Samuel Melville v Eco Abrolhos
[2017] FWC 3360
•22 JUNE 2017
| [2017] FWC 3360 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Samuel Melville
v
Eco Abrolhos
(U2017/3971)
COMMISSIONER PLATT | ADELAIDE, 22 JUNE 2017 |
Application for an unfair dismissal remedy – minimum employment period not met – application dismissed.
[1] On 12 April 2017, Mr Samuel Melville made an application for a remedy for an alleged unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
[2] Mr Melville advised that he commenced employment with Eco Abrolhos on 10 May 2016, that he was advised of his dismissal on 31 March 2017 and that his dismissal took effect on 4 April 2017. Mr Melville was employed as a casual deckhand. It is not in dispute that Mr Melville’s length of service is more than 6 months and less than 12 months.
[3] On 8 May 2017, Eco Abrolhos Accommodation Pty Ltd (Abrolhos) lodged a Form F3 Employer Response and raised a jurisdictional objection on the basis that it was a small business employer as defined in s.23 of the Act and Mr Melville had not met the minimum employment period requirement of 12 months pursuant to s.383 of the Act.
[4] Abrolhos contend that as at the date of the dismissal they employed fewer than 15 employees as defined on s.23(2) of the Act.
[5] Abrolhos is a Tourism Charter Operator that operates 3, 5 and 14 day cruises on its vessel the Eco Abrolhos. The cruises are seasonal with the Eco Abrolhos cruise running from March to early May and then from September to mid-October, and with the Kimberley cruise running from May to September each year. Abrolhos also operates harbour cruises in Geraldton during the festive season - from mid-November to December each year. Due to the seasonal nature of the work, Abrolhos provides casual employees an indication of cruises they will be offered to work. If a cruise does not have sufficient passenger numbers, the cruise will be cancelled and the employees’ shifts cancelled.
[6] Mr Melville contends that as at the time of his dismissal Abrolhos engaged 15 or more persons within the meaning of s. 23(2) of the Act.
[7] Abrolhos contends that as a 31 March 2017, the total number of persons employed was 19. Mr Melville contends that a number of those persons should be characterised as regular and systematic casual employees.
[8] Directions were issued requiring the parties to file written submissions and witness statements. A hearing by way of telephone conference was conducted on 2 June 2017. The conference was not recorded due to technical difficulties.
[9] On 2 June 2017, Mr Melville represented himself and Ms Ivanovski of the Chamber of Commerce and Industry of Western Australia represented Abrolhos. A statement, copies of rosters and evidence was given by Mr Melville. Ms Vanessa Halliday provided a statement, a number of payroll records and gave evidence on behalf of the respondent. Each party was afforded the ability to question each witness.
[10] Abrolhos contends that as at 4 April 2017 it had 5 permanent employees (Jay C, Sonia C, Vanessa H, Raymond T, Anthony L). In the weeks leading up to the dismissal, Abrolhos contends that its employment records demonstrate that it engaged a number of casual employees but a review of the work performed by those persons indicates that their employment was not regular and systematic. Detailed wage records were submitted.
[11] The following summary in relation to non-permanent employees was provided by Abrolhos;
“Isabelle C…
29. Isabelle … commenced employment with the Respondent as a casual hostess on 15 March 2017.
30. In March 2017. Isabella performed 9 days on overnight cruises and 23.23 additional hours.
…
Bronson C…
33. Bronson … commenced employment with the Respondent on 4 June 2013. Bronson worked for the Respondent until 6 December 2015, at which time he moved to Queensland.
34. Bronson was visiting Perth and Geraldton in March 2017 and was engaged as a casual coxswain to work a 3 day overnight charter from 4 to 6 March 2017. This was the first shift Bronson had performed for the Respondent since 6 December 2015.
