Shaun Mountney v Go Offshore Pty Ltd
[2015] FWC 6969
•13 NOVEMBER 2015
| [2015] FWC 6969 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shaun Mountney
v
Go Offshore Pty Ltd
(U2015/2655)
COMMISSIONER WILLIAMS | PERTH, 13 NOVEMBER 2015 |
Termination of employment - jurisdiction.
[1] This matter involves an application made by Mr Shaun Mountney (Mr Mountney or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Go Offshore Pty Ltd (the respondent).
[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.
[3] The respondent objects to the application on three grounds specifically that:
1. Mr Mountney was not dismissed (see section 386 of the Act).
2. Mr Mountney in any event had not completed the minimum employment period of six months (see section 383 and 384 of the Act).
3. Mr Mountney’s application was made outside the 21 day time period prescribed (see section 366 of the Act).
[4] The respondent separately argues that if they are wrong with respect to these objections the applicant was not unfairly dismissed in all the circumstances.
[5] This decision deals with the first two of the respondent’s objections which go to the Commission’s jurisdiction to consider the application at all.
[6] At the hearing of this matter Mr Mountney gave evidence on his own behalf and the respondent called Ms Karen Clark (Ms Clark) their General Manager Shared Services and Ms Aoife Cassin (Ms Cassin) the respondent’s Crewing Officer who both gave evidence.
The evidence
[7] Having considered the evidence of the parties I make the following factual findings.
[8] Mr Mountney in his application says he began working for the employer in October 2012 and was dismissed on 9 January 2015.
[9] Over the course of his employment the GO OFFSHORE Pty Ltd and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2010 [AE879334] (the Agreement) applied to him.
[10] I accept the applicant’s employment history which he details as follows:
“I originally commenced employment with Go Marine as a Second Officer on the 30th October 2012 on the vessel Go Sirius. I worked for 3 weeks then took a position with another company.
I returned to Go Marine on the 22nd March 2013 as Second Officer, joining the vessel Deep Sea 1 in Singapore, until the 20th April 2013, 30 days and accrued 30 days Leave. This was a 28 day swing under the EBA. I then had 25 days Leave.
I joined the vessel Sea Link 161 as Chief Officer on the 17th May until the 21st June 2013, 36 days and accrued 36 days Leave. This was a 35 day swing under the EBA. I then had 31 days Leave.
I then joined the vessel Deep Sea 1 as Second Officer on the 24th July 2013, and was transferred to the Go Sirius as Chief Officer on the 31st July 2013 until the 5th September 2013, 44 days and accrued 44 days Leave. I then had 13 days Leave and was requested to do an extra voyage on the vessel Go Rigel.
I joined the Go Rigel as Chief Officer on the 20th September 2013 until 1st October 2013, 12 days and accrued 12 days Leave. I then had 42 days Leave.
I then joined the vessel Go Sirius as Chief Officer on the 14th November 2013 until the 28th of December 2013, 45 days and accrued 45 days Leave. This was a 35 day swing under the EBA. I then had 13 days Leave.
I then joined the Go Sirius as Chief Officer on the 12th January 2014 until 8th February 2014, 28 days and accrued 28 days Leave. This was a 28 day swing under the EBA. I then had 15 days Leave and was requested to do extra time as Extra Master on the vessel Deep Sea 1.
I joined the vessel Deep Sea 1 on the 22nd February 2014 until 2nd March 2014, 4 days and accrued 4 days Leave. I then had 6 days Leave.
I joined the vessel Go Sirius on the 11th March 2014 until the 8th April 2014, 29 days and accrued 29 days Leave. This was a 28 day swing under the EBA. I was then promoted to Master and continued on-board from the 8th April 2014 until the 10th May 2014, another 32 days and accrued 32 days Leave. This was a 28 day swing under the EBA. I then had 33 days Leave.
I joined the vessel Go Sirius as Master on the 14th June 2014 for a 35 day swing under the EBA. I was then requested to stay on-board as a relief could not be found. I was relieved on the 30th August 2014, 78 days and accrued 78 days Leave. I then had 49 days Leave.
I then joined the vessel Go Sirius as Master on the 21st October until the 11th December 2014, 52 days and accrued 52 days Leave. This was a 35 day swing under the EBA. I then had 2 days Leave and was requested to join the vessel Go Sirius as Extra Master.
I joined the vessel Go Sirius as Extra Master on the 15th December until the 19th December 2014, 5 days and accrued 5 days Leave. I then went on Leave…” 1
[11] By email on 6 January 2015 Ms Cassin advised the applicant along with other members of the crew of the Go Sirius 2 that crew change for the vessel would be on Thursday, 15 January and she would arrange their schedules the following day and arrange flights and accommodation details and advise them in due course.
