Mr Gary Hughes v Trident LNG Shipping Services Pty Ltd

[2014] FWC 1344

[2014] FWC 1344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Gary Hughes
v
Trident LNG Shipping Services Pty Ltd
(U2013/3427)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 28 FEBRUARY 2014

Application for relief from unfair dismissal - jurisdiction - whether applicant dismissed - conduct of employer - whether repudiation - MUA fiction of representation

[1] This matter concerns an application made by Mr Gary Hughes (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”) in which he seeks an unfair dismissal remedy in relation to his alleged dismissal by Trident LNG Shipping Services Pty Ltd (“the employer”).

[2] The employer was represented by a lawyer. Permission to appear was not opposed and permission was granted for reasons retained in transcript (and which largely went to the complexity of the various jurisdictional objections raised in this matter).

Background

[3] The Applicant performed duties as an Integrated Rating on a casual basis with the employer from 14 November 2012.

[4] On 11 July 2013, the Applicant was employed on board a shipping vessel in Saikai, Japan.

[5] The Applicant underwent a random drug and alcohol test on that day.

[6] The results indicated that the Applicant tested positive for high levels of amphetamines (16000ng/ml) and benzodiazepines (206ng/ml). The cut-off level stipulated by the employer for amphetamines was 500ng/ml. The cut-off for benzodiazepines was 200ng/ml. A second sample confirmed the original results.

[7] The employer’s drug and alcohol policy sets out the Australia and New Zealand Standards screening cut off levels for the various drug compounds and states that a failure to comply with the relevant standards will result in disciplinary action, which may include dismissal.

[8] The employer operates under Shell’s Code of Conduct (“code of conduct”) and Life-Saving Rules (“the safety rules”).

[9] The safety rules state that employees are not to use alcohol or drugs whilst working.

[10] The ship’s master was advised that the Applicant had declared prescriptions, at the time of the test, for the amphetamines. No prescription was declared for the benzodiazepines at the time.

[11] The ship’s master was advised of the result of the drug test on 25 July 2013. The Applicant was stood down from duties at around the same time, but remained on full seagoing terms and conditions. The Applicant was advised of the test results at that time and agreed to a confirmatory test. The Maritime Union of Australia (“the MUA”) delegate was informed of the circumstances, as well.

[12] The day after the test results had been returned, the Applicant came to explain the presence of benzodiazepines by reference to a friend having given him some Zepose 10 tablets which he had ingested in the period prior to commencing duty. He did not understand or appreciate at that time, he asserts, that the Zepose 10 tablets contained valium. He claimed that he had ingested a single tablet on a plane trip (on 30 June 2013) as a muscle relaxant. The Applicant had not read the ingredients as the font size was too small.

[13] The Applicant also raised a number of mitigating factors he wished to be taken into account by the employer.

[14] The employer contends that the MUA was advised of the drug and alcohol test findings.

[15] The employer contended that it had at an earlier time (on 2 July 2013) had cause to be concerned about the Applicant’s performance of his duties. This occurred when on departure of the vessel from Withnell Bay the master relieved the Applicant from his duties as helmsman as he was steering erratically in a narrow channel.

[16] The Applicant was off-signed from the vessel on 6 August 2013.

[17] Notwithstanding the breach of the drug and alcohol policy and the safety rules, the Applicant was not dismissed from his employment nor was any notice of termination provided to him. The employer so asserts, and the Applicant so agrees.

[18] The employer appears to have contacted the Applicant upon his return to Sydney after he had been off-signed on 6 August 2013. The employer argues that this was not a disciplinary discussion but more an enquiry into the Applicant’s health and welfare. The employer advised the Applicant that it would give him a few weeks before arranging a meeting to progress the matter. This was done so in the context in which the employer was aware that the Applicant’s mother had passed away at around the same time.

[19] Mr Neil Griffiths, the employer’s Manning Manager, stated that he telephoned the Applicant on 9 September 2013, and thereafter sent him an e-mail summarising the discussion he had with him at that time. The purpose of this telephone call and email was to progress the matter.

[20] On 11 September 2013 the employer was advised that the MUA was representing the Applicant in respect of both the suspension and the failed drug test.

[21] The employer subsequently appears to have maintained contact with the MUA in relation to the Applicant’s circumstances.

[22] On 11 September 2013 Mr Griffiths sent an e-mail to the Applicant stating that he and another supervisor would be available for a discussion the next day and that the MUA would keep him (the Applicant) updated.

