Daniel Hicks v Teekay Shipping (Australia) Pty Ltd
[2019] FWC 3693
•4 JUNE 2019
| [2019] FWC 3693 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Hicks
v
Teekay Shipping (Australia) Pty Ltd
(U2019/2249)
DEPUTY PRESIDENT DEAN | SYDNEY, 4 JUNE 2019 |
Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period.
[1] On 28 February 2019, the Construction, Forestry, Maritime, Mining and Energy Union (the Union) made an application pursuant to s.394 of the Fair Work Act 2009 on behalf of its member, Mr Daniel Hicks, with respect to an alleged unfair dismissal by Teekay Shipping (Australia) Pty Ltd (Teekay).
[2] This decision deals with the jurisdictional objections raised by Teekay, namely that Mr Hicks has not met the minimum employment period as he was a casual employee who was not regularly and systematically engaged and had no reasonable expectation of continuing employment; and in the alternative, his application was filed outside the 21 day time period prescribed by the Act. In its submissions in reply, Teekay further contended that having regard to the material filed on behalf of Mr Hicks, the Commission would also need to determine whether Mr Hicks has been dismissed for the purposes of section 385 of the Act and if so the date on which the dismissal took effect.
[3] Mr Hicks was one of four casual employees of Teekay whose unfair dismissal application was the subject of similar jurisdictional objections. These four applications were listed on 29 May 2019 for hearing, however two were withdrawn during the course of the day.
[4] Mr Hicks was represented by the Union and Mr Slevin of Counsel, and Mr Rauf of Counsel appeared for Teekay, both with permission.
[5] Evidence was given by Mr Hicks and by Mr Stephen Bertram, Human Resources Manager of Teekay.
Background
[6] Employees employed by Teekay on the vessel MV Mariloula are covered by the Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015 (the Agreement).
[7] The vessel is operated by BHP Billiton (BHP), and seems to sail between Port Hedland, Port Kembla, and various ports in China.
[8] Employees on board the vessel work a roster system known as a ‘swing’. At the conclusion of each swing, the crew leave the vessel and hand over the vessel to the crew on the next swing.
[9] On 10 January 2019, Teekay received notification from BHP that it was terminating its commercial contract with Teekay. The result of this decision was that the crew management services provided by Teekay on the MV Mariloula and another vessel were no longer required.
[10] On 7 February 2019, around 68 employees of Teekay were terminated on the ground of redundancy. Mr Hicks says this was the date of his dismissal. Teekay says he was not dismissed on this date because he was a casual employee, and his employment ended on 29 September 2018, being the final day of his second swing.
[11] I now turn to deal with whether Mr Hicks met the minimum employment period.
Minimum Employment Period
[12] A person is protected from unfair dismissal only if the required minimum employment period has been completed.If Mr Hicks has not completed the minimum employment period, he is not a person protected from unfair dismissal pursuant to s.382(a) of the Act.
[13] Teekay contended that Mr Hicks has not completed the minimum employment period, because the period of continuous service was the period of the swing that commenced on 9 June 2018 and ended on 29 September 2018. The period of continuous service was therefore less than six months.
[14] The Union did not dispute that Mr Hicks was a casual employee and so the calculation of his minimum employment period turns on the test in section 384(2)(a).
[15] Section 384 of the Act provides that:
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) ……”
[16] “Service” is defined in section 22 of the Act as follows:
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or
(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
[17] Section 383 of the Act is also relevant and provides that the period of employment starts on the date the employment commences and finishes on either the date the employee is notified of the dismissal or immediately before the dismissal, whichever is the earlier.
[18] Teekay submitted that in applying section 383 of the Act, the dismissal occurred at the time Mr Hicks completed his engagement on 29 September 2018, being the end of the swing.
The evidence
[19] In support of its argument, Teekay relied on two witness statements of Mr Bertram as to the circumstances and nature of the engagement of Mr Hicks.
