Gary Dufall v Leighton Contractors Pty Ltd

[2014] FWC 2817

[2014] FWC 2817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Dufall
v
Leighton Contractors Pty Ltd
(U2013/11474)

DEPUTY PRESIDENT MCCARTHY PERTH, 1 MAY 2014

Application for relief from unfair dismissal.

[1] Mr Gary Dufall (the Applicant) lodged an Application for Unfair Dismissal Remedy (the Application) on 14 July 2013. The Applicant claimed that he was unfairly dismissed from his employment with Leighton Contractors Pty Ltd (the Respondent). In the Application the Applicant stated that he was employed from 1 January 2013 and the date his dismissal took effect was 4 July 2013.

[2] The Respondent lodged an Objection to the Application (the Objection). The Objection stated that the Applicant had not been working for the Respondent for six months (6) months to be eligible for the application for unfair dismissal remedy. The Respondent was clearly relying on the provisions of the Fair Work Act 2009 (the FW Act) that protect a person from unfair dismissal only if the employee has completed the minimum period of employment, in this case the minimum period being six months continuous service.

[3] It is not disputed that the date the dismissal took effect was 4 July 2013. Thus, for the Applicant to be able to make the Application he must have been employed on or before 4 January 2013. The facts that are disputed here concern the date the Applicant was employed.

The Facts

[4] The facts are relatively uncontroversial. The following sequence of events occurred.

[5] On 18 December 2012, the Respondent made an offer of employment to the Applicant to work on the Gorgon Project as a “Peggy” for the duration of the Project.

[6] The offer identified some pre-mobilisation requirements prior to commencing work at the Project on Barrow Island. The requirements included training and verification of competencies. Payment for undertaking those requirements was committed to be made in the first wages paid.

[7] The offer stated that employment would commence on the first day of your (the Applicant’s) first roster cycle on site at Barrow Island, which is Friday, 18 January 2013 or such other date as we (the Respondents) advise you (the Applicant).

[8] On 19 December 2012, the Applicant signed the letter of offer.

[9] The Applicant asserts that he then asked the Respondent’s Human Resources person whether he was now employed to which she replied “yes”.

[10] On 20 December 2012 (or around that date) the Applicant received an email from the Respondent regarding his employment.

[11] The email stated that “the recruitment process was now complete and your training and mobilisation will be managed by Gorgon Civils Project Personnel”. The email also stated that “once training is confirmed you will be sent a pre-mobilisation form that will include Confirmed start date on Barrow Island ...”.

[12] On or about 1 January 2013, the Applicant says he undertook two courses viz (i) Permit to Work: Permit User and (ii) QM06 Quarantine for Contractors and Suppliers. The courses are on-line modules that can be completed at any time once log-in details are provided.

[13] On 30 January 2013, the Applicant attended a Defensive Driver Training Course.

[14] On 30 January 2013, payment for course work was made into the Applicant’s bank account.

[15] On 31 January and 1 February 2013, the Applicant attended face to face Gorgon Project Induction training.

[16] On 4 February 2013, the Applicant was “mobilised” to the Project site.

[17] On 5 February 2013, the Applicant commenced work at the Project site.

[18] A Group certificate was issued which states that the Applicant’s employment during that financial year was from 18 January 2013-30 June 2013.

[19] The Applicant asserts that if the Applicant’s pay-cycle is fortnightly, the start date in reality at a minimum is 4 January 2013.

[20] The Applicant asserts that “the start date” could be either 18 December 2012 or 1 January 2013 and employment commenced on either of those two dates. The Respondent asserts that the employment commenced on either 4 or 5 February 2013 and that a contract was entered into on 18 December 2012 for the commencement of that employment.

[21] The Respondent also provided a statement by an Employee Relations Adviser employed by them. In respect of the payment made to the Applicant on 30 January 2013 she stated that:

“8. I have seen a copy of the Applicant’s application lodged in this matter, and particularly, the bank statement containing a payment of $380.54 on 30 January 2013 made by Leighton. While the offer of employment signed by the Applicant specified that he would only be paid for pre-mobilisation requirements undertaken in the first pay period following his commencement on the Project, it appears that his payment was made early. I cannot comment why this occurred, however, it may have been because the Applicant’s initial commencement date was specified as 18 January 2013, and it is possible that payroll was not notified of the delay and therefore made the payment.

9. There is a set payment for each of the On-line Modules, the Induction and the Driver Training based upon the number of hours each usually takes to complete. An employee is paid for those hours at the base rate specified in their offer of employment.”

Consideration and Conclusion

[22] Mr Longland for the Respondent referred to Australian Federation of Air Pilots v Jetstar Airways Pty Ltd 1 and suggested, and I agree with him, that I should apply the approach of Justice Pagone. That approach was usefully summarised by Mr Longland as follows:

“(a) the approach to the construction of contracts of employment requires consideration of what a reasonable person would understand the terms of a document to mean. This normally requires consideration, not only of the text, but also of the surrounding circumstances known to the parties;

(b) the natural and ordinary meaning of the words in the letters of offer would objectively be understood by a reasonable persion to intend to create an employment relationship as and from the date specified in the letters and not immediately on acceptance of the offer;

(c) the employees could not commence the position until they had successfully completed the pre-mobilisation requirements; and

(d) the letters of offer dealt expressly with the date of commencement of employment which was a date subsequent to the letter of offer being signed and accepted.”

[23] Here it is patently clear that the Applicant was offered a contract of employment for him to commence employment at a later date. The commencement date was to be 18 January 2013 but actually occurred on 4 or 5 February 2013 for a number of reasons, including that the Applicant could not undertake the compulsory Induction and other training before the end of January 2013. The sequence of events is a common and I suggest unavoidable approach to engaging employees for remote sites and projects. In practice contracts are entered into with persons who then become employees once various pre-conditions to employment are fulfilled and employees then at a convenient date then commence employment and start work.

[24] Here the preconditions to commencing employment were not satisfied until 1 February 2013 and once completed the Applicant was mobilised to the Project site and commenced work. It is unnecessary to expressly find whether it was the 4 or 5 February 2013, although I am inclined to the view that it was 4 February 2013 when he was mobilised to the Project site by flying there on that day.

[25] The payment of moneys for completion of the preconditions to commence employment is nothing more than the meeting of the obligation of the contract entered into to make payment for meeting of the obligations prior to commencing employment. The Group Certificate is also not an accurate reflection of the actual commencing of employment.

[26] I therefore find that the Applicant did not complete six months continuous service and as a consequence is not a person who is protected from unfair dismissal as he has not completed a period of employment with his or her employer of at least the minimum employment period, in this instance being six months.

[27] The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Oud of Standpoint Legal for the Applicant

Mr Longland and Ms Mussared of Herbert Smith Freehills for the Respondent

Hearing details:

2014.

Perth

March, 20

 1 [2014] FCA 15.

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