Scott Greene v Hobart Historic Cruise T/A Hobart Historic Cruise

[2014] FWC 5071

[2014] FWC 5071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Greene
v
Hobart Historic Cruise T/A Hobart Historic Cruise
(U2014/5193)

DEPUTY PRESIDENT ABEY HOBART, 4 AUGUST 2014

Jurisdiction – transfer of employment – casual employment on a regular and systematic basis – application for relief from unfair dismissal – Small Business Code – evidence of assault – application dismissed

[1] The applicant, Mr Scott Greene, has filed for an unfair termination remedy pursuant to s394 of the Act arising out of an incident on 11 February 2014 in which it is alleged that the respondent, Mr Zhiyuan Li, proprietor of Hobart Historic Cruises, unfairly terminated the employment of Mr Greene.

[2] The matter had failed to resolve at conciliation and was listed for arbitration on 2 July 2014. Mr Gunadasa was granted leave to appear for the applicant. Mr Li appeared for himself, with the assistance of an interpreter.

Evidence

[3] Sworn evidence was taken from the following witnesses.

For the applicant

• Scott Greene, employed as a skipper by the respondent.



• Anthony John Smith, employed at all relevant times as a deckhand by the respondent.



• the respondent



• Mr Zhiyuan Li, proprietor of the business T/A Hobart Historic Cruises.



• Peter James O’may, a senior master employed by the respondent.



• addition a number of documents were tendered into evidence.

Jurisdiction

[4] There are two jurisdictional questions which must be determined. They are:

Whether the applicant was employed for the requisite period of continuous employment?

Whether the employment was on a regular and systematic basis?

[5] From the evidence the following facts and observations emerge.

[6] Mr Greene was employed by a business known as Captain Fells Historic Ferries Pty Ltd (Captain Fells) as a skipper on or about 1 January 2008. Mr Peter Fells was the owner of the business at the time. The business consisted of four vessels, which relevantly included the Commodore, (later known as the Lady Jane Ferry) and the Emmalisa. There were also four tourist buses connected to the business.

[7] The uncontested evidence is that Mr Greene worked approximately 30 hours a week in the peak season and 15 hours a week in the off peak season.

[8] Between 2009 and 2011 two of the vessels and one bus were sold.

[9] On or about August 2011, Mary Jane Flores (wife of Peter Fells) took over the operation of Captain Fells. Mr Peter Fells continued to work in the business. The name of the business changed to Lady Jane Cruises Pty Ltd (Lady Jane) and the name of the ferry known as the Commodore changed to the Lady Jane. In all other material respects, the business remained the same, with Mr Greene continuing to skipper the Lady Jane and the Emmalisa.

[10] On 13 December 2012 Mr Peter Fells entered into bankruptcy. According to the evidence of Mr Greene, Mr Flores assumed “formal control” of the business on the same day. Mr Fells continued to work in the business. Mr Greene was not told verbally or formerly of any change to his employment contract or status and continued to skipper the Lady Jane and the Emmalisa.

[11] On 12 August 2013 Mr Li purchased the business from Mr Flores. This involved a transfer of assets including the business name, access to the ticketing office and berthing facilities, office equipment, the Emmalisa and the Lady Jane. The name of the business changed to Hobart Historic Cruises. There is some doubt as to legal capacity of Mrs Flores to sell some of the assets. Nonetheless, Mr Li did have the beneficial use of the assets from that point on. Further, on 18 October 2013 the Trustee in Bankruptcy sold his interest in the Emmalisa to Mr Li. At some point after 30 October 2013 the trustee also sold one of the Level 1, 144 Macquarie Street on Tuesday 5, Thursday 7 and Friday 8 August, 2014double decker buses to Mr Li.

[12] Mr Greene continued to work as a skipper for Mr Li. According to Mr Greene he was not told verbally or formally of any change to his employment contract nor was he informed that previous service with Lady Jane would not be recognised.

[13] Save and except periods of convalescence following medical procedures, it would seem that Mr Greene was continuously employed in the business from January 2008 until 11 February 2014. Whist the hours varied depending on customer demand, Mr Greene worked to a roster, kept himself available and accepted the hours given. The applicant contends that he was employed on a ‘regular and systematic basis.’

Conclusion – Jurisdiction

[14] At the time of termination the applicant’s employment was covered by the Marine Tourism and Charter Vessels Award 2010 (Cth).

