Was there an expectation of ongoing employment?

Cases

Was there an expectation of ongoing employment?

A casual conveyancing officer can pursue an unfair dismissal claim after a tribunal ruled her work had 'evolved' into an expectation of continuing employment.

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A casual conveyancing officer can pursue an unfair dismissal claim after a tribunal ruled her work had 'evolved' into an expectation of continuing employment.

Background


Patrice Tait signed a ‘Temporary Employee Agreement’ with Spinifex on 21 February 2017.

On 6 March 2017 Spinifex sent an email to Ms Tait confirming that she would be starting an assignment with the Department of Justice (DOJ) as a conveyancing officer. The email stated that the assignment would go until 30 June 2017 and that the role was for 35 hours per week (Mon-Fri) with half an hour lunch break.

Ms Tait continued to work for the DOJ after 30 June 2017. On 18 July she received an email from Spinifex advising her that her assignment had been extended until 30 September 2017.

After 30 September there was some indication the assignment would not have an end date and it extended for a second time in October 2017.

Ms Tait's employment was terminated on 26 October 2017, first by a voicemail message left on her mobile and then by an email.

Spinifex objected to her unfair dismissal application on the ground she had not completed the minimum period of employment.

The Law


Under section 382 of the Fair Work Act 2009 a person is protected from unfair dismissal if they have completed a minimum period of employment. The minimum period of employment is six months for an employer that is not a small business.

Arguments


Ms Tait argued that there was an expectation of ongoing employment beyond October and that she had completed six months of continuous service with the DOJ.

Spinifex argued that she had not completed the minimum employment period.

Legal question


The commission had to determine whether the applicant had worked for the DOJ for six months and whether she had a reasonable expectation of continuing employment on a regular and systematic basis.

Decision


The commission found that despite Ms Tait being a casual employee she was employed on a regular and consistent basis, working 35 hours a week (Mon-Fri) with half an hour break.

Senior deputy president Hamberger stated: “I am also satisfied that the applicant had worked for six months. She started work on 7 March 2017 and worked to 26 October 2017. That is a period of seven months and 19 days. From this must be subtracted 16 days of unpaid leave… which still leaves a period in excess of six months”.

The commission then considered whether there was an expectation of continuing employment. It found the ‘Temporary Employee Agreement’ tended to support the proposition that the work was not continuing, however it had to consider “how the employment evolved in practice”.

Senior DP Hamberger said the assignment end dates came and went and Ms Tait continued to work as normal. He said there wasn’t “anything about the work itself that suggested the applicant’s employment would do anything other than continue indefinitely”.

The commission held that Ms Tait had a reasonable expectation that the work would continue on a regular and systematic basis.

She was therefore allowed to bring her action for unfair dismissal against Spinifex.

Patrice Tait v Spinifex Australia Pty Ltd T/A Spinifex Recruiting [2018] FWC 1363 (13 March 2018)
 
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