Fair Work Act 2009
s.394—Unfair dismissal

Wayne Roff
v
Jadestone Energy (Australia) Pty Ltd
(U2021/6712)

Application for an unfair dismissal remedy – application upheld – applicant reinstated

[1] On 29 July 2021, Mr Clint Roff (Mr Roff) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Jadestone Energy (Australia) Pty Ltd (Jadestone).

[2] On 11 August 2021, Jadestone filed a Form F3 – Employer’s Response to unfair dismissal application raising the jurisdictional objection that Mr Roff was not dismissed.

[3] On 9 September 2021 and 19 October 2021, the matter was listed for conciliation and the parties participated in settlement negotiations. The parties exchanged draft written settlement agreements, however ultimately a settlement agreement was never executed and the matter was set down for hearing.

[4] Taking into account the parties wishes and circumstances, it was determined that a Hearing rather than a Determinative Conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on 16 December 2021 (Hearing).

[5] Directions for the filing of materials in advance of the Hearing were issued to the parties on 12 October 2021 and subsequently amended on 8 November 2021 (Directions).

Permission to be represented

[6] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.¹

[7] Both parties sought permission to be represented at the Hearing.

[8] Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[9] At the hearing Mr Roff was represented by Mr Brenton Wilson, a solicitor employed by the Construction, Forestry, Mining and Maritime Union, and Jadestone was represented by Mr Justin L Bourke QC.

Evidence

[10] The Directions required the parties to file their witness evidence in chief in advance of the Hearing.

[11] In accordance with the Directions Mr Roff filed a witness statement setting out his evidence in chief in advance of the Hearing.² Mr Roff also filed a witness statement from Mr Pat Shepherd (Mr Shepherd) 3. Mr Shepard has been employed by Jadestone for more than ten years in the same role as Mr Roff. At the Hearing Mr Roff and Mr Shepherd gave further oral evidence and was cross examined by Mr Wilson.

[12] In accordance with the Directions Jadestone filed a witness statement setting out the evidence in chief of its witness Mr Keith Read (Mr Read). 4 Mr Read is the Human Resource Manager of Jadestone. On 3 December 2021 Jadestone filed a supplementary witness statement of Mr Read.5 On 14 December 2021 Jadestone filed a further supplementary witness statement for Mr Read,6 and a witness statement for Ms Shayona Leahy (Ms Leahy).7 Ms Leahy is a HR Business Partner of Jadestone. At the Hearing Mr Read and Ms Leahy and were cross examined by Mr Wilson.

[13] The parties jointly prepared and filed a Digital Court Book containing the evidence and submissions of the parties filed prior to the Hearing date (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB1.

[14] Final written submissions were filed on behalf of Mr Roff on 25 January 2022. Final written submissions were filed by Jadestone on 10 January 2022.

[15] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Background

[16] Jadestone is the owner and operator of oil producing assets off the north-west coast of Australia including a floating production, storage and offtake facility known as the Montara Venture (Montara).⁸

[17] Activities on the Montara are regulated by the National Offshore Petroleum Safety and Environmental Management Authority. The Safety Case established under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) for the Montara requires that minimum manning levels be maintained. Eighty percent of Jadestone’s production emanates from the Montara therefore disruption to operations on the Montara has serious commercial implications for Jadestone.⁹

[18] As at February 2020 approximately seventy percent of the workforce engaged by Jadestone to operate the Montara were not Western Australian residents. 10

[19] When rostered on duty employees who reside interstate are flown to Perth from their point of hire at Jadestone’s expense. From Perth all employees are flown to Broome then onwards to Truscott and from Truscott offshore to the Montara. 11

[20] Mr Roff commenced employment with Jadestone on 9 December 2019 in the role of General Service Operator on the Montara on a fly in fly out basis pursuant to a letter of engagement dated 12 November 2019 (Letter of Engagement). 12

[21] The Letter of Engagement acknowledged that Mr Roff’s usual place of residence is Queensland.¹³

[22] Annexed to the Letter of Engagement was a document described as Appendix A (together the Initial Employment Conditions). Appendix A largely mirrored the terms of an expired enterprise agreement. It is noted in Appendix A that the terms it contained would apply until Jadestone and its employees negotiated a new enterprise agreement. 14

[23] Relevantly clause 13 of Appendix A provided that the roster cycle would be fifteen weeks consisting of:¹⁵

a. Three weeks rostered on duty.

b. Three weeks rostered off duty.

c. Three weeks rostered on duty.

d. Six weeks rostered off duty.

