The decision in Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic FWA 2078 in some ways paved the way for casual employees to bring an unfair dismissal claim in reliance upon s 384(2)(a) of the Fair Work Act 2009 (Cth) (the Act).
The applicant in the case, Cori Ponce, worked for the respondent company daily and nightly over a 21 month period, satisfying the s 384(2)(a) requirement of employment on a regular and systematic basis, while also meeting the six month minimum employment period set out in s 383(a) of the Act. Commissioner Roe who oversaw the matter, articulated the principles attached with employment on a regular and systematic basis, which included the following observations:
· Regular and systematic does not necessarily mean the hours and days must be regular and systematic: Commissioner Roe found that ‘regular and systematic’ under the Act, meant that there must be “sufficient evidence to establish that a continuing relationship between the employer and the employee has been established” – which is the reason why the Act has included within its provisions, that an employee must also have a reasonable expectation of continuing employment.
· If the hours worked are small, and the gaps between days and times worked is long, other evidence must be produced to demonstrate regular and systematic employment:in instances where there is no clear pattern of employment, evidence of employment on a regular and systematic basis can also include the following: the employer regularly offered work when suitable work was available at the times when an employee has made him or herself available to work for the employer; and work had been offered and accepted on a sufficient basis where it can be no longer regarded as simply occasional or regular.
· Hours worked by the employee were similar or exceed full-time ordinary hours can also be deemed as strong evidence of regular and systematic employment.
· The reasonable expectation of continuing employment is not only about having that expectation at the moment of termination, but the expectation during the period of service as well.