Mr Jake Voican v Monadelphous Engineering Pty Ltd

[2013] FWC 9329

[2013] FWC 9329

FAIR WORK COMMISSION

DECISION

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

Mr Jake Voican
v
Monadelphous Engineering Pty Ltd
(U2013/12413)

COMMISSIONER SPENCER BRISBANE, 9 DECEMBER 2013

Application for relief from unfair dismissal - jurisdictional objection - Applicant not protected from unfair dismissal - minimum employment period.

Introduction

[1] This decision relates to an application made by Mr Jake Voican (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Mondaelphous Engineering Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] The Respondent has raised a jurisdictional objection in relation to the Applicant’s application, alleging that the Applicant was not a person protected from unfair dismissal at the time of his dismissal, because he had not completed the minimum employment period.

[3] This decision considers the jurisdictional objection only.

[4] Directions were issued for the filing of submissions in relation to the jurisdictional objection only. The parties were directed to file any requests for a Hearing in this matter after the filing of the substantive material in relation to the jurisdictional objection. Neither party made such a request. Given that both parties were represented, and on the basis that neither party has requested a Hearing, in accordance with Directions, the matter was determined on the papers.

[5] Submissions were filed by Mr Travis O’Brien, Senior Industrial Officer of the Construction, Forestry, Mining and Energy Union, on behalf of the Applicant. Mr Martin Osborne, Partner of Norton Rose Fulbright, Australia, filed submissions on behalf of the Respondent.

[6] An Order to Produce was issued to the Respondent, upon application by the Applicant, to produce documents in relation to the Applicant’s periods of employment. The Order was complied with and material produced by the Respondent.

[7] While not all of the evidence and submissions in the matter are referred to in this decision all of such have been considered.

Relevant Provisions of the Legislation

[8] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).”

[9] Section 382 of the Act provides:

“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....”

[10] Section 383 of the Act provides:

“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.”

[11] Section 384 of the Act defines “period of employment” 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.”

[12] “Service” is defined by s.22 of the Act as follows:

“22 Meanings of service and continuous service

General meaning

(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).

...

(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.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.

Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2

(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2:

(a) 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:

(i) any period of unauthorised absence; or

(ii) any other period of a kind prescribed by the regulations; and

(b) a period referred to in subparagraph (a)(i) or (ii) 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; and

(c) subsections (1), (2) and (3) do not apply.

...

(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.

When service with one employer counts as service with another employer

(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer(taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

...

Meaning of transfer of employment etc.

(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a) the following conditions are satisfied:

(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:

(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

(8) A transfer of employment:

(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and

(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.”

Summary of Applicant’s submissions and evidence

[13] The Applicant conceded that to be a person protected from unfair dismissal, the Applicant must have completed a period of employment of at least the minimum employment period. As the Respondent is not a small business employer, the relevant period is 6 months.

[14] The Applicant submitted that the Applicant was employed by Monadelphous Engineering Associates Pty Ltd, on the Sino iron Project, from 7 August 2010 until 24 February 2011. The Applicant submitted that this period ceased because the Applicant was transferred to the Cadia East Project.

[15] The Applicant submitted that while working on the Cadia East Project he was employed by Monadelphous Engineering Pty Ltd and continued to be so engaged from 4 April 2011 until 2 April 2012. The Applicant submitted that this period ceased because the Employer, the present Respondent, was reducing manning levels at the Cadia East Project site.

[16] The Applicant submitted that he was then employed by Monadelphous Engineering Pty Ltd on the Ulan Coal Mine Construction project from 28 May 2012 until 24 January 2013. Again this period ended due to a reduction in manning levels at the site.

[17] The Applicant again gained employment with Monadelphous Engineering Pty Ltd at the Wiggins Island Coal Export Terminal Construction Project and was employed as such from 24 April 2013 until 26 July 2013. This period ended in the Applicant’s dismissal. It is this period of employment which is the subject of the present application.

[18] The Applicant annexed to his statement in this matter his employment records and, in particular, letters of offer, payslips and termination records for each of the periods of service identified.

[19] The Applicant submitted that from 7 April 2010 to 26 July 2013, he was employed by the Respondent, or an associated entity, for all but three periods, consisting of 37 days, 33 days and 88 days.

[20] The Applicant submitted that s.22(7)(a) of the Act provides for a transfer of employment between national system employers if the employee commences employment with the second employer not more than 3 months after the termination with the first employer and the two employers are associated entities.

[21] The Applicant submitted that he has four periods of service with the Respondent, or an associated entity. Further, the Applicant submitted that none of these periods has been broken by a period of more than three months.

[22] The Applicant submitted that the two employing entities in this matter, Monadelphous Engineering Associates Pty Ltd and Monadelphous Engineering Pty Ltd, are associated entities within the meaning of s.50AAA of the Corporations Act 2001.