[12] Subsequently the client who had charted the Go Sirius abruptly terminated their charter of the vessel.
[13] Around 8 January 2015 the respondent was awarded work with Chevron and the Go Sirius was allocated to perform that work.
[14] Chevron informed the respondent that it required the Master of the Go Sirius to hold an Unlimited Dynamic Positioning Qualification. At this time Mr Mountney did not hold this qualification.
[15] Consequently Ms Cassin rang the applicant and told him that because he did not have the qualification required by Chevron the respondent would not be able to offer him a further casual engagement on the Go Sirius.
[16] The respondent at that time had no other work available for the applicant.
[17] Turning to consider the evidence regarding the detail of the contract of employment in force at the time the employment ended, it is not disputed that in October 2013 the respondent offered, and Mr Mountney accepted, a new contract of employment. This contract was in line with new requirements set out in the Maritime Labour Convention 2006 (the MLC).
[18] The MLC is a convention adopted by the International Labour Organisation (ILO) and is the result of a tripartite negotiation by representatives of government, employers and workers. Australia is a signatory to the MLC. The convention establishes comprehensive rights and protections at work for the world’s seafarers and aims to achieve decent work arrangements for seafarers, and secure economic interests in fair competition for quality ship-owners. The MLC consolidates and updates more than 68 existing ILO conventions entered into force internationally as a mandatory instrument on 20 August 2013. 3
[19] The 2013 contract between the applicant and the respondent is expressly for casual employment with the respondent.
[20] The Agreement is expressly taken to be a part of the contract of employment.
[21] Clause 3 - Position explains the applicant’s position is Chief Officer and that he is employed on a casual basis. The duties and responsibilities will be outlined in the vessel safety management system or as advised to him on each deployment to a vessel.
[22] Clause 5 - Location specifies that the place of work will be that outlined in a Schedule.
[23] Clause 15 - Termination provides as follows:
“Except where your employment is terminated for reasons of serious and wilful misconduct or your failure to meet the items detailed in the clause titled “Conditional Offer of Employment’, your employment with GO will terminate at the completion of your swing, at which time your accumulated leave will be paid out (unless agreed otherwise with the company), or as per Schedule One unless GO advise you that further casual work is available.”
[24] The second last paragraph of the contract reads as follows:
“As per MLC 06 requirements, it is now conditional as part of your employment with GO that you carry on board with you a signed copy of your employment agreement and the attached schedule 1 (or any updated schedule 1 that will be provided to you from time to time).”
[25] Consistent with these terms of that contract from October 2013 when the respondent offered Mr Mountney casual employment he was issued with a separate Schedule One document. Each Schedule One document specified the applicant’s rank and employment status e.g. Extra Master, the name of the vessel to which he was deployed, the anticipated date of deployment and the nominal expiry date of the swing.
[26] Of particular relevance to this matter on 15 December 2014 Ms Cassin rang the applicant to find out whether he was available at short notice to accept casual work on the Go Sirius for the period 15 December 2014 to 22 December 2014. The applicant says he was available to perform the work and Ms Cassin sent him by email a completed Schedule One document dated 15 December 2014. The applicant’s signed the Schedule One document and returned this to her by email that same day. 4
[27] The Schedule One signed by the applicant on 15 December 2014 states that the date of deployment is that same day and the nominal expiry date of swing will be 22 December 2014. The applicant worked aboard the Go Sirius as the Extra Master in accordance with this Schedule One.
[28] In June 2014 and again in November 2014 Mr Mountney requested in writing that the respondent make him permanent as he believed he was entitled to under clause 17.7 of the Agreement. The respondent did not reply to these requests. The applicant was at no time offered permanent employment nor was he made a permanent employee.
[29] The evidence of Ms Clark, which on balance I accept, is that in relation to each of the applicant’s casual engagements an agreed ratio of casuals to permanents was maintained. Consequently the applicant was engaged and paid as a casual and was not offered permanent employment.
[30] As required by clause 17.5 of the Agreement throughout his employment the applicant was paid a 20% casual loading as provided.
[31] As required by clause 17.6 of the Agreement the applicant during his employment as a Casual Officer accrued duty leave, calculated at the rate of one day for each day of duty and this leave was paid at the daily rate plus the 20% casual loading.
[32] On at least one occasion prior to 22 December 2014 the applicant was offered but declined a period of casual engagement.