[15] The respondent employs three to four employees and is therefore a small business employer as within the meaning of(s 23 of the Fair Work Act 2009 (the Act) . Therefore to be protected from unfair dismissal the minimum employment period is one year. For this to be satisfied in Mr Greene’s case brings into consideration the ‘transfer of employment’ provisions of the Act.

[16] In this case the applicant contends that there was a transfer of employment, firstly from Captain Fells to Lady Jane, and then from Lady Jane to Mr Li, T/A Hobart Historic Cruises.

[17] Section 22(5) of the Act provides that if there is a transfer of employment, any period of service of the employee with the first employer counts as service of the employee with the second employer.

[18] Section 22(7)(b) of the Act provides that there is a transfer of employment if:

“(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.”

[19] On the evidence adduced during the hearing there appears to be some doubt as to whether the business actually changed between Captain Fell and Lady Jane. It might be better described as a rearrangement within the business. In my view nothing turns on this question. Mr Greene was employed in the business at all material times, and the real question is whether there was a transfer of employment from Captain Fell/Lady Jane (however described) to Mr Li, T/A Hobart Historic Cruises.

[20] Section 311(1) of the Act states:

“311 When does a transfer of business occur


Meanings of transfer of business, old employer, new employer and transferring work


(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;


(b) within 3 months after the termination, the employee becomes employed by the new employer;


(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;


(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).”

[21] I am satisfied on the evidence that the requirements of subsections (a), (b) and (c) above are met.

[22] As to whether there is a connection between the old employer and the new employer, s 311(3) states:

“Transfer of assets from old employer to new employer


(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and


(b) the new employer or an associated entity of the new employer;


the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):


(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and


(d) that relate to, or are used in connection with, the transferring work.”

[23] Whilst there may be some doubt, at least initially, as to the legal status of the sale of certain assets to Mr Li, there is no doubt that, at all material times, Mr Li had “the beneficial use of some or all the assets.” I refer in particular to the vessel Emmalisa. I therefore conclude that there is a connection between Captain Fells/Lady Jane and Mr Li T/A Hobart Historic Cruises. I therefore find that there has been a transfer of employment between Captain Fells/Lady Jane and Mr Li T/A Hobart Historic Cruises.

[24] In relation to the determination of the period of employment for the purposes of protection from unfair dismissal, s 384 of the Act states:

“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


(ii) 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.”

[25] On the evidence I am satisfied that the new employer (Mr Li) did not inform Mr Greene in writing before the new employment started that a period of service with the old employer would not be recognised (see Benjamin Hill v Sahir T/A Café Modermo at Fountain Gate 1 ).

[26] The next question to be determined is whether Mr Greene, who was employed as a casual, was employed on regular and systematic basis.

[27] Mr Gunadasa relied the decision in Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic in which Roe C observed 2:

“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.” (citations omitted)

“Full-time, part-time and casual employees often work on varying days and at varying times. Awards provide wide flexibility in this respect and further flexibility is available through flexibility agreements and through collective agreements. Under many awards ordinary hours can be averaged over a week, a month or sometimes longer periods; ordinary hours under many awards can be worked on any day of the week, and daily hours for full-time workers can vary under many awards from 4 to 12 hours. The fact that an employee works more hours in one week or one month than another and the fact that an employee might have variable start and finish times is not conclusive evidence of irregular, occasional, or non-systematic employment or engagement.”

“I find that there was a clear pattern of work being offered with reasonable frequency and of the work being generally accepted. I find that work was being offered generally when it was available and that periods when work was less intense were generally when work was not available. I find that the employer had a reasonable expectation that Mr Ponce would work when work was offered. The pattern of offer and acceptance could not be described as informal, irregular or occasional. This is sufficient to find that the period of casual employment was on a regular and systematic basis.”

[28] From the evidence I am satisfied that:

• Mr Greene’s pattern of work remained similar from 2008 to 2014. Certainly the hours varied in line with customer demand and seasonal considerations, but he did work to a roster. Indeed in the latter months of employment Mr Greene prepared the roster.



• The employer regularly offered work which was invariably accepted by Mr Greene.



• The applicant’s position was the only job he had during the time he worked for the respondent.

[29] I conclude from the above that Mr Greene was employed on regular and systematic basis.