[24] The only variation to the roster pattern permitted by the Initial Employment Conditions was that the off-duty periods may be varied from three and six weeks to four and five weeks respectively by agreement.¹⁶

[25] Since March 2020 restrictions on entry into Western Australia have applied. The nature of these restrictions have changed from time to time and the restrictions have often been imposed and removed suddenly with limited notice.

[26] The first such restriction was imposed on 24 March 2020 when the Western Australian Government issued a direction requiring interstate arrivals to self-isolate for 14 days. These border controls were applied to all road, air, rail and sea access points. The direction did not apply to persons performing an ‘Essential Service’, which included:¹⁷

“… persons who ordinarily live or work in Western Australia and travel interstate for work purposes for regular periods according to established work schedules (for example, FIFO workers).”

[27] On 30 March 2020 Jadestone sent a letter to its employees, including Mr Roff, directing them to immediately relocate to Western Australia and informing them that their rosters would be unilaterally altered to a pattern of four weeks on duty and four weeks off duty (30 March Letter). The letter indicated that family relocations would be permitted however employees would be responsible for the cost of flights and for arranging and paying for accommodation for their families. An extract of the letter is set out below:¹⁸

“The uncertainty of the COVID-19 outbreak continues to drive unprecedented restrictions imposed by governments across Australia. It is becoming increasingly difficult for all resource companies and Jadestone's Offshore Operations.

Our latest advice is that Western Australia is actively considering a ban on all movements into the state, including oil and gas workers, within the next 48 to 72 hours. While this has not yet been confirmed and we are still pushing for a different outcome, we have been advised to prepare for this action immediately.

Therefore, in order for Jadestone Energy Australia to maintain our operations, all Stag and Montara crew who reside interstate are required to relocate to Western Australia urgently.

Unfortunately, there is no alternative. If we don't have the necessary numbers to safely man the facility, we will effectively be shutting down our Australian operations.

[28] On 1 April 2020 Jadestone arranged for a teleconference call with its Montara employees to discuss the 30 March Letter and the impact of COVID-19 on the operations of Jadestone.¹⁹

[29] On 2 April 2020 Jadestone sent letters to its employees, including Mr Roff. In contrast to the 30 March Letter, which directed employees to relocate immediately and which unilaterally imposed a changed roster pattern, this letter provided as follows:²⁰

“We now have clarity from the WA government that full border lockdowns will be imposed on Sunday night, with exemptions for resource industry Fly In Fly Out workers. However, a 14 day enforced Quarantine period will be required for those arriving into the State.

We have arrangements in place to accommodate this, including paid accommodation in serviced apartments in Perth, which are fully 'accredited' and set up to manage enforced quarantine. We will provide full details to those impacted as required.

…

If you chose to temporarily relocate to WA, to either avoid the additional time away from your family while in Quarantine, or simply for convenience, that is up to you of course. We will provide support on a case by case basis in that situation, so please contact HR if you intend doing so.”

We are having to react quickly to circumstances beyond our control. Proposed changes to the roster will need to be implemented as quickly as practical once we have finished consulting with you and considering feedback. However, changes must be made, or it will result in major disruption to the operation.”

[30] On 3 April 2020 Jadestone arranged for two further teleconference calls with offshore personnel for the purpose of consulting in relation to proposed roster changes in light of the impacts of COVID-19.²¹

[31] On 4 April 2020 Jadestone sent letters to its employees, including Mr Roff, informing them that Jadestone had made a decision to implement a new roster cycle effective Tuesday 7 April 2020 (4 April Letter).²²

[32] On 5 April 2020 at 11:59pm (AWST) the Western Australian Government issued a direction that persons must not enter Western Australia unless they were ‘exempt travellers’. The definition of ‘exempt traveller’ included:²³

“… a person who ordinarily travels from one State or territory to another State or territory for work purposes for regular periods according to established work schedules (FIFO worker), provided that the person will, at the expense of the person's employer, be subject to strict quarantine provisions and complete a mandatory 14 day period of isolation in a location agreed with me as the State Emergency Coordinator or someone authorised by me, immediately after entering Western Australia and before the person enters a workplace in Western Australia.”

[33] On 7 April 2020, as confirmed in the 4 April Letter, Jadestone implemented a new roster arrangement in response to the ongoing impacts of COVID-19 (COVID Roster).²⁴

[34] The COVID Roster comprised: ²⁵

a. 2 weeks of non-work time prior to the commencement of each work swing to permit time for quarantine should it be required;

b. 4 weeks of on duty on the Montara; and

c. 6 weeks of off duty on leave.