[33] The evidence is that after 22 December 2014 the applicant received payments from the respondent on pay dates 8 January 2015 and 15 January 2015 both of which was for accrued days of duty leave.
[34] The evidence was that these payments were consistent with an agreement between the applicant and the respondent, that his accrued days of duty leave would not be paid out at the completion of each swing but rather this accumulated leave would be paid progressively over future pay periods to smooth out the payment amounts received, thereby avoiding large one-off payments resulting in large amounts of tax being deducted from the employee’s pay. This capacity for such an agreed arrangement is provided for in clause 15 - Termination as follows:
“…your employment with GO will terminate at the completion of your swing, at which time your accumulated leave will be paid out (unless agreed otherwise with the company),…” (Emphasis added)
[35] The employee pay details on the applicant’s payslips identify his status as being casual.
[36] On a number of occasions when Ms Clark spoke to Mr Mountney after his last week on the Go Sirius she reiterated that he would remain in the respondent’s casual pool and would be considered for suitable positions as and when they became available.
[37] Noting that the application was lodged on 29 January 2015, the evidence is that prior to this around mid-January 2015 Ms Clark rang the applicant and offered him a casual engagement of five weeks on the Go Sirius as Chief Officer however, the applicant advised he was unavailable due to other personal commitments. Approximately one week later the applicant called Ms Clark and advised he was now available however she advised Mr Mountney that the position had been filled.
[38] At no time was the applicant advised by the respondent’s staff that he was dismissed or that his employment was terminated.
[39] Around mid-January 2015 the applicant contacted the respondent’s Payroll Officer and advised that he no longer worked for the respondent and requested a separation certificate. That separation certificate was provided to the applicant on 27 January 2015 however, it appears to be incorrectly dated 27 January 2014.
[40] The separation certificate indicates that the reason for separation was the end of season or contract.
[41] Around 30 June 2014 there was some email correspondence between Mr Mountney and the respondent’s staff triggered by his concern that he was not being paid travel days when he took up each casual engagement.
[42] The applicant’s evidence regarding this matter 5 is that he was originally under the impression that his employment would terminate at the completion of every swing, according to the contract he had signed, and hence when he re-joined after every swing he believed he was entitled to a travel day under the Agreement as a new employee.
[43] In arguing his case for the payment of these travel days in one email to a Ms Julie Devenish of the respondent on 30 June 2014 at 10.11 a.m. the applicant says:
“My pay was paid out as I am casual and have no employment guarantee. As I am casual there is no guarantee every time I go home that I have a job in five weeks’ time. Leave should be paid out after every swing as a casual on the next pay run after leaving the vessel, and some employees request this (I don’t normally). Every time a casual returns they are a new employee contracting for a five-week swing only.”
[44] In another email to Ms Clark regarding the same issue on 30 June 2014 at 6.39 p.m. Mr Mountney says:
“I’ve never been told I’m employed on an on-going basis and when I go home after every swing I have to risk waiting for a call to join again it may be will not come, or look for another position.
Under the contract I have signed it clearly states that when I swing off, my employment is terminated and I should be paid out as per schedule 1.
A great example of this is when we just joined on 14 June: At one stage there after sitting at home for 5 weeks I was not going to be going back to the Go Sirius as it was going to be sent to Bali” (sic)
[45] As the applicant points out the same day Ms Clark responded to him regarding travel days as follows:
“Hi Sean, “unless agreed otherwise” is whereby we continue to employ you on an ongoing basis as a casual by mutual agreement.”
[46] Ms Clark’s evidence which I accept is that her reference to employing him on an on-going basis was an expression used to explain to Mr Mountney, her understanding of clause 28.11 of the Agreement which refers to payment of travel days to an Officer “on his initial employment as a casual” so that travel days are paid where a casual employee commences the first engagement with the respondent or doesn’t accept a further casual engagement which was offered but then perhaps months later accepts a new offer of casual employment.
[47] It is not for the Commission in these proceedings to determine whether this is the correct interpretation of these clauses of the Agreement. I do accept the evidence of Ms Clark that her reference to Mr Mountney being employed in an on-going basis was only a reference to the fact that he had enjoyed a series of offers of casual employment back to back for a period and in those circumstances in her view he was not entitled to be paid for a travel day for each of these engagements.
Consideration
[48] Relevant sections of the Act are set out below:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
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.
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.”
“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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[49] The applicant’s contract of employment which was in place at the end of 2014 was entered into by the parties in 2013. The 2013 contract expressly provides that it is a contract for casual employment.
[50] The applicant, as provided for in the Agreement, was always paid the casual loading and always accrued duty leave calculated at the rate applicable to a Casual Officer.
