Lincoln D'Souza v PSL Services Pty Ltd T/A Patrick

[2019] FWC 7568

[2019] FWC 7568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lincoln D’Souza
v
PSL Services Pty Ltd T/A Patrick
(U2019/7372)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 1 NOVEMBER 2019

Application for an unfair dismissal remedy — not covered by a modern award or enterprise agreement — annual earnings exceeded the high income threshold.

[1] On 4 July 2019, Mr Lincoln D’Souza (Applicant) lodged with the Fair Work Commission (Commission) an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act).

[2] The Respondent, PSL Services Pty Ltd T/A Patrick (Respondent) (PSL), objected to the application on the grounds that Mr D’Souza is not protected from unfair dismissal under s.385 of the Act as he earned more than the high income threshold and was not covered by an Award or enterprise Agreement.

[3] Mr D’Souza commenced employment with PSL in October 2004. He says that his employment came to an end on 27 June 2019.

[4] Mr D’Souza named the Respondent to his application as ‘Patrick Stevedores Operations Pty Limited Trading as Patrick’. On 29 August 2019, Mr D’Souza lodged in the Commission a Form F1 application seeking to amend the name of the Respondent to ‘PSL Services Pty Ltd T/A Patrick’.

[5] During the hearing I took submissions from both the Applicant and the Respondent in relation to the name of the correct employing entity. On the evidence before me, I am satisfied that the name of the employer in this matter is ‘PSL Services Pty Ltd T/A Patrick’. I have utilized the discretion in s.586 of the Act to amend the application accordingly.

Background

[6] It was common ground that Mr D’Souza was employed as a Shift Manager at the Patrick Terminals container stevedoring facility at the Port of Melbourne. The terminal is a container stevedoring terminal which receives “export and import” containers, that being containers received by road, transported through or stored for a time until they are ultimately loaded onto ships by quay cranes at the wharf and receiving containers discharged from a ship at the wharf which are stored within the terminal and then leave the terminal by road transport.

[7] He commenced working in that role in October 2004 and on 20 October 2004 signed a contract for the position of ‘Shift Manager’ which set the terms and conditions of his employment. The contract contained a schedule of specific terms for the role which was also signed and dated by Mr D’Souza.

[8] Mr D’Souza was dismissed from his employment following an investigation by PSL into an alleged “significant operational failure” that occurred on 31 May 2019.

Legislative Context

[9] PSL contended that Mr D’Souza was not a person protected from unfair dismissal at the time of the dismissal. Section 382 of the Act provides that a person is protected from unfair dismissal if he or she has completed the minimum employment period and one or more of the following apply;

“(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[10] It was not in contention that Mr D’Souza’s earnings are above the high income threshold. It is also agreed that Mr D’Souza has served the period of employment contemplated in s.382(a) of the Act.

[11] Mr D’Souza submits that his employment with the Respondent was covered by the Stevedoring Industry Award 2010 (SI Award). 1 PSL submitted that Mr D’Souza was not covered by an award or agreement and accordingly was not a person protected from unfair dismissal.2

Was D’Souza covered by the Stevedoring Industry Award 2010?

[12] Mr D’Souza initially submitted that at the time of his dismissal either the Patrick A.M.O.U. Enterprise Agreement 1998 (1998 Agreement) applied to his employment or, alternatively, he was covered by the SI Award and that his role fell within the classification of a Grade 7 employee. During the hearing of this matter Mr D’Souza withdrew his submission that the 1998 Agreement applied and proceeded with his contention that he was covered by the SI Award.