[20] The evidence of Mr Bertram demonstrated that the majority of Teekay’s workforce is engaged on a permanent basis, and casual employees are engaged on an ad hoc basis to cover periods where a permanent employee is unable to join the vessel during a particular swing, or increased employees are required to service a vessel over a particular swing. In cross examination, Mr Bertram confirmed that for the MV Mariloula, there were a higher proportion of casual employees than on other vessels.
[21] Mr Bertram’s evidence also set out the process by which a casual employee is notified of the approximate start and end date of the casual employment, being the dates they join and leave the vessel.
[22] Mr Bertram explained that its Marine Personnel Officers (MPO) were allocated particular vessels and were required to ensure proper crewing of that vessel taking into account the qualifications and ranks that are required for the vessel. He said that Teekay’s preference in sourcing suitable casual employees was to use people it had previously used and had experience with. For this purpose, it retained the contact details and records of casual employees in case of future use. Additionally, if Teekay was unable to identify and engage a suitable candidate, then it referred to the Employment Assistance System (EAS), being a database maintained and distributed by the Union, which contained the details of seafarers who were qualified, available and ready to work.
[23] Mr Bertram further explained that it was the role of the MPO to identify any potential gaps in the crew and to place suitably qualified casual relief employees for the duration of the swing. He said that as a matter of practice, the MPO would call the individual and explain that work was available between certain dates, and ask the person if they were interested in undertaking the work during the dates of the swing. The individual would then indicate to the MPO whether they were interested or not, and the individual was under no obligation to make themselves available.
[24] Mr Bertram said that at the end of each swing, the casual employee’s employment was terminated and the employee was paid all of their entitlements. He further said that casual employees are not engaged on any ongoing basis because it is not possible to do so within the offshore industry given the nature of vessel operations, the need to confirm the number of employees required for a swing, and the number of permanent employees who will be available.
[25] Mr Hicks gave evidence that he joined the vessel for his first swing in Port Kembla on 8 December 2017. He sailed to Hay Point where the vessel was loaded with coal, and then sailed to China where coal was discharged. The vessel then sailed to Port Hedland where it loaded iron ore, and then sailed to Port Kembla where the vessel was discharged and the crew changed. The crew change, he said, is the last day of the swing and the first day on swing for the new crew. He said he left the vessel on 5 March 2018.
[26] Mr Hicks said that “when you join one of the ships to fill a vacant position you have an expectation if you perform your duties to the standard required, knowing that the position is open, you will keep filling it”. Mr Hicks said that a swing is normally anywhere between 3 to 4 months.
[27] Mr Hicks explained that one day’s leave is accrued for each day at sea.
[28] In cross examination, Mr Hicks confirmed that at the conclusion of his first swing, he was paid out all of his entitlements including his accrued leave. There were no further discussions between him and Teekay as to whether further work might be available until he sent an email on 10 May 2018 to the MPO, Ms Gillian Stewart.
[29] His email of 10 May 2018 is in the following terms:
“Hey Gill how are you? I done a swing on the Mariloula from November 2017 to March this year and was wondering if there were any IR positions available for the next crew change and to let you know that I am available.”
[30] On the same day Ms Stewart responded as follows:
“Hi Daniel
Many thanks for your email, great to hear from you.
I have a casual IR spot coming up on the Mariloula for the next swing, latest ETA Port Kembla is 24th May.
I’ll lock you in and speak to near at the time”.
[31] Mr Hicks joined the vessel in Port Kembla on 9 June 2018 for his second swing. At the conclusion of the swing on 29 September 2018 he was paid out his accrued annual leave and final pay.
[32] At the conclusion of Mr Hicks’ second swing, there was no further correspondence or contact between him and Teekay until around 12 December 2018 when he made a request for Teekay to issue a “letter of operational need” which is necessary to obtain a Maritime Security Identification Card (MSIC). An MSIC is required by all Australian seafarers to be able to access a vessel through a port. He received this letter on 13 December 2018. The letter said that he was a casual employee in the rank of Integrated Rating (IR) at Teekay.