[35] The COVID Roster reduced the number of on duty hours per annum however base salaries remained unchanged.

[36] The COVID Roster arrangement remained in place until Mr Roff’s employment was terminated. ²⁶

[37] From 7 April 2020, as part of the COVID Roster, Jadestone implemented an arrangement to provide and pay for the necessary quarantine accommodation in Perth to ensure that its employees met the classification of ‘exempt traveller’ to be able to continue to gain access to Western Australia.²⁷

[38] As part of the COVID Roster, from 7 April 2020, a daily living away from home allowance (LAFHA) of $65 per day was paid to employees who were undertaking fourteen days mandatory quarantine in Western Australia. Mr Read says that employees were advised that they could apply for reimbursement of any reasonable additional costs they incurred during their quarantine period.²⁸

[39] Later in April 2020 Jadestone introduced an off-roster temporary accommodation allowance and a daily living away from home allowance for its employees who were ‘off-duty’ and who wished to remain in WA rather than travel home between rosters. This consisted of an accommodation expense reimbursement of up to $135 per night net in addition to a LAFHA of $65 per day if employees remained in WA during their six week period ‘off duty’ on leave. Employees who chose to do so were not required to undertake a period of quarantine and therefore had eight weeks in total off duty on leave before commencing their next four week period on duty on the Montara.²⁹

[40] Initially only four of thirty employees elected to take up this option. The balance of interstate based employees continued to return to their home states between rostered periods of duty. 30

[41] In the week commencing 5 May 2020 Mr Roff flew to Western Australia to undertake a fourteen day quarantine period to enable him to commence a four week period rostered ‘on duty’ on the Montara in the week commencing 19 May 2020. From the week commencing 16 June 2020 he was rostered ‘off duty’. 31

[42] In the week commencing 28 July 2020 Mr Roff was scheduled to fly to Western Australia to undertake a fourteen day quarantine period to ensure he was eligible to commence a period of four weeks ‘on duty’ on the Montara in the week commencing 12 August 2020. Mr Roff did not commence his quarantine period as rostered. He advised Jadestone that he needed to undertake blood testing. Mr Roff gave evidence that he is recovering from cancer and the blood tests are a necessary part of the monitoring of his condition. He travelled to Perth shortly before his duty period was rostered to commence and was required to complete two weeks of quarantine. As a consequence, he commenced duty nearly two weeks late on 25 August 2020. Initially this period was treated by Jadestone as leave without pay but he was subsequently paid for the period he spent in quarantine. 32

[43] Sudden changes in border arrangements due to COVID-19 during this period created significant challenges for Jadestone to ensure it could meet its mining manning obligations. On one occasion Jadestone was forced to hire a helicopter to transfer employees barred from entering Western Australia from Darwin directly to Truscott. Cost implications, weather conditions and border restrictions prevented this arrangement continuing. ³³

[44] In late August Jadestone decided to make a further offer of financial support to each of its employees, including Mr Roff, in order to encourage each employee to consider a temporary or permanent relocation to Western Australia. This offer consisted of revised lump sum and per diem payments depending on whether the individual was relocating individually or with their family. ³⁴

[45] On 21 August 2020 Jadestone sent its employees, including Mr Roff a letter encouraging them to reconsider relocation. Relevantly the letter stated as follows:³⁵

“The route via the Northern Territory/ Darwin direct to Montara by Helicopter is also not sustainable. This option is a stop gap which will not be available during cyclone season, commencing 1 November. This is due to the possibility of personnel having to evacuate into WA before they have completed 14 days offshore. Bringing a 'dirty' crew, as it is deemed, into WA would breach State laws. Therefore, if you are not located in WA or able to fly into WA and undertake 14 days quarantine, by November 1st, you will not be able to attend work.

Therefore, to ensure we can continue to get you to work, I once again ask you to consider relocation to WA, either temporarily or permanently. Currently the State is allowing entry (with quarantine) for workers and families who intend relocating to WA from Victoria or NSW. Also please note, there is no definitive time frame or "return" date for those temporally relocating, this can only be based on what government restrictions may be in place at the time.

To support these initial relocations with the expectation the COVID-19 situation would pass in a few months, we put in place some short-term relocation arrangements. These currently include an ongoing expense per diem while in the 14-day quarantine period and an accommodation per diem, matching our nightly hotel quarantine arrangement, while in WA.

With the prolonged and indefinite nature of this situation, we realise we need to implement more sustainable and more appropriate support.”

