3
[Extract from Queensland Government Industrial Gazette,
dated 2 June, 2006, Vol. 182, No .5, pages 161-163]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 - s. 74 - application for reinstatement
George Pouesi AND The Trustee for the Salvation Army (NSW) Property Trust (TD/2005/266)
COMMISSIONER FISHER / 18 May 2006Application for reinstatement - Respondent raises jurisdictional argument - Industrial Relations Act 1999 s. 73 -Respondent maintains applicant was a short term casual and thus excluded from unfair dismissal provisions - Evidence - Short term casual definitions s. 72(8) - Respondent concedes applicants employment was regular and systematic - Case law - Applicants employment found to be regular and systematic and had reasonable expectation of further work - Termination occurred after nominal expiry date of employment contract - Jurisdictional argument dismissed - Application referred to call over.
DECISION
George Pouesi has made an application for reinstatement to his former position of Driver/Storeperson with the Trustee for the Salvation Army (NSW) Property Trust. Mr Pouesi worked at the Salvos Store in Southport. The respondent has raised a jurisdictional argument that Mr Pouesi was a short term casual employee and hence excluded from the unfair dismissal provisions of the Industrial Relations Act 1999.
Mr Pouesi commenced employment on 8 March 2005 and was dismissed on 15 September 2005. His letter of employment, dated 8 March 2005, provides the following relevant information:
(1) the offer of employment was as a casual employee in the position of Casual Driver/Storeperson commencing 8 March 2005;
(2) casual work would be available until approximately 8 September 2005;
(3) Mr Pouesi would be notified of the times and dates that he would be required;
(4) that Mr Pouesi was employed by the hour and the hourly base rate of pay was specified;
(5) a 23% casual loading would be paid in addition to the base hourly rate;
(6) Mr Pouesi was not entitled to payment for public holidays not worked nor for payment for paid leave of any type other than long service leave (should an entitlement exist);
(7) that his conditions of employment as a casual could be found, amongst other places, in the Transport, Distribution and Courier Industry Award - Southern Division 2003; and
(8) depending on his level of income as a casual, superannuation contributions would be made.
The letter of appointment makes it abundantly clear that Mr Pouesi's employment was to be as a casual employee.
All of the terms and conditions above confirm that this was the intention of the employer. Mr Pouesi accepted these terms and conditions of employment as indicated by his signature on the letter and (belatedly) on 13 June 2005.
Section 72 of the Act sets out to whom Chapter 3 - Dismissal does not apply. At s. 72(1)(c) the Act provides that s.73(1) does not apply to a short term casual employee, unless the reason for dismissal is an invalid reason. (Section 73(1) sets out when a dismissal is unfair.). Section 72(8) provides that:
"(8) In this section -
short term casual employee means a casual employee, other than a casual employee who -
(a) is engaged -
(i) by a particular employer on a regular and systematic basis; and
(ii) for several periods of employment during a period of at least 1 year; and
(b) apart from the employer's decision not to offer the person further employment, had a reasonable expectation of further employment by the employer.".
In raising the jurisdictional issue, the respondent contends that Mr Pouesi was a short term casual employee as meant by s. 72(8) on the basis that:
(i) he was not engaged for several periods of employment during a period of at least one year; and;
(ii) he did not have a reasonable expectation of further employment by the employer.".
Mr Huckel, who appeared for the respondent, conceded that Mr Pouesi's employment was regular and systematic. He acknowledged that Mr Pouesi worked the same hours and same days each week. However, Mr Huckel contended that the three elements of s. 72(8) were cumulative.
In his evidence and submissions Mr Pouesi relied on the provision relating to having a reasonable expectation of further employment by the employer. In particular Mr Pouesi said:
(i) he had asked his Manager Mr Griffin, about taking leave in November to return to New Zealand. Mr Griffin apparently gave verbal approval but also advised him to make a formal application. Mr Pouesi said Mr Griffin led him to understand that his position would be available to return to after that leave.