[33] On 7 January 2019, Mr Hicks sent an email to Ms Stewart in the following terms:
“Hi Gill
Hope you had a Merry Christmas and happy New Year.
Just checking in to let you know I’m available if you have vacant positions for the next swing on the Mariloula.”
[34] Ms Stewart responded the same day as follows:
“Hi Daniel,
Happy New Year!
Many thanks for letting me know your availability.
We had to take a permanent IR over from the Ocean Protector on secondment to the Mariloula…. but if there are any other casual spots that come up on the next swing I will give you a call.”
[35] Mr Hicks responded the next day as follows:
“Okay thanks anyway
If anything else comes up just let me know”
[36] Ms Stewart’s response the same day was:
“Things can always change.
I’ll call you if anything comes up.”
[37] Mr Hicks said that that was the last correspondence he received from Teekay.
Teekay’s submissions
[38] In its submissions, Teekay contended that Mr Hicks’ two swings constituted two periods of employment, the second of which ended on 29 September 2018.
[39] Teekay submitted that there was no dispute that the discussions between Mr Hicks and Teekay prior to the commencement of his first swing only related to an offer of employment for that swing. On completion of the first swing, there was no indication that any further work would be forthcoming, until Mr Hicks email of 10 May 2018, inquiring as to further work.
[40] Likewise, at the conclusion of the second swing, it was not until Mr Hicks initiated contact with Teekay that there was any discussion about ongoing work. Again, Mr Hicks’ email was framed as an inquiry, which was not consistent with the actions of a person who genuinely held an expectation that he had a position on the next swing.
[41] Counsel for Teekay contended that the email exchanges between Mr Hicks and Ms Stewart demonstrated that Mr Hicks may have held an “aspiration or hope” as to further work, but he did not hold a “reasonable expectation” that further work would be forthcoming. Had it been the case that he genuinely held an expectation of continuing employment, he would have sought confirmation as to the next swing rather than framing his email in terms of an inquiry.
Mr Hicks’ submissions
[42] Counsel for Mr Hicks acknowledged that the calculation of Mr Hicks’ minimum employment period turns on the test in section 384(2)(a), that being whether Mr Hicks’ employment as a casual employee was on a regular and systematic basis; and during the period of service as a casual employee, whether Mr Hicks had a reasonable expectation of continuing employment by Teekay on a regular and systematic basis.
[43] In the written submissions filed on behalf of Mr Hicks, it was outlined that the Commission’s approach to section 384(2)(a) was well settled. Particular reliance was placed on a Full Bench decision in Shortland v The Smiths Snackfood Co Ltd 1 (Shortland). The relevant paragraphs are as follows:
[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed. (citation omitted)
[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.
[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).
[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury. (citation omitted)
[44] Reliance was also placed on a Full Bench decision in Jefferson Bell v Aboriginal Legal Service (NSW/ACT) Limited 2 (Bell):
[10] It is evident thats.384 does not proceed on the basis that a casual employee’s period of employment starts and ends with each separate contract of employment, as understood in the common law of employment. Periods of casual employment punctuated by gaps between successive contracts may be included in a casual employee’s period of employment, depending on whether the employment was on a regular and systematic basis. It is the employment that must be on a regular and systematic basis, not the hours worked, but a clear pattern or roster of hours is strong evidence of regular and systematic employment.
[11] The word “regular” should be construed liberally. It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant. Employment on a “regular” basis may be constituted by frequent though unpredictable engagements. The word “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”. The concept of engagement on a “systematic” basis does not require the employee to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance on the employee’s services as an incident of the business by which he or she is engaged.
[12] The Act does not define the phrase “reasonable expectation of continuing employment”, nor does it set out any particular matters which should be taken into account in assessing whether a particular employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis during that employee’s period of service as a casual employee. Whether an employee had such an expectation will depend on the particular circumstances.
