UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00692

DELIVERED : WEDNESDAY, 28 SEPTEMBER 2022

FILE NO. : U 64 OF 2022

Applicant

AND

South Metropolitan Health Service

Respondent

CatchWords : Industrial Law (WA) – Unfair dismissal application – Whether the Commission has jurisdiction – Dismissal as a requirement for jurisdiction – Casual employment – No firm advance commitment – Whether cancellation of future shifts is termination at initiative of employer – Employment not of indefinite duration with definite or regular hours fixed in advance – Working under separate and distinct contacts of employment

Legislation : Industrial Relations Act 1979 (WA)

Fair Work Act 2009 (Cth)

Result : Application dismissed

Representation:

Applicant : Mr S Balagopalan on his own behalf

Respondent : Mr M Aulfrey

Case(s) referred to in reasons:

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

Hamzy v Tricon International Restaurants [2001] FCA 1589; 115 FCR 78

Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 175 IR 455

Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

Reed v Blue Line Cruisers Ltd (1996) 73 IR 420

Royall v Aussie Kids Pty Ltd [2022] FWC 2301

WorkPac Pty Ltd v Rossato [2021] HCA 23; 95 ALJR 681

Reasons for Decision

1         Mr Satish Balagopalan referred to the Commission a claim that he had been harshly, oppressively or unfairly dismissed from his employment. The respondent, South Metropolitan Health Service (SMHS), objected to the referral on the grounds that Mr Balagopalan was not dismissed.

2         SMHS says that there wasn’t a dismissal for the purpose of s 29 of the Industrial Relations Act 1979 (WA) (IR Act) Act because Mr Balagopalan was a casual employee. SMHS alleges that Mr Balagopalan was employed shift by shift and no employment relationship existed in between any two shifts he worked. It says the end of any one agreement ended the employment without there being a dismissal.

3         Mr Balagopalan’s claim was programmed for a hearing to determine the jurisdictional issue of whether he was dismissed.

4         Mr Balagopalan was self‑represented in the hearing. He gave evidence and was cross‑examined. SMHS called Mr Balagopalan’s line manager, Ms Genaveve Palmer to give evidence.

5         The witnesses agreed that Mr Balagopalan was not expressly told he was being dismissed from his employment. Indeed, both witnesses said that, at a key meeting of 16 February 2022, Mr Balagopalan was told that he could continue to work shifts but in a different area of the hospital. Nevertheless, both witnesses ultimately came to understand that the employment had ended.

6         The Commission is required to decide whether there was a ‘dismissal’ as that word means when it is used in the IR Act. That is, whether the employment was terminated at the initiative of the employer. There are features of casual employment that complicate the question of whether there has been a ‘dismissal’.

7         Ultimately in this case, for the reasons that follow, I have concluded that there was not a ‘dismissal’. The way that Mr Balagopalan was treated by SMHS may have seemed unfair to him. I am not required to make any findings about SMHS’s conduct towards Mr Balagopalan in a general sense. Because there is no dismissal, Mr Balagopalan cannot seek a remedy for such treatment under s 29(1) of the IR Act.

Mr Balagopalan’s employment

8         The facts relevant to Mr Balagopalan’s engagement and the end of his employment with SMHS are largely uncontentious.

9         SMHS made Mr Balagopalan a written offer of employment dated 28 November 2021. The offer was headed ‘Offer to Pool – Casual’ and relevantly provided as follows:

Dear [S]atish,

This contract is to confirm your offer of employment with the South Metropolitan Health Service. The contract provides for you to be employed as a casual employee.

1. Position

The duties of position number 00115685 ‑ food Service Attendant are as outlined in the Job Description Form provided to you at the time of application for casual employment. During any period of casual work you will be paid at the rate of salary relevant to the classification of Level 2 Increment 1.

You will initially be placed in Fiona Stanley Hospital.

The position is located at Murdoch.

2 Terms and conditions of employment

Possible placements can commence on or after 22‑Nov 2021.

The current hourly rate is $34.26 with a loading of 25%. You will, however, always be paid at the rate of salary applicable at the time of any and each casual arrangement.

Any employment periods are governed by, but not limited to:

WA Health System ‑ United Workers Union (WA) Hospital Support Workers Agreement 2020

…

10      At the bottom of the offer of employment, the following words appear:

By signing this form you acknowledge that you may be offered an opportunity to work on a casual basis from time to time only and that there is no obligation on either party to enter into any further employment arrangement.