[13] PSL submitted that there was no enterprise agreement which applied to Mr D’Souza in relation to his employment. Accordingly, they submitted that the only basis on which the Applicant could assert that he is protected from unfair dismissal is if he is covered by a modern award. 3

[14] PSL submitted that the SI Award covers employers throughout Australia engaged in the stevedoring industry and their employees in the classifications listed in clause 13, and accepted that it is engaged in the stevedoring industry and/or that it supplies labour to other entities which are. They submitted that the question for the Commission was therefore whether the Applicant fell within one of the classifications in clause 13 of the SI Award at the time of his dismissal. 4

[15] PSL submitted that whether the Applicant falls within the Grade 7 descriptor is determined by reference to the principal purpose for which he was employed by PSL. 5 What is required is a qualitative assessment of the primary purpose of his former Shift Manager position, rather than a quantitative one based on time spent performing particular duties.6

[16] Further, PSL submitted that the Applicant never attained the level of stevedoring employee Grade 6 nor had he been trained and selected for appointment to the classification of stevedoring employee Grade 7 by PSL. 7

[17] Mr D’Souza submitted that his position sits immediately above the operational employees in Grades 1-6 of the SI Award and his role has traditionally been and continues to be classified as a Grade 7 under the SI Award. 8

[18] Mr D’Souza’s evidence was that the allocation of the tasks performed by operational employees is through the Labour Allocator at the direction of and approval by the Operations Manager, and he was never required to review or record employee performance ratings. However, Mr D’Souza conceded during cross-examination that prior to 2016 he did in fact have the responsibility for recording employee performance ratings on the labour sheet. It was put to Mr D’Souza that the system had changed due to the changes in the new Enterprise Agreement. Mr D’Souza’s evidence was that as he had not been “part of the Agreement”, he wasn’t aware if this was why the changes had occurred.

[19] Mr D’Souza’s oral evidence was that, if he was doubtful about anything to do with employees, he would ring the Operations Manager on a 24/7 basis. His evidence was that he would be left with instructions on the weekends as to whether he could extend labour capacity and was unable to make decisions regarding additional labour because he didn’t have access to the budget.

[20] Mr D’Souza’s oral evidence was that he would direct employees who were not performing their role sufficiently however, whilst he reported disciplinary issues, absenteeism, punctuality and non-performance to Human Resources and the Operations Manager, any decision regarding those matters was taken by more senior managers. Decisions relating to Union delegates speaking to employees and industrial action were also conducted in accordance with advice from the Operations Managers, Stevedoring Managers, or the Terminal Manager.

[21] Mr D’Souza also gave evidence that he had never led investigations into safety incidents, injuries or near misses nor had he conducted investigations by himself. Mr D’Souza’s oral evidence was when it came to incidents on site he would simply follow procedures and inform the Operations Manager. Mr D’Souza gave evidence that he would find out what had occurred and enter the details of an incident into the reporting system. He would also direct employees and change workflow to ensure employees were not placed at risk and that “people were safe”. Mr D’Souza also stated that he did not necessarily fulfil the chief warden’s role, as this was usually fulfilled by the landside Shift Manager. He only performed the role when there was nobody else capable of fulfilling that role onsite.

[22] Mr D’Souza’s evidence was that as Shift Manager he was required to cooperate with PSL’s central planners, shipping line agents, the Port Authority and others on site before, during and after loading and unloading of vessels.

[23] Mr D’Souza’s evidence was that he does not have a forklift ticket, he does not operate a straddle, he does not drive a key train, nor does he perform any cargo operations in his role.

[24] Mr Chris Brewster, Terminal Manager, East Swanson Dock, gave evidence that he is ultimately responsible for the oversight of operations as PSL’s East Swanson Dock container stevedoring terminal, including for decisions relating to the employment of persons who perform work there, and for directing managerial staff responsible for the operation of the Terminal. He gave evidence about the operation of the terminal, roles performed by employees at the terminal and the typical shifts they were required to work. 9

[25] Mr Brewster’s evidence was that, as Shift Manager, Mr D’Souza was often the most senior manager on site and had both the authority and capacity to take action and intervene in matters when required. Mr D’Souza was required to manage employees on site across day or night shifts including absenteeism, punctuality and disciplinary matters. As the Shift Manager, Mr D’Souza did not perform work that would be performed by operational employees (employees employed under the enterprise agreement), he manages the team leaders and the operational employees. He was required to identify and manage issues of non-performance including keeping file notes and escalating matters if required. Mr Brewster also gave evidence that Mr D’Souza was required to direct the performance of work and investigate safety breaches when they occurred. As a conduit between operational employees and the Operational Managers Mr D’Souza had decision making authority which he was required to exercise.