[13] It is also to be observed that the relevant “reasonable expectation” in s.384(2)(a)(ii) is as to continuing employment with the employer on a regular and systematic basis. This plainly suggests that the relevant reasonable expectation is as to continuing casual employment by the employer on a regular and systematic basis. Were it otherwise, the words “on a regular and systematic basis” would be otiose. The connection between “employment as a casual employee” and “on a regular and systematic basis” is established by s.384(2)(a)(i) and that connection seems to us to be maintained in s.384(2)(a)(ii). Section 384(2) is concerned with the circumstances in which a casual employee’s period of service as a casual employee is included in that employee’s period of employment for the purposes of s.383. (citations omitted)
[45] Additionally, in Bronze Hospitality Pty Ltd v Hansson 3 a Full Bench said:
[29] We make some observations about the construction of s.384(2)(a)(ii). First, ‘during’ can mean either ‘throughout the course of’ or ‘at a point in the course of’. In our view, the first of these meanings is intended. The sub-provision is an exception to an exception; a period of casual service does not count, unless two requirements are met. Both of these requirements concern states of affairs that can develop over time. This context points to the word ‘during’ connoting a continuous period, rather than a point in time. Further, the alternative construction would mean that a casual employee need only have a reasonable expectation of continuing employment for any fleeting period in the course of the casual employment. There is no apparent rationale that would support this being the intended meaning. Finally, we note that the explanatory memorandum to the Fair Work Bill states simply that ‘service as a casual employee does not count towards the period of employment unless it was on a regular and systematic basis and the employee had a reasonable expectation of continuing engagement on a regular and systematic basis.’4 This wording is consistent with the interpretation we favour, and inconsistent with a ‘point in time’ meaning. The effect of this is that a particular period of service as a casual employee only ‘counts’ in respect of periods when the casual employment was regular and systematic and the employee had a reasonable expectation of continuing employment.
[46] In applying these principles to Mr Hicks, it was argued that as to the regular and systematic nature of the employment, Mr Hicks worked on a number of swings (i.e. two), and worked the same swings as permanent employees.
[47] Counsel for Mr Hicks argued that it would be contrary to authority to proceed on the basis that Mr Hicks’ employment started and ended with each swing. Rather, Mr Hicks had “a series of periods of service on swings that counted towards a single period of employment” and that “the swings constituted established sequences of engagements”. The gaps between the swings were said to be explained by the work patterns that applied to all crew members, whether casual or permanent, and the patterns were arranged in accordance with the Agreement which was argued to be strong evidence of regular and systematic employment.
[48] It was further argued that the application of authority to the circumstances of the work performed by Mr Hicks leads inexorably to the conclusion that the nature of employment was regular and systematic for the purposes of the first limb of section 384(2)(a) of the Act.
[49] As to the second limb of section 384(2)(a), Counsel for Mr Hicks argued that he did hold a reasonable expectation of continuing employment, and there was no evidence that the service was broken by words or actions that there would be no further swings of duty. It was argued that Mr Hicks was in a position to foresee or predict when his services may be required because of his knowledge of the approximate start date of next swing. This constituted a reasonable expectation that he would continue in accordance with the regular and systematic employment on the swing arrangements that had applied since his employment commenced.
[50] Counsel also relied on the letter of operational need obtained by Mr Hicks from Teekay on 13 December 2018, stating he was a casual IR employed by Teekay. It was argued that this indicated an ongoing reliance on Mr Hicks’ services as an incident of Teekay’s business, and accordingly it was a reasonable expectation on behalf of Mr Hicks that his employment was ongoing and there were grounds to expect that the employment will continue in the regular and systematic manner of working swings in accordance with the Agreement.
[51] As a consequence, Counsel for Mr Hick argued that Mr Hicks was protected from unfair dismissal for the purposes of section 382 of the Act.