…
37. Bronson no longer works for the Respondent … [and] has returned to his home in Queensland.
Paul C…
38. Paul … Has been employed by the Respondent as a casual on an irregular basis since 15 May 2012.
39. In the six months prior to 31 March 2017, Paul performed the following work for the Respondent:
a. October 2016 – did not perform any work for the Respondent
b. November 2016 – did not perform any work for the Respondent;
c. December 2016 – 3 days on overnight cruises;
d. January 2017 – 5 days on overnight cruises and 113.75 hours working on the refit of the Eco Abrolhos;
e. February 2017 – 93.75 hours on the refit of the Eco Abrolhos; and
f. March 2017 – 51.25 hours on the refit of the Eco Abrolhos.
40. Paul is no longer employed by the Respondent. The last shift Paul performed for the Respondent was on 15 March 2017.
…
Qinglin D…
43. Qinglin … commenced employment with the Respondent on 1 July 2016. Qinglin … was employed on a fixed task basis to translate the Respondent’s website into mandarin. There was an agreement in place between the Respondent and Qinglin that the Respondent would pay Qinglin for 8 months at $445 (gross) per month to do this work.
44. Qinglin finished translating the Respondent’s website sometime in December 2016. However, in accordance with the agreement in place between the Respondent and Qinglin, Qinglin was paid a further $445 (gross) in January, February and March 2017. The last payment made to Qinglin was on 30 March 2017.
…
Alan F…
46. Alan … commenced employment with the Respondent as a casual skipper in 2014. Alan is semi-retired and only performs work for the Respondent on an irregular basis. Generally, the Respondent will only offer Alan a shift if there are no other skippers available.
47. In the six months prior to 31 March 2017, Alan performed the following work for the Respondent:
a. October 2016 – 14 days on overnight cruises and 5.5 additional hours;
b. November 2016 – did not perform any work for the Respondent;
c. December 2016 – did not perform any work for the Respondent;
d. January 2017 – 5 days on overnight cruises;
e. February 2017 – did not perform any work for the Respondent; and
f. March 2017 – 7 days on overnight cruises and 18 additional hours.
…
Shannon H…
50. Shannon … commenced employment with the Respondent as a casual bar attendant on [20 November 2014 (sic). Shannon also occasionally does casual work as a hostess for the Respondent. Shannon has a full-time job with another employer and works for the Respondent on an irregular basis.
51. In the six months prior to 31 March 2017, Shannon performed the following work for the Respondent:
a. October 2016 – did not perform any work for the Respondent;
b. November 2016 – 13.75 hours;
c. December 2016 – 20.25 hours;
d. January 2017 – did not perform any work for the Respondent;
e. February 2017 – 15 hours; and
f. March 2017 – 4 days on overnight cruises and 9.5 additional hours.
…
54. Shannon has not performed any work for the Respondent since 27 March 2017.
Annmaree H…
55. Annmaree … commenced employment with the Respondent as a casual bar attendant on 14 February 2017. Annmaree has a full-time job with another employer and has only worked for the Respondent on an irregular basis.
56. Annmaree has performed the following work for the Respondent:
a. February 2017 – 15 hours; and
b. March 2017 – 4.5 hours.
57. The last shift performed by Annmaree was 1 March 2017. Annmaree has not performed any work for the respondent since this date.
…
Jeremy H…
60. Jeremy … was engaged as a casual employee in March 2017 to paint the Eco Abrolhos vessel. Jeremy performed 28 hours of work during the pay period ending on 30 March 2017, with the last shift being performed on 20 March 2017.
61. Jeremy has not performed any shifts for the Respondent since 20 March 2017.
…
David J…
64. David Jackson commenced employment with the Respondent in June 2016. David works for the Respondent on an irregular basis. David lives in Perth and works for several other charter operators.
65. In the six months prior to 31 March 2017, David performed the following work for the Respondent:
a. October 2016 – 8 days on overnight charters and 11.75 additional hours;
b. November 2016 – did not perform any work for the Respondent;
c. December 2016 – did not perform any work for the Respondent;
d. January 2017 – did not perform any work for the Respondent;
e. February 2017 – did not perform any work for the Respondent;
f. March 2017 – 1 x 5-day charter.