[46] The financial support offered varied depending on whether the employee temporarily or permanently relocated, and whether the employee relocated by themselves or with their family: 36

[47] On 24 August 2020 Jadestone hosted a virtual ‘townhall’ question and answer session with its employees employed on the Montara (August Townhall). Both Mr Read and Ms Leahy joined the August Townhall remotely.³⁷

[48] During the August Townhall an employee named Mr Gavin Lang asked Mr Read a question about what would happen if an employee was unable to travel to Montara because of Western Australian Government border restrictions.³⁸

[49] Mr Roff says that the question which was asked was what impact a change to the border restrictions which prevented employees travelling to Western Australia would have on employees’ employment. Mr Roff says that Mr Read’s response was that employees would be required to utilise any accrued paid leave entitlements and once those were exhausted the employee would be placed on unpaid leave until the employee was able to reach the Montara.³⁹

[50] Mr Shepard’s recollections of the discussion are consistent with those of Mr Roff.⁴⁰

[51] Mr Roff and Mr Shephard do not recall discussion of the possibility of dismissal or of employment contracts being ‘frustrated’.

[52] Mr Read says that the conversation occurred as follows:⁴¹

“At one point during the Townhall Mr Gavin Lang said words to the effect of "if someone isn't in a position to relocate or cannot undergo quarantine in WA due to either residing in New South Wales or Victoria, what happens from November?".

In response I said words to the effect that advice was obtained was that Jadestone would not be in a position to stand down its employees as the facilities are still operating, and that if employees were not able to attend the workplace to carry out their duties the options become very limited with a likely result that the employment contract is terminated for frustration.”

[53] In her witness statement Ms Leahy recalled the conversation in the following way:⁴²

“During the Townhall, Mr Gavin Lang (Lang) asked a question. Lang said words to the effect of “If a person presents themselves for work but cannot get there, what happens with their pay?"

Read responded to Lang saying words to the effect of "If employees are unable to get to work due to border restrictions they will need to apply for leave without pay, if employees cannot get to work they are unable to fulfil their employment contract and therefore it will result in termination for frustration of contract.”

[54] Ms Leahy’s contemporaneous notes of the meeting record the conversation as follows:⁴³

“If there is workplace standdown.

No stand down.

Unpaid leave until

Employment contract can’t be fulfilled.

Frustration of contract.”

[55] On 23 September 2020 Ms Leahy sent Jadestone's employees, including Mr Roff, an email which invited non-WA residents to: ⁴⁴

“… consider a relocation to Perth, (whether temporary or permanent), with the previously advised support packages still being available, (for either singles or families).”

[56] On 10 November 2020 Jadestone advised its employees, including Mr Roff, that Jadestone would cover the cost to fly employees from a ‘very low risk’ third state location rather than a home state location if such employees elected to work around the Western Australian quarantine requirement. Jadestone informed employees that they would remain responsible for accommodation in, and flights into, their chosen third state location. ⁴⁵

[57] On 14 November 2020 at 12:01am (AWST) the Western Australian Government removed its existing hard border exemption system and replaced it with a new controlled interstate regime to allow for travel into Western Australia from interstate with conditions. Queensland was designated as ‘very low risk’, which meant that travel to Western Australia from Queensland was permitted, subject to conditions on arrival, including provision of a G2G PASS declaration, health screening and temperature checks, and a possible Perth Airport COVID-19 test. ⁴⁶

[58] Effective 9 January 2021 at 12:01am (AWST) the Western Australian Government designated Queensland as a ‘medium risk’ jurisdiction. The medium risk classification meant that travel from Queensland was no longer permitted, unless an individual was an ‘exempt traveller’. This classification was limited to:⁴⁷

a. certain senior Government officials;

b. certain active military personnel;

c. a member of the Commonwealth Parliament;

d. a person carrying out functions under a law of the Commonwealth;

e. a person responsible for transport freight or logistics; and

f. anyone given approval by the State Emergency Co-ordinator or an authorised officer, which included for compassionate reasons.

[59] Applications for exemption pursuant the last of these categories were assessed on a case by case basis and required Jadestone to provide the relevant employee with a letter of support (Letter of Support).

[60] ‘Exempt travellers’ were required to: ⁴⁸

a. self-quarantine in a suitable premise for fourteen days;

b. present for an initial COVID-19 test within 48 hours;

c. present for a COVID-19 test if any symptoms develop during quarantine; and

d. present for a COVID-19 test on day eleven after arrival in WA (if still in WA).