[30] The remaining question relates to whether Mr Greene had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[31] Mr Greene had been employed in the same role (skipper) with the business (in its various manifestations) for more than six years. The business required two skippers, of which Mr Greene was one. It is a continuing business linked to the tourism industry and in all the circumstances I am satisfied that Mr Greene had a reasonable expectation that this pattern of employment would continue indefinitely.

[32] Accordingly I find that Mr Greene has met the one year minimum period of employment test and there are no jurisdictional barriers which preclude a consideration of the merits of this application.

Background

[33] To provide context for the events that occurred on 11 February 2014, the following background considerations are relevant.

[34] In the months leading up to the termination, Mr Greene and and Mr Li had a number of discussions/disagreements on a range of matters. Primarily these issues related to:

• Mr Greene’s reluctance to provide a ‘live commentary’.



• Safety issues raised by Mr Greene.



• Mr Li’s perception that Mr Greene was not a ‘team player’.

[35] In October 2013 Mr Greene had a hernia operation which necessitated 3-4 weeks off work. In December 2013 Mr Greene discussed this with Mr Li, indicating that he would defer a required second operation until after June 2014 so as to assist with the day to day operations, provided that he would be limited to ‘light duties’ until this surgery. Mr Li acknowledged this discussion, but was possibly not aware of the extent of the physical limitations placed on Mr Greene as a consequence.

[36] Mr Greene held the relevant license to drive the bus. He had previously driven a smaller bus for Captain Fells, and had undertaken a limited trial driving the double decker bus. He had spoken to Mr Li about this in July 2013, indicating he was qualified to drive the bus and could do so with further training 3.

Events of 11 February 2014

[37] There is a conflict in the evidence as to what occurred on this day, and for the most part, no direct witnesses. The following is a summary of events as best reconstructed, and where relevant, identification of the conflict in evidence.

[38] Mr Greene was on the Emmalisa sitting at a table in the dining room. He was approached by Mr Li. According to Mr Greene, Mr Li said that he had a medical issue with the bus driver, and that he (Mr Greene) would have to drive the bus.

[39] Mr Li’s evidence is that he offered the bus driving role as extra hours, rather than a demand or direction that Mr Greene must undertake this role.

[40] The following exchange between the Commission and Mr Greene is relevant 4.

“THE DEPUTY PRESIDENT: Mr Greene, if I could just ask a couple of questions. On 11 February a conversation about the bus driving; did Mr Li instruct you to drive the bus or did he offer you extra hours to drive the bus?

THE WITNESS: He instructed me to drive the bus.

THE DEPUTY PRESIDENT: And if you didn’t drive the bus what were the consequences?

THE WITNESS: That I would not be able to work there any more.

THE DEPUTY PRESIDENT: But you’ve said that he did

THE WITNESS: He laid out - sorry.

THE DEPUTY PRESIDENT: He rephrased it later or apparently later and said he offered you the work. Is that right or not?

THE WITNESS: Yes. After I’d told him that he couldn’t do that and he said, “Yes I can. I’m the boss”, then he rephrased the question saying, “I offer you more work”, yes.

THE DEPUTY PRESIDENT: Thank you.”

[41] On balance, I believe it most likely that Mr Li initially presented the bus driver role as a direction, but quickly modified this to an offer of additional hours.

[42] Either way, the offer or direction was declined by Mr Greene stating that “No, I’ll stick with boat work.”  5

[43] It is difficult to reconstruct subsequent events with confidence. Mr Greene maintains the Mr Li became angry, and issued an ultimatum to the effect that if he didn’t drive the bus he could not work here anymore. This Mr Greene interpreted as a dismissal. Mr Greene said he tried to explain his medical reasons for declining the work, but later acknowledged that he did not provide a detailed explanation. 6

[44] Mr Li denies that he dismissed the applicant at any stage during the incident.  7

[45] There is little doubt that from that point matters became heated and argumentative and it is likely that minimalist physical contact (pushing) was involved.

[46] Mr Greene’s evidence was 8

“51. I followed the Respondent and said words to the effect “please listen to me”


52. The Respondent then turned around and tried to push his way past me.


53. I then said words to the effect “you should not own a business, I’m going to do some work”.


54. At this stage I knew I had been dismissed however I thought at least I would finish my shift, as the Respondent often gets angry, there was a possibility he would calm down later so that we could talk.