(ii) he had signed a "work contract" in about July or September 2005 which he believed provided him with further work past 8 September 2005.
In relation to the latter submission Mr Huckel was given the opportunity to contact the Gold Coast office to ascertain the nature of the "work contract". Mr Huckel informed the Commission that no such document could be located on Mr Pouesi's file. Further, in answer to questions from the Commission, Mr Pouesi could not recall the content of the document, particularly whether such matters as hours of work and rates of pay were included.
Mr Pouesi also called evidence from Terrey Stein, another former employee of the Salvos Store. Mr Stein said that Mr Griffin told him that another employee would not be getting "George's job". Both Mr Stein and Mr Pouesi contended this remark indicated that Mr Pouesi's job was still available after his dismissal and this supported the contention that ongoing employment was reasonably expected to be offered.
Mr Huckel was given the opportunity to call Mr Griffin in light of the evidence given by Mr Pouesi and Mr Stein. (Witness statements for the applicant were only produced on the morning of the hearing). Mr Huckel declined to call him.
Conclusion
In Australian Aquaculture Pty Ltd v George Banks (2004) 176 QGIG 67 Hall P considered the meaning of s. 72(8) of the Act. In his Decision the President referred to the Decision of the Australian Industrial Relations Commission (AIRC) in AMACSU v Auscript (1998) 83 IR 38. There, at 58, the AIRC accepted the view of the New South Wales Industrial Commission that there "exists two classes of employer colloquially described as "casual" in industrial relations. The first class is characterised by the "informality, uncertainty and irregularity" of the engagement" (Reed v Blue Line Cruises Ltd (1996) 73 IR 420, a Decision of Moore J). The second class was described as one where the casual employee works a regular pattern of hours with an ongoing relationship.
In Australian Aquaculture Pty Ltd v George Banks, after noting that the Industrial Court of Queensland had adopted such an approach, Hall P then set out the process of determining whether an employee is a casual. He said:
"The first step is to identify the nature of the engagement at its inception... . If ... the engagement is found to be a casual in the sense developed by Moore J, one has to go to the time of termination and enquire whether, whatever the original terms, in its performance the engagement had displayed the characteristics of an ongoing relationship, see Reed v Blue Line Cruises Limited at 426.
The purpose of the second enquiry is to catch the case in which the informality, uncertainty and irregularity of casual employment has not been, as a matter fact (sic), a feature of the employment because of the conduct of the parties. (That is to say, people who were engaged as casuals will be removed from the exclusion where '- the employees work pattern (turns) out to be regular and systematic.' Hanzy v Tricon International t/as KFC (2001) 111 IR 207 (Full Court of Federal Court of Australia).".
The evidence before the Commission is that Mr Pouesi worked a regular number of hours on the same days of each week. No roster was posted and Mr Pouesi did not have to enquire nor was he otherwise told what his hours and days of work would be. Moreover, the respondent conceded that Mr Pouesi's employment could be characterised as regular and systematic.
According to the Decision of Hall P, people who were engaged as casuals will be removed from the exclusion where their work pattern terms out to be regular and systematic. In light of that decision, Mr Pouesi cannot be found to be a short term casual employee as defined by s. 72(8) of the Act. Further, the Commission notes that Mr Pouesi had a reasonable expectation of further work. This was shown by his unchallenged evidence and also by the fact that his termination occurred after the nominal expiry date of his employment contract. This too may take him outside the exclusion found in s. 72(8) of the Act.
The parties will be contacted to arrange suitable hearing dates.
Order accordingly.
G.K. FISHER, Commissioner.
Hearing Details:2006 4 May
Released: 18 May 2006 / Appearances:
Mr G. Pouesi acting on his own behalf.
Mr W. Huckel on behalf of the respondent.
Government Printer, Queensland
ÓThe State of Queensland 2006.