11      Mr Balagopalan accepted the offer.

12      Mr Balagopalan described the manner in which he would then work shifts for SMHS. He said that the hospital advertised all shift work available on an app known as ‘ShiftMatch’. According to Mr Balagopalan, the main way casual pool employees could pick up work was to select and accept shifts shown on the ShiftMatch app. However, there were also occasions when he received automatically generated messages from ShiftMatch, advertising the availability of shifts that had not been filled. He also recalled an occasion when he received a telephone call from someone in administration, who left a message requesting he fill a shift. He did not return the call.

13      Using the ShiftMatch app, Mr Balagopalan was able to select individual shifts for several weeks. There was some dispute as to whether shifts were made available up to four weeks in advance or up to two months in advance. Nothing turns on this point.

14      Mr Balagopalan completed three weeks of training, during which he worked regular hours, Monday to Friday. At the completion of those three weeks, he picked up shifts on various days, commencing at times between 5.00 am, and 7.30 am. The length of the shifts also varied, being between 4.75 hours and 8 hours. Over the eight‑week period, he worked three, four, five and six shifts per week (Exhibit R2). He said that:

…I was only picking up morning shifts, and whichever shifts was suitable in the mornings for me, I picked it up.

…

…it was my right which shift I want, you know what I mean, to ‑ to pick up from what, ah, was available. And the ‑ the timing suited me better with regard to the wards, because they finish earlier, around about 11 o’clock, you know?...

15      Accordingly, the total number of hours he worked each fortnight varied, although he consistently elected to work on morning ward shifts. That is because he was working afternoons at another hospital.

16      In cross‑examination, Mr Balagopalan agreed that he had the ability to cancel shifts he had accepted in ShiftMatch, by calling a given telephone number. He rarely did so:

I’m a casual employee there for ‑ picking up shifts from…this role, so if a shift does not,…if I cannot do that shift for any particular reason,…we would get told that you need to ring that number and inform that number that you cannot do that shift.

17      On 16 February 2022, Mr Balagopalan’s manager, Ms Palmer, called him into a meeting to discuss a number of conduct and performance issues. Mr Balagopalan said he was invited to come down for a chat about how he was going, but when he attended the meeting, he was instead ‘attacked’. However the meeting is characterised, it is not in dispute that several allegations were put to Mr Balagopalan concerning his performance or conduct, including a complaint that he was in breach of a direction given by a nurse manager to remove one of two face masks he had been wearing.

18      Mr Balagopalan strenuously denied the allegations and denied that there was any basis to sustain concerns about his performance or conduct.

19      Ms Palmer told Mr Balagopalan that he would not be able to pick up any more shifts on the wards due to the complaints and that future shifts on the wards would be ‘deactivated’ in ShiftMatch.

20      Ms Palmer and Mr Balagopalan both recalled that Ms Palmer offered for Mr Balagopalan to work kitchen shifts. Mr Balagopalan was unable to do those shifts, as they were evening shifts. Mr Balagopalan also recalled being told and understood that an investigation into the complaints would be conducted and that he could return to the wards if the investigation cleared him. Ms Palmer denied telling Mr Balagopalan he could return to the wards in any circumstances but agreed that she said the matter would be addressed with Human Resources.

21      On this point, I prefer Mr Balagopalan’s evidence as being more plausible. If Ms Palmer was aware of complaints but was yet to involve Human Resources in their investigation or resolution, there was no reasonable basis for her to permanently exclude Mr Balagopalan from the ward shifts. That there might have been a future return to wards is also consistent with Ms Palmer telling Mr Balagopalan that there was no obstacle to him working the kitchen shifts. It is also consistent with the evidence she gave when recalled, to the effect that she only completed a T1 Termination/Cessation Form on 16 February 2022 (and submitted it on 23 February 2022) to ‘postpone’ Mr Balagopalan’s employment pending an investigation:

…[I]t wasn’t to terminate, it was just to postpone Mr, ah, Balagopalan. We were having complaints from, ah, multiple staff that he was contacting them. Um, I just wanted to make sure my staff and my patients were kept safe until we processed through ‑ through this complaint.

22      Had Ms Palmer not intended to preclude the possibility of a future return to wards, one would have expected the discussion to then deal with the logistics and courtesies that usually occur when employment ceases. Neither witness suggested the discussion on 16 February 2022 involved any form of recognition that this might be the last interaction Mr Balagopalan would have with his line manager, in that capacity. Indeed, Ms Palmer denied that she intended, by completing the T1 Termination/Cessation Form, to stop Mr Balagopalan’s access to the hospital.