55. I then walked up stairs to the wheelhouse and started the engine of the Ferry.”

[47] Mr Li said he was shocked by Mr Greene’s reaction and wanted to leave and avoid further conflict 9. In relation to subsequent events, Mr Li said: 10

“18. At the moment, I was worried about the applicant would do some damage for the boat, and then I ran up the stair and tried to shut the engine down. The applicant pushes me away and said ‘since the engine start, I am the captain of the vessel; you have no right to control it”. At that time, I was shock that is it any law related with it?? I did not believe what the applicant said, then grabbed the keys. He suddenly hit my right face cheek with his fist and said “stay away from me, you have no right to stop it” I fell down from the stair and screamed: “Scott hit me, I am going to call police”

[48] During the hearing Mr Li clarified this by stating he “nearly fell down the stair.”  11 Mr Greene’s evidence was: 12

“57. I was standing near the controls of the Ferry.


58. The Respondent started yelling words to the effect “stop the boat, I fired you”.


59. I then turned around to see the Respondent running towards me.


60. I out my hand out to stop the Respondent from running into me because I did not want to injure myself. My hernia was quite painful at this time.


61. The Respondent then ran into my hand. He began to yell words to the effect “Scott has hit me” I call the cops, it makes it easy”.


62. The Respondent grabbed the keys from the Boat and said words to the effect “I am going to call the police, you hit me”.

63. I stood there saying words to the effect “I didn’t hit you”.”

[49] Mr Li denied that he at any stage fired Mr Greene 13 but he did tell him to get off the boat. His evidence is14

“MR GUNADASA: You definitely didn’t say, “You’re fired” to the ….

THE WITNESS: That’s it, but I talk to him, say - I ask him, “Walk away the boat”. I saying, “Okay, today stop”. So that’s why I call Peter O’may, “Come here skip the boat”. Because I think he - at that moment he is not suitable to skip the boat.”

[50] The evidence of Mr Smith is that he did not see the incident but he overheard an argument between Mr Li and Mr Greene which had gone on for a “good half hour.” Further, he witnessed Mr Li telling Mr Greene to get off the boat 15.

[51] Both Mr Greene and Mr Li left the vessel and moved to the vicinity of the ticket office. Mr Li telephoned Mr O’may to ask him to come to work and skipper the next cruise. Mr Greene apparently telephoned WorkPlace Standards and/or Marine and Safety Tasmania (MAST) for reasons unknown to the Commission.

[52] Mr O’may arrived at approximately 11 am. His evidence is 16

“11. On 11 February 2014, approximately at 9:30 am, I received a phone call from the respondent that he had been assaulted by Scott Greene in the wheel house on the M.V Emmalisa, and would I come in and skipper the boat.

12. On arriving, at the office, Scott Green and the respondent were standing out in front of the office. I asked what was going on. So as not discuss is front of the public, I asked Scott Greene to come onto the Emmalisa. Scott Greene told me that the respondent had made him so angry that he had hit the respondent, but there was not witness as to what had happened. Scott Greene also told me that they had been disagreement between he and respondent regarding the live commentary on the boat, and I was an aware, that there had been several complaints from the customers’ about this matter. After the further discussed about the matter , Scott Greene left the Emmalisa and rang workplace standards requesting them come to the office. He remained in the office for several hours; however, no body from workplace standard appeared. So Scott Greene went home. Anthony Smith and I did the second cruise for the day.”

[53] Mr Greene’s evidence in relation to this conversation is 17:

“73. b) Peter then said words to effect “has he sacked you or not, did you hit him?”

c) I replied worked to the effect “no I did not hit him, I put my hand out to stop him from running into me”

d) Peter then said words to the effect “you’ll be right then, that’s only self-defense”‘

[54] Mr Greene returned to the workplace on 16 February, which was his next rostered shift. It would seem that Mr Li stated that Mr Greene was still employed and he would be called when work was available. However Mr Greene was not contacted after that day and at a later date an advertisement appeared in the Mercury for a casual Commercial Vessel Skipper. The advertisement apparently had Mr O’may’s telephone number as the contact point.

[55] Mr Li’s evidence on this point is 18:

“THE DEPUTY PRESIDENT: So do I take it from that you formed a view that Mr Greene was not going to come back at all, or you didn’t want him back?