Consideration and Conclusion
[52] It is clear that a period of continuous service can be made up of a series of periods of service, but only where the conditions in section 384(2)(a) are met.
[53] In this case, I am not satisfied that the conditions in section 384(2)(a) have been met.
[54] Mr Hicks was engaged to do a total of two swings, that being two periods of employment. I am not satisfied that this could properly be considered “regular and systematic” as required by section 384(2)(a).
[55] While a series of swings could well count towards a single period of employment, in this case, there were only two swings (or periods of employment) which in my view is not sufficient to establish a sequence or series of engagements necessary to meet the requirement of section 384(2)(a). Additionally, Teekay made it clear by paying out all of Mr Hicks’ entitlements at the conclusion of each period that the employment had ended and there were no further engagements contemplated at that time. The discussions between the parties as to the periods of employment were on a swing by swing basis only.
[56] The fact that Teekay prefers to utilise casual employees with whom it has had experience, does not in and of itself mean that the casual employment becomes regular and systematic.
[57] Even if the two periods of employment were regular and systematic, I do not consider that Mr Hicks could have held a reasonable expectation of continuing employment on that basis. The evidence shows that at the conclusion of the first swing, Mr Hicks was paid all his entitlements and there were no further offers of work at that time. It was only after Mr Hicks contacted Teekay that a second period of employment was offered. Again, at the conclusion of the second period, all of Mr Hicks entitlements were paid and there were no further offers of work at that time. When Mr Hicks did subsequently enquire as to further work he was advised that he was not required. There is nothing in the email exchanges set out above which would support a finding that Mr Hicks held a genuine belief that he ought to have been provided with further work, which would be consistent with having such an expectation. While there is no doubt Mr Hicks had an aspiration or hope of further work, it could not have been a reasonable expectation. Had it been a reasonable expectation, the emails he sent to Teekay after each swing would have been for the purposes of seeking confirmation as to the date he would be recommencing work, rather than what is clearly an inquiry as to the possibility of further work.
[58] I do not accept that simply because Mr Hicks was in a position to foresee or predict when there may be work (by virtue of the approximate start date of the next swing), this gives rise to a reasonable expectation of continuing employment on that basis.
[59] In coming to my conclusion, I have taken account of all of the evidence and submissions made by the parties in respect of this issue, including the Seafarers Agreements. In this regard, I accept the evidence of Mr Bertram to the effect that the Seafarers Agreement was an agreement between the individual and the ship owner (in this case, not Teekay) designed to meet particular obligations under maritime related legislation. There is no basis to infer an employment relationship such as required by section 384 as a result of the Seafarers Agreement.
[60] In regard to the letter of operational need issued by Teekay, it was correct to say that Mr Hicks was a casual employee, however this does not mean that his employment met the requirements of section 384(2)(a) of the Act. Clearly, the purpose of the letter was to facilitate the renewal of Mr Hicks’ MSIC.
[61] I am not persuaded that because there was a higher proportion of casuals on the MV Mariloula, this supported a reasonable expectation of continuing employment.
[62] Mr Hicks has not met the requirements of section 384(2)(a) of the Act and accordingly has not met the minimum employment period.
[63] Because of my finding that Mr Hicks has not met the minimum employment period, it is unnecessary to deal with the alternate submissions put by Teekay.
[64] Mr Hicks application for an unfair dismissal remedy is dismissed. An order will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
T Slevin of Counsel for Daniel Hicks.
B Rauf of Counsel for Teekay Shipping (Australia) Pty Ltd.
Hearing details:
2019.
Sydney:
May 29.
Printed by authority of the Commonwealth Government Printer
<PR708786>
1 [2010] FWAFB 5709.
2 [2018] FWCFB 6102.
3 [2019] FWCFB 1099.
4 Explanatory Memorandum, Fair Work Bill 2008 at [1518]
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