…
Yu Lin F…
68. Yu Lin … commenced employment with the Respondent as a casual cleaner on 28 March 2017. During the month of March 2017, Yu Ling (sic) performed 11.25 hours of work for the respondent.
…
71. Yu Lin is no longer employed by the Respondent.
Joanne M…
72. Joanne … commenced employment with the Respondent in November 2016 as a casual bar attendant and hostess. Joanne worked for the respondent on an irregular basis.
73. In the six months prior to 31 March 2017, Joanne performed the following work for the Respondent:
a. November 2016 – 17.25 hours;
b. December 2016 – 3 days overnight cruises and 29.25 additional hours;
c. January 2017 – 5 days on overnight cruise and 14 additional hours;
d. February 2017 – did not perform any work for the Respondent;
e. March 2017 – 3 days on overnight cruises between 4 and 6 March 2017.
…
76. Joanne has not performed any shifts for the Respondent since 6 March 2017. I understand that Joanne has now relocated to Jordan.
Deborah M…
77. Deborah … was engaged by the Respondent to assist with maintenance and a refit of the Eco Abrolhos in January and February 2017. Deborah is not engaged by the Respondent on a regular basis.
78. In the six months prior to 31 March 2017, Deborah performed the following work for the respondent:
a. January 2017 – 38 hours;
b. February 2017 – 25 hours;
c. march 2017 – 1.25 hours.
…
81. Deborah has not performed any work for the Respondent since the pay fortnight ending 10 March 2017.
Duangdueem (sic) O…
82. Duangdeem … commenced employment with the Respondent on 28 March 2017.
83. In March 2017, Duangdeem performed 11.25 hours of work for the Respondent.
84. Duangdeem has relaocated to Perth and is no longer employed by the Respondent. Duangdeem’s last shift with the Respondent was on 21 April 2017.
…
Stacy R…
87. Stay … has been employed by the Respondent as a casual bar attendant and hostess since 7 November 2015.
88. In the six months prior to 31 March 2017, Stacy performed the following work for the respondent:
a. October 2016 – 12 days on overnight cruises and 31.5 additional hours;
b. November 2016 – 3 days on overnight cruises and 30.75 additional hours;
c. December 2016 – 3 days on overnight cruises and 55.25 additional hours;
d. January 2017 – did not perform any work for the Respondent;
e. February 2017 – 8.25 hours of work; and
f. March 2017 – 8 days on overnight cruises and 70.25 additional hours.” 1
[12] During the hearing Mr Melville asserted that additional named persons were engaged by Abrolhos. Abrolhos contended that some of these persons where not employed at the time of the dismissal and others were not engaged as employees. The hearing was adjourned to enable Abrolhos to provide further information and for Mr Melville to respond.
[13] The additional material provided by Abrolhos is as follows;
“Chloe M…
4. Chloe … commenced employment with the Respondent on 5 November 2016. Between November 2016 and February 2017, Chloe Melville worked the following hours:
a. November 2016 – worked as bar staff for 13.25 hours;
b. December 2016 – worked as bar staff for 49.5 hours;
c. January 2017 – worked as a hostess for a five day charter trip to Abrolhos from 30 December 2016; and
d. February 2017 – worked as bar staff on three harbour cruises on 4 February 2017, 10 February 2017 and 11 February 2017.
5. [Chloe’s] … last shift was on 11 February 2017 and she has not worked since that time.
…
Richard D…
7. Richard … is a Skipper who will be doing the Kimberley tours (these being four charter trips, two weeks in duration) for the Respondent.
8. He first attended the tour which commenced on 30 March 2017 for five days [as a contractor]. He came on another five day tour which commenced on 22 April 2017 for the purposes of familiarising himself with the vessel [as an employee].
9. Richard … was not originally on the payroll as he was unsure if he wanted to be engaged as an employee or subcontractor.
…
Alison A…
11. Alison … was engaged by the Respondent as a hostess on 30 March 2017.
12. She was first paid by the company for the hours worked in the pay period 28 March 2017 to 10 April 2017 …
Clive E…
13. Clive … is a subcontractor who does some Abrolhos Island and Kimberley tours as a guide/coxswain. From time to time, he also works on the Respondent’s harbour cruises.