[26] Mr Brewster’s evidence was that an allocator and the Operations Manager work together to determine shifts and employee’s rosters. Shift Managers have the authority to determine if they need additional resources to cover shifts that have become available for various reasons. The Shift Manager uses the standby list to contact an employee if they have determined that they need to cover a vacant shift. Shift Managers are also responsible for determining if a shift extension (overtime) is required and they have the authority to authorise the shift extension. There are circumstances in which a Shift Manager would have to contact the Operations Manager to discuss a shift extension however Shift Managers have the schedule for when ships need to sail so they are able to authorise the overtime (shift extension) when they determine it is required.

[27] Mr Brewster’s evidence was that Mr D’Souza had at no time during his employment considered himself to be an Award covered employee. Further to this, Mr D’Souza was paid a base salary of $164,840.18. He also had the opportunity to earn a bonus of up to 15% of his salary, a provision not contained within the SI Award.

Consideration

[28] It is not in contention that Mr D’Souza is required to regularly monitor and supervise the overall operations of the wharf and reports to the Operations Manager and Stevedoring Manager the performance of work carried out during shifts. The operational employees report directly to the Shift Managers, and as a Shift Manager he reported directly to the Stevedoring Manager. 10

[29] It is also not in contention that Mr D’Souza supervises the operational employees working on vessels responsible for positioning portainers on the berth prior to arrival and post departure. Operational employees include Team Leaders, Foremen (36’ers), clerks, portainer drivers, straddle drivers, lashers (persons whose task it was to lash the deck containers after loading) and bus drivers.

[30] Section 48 of the Act provides that an award covers an employee, employer, organisation or outworker entity if the award is expressed to cover them.

[31] Clause 4.1 of the SI Award states that it covers employers throughout Australia ‘in the stevedoring industry and their employees in the classifications listed in clause 13.’

[32] Clause 4.4 of the SI Award states that the award does not cover employees who are covered by an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees. Mr D’Souza concedes there was no transitional instrument or enterprise agreement that applied to his employment at the time of his dismissal.

[33] Mr D’Souza submits that he is covered by the SI Award and his role classification is a Grade 7 employee under the SI Award. The Grade 7 classification description from clause B.7 of the SI Award provides as follows:

“B.7 Grade 7

A Grade 7 employee is an employee who has attained the level of stevedoring employee Grade 6 and who has:

(a) completed additional training and has demonstrated competence in the skills required at this grade and performs such functions as are required by the employer from time to time in relation to:

(i) planning, controlling, co-ordinating and integrating stevedoring operations (including maintenance operations) and stevedoring employees in connection with vessels and or cargoes as allocated by the employer from time to time and compiles records, reports and information in connection therewith; and

(ii) operational, clerical and maintenance functions on an incidental basis; and

(iii) where appropriate, performs functions associated with a higher grade as part of a training program;

(b) having been trained and selected for appointment to the classification of stevedoring employee Grade 7 in accordance with the operational requirements of the employer’s enterprise.”

[34] Mr D’Souza submits that he does not investigate safety incidents and that the only decision-making function he has the authority to perform is to follow procedure. It would be a peculiar situation if the most senior manager on site would not have the authority to direct work and make decisions to immediately avoid any further risk to employee health and safety when a safety related incident occurred onsite. During the hearing Mr D’Souza attempted to downplay his role in managing safety incidences by stating he would simply follow procedure. He may as his evidence was simply follow procedure however, by his own admission, by following procedure he is able to direct employees to perform work in a safe manner and redirect employees when an incident has occurred.