23      Ms Palmer directed Mr Balagopalan not to contact anyone at the hospital about the matter. By means not explained in the hearing, his carpark access was revoked, and he was directed not to attend the hospital.

24      The following day, Mr Balagopalan discovered that his future confirmed shifts had been deleted, and he no longer had access to any advertised shifts on ShiftMatch. Ms Palmer speculated that the reason Mr Balagopalan could not ‘see’ any shifts, even kitchen shifts, on ShiftMatch was because he had entered unavailability for those shifts. Mr Balagopalan’s evidence was that he had not filtered shifts for his own availability at all. It is more likely that Mr Balagopalan was entirely deactivated on ShiftMatch, rather than being deactivated only for the ward shifts.

25      Mr Balagopalan did not work again after 16 February 2022.

26      Sometime later, Mr Balagopalan received an email from SMHS’s Human Resources department advising him that ‘…you are currently no longer active in our system as a current employee at Fiona Stanley Hospital. If you wish to obtain casual employment with us again, I would reach out to your previous line manager’. It is unclear when this email was sent to Mr Balagopalan.

27      Mr Balagopalan then came into possession of a form, completed by Ms Palmer on 23 February 2022, recording the ‘Termination/Cessation’ of his employment. The T1 Form indicated that the employment ceased on 16 February 2022, with the reason given ‘Resignation ‑ Health Worker Directive’.

28      When recalled to give evidence about the T1 Termination/Cessation Form, Ms Palmer said that she did not intend, by submitting it, to represent that Mr Balagopalan had resigned. She said that the text was the most suitable option of eight auto‑filled drop‑down options to describe the situation and that she consciously elected not to select the option for ‘termination of a casual contract’.

29      As previously indicated, Ms Palmer suggested that she completed this form to protect her staff and patients because there had been complaints about Mr Balagopalan contacting people at the hospital after her direction that he not do so. She did not adequately explain how the completion of this form on 16 February 2022 and its submission on 23 February 2022 achieved that purpose. Her evidence in this regard is unconvincing. I consider Ms Palmer revealed her true subjective understanding of the upshot of the relevant events when she said in her evidence ‘…he was, ah, let go early February’.

Casual employment under the Industrial Agreement

30      The WA Health System ‑ United Workers Union (WA) – Hospital Support Workers Industrial Agreement 2020 (Industrial Agreement) applied to Mr Balagopalan’s employment with SMHS. It comprehensively deals with various aspects of casual employment.

31      A casual employee is defined at cl 3 of the Industrial Agreement as follows:

…means an employee engaged for a period of less than 1 week.

32      Clause 11 ‘Contract of Service’ of the Industrial Agreement contains the following provisions:

11.1 Modes of Employment

(a) The Employer can employ on a:

(i) regular and continuing permanent full time or part time basis; or

(ii) fixed term full time or part time basis; or

(iii) casual basis.

…

11.5 Casual Employment

(a) A casual employee will be paid a 22% casual loading on the ordinary rate of pay on and from the date of registration, which will increase to 25% on and from 4 August 2021.

(b) For the purposes of calculating the correct payment, hours worked on any day stand alone.

(c) 

(i) The Employer will not re‑engage a casual employee unless at least 10 hours has elapsed between the end of one period of engagement and the commencement of a following period of engagement.

(ii) The Employer will not engage a casual employee to work more than 12 hours on any day.

…

(e) A casual contract of employment is terminable by the giving of 1 hour’s notice by either party to the other or by the payment or forfeiture as the case may be of 1 hour’s wage.

(f) The minimum period of employment of a casual employee will be 3 hours on each engagement.

…

11.6 Probation

(a) Subject to subclause 11.6(b), every new employee, other than a casual employee, but including employees engaged for a fixed term, will be on probation for a period of 3 months.

…

33      SMHS also drew the Commission’s attention to cl 11B of the Industrial Agreement headed ‘Review of Fixed Term and Casual Employment’. It relevantly provides:

…

11B.6 An Employer may only engage a person as a casual employee in the following circumstances:

(a) if the hours and patterns of work are not regular and systematic;

(b) hourly, for a period of up to one week in each engagement; or

(c) in any other situation agreed between the Employer and the Union.

…

Dismissal as a requirement for jurisdiction

34      The Commission has jurisdiction to entertain Mr Balagopalan’s application only if he has been dismissed.

35      The terms ‘dismissed’ and ‘dismissal’ are not defined in the IR Act but it is well established that the formulation set out in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 applies. ‘Dismissal’ means a termination of employment at the initiative of the employer.

