Feb 2nd, 2018
by Jim Wilson January 24, 2018
The Fair Work Commission has held that a former worker’s status as a casual employee is not, in itself, a bar to that worker bringing an unfair dismissal case.
Labour hire and recruitment business, Goldfields People Hire, unsuccessfully sought to have an unfair dismissal application knocked out at an early stage on jurisdictional grounds. The case was brought by one of its former casual employees.
Background
The company registered Robert Smith as a casual truck driver in mid-to-late 2016 and gave him a “registration pack”, which contained various documents that he filled in and signed. Goldfields then assigned Mr Smith to drive trucks at Bis Industries in Western Australia for approximately 11 months from November 2016 to September 2017.
He worked a clear pattern of rostered hours, taking extra shifts as they became available. Early in the assignment he hauled slurry, and then, later, he hauled copper concentrate.
There were no concerns about his performance or competence and there was no indication that a change in requirements by the client would end his employment. However, Goldfields terminated his employment on 7 September 2017.
Mr Smith subsequently made an unfair dismissal application to the Fair Work Commission.
Jurisdictional objections
Goldfields made three arguments against the unfair dismissal application.
Firstly, it objected to the application on the basis that, as a casual employee, Mr Smith had no reasonable expectation of continuing employment.
Section 384(2)(a) of the Fair Work Act states that an employee’s period of employment is “the period of continuous service that the employee has completed with the employer”. However, casual service does not count as part of the period of employment unless the employee had “a reasonable expectation of continuing employment on a regular and systematic basis”.
In the alternative, the company secondly argued that Mr Smith, as a casual employee on assignment, was employed for separate tasks that were, in each case, shorter than the minimum period of employment. Section 386(2)(a) of the Fair Work Act makes clear that a person is not dismissed if he or she was employed for a specific task which terminates on the completion of that task.
In its final alternative argument, the company argued that Mr Smith was employed for a specific task that had ended and, therefore, there was no termination of employment.
A reasonable expectation of continuing employment?
When Mr Smith started work with Goldfields he signed a declaration that he understood the conditions of working for a labour hire company and, specifically, that he understood and accepted that “with any assignment, there can be no expectation of permanent employment.”
The Fair Work Commission held that, although he knew and accepted his status as a casual, that did not, of itself, mean that he could never hold an expectation of continuing employment. The Commission also drew a distinction between “permanent” employment and “continuing” employment. It noted that, just because Mr Smith was on assignment, it did not mean that he could never have expected his employment to continue.
The Commission then considered that, as Mr Smith was employed on a regular and systematic basis and there was no evidence to suggest that his period of employment was unlikely to continue, it was reasonable for him to expect to be in continuing employment.
Was Mr Smith employed for a specific task?
Goldfields argued that Mr Smith was engaged on specific discrete tasks – firstly, hauling slurry, then, later, hauling copper concentrate. The labour-hire company pointed to various phrases and sentences in the registration pack that made clear that Mr Smith would be working on assignment.
The Commission observed that, for there to be a finding that the contract was for a specific task, then there would need to be certainty about the task and when it would end. However, the registration pack did not provide any detail at all about the tasks to which he was to be assigned. There was no evidence that his employment was to be in any way limited.
Furthermore, the Commission noted, after Mr Smith was re-assigned from the slurry run to the copper concentrate run, the slurry run continued to take place. That fact “tells against a finding that… his contract was for a specific task.”
The Commission held that Mr Smith was not under a contract of employment for a specific task.
Did the contract simply end?
Goldfields’ final objection was that the contract had simply ended. However, as the Commission had found that Mr Smith was not employed for a specific task, it followed that the contract could not simply end.
The Commission therefore dismissed Goldfield's jurisdictional objections to Mr Smith’s unfair dismissal application.
Judgment
Robert Smith v Goldfields People Hire Pty Ltd
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