factors that weighed in favour of Mr Skene’s employment being other than casual:

1. It was regular and predictable under 7 days on and 7 days off rosters set 12 months in advance;
2. Apart from one short period arranged with the second mine owner, was continuous;
3. It was facilitated by travel and accommodation provided at no cost to him;
4. The FIFO arrangement was inconsistent with the notion that Mr Skene could elect the days on which he worked without making the necessary arrangements with the mine owner;
5. There was an expectation arising under the contract of employment between him and WorkPac that he would be available according to the roster provided to him until the assignment was complete; and
6. The hours of work were regular and certain as demonstrated by his pay slips.
   As against that Judge Jarrett found three factors that weighed in favour of Mr Skene being a casual employee:
7. He was paid by the hour and had to submit weekly time sheets;
8. His employment was terminable on one hour’s notice; and
9. WorkPac designated his employment as casual and Mr Skene was aware of and accepted that.
   Ultimately, Judge Jarrett found that the essence of casual employment, which is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work, was missing in the employment relationship between Mr Skene and WorkPac.
   As the employment was something other than casual, Mr Skene became entitled to annual leave, which is not a benefit of casual employment.
   Although the decision could be said to be limited to its particular circumstances, it might be seen as applying in circumstances where employer and employee believe that casual employment applies but in reality given the certainty of hours and absence of choice as to when an employee works, the employment relationship is in fact other than casual.

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Redundant one day and offered alternate employment the next equals no redundancy pay

DRW Investments Pty Ltd v Richards [2016] FWC 461 is a decision in which a large transport company having lost a major hauling contract found work for affected drivers with the new contractor.


The affected drivers argued that they had been made redundant by their old employer entitling them to redundancy payments but the old employer disagreed.


Commissioner Sams found that the drivers had resigned from their old employer to take up work with the new employer. As a result their employment had not been terminated at the initiative of the old employer so as to bring into operation section 119 of the Fair Work Act.


Commissioner Sams also commented that redundancy pay was for a specific beneficial purpose and not meant as a windfall where employees, whilst being made redundant one day are offered and accept suitable alternative employment the next day.

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Pitfalls of lack of process

Earlier this year, two cases heard in the Fair Work Commission demonstrated what can occur when proper process is not followed relating to termination of employment

 

In Lyberopoulos v Reidwell Investments BT Pty Ltd T/A Coco Cubano Blacktown [2015] FWC 4256, the employee was employed for less than seven months before she was summarily dismissed.  

 

The employer claimed she failed to comply with their procedures and did not follow directions. The parties contested the facts of the case and Senior Deputy President Drake had to determine whom to believe. She accepted the employee’s evidence over the employer’s because the employer did not seem to be a credible or reliable witness.

 

The Commission found that the employee was not appropriately warned that her actions may lead to the termination of her employment and the reasons for her dismissal were therefore harsh, unjust and unreasonable.

 

As the employee was unable to obtain alternative employment until 24 weeks and three days following the termination of her employment, Deputy Senior President Drake ordered that the employer pay compensation to the value of 24 weeks and three days’ worth of the employee’s salary, being $36,267.

 

In Balatti v Aussie Supplements Pty Ltd [2015] FWC 4674 the employee had been working as a sales manager for three years when he received a telephone call from his employer alleging he was being investigated for the sale of illegal drugs whilst at work. The employee was advised he would be dismissed from his employment and, several days later, received a letter confirming his immediate dismissal. The employer then failed to pay the employee’s accrued statutory entitlements upon termination, such as annual leave, and failed to participate in a conciliation conference and hearing before the Fair Work Commission. Commissioner Cambridge found the dismissal harsh, unjust and unreasonable because the employer advised the employee of his termination by telephone and the letter of dismissal did not provide any reasons for the dismissal. As a consequence, the employer was ordered to pay $17,880.