[23] Consequently, the Applicant submitted that the Applicant’s period of employment is 764 days (not including the intervening periods of unemployment).

[24] In the alternative to this submission the Applicant submitted that he was engaged as a weekly hire employee. This was analogous, so it was submitted, to employment as a casual employee on the basis that each week of employment is to be seen as a separate engagement.

[25] The Applicant referred to the decision of Shortland v The Smiths Snackfood Co. Ltd 1 (Shortland) in which the Full Bench (Lawler VP, Drake SDP and Lewin C) stated:

“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).” 2

[26] The Applicant submitted that each of his weekly periods of service should be counted towards the period of employment and the periods between his engagements on the different projects should not break that service. The Applicant submitted that this approach was consistent with Shortland.

[27] The Applicant also referred to the Explanatory Memorandum to the Fair Work Bill 2009 which stated that:

“Paragraph 382(a) provides that a person must have completed a minimum employment period with his or her employer. A requirement that an employee serve a minimum period before having access to an unfair dismissal remedy enables an employer to have a period of time to assess the capacity and conduct of a new employee without being subject to an unfair dismissal claim if they dismiss the employee during this period.” 3

[28] The Applicant submitted that this makes it clear that it was the intent of the legislature for the minimum period of service to act as an opportunity for an employer to assess an employee without being subject to unfair dismissal provisions. The Applicant submitted that the Applicant had “ample opportunity to assess the Applicant” prior to dismissing him on 26 July 2013.

[29] The Applicant submitted that he is a person protected from unfair dismissal, on the basis of his entire period of service, with the Respondent, or an associated entity.

Summary of Respondent’s submissions and evidence

[30] The Respondent provided submissions in the jurisdictional objection, as well as an affidavit of Ms Allison Irene Rickard, Senior Employee Relations Advisor of Monadelphous Engineering Pty Ltd.

[31] Ms Rickard stated that Monadelphous Engineering Pty Ltd and Monadelphous Engineering Associates Pty Ltd, broadly speaking, are engineering companies that provide various services in a number of industry sectors. Ms Rickard stated that whilst the two companies are separate entities, they nevertheless fall under the same parent company. 4 Ms Rickard also stated that she reviewed the records, in relation to the Applicant’s employment with both corporate entities.

[32] The Respondent submitted that the Applicant commenced employment with the Respondent, on the Wiggins Island Coal Export Terminal Construction Project, on 24 April 2013 and was dismissed on 26 July 2013.

[33] The Respondent put the question for determination as: whether the Applicant’s unemployment, prior to this final period of service, broke his period of continuous service. If answered in the affirmative, the Respondent submitted that the Applicant, has not completed the minimum period of employment and is therefore not protected from unfair dismissal.

[34] As to the first period of the Applicant’s service (7 August 2010 to 24 February 2011) the Respondent submitted that this period ended by way of resignation. The Respondent submitted that the Applicant was paid his accrued, but untaken entitlements, following his resignation. In this regard Ms Rickard annexed to her affidavit a copy of the Applicant’s “Site Employees Resignation/Termination Form” (the Termination Form). 5

[35] Ms Rickard stated that the Termination Form is a standard form and is completed whenever an employee of either corporate entity resigns, or is terminated, from their employment.

[36] The Termination Form indicates that the Applicant resigned from his employment; the word “Resignation” has been circled on the form. The Termination Form also appears to be signed by the Applicant. The Applicant did not contend that the Termination Form was not signed by him. This particular Termination Form was also annexed to the Applicant’s statement and appears to be identical. 6 The “Reason for Leaving” on the Termination Form is written, as “Transfer to Cadia east Project”.

[37] Ms Rickard also annexed to her statement a payslip, addressed to the Applicant for “Pay Date” 8 March 2011. 7 This payslip records that the Applicant’s entitlements were paid to the Applicant on this date.

[38] As to the second period of employment (4 April 2011 to 25 April 2012), the Respondent agrees with the Applicant, that he was terminated because of a reduction in manning levels of the project.

[39] Ms Rickard annexed to her statement the Termination Form relevant to this period of employment. 8 The “Reason for Leaving” indicated on this form is “Project Coming to an End”. This Termination Form is not signed by the Applicant, however the Applicant also annexed this form to his statement and did not challenge its accuracy.9

[40] Ms Rickard also annexed a letter, addressed to the Applicant, dated 11 April 2012, which stated:

“Due to changes in Monadelphous’ manning requirements, Monadelphous will be reducing manning levels on site. As a result of this your employment will be terminated on 25/04/2012...” 10

[41] Further, Ms Rickard annexed a pay slip, addressed to the Applicant, for “Pay Date” 8 May 2012. 11 Again this payslip reflects that the Applicant received a payout of his accrued but untaken entitlements.

