Michael Van Kampen v Transfield Services

[2013] FWC 8127

[2013] FWC 8127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Van Kampen
v
Transfield Services
(U2013/6064)

DEPUTY PRESIDENT BOOTH SYDNEY, 24 OCTOBER 2013

Termination of employment - alleged unfair dismissal - jurisdiction - whether employee at the time - minimum employment period.

[1] On 1 February 2013 Mr Michael Van Kampen (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy. His employer was Transfield Services (Transfield). He cited his date of dismissal as 17 January 2013.

[2] Transfield lodged a jurisdictional objection to his application on the basis that the applicant was not an employee of Transfield on 17 January 2013, having been dismissed on 21 December 2012; he had not served the minimum employment period of 6 months and, if he was relying on his dismissal on 21 December 2012, he had lodged his application out of time.

[3] This jurisdictional objection came before me for hearing on 27 September 2013 following 5 attempts at resolution of the matter by conciliation before Gooley Con 15 March 2013, Conciliator Mackay on 5 and 9 April 2013 and Riordan C on 13 and 23 September 2013.

[4] Transfield was represented by Mr John Lee, Industrial Relations Manager and the applicant was self-represented.

[5] At the conclusion of the hearing on 27 September 2013 I commenced an ex tempore judgement however I was interrupted by the applicant who questioned the account of his work history provided by Mr Lee. This account had not been contradicted in his earlier submissions, however as it had become uncertain I adjourned the matter. Directions were given to Mr Lee to provide verification of the account he provided in his submissions by close of business on 4 October and for the applicant to provide his submissions in relation to this account by close of business on 11 October. These directions were complied with and the applicant did not contest the accuracy of the work history provided by Mr Lee.

[6] On 17 October 2013 my Chambers emailed the parties indicating my intention to make a decision based on the submissions received and providing them with the opportunity to comment by 23 October 2013. Mr Lee agreed with this course of action. No comment was received from Mr Van Kampen.

[7] This decision takes the place of the partial decision recorded in transcript on 27 September 2013 and is based on written submissions received prior to the hearing, the hearing itself and the written material received subsequent to the hearing.

Contentions

[8] The applicant contends that he was a “long term casual” employed by Transfield from 2009 to 2013 and he was unfairly dismissed when, on 17 January 2013, they withdrew an offer of employment to work on the Queensland Gas Corporation (QCG) site in Chinchilla, Queensland. Transfield was engaged by QCG to provide services associated with the drilling of gas wells to extract coal seam gas in the Surat Basin in the Western Downs of Queensland.

[9] Transfield contends that the applicant was a casual employee who was most recently engaged by Transfield from 22 August 2012 to 21 December 2012 to perform work at the Shell Clyde refinery in Rosehill, NSW. They concede that he was employed episodically from 2005 to 2012 however say that each occasion was a separate period of employment relevant to specific contractual work being undertaken by Transfield for clients, Shell and QCG being examples.

[10] They concede that they offered the applicant employment to work on the QCG site on 16 January 2013 however their client, QCG, exercised a right of veto over the applicant and they withdrew the offer on 17 January 2013, before he had accepted that offer on 21 January 2013.

[11] They contend that the applicant was not an employee of Transfield at the time and accordingly is not able to bring an unfair dismissal application. Furthermore they contend that at the time of his dismissal from Transfield on 21 December 2012 he had not served the minimum employment period of 6 months required by s.382 of the Act for a person to be protected from unfair dismissal.

Background facts

[12] Transfield is a global provider of operations, maintenance and construction services to the resources, energy, industrial, infrastructure, property and defence sectors.

[13] The applicant is a mechanical fitter with a work history of undertaking shut downs for major refit projects. He worked as a casual employee for Transfield during the period 2005-2012 as follows:

Year	Week of the year	Total weeks
2005	33-35; 38-40	6
2006	18-23; 41; 43-47	12
2007	5, 8-11; 38; 40-43	10
2008	12-17; 19-26	14
2009	27-28; 33-40; 48-50	13
2010	34-36; 14-37; 41-52	38
2011	2; 6-36	35
2012	11-14; 18-19; 34-51	23

[14] It is uncontroversial that when the applicant worked for Transfield in the weeks indicated he was generally employed for full-time hours, often working overtime as well.