36      In Mohazab, the Court said at 205‑206:

…Consistent with the ordinary meaning of the expression in the convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principle contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression termination of employment; Saigen v Sanel [1994] IRCA 2; (1994) 122 ALR 333 at 351; [1994] IRCA 2; (1994) 1 IRCR 1 at 19. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process.

…

…[I]t is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment, and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship…

37      There is no dismissal at the employer’s initiative if the employment relationship ends by the effluxion of time.

Parties’ submissions

38      Mr Balagopalan submits that his employment was ongoing. His case is that he had a reasonable expectation of continuing employment by virtue of the following facts:

(a) his employment contract was expressed to be for a casual pool;

(b) there was no end date specified in the employment contract;

(c) he undertook three weeks of training for the position;

(d) he was provided with identification and security tags for Fiona Stanley Hospital and a locker at Fiona Stanley Hospital in which to keep his belongings;

(e) he was provided with a uniform for the position;

(f) the ShiftMatch app enabled him to accept shifts on an ongoing basis and for several weeks into the future;

(g) he was required to undertake mandatory medical tests or examinations;

(h) he was entered into the computer system of the Fiona Stanley Hospital;

(i) he was required to complete several courses on a continuous basis; and

(j) his line manager advised him that there was plenty of work for the foreseeable future.

39      Mr Balagopalan submits that by removing his access to ShiftMatch, and deleting him from the hospital computer system, the employer terminated the employment which was otherwise continuous and ongoing.

40      SMHS submits that under the Industrial Agreement, casual employment is permitted only when hours and patterns of work are not regular and systematic or where employment is hourly for a period of up to one week in each engagement. In effect, the Industrial Agreement does not contemplate or allow for casual employment that is continuing or subsisting outside of the periods of work themselves. Rather the Industrial Agreement operates on the underlying principle that each occasion of casual employment is a separate freestanding contract of employment.

41      SMHS also submits that at general law, the essence of casual employment 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. SMHS submits that in this case, there was no such firm advance commitment given as to the duration of employment, days, or hours of work.

42      Even if Mr Balagopalan could be regarded as being employed on an ongoing basis, SMHS submits that the evidence does not establish that he was dismissed. Rather, Mr Balagopalan simply did not make himself available for the kitchen shifts, which were offered or available to him beyond 16 February 2022.

Consideration – Was Mr Balagopalan dismissed?

43      There is no dispute that Mr Balagopalan was a casual employee. His offer of employment was expressed to be for casual employment. Mr Balagopalan accepts that he was a casual employee.

44      However, to conclude that Mr Balagopalan was a casual employee takes us only part of the way towards resolving the issue of whether there has been a termination of the employment at the initiative of the employer. As Le Miere J stated in Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 175 IR 455 at [103]:

In Australian law, the expressions ‘casual employee’ or ‘casual employment’ are expressions with no fixed meanings.

45      His Honour referred to the statements of Moore J in Reed v Blue Line Cruisers Ltd (1996) 73 IR 420 and of the Full Court of the Federal Court in Hamzy v Tricon International Restaurants [2001] FCA 1589; 115 FCR 78 that the essence of casual employment 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, noting that such characterisation is not inconsistent with the possibility of the employee’s work pattern turning out to be regular and systematic. At [106], his Honour also noted that it is not a necessary characteristic of casual employment that the employee work under a series of separate and distinct contracts of employment each entered into for a fixed period.

46      In WorkPac Pty Ltd v Rossato [2021] HCA 23; 95 ALJR 681, the High Court similarly characterised casual employment in the terms articulated in Hamzy. In WorkPac the High Court was concerned with the meaning of ‘casual employee’ in the Fair Work Act 2009 (Cth). At [49] in WorkPac, the High Court stated:

The Act did not, at material times, define the term “casual employment”. However, the view that there must exist a “firm advance commitment” to continuing work unqualified by indicia of irregularity, such as uncertainty, discontinuity, intermittency and unpredictability, in order for employment to be other than casual conforms with several provisions of the Act…

47      The High Court also stated at [57]:

A court can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship. The search for the existence or otherwise of a “firm advance commitment” must be for enforceable terms, and not unenforceable expectations or understandings that might be said to reflect the manner in which the parties performed their agreement. To the extent that Bromberg J expressed support for the notion that the characterisation exercise should have regard to the entirety of the employment relationship, his Honour erred.