[42] In relation to the third period of employment (28 May 2012 to 24 January 2013), the Respondent agrees with the Applicant that this period also came to an end due to a reduction in manning levels.

[43] Again, Ms Rickard annexed the same documents in relation to this employment period which accord with the evidence and submissions of the Respondent. The Termination Form records that the “Reason for Leaving” as “Terminated by Employer”.

[44] In relation to the final period of employment (24 April 2013 to 26 July 2013), the Respondent submitted that the Applicant was terminated because of unsatisfactory performance during probation.

[45] Ms Rickard also gave evidence as to the approach the Respondent takes to employment generally, in the context of the project type work undertaken by the Respondent’s enterprise. In this context Ms Rickard stated that where a project comes to an end, or manning requirements are reduced, employees may register their interest in work on a new or different project. This interest however is not an offer of employment and does not guarantee a further offer of employment.

[46] Ms Rickard annexed to her Affidavit, a copy of the registration form, completed by the Applicant, in relation to his final period of employment. If offered a new position, Ms Rickard stated that, regardless of whether an employee has previously worked for the Respondent, they must undergo the usual recruitment process. The transfer between projects is not automatic, and the service with one project is not recognised for the subsequent projects.

[47] After giving this evidence Ms Rickard responded to the Applicant’s statements. Ms Rickard stated that any suggestion by the Applicant that his employment continued as a series of transfers is incorrect. Rather, Ms Rickard stated that each period ended by way of a genuine termination that brought the employment relationship to an end.

[48] Ms Rickard also responded to the Applicant’s evidence that he left the Ulan Coal Project because he was starting on the Wiggins Island Project. Ms Rickard stated that it is not possible that this is the case considering that the Applicant did not register his interest in the Wiggins Island Project until 11 April 2013, several months after termination at the Ulan Coal Project. Ms Rickard annexed to her statement that registration of interest. 12 That registration form indicates it was signed by the Applicant on 11/4/13. The Applicant did not reply to, or challenge this evidence.

[49] The Respondent submitted that the wording of s.384 of the Act makes it clear that only continuous service as at the time the employee receives notice of dismissal or is dismissed is relevant to the minimum employment period.

[50] Further the Respondent submitted that s.22(1) of the Act specifies that only a period that an employee is employed by an employer is a period of service. The Respondent submitted that some periods do not count as service, but otherwise do not break an employee’s period of continuous service. The Respondent submitted that the periods between the Applicant’s employment, do not satisfy any of the periods specified by s.22(2) of the Act.

[51] The Respondent referred to the case authority of Tebble v Rizmas Pty Ltd 13 where Commissioner Roe stated:

“I am satisfied that a resignation does break the period of continuous service as defined by Section 22 of the Act. The period between a resignation and reemployment cannot be characterised as a period during which the employee is “employed by the employer” unless the employer specifically agrees to regard it as such and that is not the situation in this case.” 14

[52] The Respondent conceded that only the first period of service ended by way of resignation but submitted that termination, at the initiative of the employer, similarly breaks the period of continuous service. Accordingly the Respondent submitted that the previous periods of employment bear no relevance to the final period of employment under consideration in this matter.

[53] In so far as the Applicant submitted that a transfer occurred between the two final periods of employment, the Respondent relied upon the evidence of Ms Rickard that the Applicant could not, at the time of finishing his employment of the Ulan Coal Project, have known he was going to the Wiggins Coal Project.

[54] The Respondent responded to the Applicant’s submission regarding s.22(7)(a) of the Act by submitting that the Act contemplates a transfer from one employer to another, not from one employer to the same employer. The Respondent relied upon the decision of Ireland v Hanson Construction Materials Pty Ltd 15 in which the Commission, as presently constituted, stated:

“The language of the section is read, such that the first employer ceases to have or do something and the second employer begins to have or do something; that there is a “connection” with each other.” 16

[55] And further at [37] where it was stated:

“There is an absence of a clear legislative provision, covering the re-engagement of an employee within 3 months by the same Employer, as the Act in its current form does not allow for these two periods of employment to be joined”

[56] On this basis the Respondent submitted that only the final period of employment is relevant to the question at issue in these proceedings.

[57] As to the Applicant’s contention regarding his engagement as a weekly hire employee, the Respondent submitted that the Respondent’s objection is not that each period of service ended with each week of service. However, the Respondent submitted that the Applicant’s reliance on the decision in Shortland is incomplete and referred to the following statement:

“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. …” 17

[58] In reliance upon this statement of the Full Bench in Shortland, the Respondent submitted that the termination of the Applicant at the end of each period, made it clear that the employment of the Applicant was terminated. The Respondent however submits that the decision in Shortland is of limited application to these facts due to the discontinuance or absence of an ongoing relationship between the parties at the end of each of the engagements.