[15] The applicant’s most recent employment with Transfield commenced on 22 August 2012 following an offer of employment by letter on 21 August 2012 which was accepted on 22 August 2012. He was employed as a casual employee and his position was noted as “Mechanical Fitter – TETE – Level 5 and his location was Shell Clyde refinery, Rosehill, Sydney NSW”. 1

[16] In week 51 of 2012, on 21 December, he received a letter of termination from Transfield Services including the following:

“Effective immediately, your period of casual employment with the Company is to be terminated with your last day of work being today, Friday 21st December 2012.” 2

[17] Mr Lee described the background to this as being the permanent closure of the Shell Clyde refinery resulting in the cessation of work by Transfield and the consequential retrenchment of over 100 employees by Transfield, as well as the loss of around 600 jobs from Shell itself. The applicant concedes he was terminated on this day. 3

[18] During the last week at the Shell Clyde refinery the applicant attended a meeting during which the prospect of employment at the QCG site in Queensland was canvassed.

[19] On 16 January 2013 he received an offer of employment at the QCG site in Queensland by email.

[20] On 17 January 2013 he received a phone call to advise that the client had rejected his employment and the offer was withdrawn.

[21] Over the period the applicant tried in vain to obtain particulars of the reason the client had rejected his employment. He was concerned that his integrity has been impugned and his reputation damaged. He was finally successful in ascertaining the background to his being rejected by the client on 22 February 2013. It is unnecessary to go into the detail here, save to say it was based on a personal matter.

Statutory framework

[22] The Fair Work Commission (the Commission) exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 Unfair Dismissal of the Act. There are certain conditions that an applicant must meet in order to have their application considered.

[23] Section 382 of the Act requires, amongst other things, that the person making the application is an employee and, as an employee, has completed a period of employment with his or her employer of at least the minimum employment period.

[24] Section 382 reads as follows:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) 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.

Note: High income threshold indexed to $129,300 from 1 July 2013

[25] Section 383 of the Act provides that the minimum employment period for an employee who is employed by an employer who is not a small business is 6 months.

[26] Section 383 of the Act reads as follows:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[27] Section 384 of the Act describes what a period of employment is for the purposes of calculating the minimum employment period. It provides that an employee’s period of employment is the period of continuous service the employee has completed with the employer at that time and says that a period of service as a casual employee does not count towards the period of employment unless the employment was on a regular and systematic basis and the employee had a reasonable expectation of continuing employment on a regular and systematic basis.

[28] Section 384 of the Act reads as follows:

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) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

Consideration

[29] In relation to Transfield’s first jurisdictional objection I consider that the last day that there was an employment relationship or a contract of employment between the parties was 21 December 2012. The applicant’s employment was clearly terminated by letter on 21 December 2012. On 16 January 2013 an offer of employment was communicated via email to the applicant. On 17 January 2013 that offer was withdrawn. That offer having been withdrawn prior to its acceptance created no relationship or contractual obligation. Therefore there can be no competent application for unfair dismissal arising from this event on 17 January 2013 because the applicant was not an employee of Transfield on 17 January 2013. This disposes of his application. It must be dismissed.

[30] As both parties made submissions in relation to Transfield’s second jurisdictional objection I will give it consideration, however I think it is redundant in the light of my conclusion above. Transfield is not a small business employer pursuant to s.23 of the Act therefore the minimum employment period in accordance with s.383 is 6 months.

[31] It is uncontroversial that the applicant was a casual employee. He was dismissed on 21 December 2012. That then is the relevant date to calculate his period of employment to. The question that arises is whether his period of employment commenced at the outset of the most recent employment at the Shell site, 22 August 2012 or sometime earlier when he was employed to perform work at other sites.

[32] This requires a consideration as to whether he was a casual employee who was employed on a regular and systematic basis and had a reasonable expectation of continuing employment.

[33] The Commission has given consideration to the characteristics of a casual employee who was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a number of occasions.

[34] In Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 4 (the Ponce decision) Roe C said:

“[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish ‘regular and systematic’ there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.”

[35] The Commission has held that separate periods of service with a single employer counted towards a single period of continuous service. In Shortland v The Smiths Snackfood Co Ltd (the Shortland decision) 5 the Full Bench said at paragraphs 10-14:

“[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.

[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 (i.e. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (i.e. 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.

[14] The Commissioner did not find that Mr Shortland’s employment was not continuous and correctly so. Prior to June 2009 Mr Shortland worked almost every week. There were a total of 4 isolated weeks in the period of almost three years prior to June 2009 when Mr Shortland performed no work. Those breaks should not be treated as a discontinuity in Mr Shortland’s employment such that periods of service before them should be discounted.”