[51] The applicant on his own admission had not been made a permanent employee. There is no basis to the submission that this should have occurred, when the evidence is the respondent had at least maintained the agreed ratio of casuals to permanents.
[52] The terms of the contract expressly provide that the applicant’s employment with the respondent will terminate at the completion of his swing, or as per Schedule One, unless the respondent advises him that further casual work is available.
[53] This was well understood by the applicant, as evidenced by his reference to these provisions and their practical application to him in his emails arguing for an entitlement to be paid travel days, which he sent to the respondent in June 2014.
[54] The facts are that the applicant accepted an offer of a casual engagement to work on the Go Sirius with a deployment date of 15 December 2014 and an expiry date of 22 December 2014. This as required by the contract was documented in a Schedule One signed by the applicant on 15 December 2014.
[55] Consequently under the terms of the applicant’s contract his employment terminated as per the Schedule One on the nominal expiry date being 22 December 2014.
[56] The respondent did not advise him that further casual work was available. In fact in mid-January 2015 the applicant was advised by the respondent that they could not offer him a further casual engagement on the Go Sirius, because the new client required qualifications the applicant did not at that time hold.
[57] I am satisfied that the applicant was employed under a contract of employment for a specified period of time being 15 December 2014 to 22 December 2014. The applicant’s employment terminated at the end of the period.
[58] The fact the applicant and the respondent had agreed, as is provided for within clause 15 of the contract, that he would not be paid out his accumulated duty leave at the completion of his swing but instead progressively over future periods does not change the fact that his employment had terminated on 22 December 2014; the nominal expiry date specified in the Schedule One.
[59] The applicant’s employment was not terminated on the employer’s initiative. The employment simply terminated at the end of the specified period of time nominated in the Schedule One as provided for in the applicant’s contract.
[60] Consequently I am satisfied that the applicant was not dismissed within the meaning of section 386 of the Act.
[61] Whilst that is a conclusion that leads to this application being dismissed. I will, for completeness consider if I am wrong on this point and if the applicant was dismissed, whether in any event he had served the minimum employment period to make this application.
[62] Section 382 of the Act says that a person is protected from unfair dismissal if they have completed the minimum employment period which section 383 of the Act specifies in this case would be six months. Section 384 of the Act provides that a period of service of a casual employee does not count towards the employee’s employment period, unless the employment was on a regular and systematic basis and also that during the period of service the employee had a reasonable expectation of continuing employment on a regular and systematic basis.
[63] The applicant was a casual employee.
[64] The applicant’s own evidence as to the pattern of his employment as a casual demonstrates that this was not on a regular and systematic basis. The number of days he would work was highly variable, as were the number of days off between these periods of work.
[65] This fluctuation in the periods of work and the gaps between periods of work demonstrates in my view that the applicant could not be said to have had a reasonable expectation of continuing employment that would be on a regular and systematic basis.
[66] The applicant explained his situation to Ms Clark in his email of 30 June 2014 by saying that when he goes home after every swing of work he has to risk waiting for a call from the respondent to join the vessel again that may not come. This does not at all suggest that the applicant had a reasonable expectation of continuing employment. Even if as a consequence of Ms Clark saying in her email to him on 30 June 2014 that the respondent would continue to employ him on an on-going basis, it was accepted that the Applicant had a reasonable expectation of continuing employment it could not be said that this would be continuing employment on a regular and systematic basis, given the period of employment and total demonstrates it was on neither a regular nor systematic basis.
[67] In conclusion the period of service of the applicant as a casual employee does not count towards the minimum period of employment of six months which the applicant is required to have served before he is able to make an application such as this. As a consequence even if the applicant had been dismissed he is unable to make this application.
Conclusion
[68] As explained above the applicant was not dismissed within the meaning of the Act and so for this reason alone he is not entitled to make this application. Consequently I must dismiss his application.
[69] If this is not correct and the applicant was indeed dismissed then he has not completed the minimum period of employment which must have been served before making an application such as this. Consequently in any event for this reason I would dismiss the application.
[70] An order dismissing the application will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
Mr S. Mountney on his own behalf.
Mr W. Van Der Spuy from Australian Mines and Metals Association for the respondent.
Hearing details:
2015.
Perth and Mackay (video hearing):
September 1.
1 Exhibit A1.
2 Exhibit R2, Attachment AC5.
3 A Guide to the implementation of the MLC in Australia, Australian Maritime Safety Authority 2006.
4 Exhibit R2, Attachment AC4.
5 Exhibit A1.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR572750>
0
0
0