THE WITNESS: The thing is once he assaulted me, and I think carefully should I let him come back to work or not? So - but I need to ask the other worker, work with him, the teamwork. I saying, “Do I” -”Should I” - I need to ask the Peter, “Can Mr Greene come back to work or not?” I need to ask their opinion. So I ask the - Anthony. He told me, “You better not”. I ask Peter O’may. He told me, “Hmm, just too lazy”. So then how do I make a decision? So what I think is if I can find the people who is more reliable, more suitable for the business first. If it’s not, so I have to go for the - Mr Scotty Greene. If there’s a suitable one, training him he’s okay, he’s reliable, then I probably would tell him, “Sorry, I’ve already can’t take you” or “Maybe offer you the other job”. Yes.

THE DEPUTY PRESIDENT: So I understand it, you say that Mr Greene assaulted you?

THE WITNESS: Mm’hm.

THE DEPUTY PRESIDENT: And you took a view that if you could find someone more reliable

THE WITNESS: Yes.

THE DEPUTY PRESIDENT: you would put them on.

THE WITNESS: Yes.

THE DEPUTY PRESIDENT: You’d employ them.

THE WITNESS: Yes.

THE DEPUTY PRESIDENT: But if you couldn’t, you’d come back to Mr Greene. Is that what you’re saying?

THE WITNESS: Exactly. Yes, because I can’t have only one skipper to skip the boat. I need two at least.

THE DEPUTY PRESIDENT: So did you sack Mr Greene or not?

THE WITNESS: I did not sack him. I didn’t tell him I sacked to him.”

[56] For the sake of completeness, the following aspects of the evidence have some relevance:

• Mr Li did not call the police or ambulance, but did tell his wife about the alleged assault immediately after the incident.



• Mr O’may did notice any visible signs (marks) of assault.



• Mr Greene did not have any known history of aggressive behaviour in the workplace.

Conclusion

[57] In the absence of any direct witnesses it is only possible to draw conclusions based on the balance of probabilities.

[58] It is clear that Mr Li’s demand/request/offer regarding the bus driving role gave rise to an argument which quickly escalated. In my view both parties share some of the blame for this unnecessary escalation.

[59] The evidence does not however support a conclusion that Mr Greene was terminated at this point for a failure to comply with this request. What happened immediately thereafter is less clear although there is no doubt there was a physical altercation and Mr Li was struck on the right cheek. Mr Greene maintains that this occurred in self-defence and that the respondent ran into his hand. Given the restricted confines of the wheelhouse I have some difficulty accepting this contention, and, on balance, conclude that Mr Li was struck on the face by Mr Greene, though I doubt that there was a great deal of force in the blow. The unshaken evidence of Mr O’may is material in reaching this conclusion. Even if I was to accept that the blow was not intentional on Mr Greene’s part, it was certainly avoidable.

[60] Again the evidence does not support a finding that Mr Greene was dismissed at this point although it is clear he was instructed to leave the boat.

[61] As to the events of 16 February, the exchange with the Commission referred to above was remarkably candid. In essence, in light of the perceived assault, Mr Li was keeping his options open if he could not find someone more reliable to replace Mr Greene. Again there is no evidence of an actual dismissal, although through the failure to offer any further shifts, it probably amounts to the same thing.

[62] It must be recognised that that Mr Li is operating a small business in a difficult and competitive economic environment. Whilst this is certainly not a license to treat employees unfairly, I do accept and understand that Mr Li lacks the HR sophistication that would be expected of a larger employer. With hindsight, the incident might have been handled differently. However I accept that Mr Li, with some justification, felt he had been assaulted by Mr Greene. Under the Small Business Code, this is justification for summary dismissal without notice or warning.

[63] I dismiss the application pursuant to s.394 of the Act. I order accordingly.

DEPUTY PRESIDENT

Appearances:

Mr I Gunadasa on behalf on Mr S Greene

Mr Z Li on his own behalf

Hearing details:

2014

Hobart

2 July

 1   [2013] FWCA 668.

 2   [2010] FWA 2078.

 3   Exhibit A1 at para 35.

 4   Transcript at paras 487 to 495.

 5   Exhibit A1 at para 45.

 6   Transcript at para 397.

 7   Transcript at paras 1307 to 1319

 8   Exhibit A1 at paras 51- 55

 9   Exhibit R1 at para 17.

 10   Exhibit R1 at para 18.

 11   Transcript at para 1536

 12   Exhibit A1 at paras 57- 63

 13   Transcript at para 1310-1319, 1662

 14   Transcript at para 1319, 1320

 15   Transcript at para 637

 16   Exhibit R2 at paras 11,12

 17   Exhibit A1 at para 73

 18   Transcript at paras 1681 - 1694

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