[23] On 12 September 2013 a teleconference was conducted between the MUA (represented by Mr Paul Garrett) and the employer (represented by Mr John Bateson and Mr Griffiths).

[24] The employer contends that during this conference the MUA informed the employer that it was not to contact its member directly and that all communication was to be with the MUA in future. This was because of concern about the Applicant’s mental state. The drug and alcohol test results were given to the MUA directly following the telephone conference.

[25] It appears as though the employer respected the MUA’s request in this regard despite continuing to receive various e-mails from the Applicant (which it referred to the MUA).

[26] The employer also understood that the Applicant had commenced direct communication with the testing laboratories that had tested his samples. The Applicant was advised to contact the employer rather than the testing laboratories directly if he had any queries.

[27] The Applicant also sent further e-mails to Mr Griffiths but Mr Griffiths did not respond to these, for reason that he sought to comply with the MUA instruction.

[28] By 10 October it appears the employer itself had become anxious as to the progress of the matter. On that day an e-mail was received from the Applicant requesting copies of his drug test results (which had been given to the MUA the previous month).

[29] As further time passed, by 15 October 2013 Mr Griffiths sent an e-mail to the Applicant to which he attached the drug test results and noted that he had not contacted him directly because of the MUA’s instruction of 11 September 2013.

[30] The employer subsequently discovered (by way of the Applicant’s reply e-mail later that day) that the MUA had not made any contact with the Applicant about the matters and had not discussed the drug test results (which the employer had given to the MUA) with him.

[31] Following this e-mail exchange, the employer received a copy of the Applicant’s unfair dismissal application which was filed in the Commission on 17 October 2013.

Jurisdictional issues

[32] The employer has raised a number of jurisdictional questions in relation to the application. These include the following:

• Whether the Applicant had been dismissed for the purposes of s.385(a) of the Act;



• Whether the application was made consistent with the requirements of s.394(2)(a) of the Act, and if not, whether the application should be allowed (under s.394(2)(b) of the Act);



• Whether the Applicant was employed as a casual employee, and if so whether his employment was on a regular and systematic basis and whether he had a reasonable expectation of ongoing employment (for purposes of s.383(a) of the Act).

Was there a dismissal?

[33] The Act provides as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

[...]

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[...]

[34] The Applicant was stood down from his duties in his third swing, and he returned to Australia by air at his employer’s cost. There was a subsequent telephone call to check on his well being but after that there was very limited contact with the Applicant.

[35] As I set out below, the employer acted on the basis that the MUA was representing the Applicant and it was not to have any contact with him directly (for reasons asserted by the MUA). It was only when Mr Griffiths reached a view that the Applicant was not in fact being represented by the MUA (or had had no contact with the MUA) that he dealt directly with the Applicant once more about the drug testing issue and sought to progress that issue.

[36] The Applicant contends that he was never advised of a reason for the dismissal, let alone advised that he had been dismissed. According to the Applicant, there had never been any notice of termination in writing provided to him, or any official communication of any kind. He did, however, come to argue in the course of the hearing (as I set out further below) that he was informed on an informal basis in mid October 2013 by the Crew Planner (who appears to have at least “intimated”) that he was unlikely to be offered any new swings. This was new information not otherwise previously disclosed in the Applicant’s body of claims.

[37] I do not see any evidence sufficient for the Applicant as a reasonable man to have drawn the conclusion that he had been dismissed as a casual employee. Mr Griffiths had explained that he had not communicated with him (the Applicant) for a period of time because he was under the apprehension, soundly based I add, that the MUA was communicating with the Applicant (on an exclusive basis).

[38] When it was disclosed by the Applicant that he had not received any information about the drug testing results, and further effort to progress the matter through the MUA had been to no effect, Mr Griffiths communicated directly with the Applicant. He provided the Applicant a copy of the drug test results as had been given to the MUA in September 2013 and explained why he had not been dealing with the Applicant directly with regards to the matter.

[39] Mr Griffiths did not convey to the Applicant that he (the Applicant) had been dismissed or was no longer an employee, would not be considered for a roster, or that he was uninterested in progressing the issue of the drug test results. Mr Griffiths merely took the matter up from where it should have been in August 2013, but for the fiction of representation.

[40] Objectively evaluated, I do not consider the employer to have taken any steps to have dismissed the Applicant. Irrespective of what the Crew Planner’s apparently private or informal thoughts (or intimations) may have been, no step of any substance can be inferred from the facts that the employer had acted in a way to bring about the Applicant’s dismissal, directly or constructively (such as by intentionally excluding him from progressing the usual follow-up procedures from the drug test result) or otherwise consequentially. That is, there is no evidence of any “action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.” 1

[41] The employer’s only substantiated conduct was to make efforts to progress the post drug test process through the representative agency of the MUA.