 

Under section 117 of the Fair Work Act 2009 an employer is obliged to provide notice of termination in writing.  But as the decision in Clark v Framlingham Aboriginal Trust [2012] FWA 7103 shows, the failure to provide written notice does not make a termination ineffective if the employee has been notified (by whatever means) that his employment has been terminated.

 

Melita Demirova

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Stress, shock and miscalculation all insufficient grounds for extension of time at the Fair Work Commission

The Full Bench of the Fair Work Commission has upheld a decision by Commissioner Gregory preventing an employee with a general protections claim against his former employer from filing his application one day late.

Section 366 of the Fair Work Act requires an employee to file a general protections application at the Commission within 21 days after the dismissal took effect.  This also applies to applications for unfair dismissal remedy (see section 394).

The term “dismissal taking effect” can be difficult to interpret and calculate from - especially when employers provide a notice period, or payments in lieu. 

The Act allows the Commission to grant a dismissed employee an extension of time to file an application if satisfied that “exceptional circumstances” exist, taking account of:
-   the reason for the delay,
-   when the employee first became aware of the dismissal,
-   if the dismissal was disputed,
-   any prejudice to the employer caused by the delay,
-   the merits of the application; and
-   fairness between the employee and others in their situation
   (see sections 366(2) and 394(3)).

Exceptional circumstances are explained as circumstances that are “out of the ordinary course, or unusual, or special, or uncommon.” (Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1)

In Hart [2014] FWCFB 3270, Mr Hart was dismissed from his employment as a Sales Manager on 16 January 2014.  He filed a general protections application on 7 February 2014, one day after the expiration of the 21 day period.

In the extension of time application before Commissioner Gregory, Mr Hart gave evidence that he was on annual leave at the time of the dismissal, was in a state of shock and extreme stress and had miscalculated the 21 day period.

However, Mr Hart also admitted that shortly after the dismissal he had made enquiries with the Commission regarding avenues of redress, had been “considering his options” and that in fact “nothing” had prevented him from filing his application.

Commissioner Gregory expressed sympathy for Mr Hart but dismissed his application for an extension of time, ultimately because a stressed employee considering his options and miscalculating the time period was not exceptional, but “circumstances routinely encountered by the Commission” at [16].

Mr Hart appealed to the Full Bench of the Commission, which upheld Commissioner Gregory’s decision.

This is another example of the Commission strictly enforcing the time limits prescribed by the Act. 

Lessons to be learnt:

-  calculate the time period including the day of the dismissal;
-  filing a simple application is better than missing the deadline - you can always seek leave to     amend later;
- applications for extension of time require exceptional circumstances; and
-  circumstances that are stressful and unhappy for a dismissed employee are not necessarily exceptional.


Emma Pollett-Sutton
Lawyer

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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Fair Work Commission upholds termination based on medium to high levels of cannabis use

A Woolworths subsidiary, Woolstar, regularly conducts on-site drug and alcohol testing of its employees. 

It terminated the employment of a storeperson based solely on his testing positive for medium to high levels of cannabis.  Woolstar. 

The Fair Work Commission (FWC) held in its decision of 18 February 2014 that this factor alone represented "serious misconduct" that would justify dismissal. 

Notably, however, the Commissioner stated in his decision that "a lower concentration [of cannabis] . . . might attract some lesser disciplinary penalty and a remedial treatment program." 

The Commissioner also rejected the employee's argument that on-site drug testing is unlawful because there is no accredited testing regime in Australia, stating that "this proposition would translate into a circumstance that would render all workplace drug testing currently being conducted in Australia as void or invalid."

What are the ‘takeaways’ from this decision for employers?

1.         It is permissible for employers to conduct on-site drug and alcohol testing

2.         The employee's having medium to high levels of cannabis can constitute serious misconduct justifying summary dismissal

3.          Lower levels of cannabis may not constitute serious misconduct

4.          If you conduct on-site drug testing of your employees, it is important to have a clear policy in this regard, including the types of discipline that may imposed if employees test positive for various types of drugs.

Full decision of McCarthy v Woolstar


Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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