[36] This decision has been distinguished in a case with similar circumstances to that of the applicant. In Leslie Holland v UGL Resources Pty Ltd T/A UGL Resources (the Holland decision) McCarthy DP considered the case of a casual employee employed by a company providing onsite mechanical and electrical maintenance work on power stations during their shutdowns for regular compliance and maintenance purposes. After describing the pattern of employment of the casual employee he said at paragraph 23:

“[23] I have gone to some lengths to explain my reasoning of the construction of the FW Act because on the face of it, it might be regarded as being at odds with the findings of the Full Bench in Shortland v The Smiths Snackfood Co Ltd. However, the circumstances there and the issue under consideration were markedly different to here. There, the Applicant had been employed almost every week for over three years. His only time off was for four isolated weeks, presumably as a period of authorised absence. Shortland sustained an injury in 2009 and had been on worker’s compensation or other absences since that time until his employment was terminated. Here, the periods of work and the periods of absences are significantly different.”

[37] He went on to say at paragraphs 29-33:

“[29] In the circumstances here, the five or six separate engagements over three years, to some minds, would be regarded as regular and systematic. To others it would not. It depends on ones perception of timeframes. A person that has greater reliance on the income derived from the work might also have a different view of it than a person who had less reliance. Similarly, one person may have a reasonable expectation of receiving income from engagements and others may not.

[30] It thus becomes a judgement based on the circumstances and ordinary meaning of the relevant words in the FW Act.

[31] Here, the periods were discrete; the engagements were of different durations; there was not an established pattern of when the work was to be performed, and the engagements were clearly expressed on each occasion as being discrete. Importantly, there were also extensive absences between periods of employment. Certainly, the shutdowns were planned as it would be impossible for them not to be. But the character of the planning for the shutdowns does not turn the discrete periods into regular and systematic employment.

[32] Even if the periods of employment were regular and systematic, I do not consider the Applicant should have had a reasonable expectation of continuing employment on that basis. UGL made it clear on each occasion that there should be no expectation.

[33] In the circumstances and facts here, I do not regard the periods of employment involved as regular and systematic. The requirement of s.384(2)(a) is thus not met. I regard each of these periods to be discrete separate periods with no regular and systematic nature of the type s.384(2) refers.”

[38] As in the Holland decision, the applicant’s sequence of engagements did not amount to a regular and systematic pattern over his entire employment history, although it did become more so in recent years. In 2005 he was employed for two periods amounting to a total of 6 weeks, for the next four years he was employed on two to three occasions amounting to totals of 12,10,14 and 13 weeks respectively. In the last three years he was employed on two to three occasions amounting to totals of 38, 35 and 23 weeks respectively. In 2012 there was 3 weeks between the first and the second occasion and 14 weeks between the second and the third and last occasion.

[39] However he could not have had an expectation of continuing employment once the contract between Transfield and its client was concluded, as happened in the case of the Shell contract in December 2012. This is because as each contract came to an end the probability of him being offered employment on another Transfield contract depended upon a number of uncertain factors. These included whether Transfield secured another contract at all, if so, whether the work required his skills and whether the client of Transfield approved his employment.

[40] The applicant’s separate periods of service with Transfield could not count towards a single period of continuous service because it could not be said, to use the words from the Ponce decision, that a continuing relationship between the employer and the employee had been established.

[41] I find that the date from which the period of employment must be calculated to ascertain if it meets the minimum employment period of 6 months is the date the applicant was employed to work on the Shell project, 22 August 2013. On this basis he was employed for no more than 18 weeks, 8 weeks short of the required 26 weeks or 6 months of the minimum employment period. Accordingly had the application been in relation to the termination of employment on 21 December 2012 then the application would have been dismissed because the applicant did not have a period of employment that would have allowed him to make a competent application.

[42] Transfield’s third jurisdictional objection was that if the applicant was relying on his dismissal on 12 December 2012 then the application was lodged out of time. I consider that in the light of my findings in relation to the first and second objections it is not necessary to address it.

[43] The application is dismissed. An order will issue with this decision.

DEPUTY PRESIDENT

Appearances:

M Van Kampen, the Applicant

J Lee for Transfield Services

Hearing details:

2013.

Sydney:

September 27.

 1   Exhibit L3 - Offer of Casual (Weekly) Employment

 2   Exhibit L4 - Termination of Casual Employment

 3   Transcript PN107

 4   [2010] FWA 2078

 5   [2010] FWAFB 5709

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