[42] Thus, the employment relationship was not terminated or dismissed at the employer’s initiative.

[43] Nor, I add, was there an act of repudiation of the contract of employment by the employer that could have been subsequently accepted by the Applicant.

[44] The Full Bench in Allied Express Transport Pty Ltd v Owens, 2 in considering on appeal whether an employee had been dismissed put the matter this way from a contractual perspective:

[23] As FWA can only deal with an application for relief under s.394 where a person has been dismissed, the appeal raises issues going to the jurisdiction to deal with the application.

[24] In the circumstances was there a repudiation by the Company of Ms Owens’ contract of employment?

[25] In Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd the High Court observed:

“Repudiation is not ascertained by an inquiry into the subjective state of mind of the party in default; it is to be found in the conduct, whether verbal or other, of the party in default which conveys to the other party the defaulting party’s inability to perform the contract or promise or his intention not to perform it or to fulfil it only in a manner substantially inconsistent with his obligation and not in any other way.”

...

“The question is what effect the [defaulter’s] conduct “would be reasonably calculated to have upon a reasonable person” (per Lord Herschell L.C., Carswell v. Collard (89); Forslind v. Bechely-Crundall (90)). It suffices that, viewed objectively, the conduct of the relevant party has been such as to convey to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it.”

[26] Was the conduct of the Company such it would convey to a reasonable person, in the situation of Ms Owens, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it?

[45] The Applicant, no doubt, had reason to be concerned at the failure of the drug test follow up process to unfold. Admittedly, the circumstances of this matter are unusual. But ultimately, the Applicant did not have sufficient grounds to conclude that he had been dismissed at the initiative of the employer from his casual engagement, as it may have been (given the contract for the swing had ceased in August 2013).

[46] When the Applicant lodged his unfair dismissal application, usually a strong indication by an employee of the acceptance of contractual repudiation on the part an employer, he was aware on its face only that the employer had been acting on the presumption the MUA was representing his interests, and that the employer had complied with his request for information when this fell into question. There was no other conduct by the employer that evinced an intention to do anything but continue the post testing process that had fallen into abeyance. The conduct of the employer, therefore, was not such as to convey to a reasonable person that the employer had repudiated the contract of employment.

[47] There was no dismissal, as a consequence, and the application is outside the Commission’s jurisdiction for this reason.

Conclusion

[48] As a consequence of the above findings, the application before me under s.394 of the Act is dismissed. The Applicant is not a person who has been dismissed at the initiative of his employer, for the purposes of s.385 of the Act. An application for the purposes of s.394(1) can only be made by a person who has been dismissed.

[49] I have not had reason, because of these findings, to make further findings in relation to the minimum period of employment (such as whether the gaps in the periods of service constitute continuous service) or as to the remaining ‘jurisdictional’ question (which concerns whether an extension of time should be allowed under s.394(2)(b) of the Act). Nor have I made findings in relation to whether the Applicant’s periods of casual engagement were regular and systematic (amongst other things). Both these jurisdictional questions are predicated upon there being a properly founded application, which in this case there is not.

[50] I add, by way of conclusion, that had I turned to the requirements of s.383 and s.384 of the Act, regard would have needed to be had to the evidence that the Applicant’s employment at all times was contingent and arose only because of circumstantial or conditional developments (absences etc) arising on particular swings. The Applicant was offered a new contract on the basis of the contingent availability of gaps in the forward roster. He was advised as to whether further engagements would be available only after completion of the current swing and then subject to the circumstances of the forward roster as they may be at a particular point in time. This was Mr Griffiths’ unchallenged evidence.

[51] The Applicant was offered swings in November 2012-Dececember 2012; February 2013 - April 2013 and another swing in July 2013 (some three months later), during the course of which he was stood down (for the reasons given above). Some training days account for further, much briefer periods of employment in between.

[52] It is arguable, at least, that in such circumstances the periods of employment as a casual could not be taken to be “regular or systematic”. But for the reasons given above, I have no need to determine this matter to finality.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr G. Hughes, Applicant

Mr D. Trindade, Clayton Utz, for the Respondent

Hearing details:

Brisbane

2014

20 February

 1   PR973462.

 2   [2011] FWAFB 2929.

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