14. Clive … has been contracting his services to the Respondent since 2015 on an irregular basis.
15. Invoices are received by the Respondent from the Edwards Investment Trust (ABN 80 756 425) for services provided by Clive …
…
Chris S…
17. Chris … is a subcontractor who does some Abrolhos Island and Kimberley tours as a guide/coxswain.
18. Chris … has been contracting his services to the respondent since 2016 on an irregular basis. For example, he did not provide any services to the Respondent between the period November 2016 to 24 March 2017.
19. Invoices are received by the Respondent from Persephone Pty Ltd trading as Halfmoon Biosciences (ABN 44 656 501 907) for services provided by Chris …” 2
[14] Mr Melville provided additional rosters and some social media posts in support of the contention that the additional persons should be regarded as employees for the purposes of s.23 of the Act.
[15] It is for Abrolhos to establish that it employed fewer than 15 persons at the time of Mr Melville’s dismissal and that those persons who were casual employees were not employed on a regular and systematic basis.
[16] Section 383 of the Act sets out the minimum employment period:
“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.”
[17] Section 23 of the Act sets out the meaning of small business employer:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
Consideration
[18] Mr Melville submitted a number of rosters containing names of persons and their rostered shifts. The rosters are not evidence that the shifts were worked or that the persons nominated work the shift allocated. It is possible the vessel trips upon which the rosters were based were cancelled or deferred. It is possible that the shift indicated by the rosters were not performed by the named employee. I do not have direct evidence from the employees as to when they worked.
[19] Mr Melville also submitted a number of social media posts which he suggests indicates that employees were working on particular days.
[20] In my view, the best evidence available to me to determine this issue is the payroll records of Abrolhos. These records indicate what shifts were worked by each employee.
[21] Abrolhos concedes that that as at 31 March 2017 it had 5 permanent employees including Mr Melville. In order to establish that it was a small business employer, Abrolhos needs to establish that of the other employees that worked at the time of dismissal, less than 10 of those persons met the definition of employee in s.23 of the Act.
[22] Having reviewed the payroll records provided, I make the following findings in respect of the employment status of each person referred to below as at 31 March 2017.
Name | Employment status (as at 31 March 2017 | Does the evidence establish that the casual employment was Regular and Systematic? (Y/N or N/A) |
Isabella C | Casual | N |
Bronson C | Casual | N |
Paul C | No longer employed | N/A |
Qinglin D | No longer employed | N/A |
Alan F | Casual | N |
Shannon H | Casual | N |
Annemaree H | Casual | N |
Jeremy H | Casual | N |
David J | Casual | N |
Yu Lin F | Casual | N |
Joanne M | No longer employed | N |
Debroah M | Casual | N |
Duangdeem O | Casual | N |
Stacy R | Casual | N |
Chloe M | Casual | N |
Richard D | Contractor | N/A |
Alison A | Casual | N |
Clive E | Contractor | N/A |
Chris S | Contractor | N/A |
Samuel M | Casual | Y (on the basis that no information to suggest otherwise has been provided) |
[23] In light of the above findings, I find that at the time of dismissal Abrolhos employed 6 persons. As a result, I find that Abrolhos is a small business employer and that the applicable minimum employment period is 12 months. I am satisfied that Mr Melville has not completed the required minimum employment period and, therefore, is not a person protected from unfair dismissal under s.382 of the Act.
[24] Consequently, the application is dismissed and an Order 3 to this effect will be issued.
COMMISSIONER
Appearances (Telephone):
Mr S.Melville the Applicant.
Ms M.Ivanovski of the Chamber of Commerce and Industry of Western Australia on behalf of the Respondent.
Hearing details:
2017.
Adelaide:
2 June.
1 Witness Statement of Vanessa Halliday
2 Supplementary Witness Statement of Vanessa Halliday
3 PR594000
Printed by authority of the Commonwealth Government Printer
<Price code A, PR593999>
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