[35] I have considered the evidence of Mr Brewster and Mr D’Souza and have formed the view that in the absence of an Operations Manager onsite a Shift Manager then becomes the Chief Warden. Whilst Mr D’Souza may not have been required at anytime to perform the role of Chief Warden, it is clear from the evidence presented that it is a task that has been assigned to other Shift Managers and therefore forms part of the Shift Manager’s role.

[36] I am also satisfied that as a Shift Manager Mr D’Souza had a responsibility to manage employee performance and underperformance. Mr D’Souza’s evidence was that he had never had to be involved in managing a performance disciplinary issue. Whilst this may be the case the evidence supports a finding that Mr D’Souza was aware of his obligation to manage employees who were not performing their role sufficiently and inform Human Resources and the Operations Managers of any performance issues.

[37] It does not seem to me to be a likely scenario that a Shift Manager who is the most senior manager on site would be required to call a more senior manager at home during any hour of the evening every time he was to make a decision as to whether or not to extend the length of a shift providing overtime to any particular employee or the engagement of an employee to cover the shift of an employee who had failed to present for a rostered shift. Whilst this may have been Mr D’Souza’s practice, I am not persuaded that it was a requirement of his role and therefore prefer the evidence of Mr Brewster on this matter.

[38] The duties Mr D’Souza performed and was responsible for performing went beyond the tasks of a Grade 7 employee in Schedule B of the SI Award. However, if I am wrong on the above findings, given other requirements in Schedule B of the SI Award I do not consider that Mr D’Souza could be classified as a Grade 7 employee.

[39] Schedule B of the SI Award provides that a Grade 2 employee performs duties that would require them to have a forklift licence and performs tasks such as lashing and unlashing, packing and unpacking of containers and other manual tasks. Grade 3 requires employees to operate straddle carriers, forklifts and front-end loaders amongst other tasks. Grade 4 requires employees after completing Grade 3 to take on the additional tasks of operating heavy shorebased cranes or gantry cranes amongst other tasks. An employee who has progressed to a Grade 5 has to have completed Grades 3 or 4. To progress to a Grade 6 an employee has to have completed Grades 4 or 5. An employee cannot progress to Grade 7 without having completed Grade 6.

[40] To reach a Grade 7 position Mr D’Souza would have to had progressed through the classifications contained within Schedule B of the SI Award. Mr D’Souza has not completed Grade 6 nor does he have a forklift licence, he does not operate any heavy mechanical equipment for the purposes of loading or unloading containers. Given that a Grade 7 employee is an employee who has attained the level of a stevedoring employee Grade 6 and the precursory requirements to obtaining a Grade 6, it would not be plausible that Mr D’Souza could be classified as a Grade 7 employee covered by the SI Award.

Conclusion

[41] For the reasons given above, I find that the Applicant was not covered by the SI Award at the time of his dismissal and, as his annual earnings exceeded the high income threshold, he is not a person protected from unfair dismissal.

[42] Accordingly, the application is dismissed. An order 11 to that effect will be published with this decision.

COMMISSIONER

Appearances:

J. Moran for the Applicant;

S. Crilly for the Respondent.

Hearing details:

2019

Melbourne

September 6

Printed by authority of the Commonwealth Government Printer

<PR713952>

 1   Applicant outline of submissions, 5

 2   Respondent submissions on jurisdiction, 18

 3   Ibid., 5

 4   Ibid., 6-7

 5   Graham v Globus Medical Australia Pty Ltd [2016] FWCFB 5495 at [15]; Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 394; [2007] AIRCFB 713 at [25] (Lawler VP and O’Callaghan SDP)

 6   Respondent submissions on jurisdiction, 10; Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 394 at [26]

 7   Ibid. jurisdiction, 15

 8   Applicant submissions, 32

 9   Exhibit R1, 2-6

 10   Exhibit A3, [4]

 11   PR713953