[59] The Respondent submitted that the jurisdictional objection should be upheld and the application dismissed.

Conclusion

[60] The Applicant’s second last period of employment with the Respondent was from 28 May 2012 until 24 January 2013 (the third period), at the Ulan Coal Mine Construction project, which ended due to a required reduction in manning at the site. The Applicant commenced employment with the Respondent for the final period of employment at the Wiggins Island Coal Export Terminal Construction project from 24 April 2013 until 26 July 2013, a period which was ended by the Applicant’s dismissal, and a period for which the Respondent set out that the Applicant registered his interest for, several months after (on 11 April 2013), his employment was terminated from the prior project, or the third period of employment.

[61] The final, 3 month period of employment, from 24 April to 26 July 2013, does not meet the minimum employment period required under the Act. There was just less than a three month break in employment between this period, and the period prior. However, these two periods of employment are with the Respondent (that is, not with an associated entity or different employers).

[62] The Applicant had the opportunity to file a reply and did not do so. The Applicant has not challenged the evidence of the Respondent regarding the Applicant’s earlier resignations or dismissals, and the date of the later registration of interest for the further period of employment.

[63] The current circumstances, relevant to the jurisdictional determination, as to what was the Applicant’s period of employment for the purposes of s.383 of the Act, at the time of dismissal, are a consideration of the last 2 periods of employment.

[64] As stated, the last two periods of employment were with the Respondent company (not an associated entity). After the Applicant’s dismissal from the third period (due to reduced manning requirements) the Applicant registered his interest for further employment on another project, at a later date. The Respondent’s evidence on this is preferred (give that the Applicant did not challenge this in reply submissions). The Respondent’s evidence as to the Applicant’s registration of interest for this future employment is contrary, to the Applicant’s evidence, on the basis of the dismissal and later registration of interest for further employment. These periods of employment cannot be constructs, on the evidence, as a transfer of employment between the projects.

[65] Whilst this further employment occurred within 3 months, it does not meet the transfer of employment conditions in ss.22(7) and (8) of the Act (extracted above).

[66] The further period of employment, as stated, was with the Respondent. It was not with an associated entity or a “second” national system employer. Accordingly the last period, cannot be construed, in combination with the prior period, to meet the 6 months minimum employment period.

[67] For completeness, the proposed series of weekly engagements, as asserted, and/or if the continuity of the four engagements are considered together, does not equate to the minimum employment period as there is no continuity of employment and the transfer of employment provisions are not met.

[68] As I noted in comparable fact circumstances, in the decision of Hanson, in relation to the minimum employment period and ss.22(7) and (8):

“The references in this section are to the “transfer” of the employment, the work or the business. The language of the section is read, such that the first employer ceases to have or do something and the second employer begins to have or do something; that there is a “connection” with each other. In this case there is no “connection” of the requisite kind that is no transfer of business. There is a re-engagement by the same Employer.

There is an absence of a clear legislative provision, covering the re-engagement of an employee within 3 months by the same Employer, as the Act in its current form does not allow for these two periods of employment to be joined.” 18

[69] The Applicant was dismissed from the third period of employment with the Respondent and paid his entitlements. The further period of employment does not meet continuity of employment and transfer of employment conditions, as it is with the same employer.

[70] Accordingly for the aforementioned reasons, given the Applicant period of employment, does not meet the minimum employment period of 6 months, the Applicant is therefore, not a person protected from unfair dismissal, within the meaning of s.386(2)(a) of the Act, at the time of his dismissal.

[71] On the basis of the jurisdictional objection, regarding the minimum period of employment, the application, pursuant to s.394 of the Act, is therefore dismissed.

[72] I Order accordingly.

COMMISSIONER

 1   [2010] FWAFB 5709.

 2 Ibid at [12].

 3   Explanatory Memorandum to the Fair Work Bill 2009 at paragraph 1512.

 4   Affidavit of Allison Rickard at paragraph 2.

 5   Affidavit of Allison Rickard at annexure AR-2.

 6   Statement of Jake Voican at annexure JV-1.

 7   Affidavit of Allison Rickard at annexure AR-3.

 8   Affidavit of Allison Rickard at annexure AR-5.

 9   Statement of Jake Voican at annexure JV-1.

 10   Affidavit of Allison Rickard at annexure AR-6.

 11   Affidavit of Allison Rickard at annexure AR-7.

 12   Affidavit of Allison Rickard at annexure AR-15.

 13   [2011] FWA 6853.

 14 Ibid at [6].

 15   [2013] FWC 5292.

 16 Ibid at [36].

 17   [2010] FWAFB 5709 at [13].

 18   [2013] FWC 5292 at [36] to [37].

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