48      The High Court restated this theme in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [61], emphasising that in characterising an employment relationship, one must look to the rights and duties established by the contract and not simply how the contract has played out in practice unconnected with the contractual obligations.

49      It is possible for there to be a continuing casual contract, a term of which is that the employer can elect to offer work on a particular day or days, and when offered, the employee can elect to work or not. Such a contract might create a casual employment relationship of a continuing nature: Melrose Farm at [106] and [110].

50      It follows that characterising an employment relationship as casual employment does not preclude the possibility of the employment ending by a termination at the initiative of the employer rather than ending by the effluxion of time at the end of a particular engagement.

51      The pertinent enquiry in this case, then, is whether Mr Balagopalan was a casual employee in the sense of:

(a) having a continuing or ongoing employment relationship with SMHS of indefinite duration without definite or regular hours fixed in advance; or

(b) working under separate and distinct contacts of employment, each for the fixed period of a shift.

52      Following the statements of the High Court in Workpac and Personnel Contracting referred to above, the answer to this question must be sought in the terms of the legally enforceable instruments which determine the parties’ respective rights and obligations rather than in their subsequent conduct or performance of the contract. Accordingly, matters which Mr Balagopalan relies upon, such as the provision to him of a uniform, training and a locker, the distinction between casual pool employees and agency casuals and indeed his pattern of hours, are not matters which assist in determining the character of the legal relationship between the parties unless they are a consequence of the parties’ legal rights and obligations.

53      Even if it was permissible to look at the rostering arrangements, there is no evidence that Mr Balagopalan worked regular hours or certain shifts. Rather the evidence is that Mr Balagopalan was able to access ShiftMatch, which advertised available shifts, and he could elect to pick up whichever of the available shifts he wished. The evidence showed no commitment by SMHS to offer any particular shifts or hours to Mr Balagopalan. Nor was there any obligation on Mr Balagopalan to accept any particular shift. His own evidence was that he had complete freedom to choose which shifts suited him and to cancel shifts that he accepted but no longer wished to work.

54      More relevantly, the employment contract indicates in several ways that the casual employment was in the nature of several and distinct engagements rather than ongoing employment. It refers to ‘any period of casual work’, ‘possible placements’, ‘at the time of any and each casual arrangement’ and ‘any employment periods’.

55      Finally, the contract expressly states that any employment periods are governed by the Industrial Agreement. I have set out the relevant terms of the Industrial Agreement above. The nature of casual employment under the Industrial Agreement is such that there is no scope to understand casual employment as being in the nature of ongoing or continuous employment. Each engagement must be for a period of less than one week. As SMHS points out, the very nature of casual employment, as defined by the Industrial Agreement, is that it cannot be said to be continuing or to support a subsisting relationship outside the periods of work themselves.

56      I accept SMHS’s submission that the Industrial Agreement operates on the underlying principle that each occasion of casual employment, even if only one shift, is a separate, freestanding contract of employment such that the employment relationship ends at the end of a shift.

57      The practical consequence of the nature of the casual employment is that Mr Balagopalan was not entitled to be engaged for future shifts and was not in an ongoing employment relationship with SMHS. If he was precluded from accessing further shifts from 16 February 2022, or indeed any later point, it is not a dismissal at law. The employment relationship between him and SMHS ceased pursuant to the terms of the contract and the Industrial Agreement at the conclusion of each separate period of engagement.

58      If the legal nature of the relationship was different so that the casual employment was ongoing employment, then the removal of Mr Balagopalan’s access to ShiftMatch would qualify as conduct on the part of SMHS that brought the ongoing employment to an end. This case would be analogous to the circumstances in Royall v Aussie Kids Pty Ltd [2022] FWC 2301, where Masson DP found at [37] that the cancellation of a casual employee’s future shifts on a rostering app and removal of the employee’s access to the app brought the employment relationship to an end. However, in that case, the employee was found to have been employed on a regular and systematic basis with a reasonable expectation of continuing employment on a regular and systematic basis: [62].

59      As Mr Balagopalan’s employment was not ongoing in this sense, the removal of the access was, in effect, a refusal to enter into any future contract of employment, not a dismissal.

60      Therefore, I find that Mr Balagopalan’s employment was not terminated at the initiative of SMHS. Mr Balagopalan was therefore not dismissed for the purposes of s 29 of the IR Act. As Mr Balagopalan was not dismissed from his employment with SMHS, his application must be dismissed because the Commission has no jurisdiction.