[61] Effective from 25 January 2021 at 12:01am (AWST) the Western Australian Government designated Queensland a ‘low risk’ jurisdiction, which meant that arrivals from Queensland were required to undergo health screenings upon arrival, self-quarantine for fourteen days in a “suitable premises”, and present for a COVID-19 test on day 11 of isolation.⁴⁹

[62] Effective 1 February 2021 at 12.01am (AWST) the Western Australian Government designated Queensland as a ‘very low risk’ jurisdiction, which meant that travel to Western Australia from Queensland was permitted, subject to conditions on arrival, including provision of a G2G Pass declaration, health screening and temperature checks, and a possible Perth Airport COVID-19 test.⁵⁰

[63] Later in February 2021, Jadestone advised its employees, including Mr Roff, that the LAFHA being provided to employees who were required to quarantine in Western Australia would be extended and provided to employees in ‘third state’ locations to assist with living costs, regardless of whether the relevant employee was required to quarantine. The purpose of this change was to make it easier for employees to ensure that they were able to enter Western Australia as and when required in order to mobilise for the commencement of a swing, with this defraying some of the personal expenses if they elected to not quarantine in Western Australia and instead temporarily relocate to a third state location.

[64] Effective 27 March 2021 at 12:01am (AWST) the Western Australian Government designated Queensland as a ‘low risk’ state, which meant that arrivals from Queensland were required to undergo a COVID-19 test upon arrival, self-quarantine for fourteen days in a “suitable premises”, and present for a COVID-19 test on day eleven of isolation.⁵¹

[65] Effective 30 March 2021 at 12:01am (AWST) the Western Australian Government designated Queensland a ‘medium risk’ state. The medium risk classification meant that travel from Queensland was no longer permitted, unless an individual was an ‘exempt traveller’.⁵²

[66] Exempt travellers were required to: ⁵³

a. self-quarantine in a suitable premise for fourteen days;

b. present for an initial COVID-19 test within forty eight hours;

c. present for a COVID-19 test if any symptoms develop during quarantine; and

d. present for a COVID-19 test on day 11 after arrival in WA (if still in WA).

[67] On 30 March 2021 Jadestone sent an email to Mr Roff, and a number of other employees, alerting them to the fact that Queensland had been reclassified as a medium risk state and asking which low risk state they intended to travel to enable them to perform their next rostered period ‘on duty’. Jadestone followed up their 30 March 2021 email on 2 April 2021 asking that Mr Roff and two of his colleagues urgently confirm which low risk state they intended to relocate to.⁵⁴

[68] Effective 7 April 2021 at 12:01am (AWST) the Western Australian Government designated Queensland a ‘low risk’ jurisdiction, which meant that arrivals from Queensland were required to undergo health screenings upon arrival, self-quarantine for fourteen days in a ‘suitable premises’, and present for a COVID- 19 test on day eleven of isolation. ⁵⁵

[69] Effective 19 April 2021 at 12:01am (AWST) the Western Australian Government designated Queensland as a ‘very low risk’ jurisdiction, which meant that travel to Western Australia from Queensland was permitted, subject to conditions on arrival, including provision of a G2G Pass declaration, health screening and temperature checks, and a possible Perth Airport COVID-19 test. ⁵⁶

[70] In the week commencing 19 April 2021 Mr Roff commenced a four week period ‘on duty’ on the Montara.⁵⁷

[71] On 21 May 2021 the new enterprise agreement was approved (Enterprise Agreement). It commenced operation on 28 May 2021.⁵⁸

[72] In the week of 18 May 2021 Mr Roff commenced a six week period ‘off duty’ on leave.⁵⁹

[73] On 1 June 2021 Jadestone sent a letter to Mr Roff informing him that the Enterprise Agreement had been registered. As foreshadowed in his Initial Conditions of Employment Jadestone proposed that Appendix A be replaced in totality with the contents of the Enterprise Agreement. The letter requested that Mr Roff confirm his agreement to this variation. Mr Roff did so on 5 June 2021 (1 June Contract of Employment).⁶⁰

[74] Relevantly clause 14 of the Enterprise Agreement provides that:⁶¹

“14. HOURS OF WORK AND TRAVEL

14.1 Duty Period on Attachment to the Buoy

14.1.1 The roster cycle period shall be fifteen weeks. The fifteen week roster cycle shall consist of three weeks rostered on the facility, followed by three weeks rostered off duty, followed by three weeks rostered on the facility and followed by six weeks rostered off duty.

14.1.2 Nothing in the above clause prohibits potential roster changes by mutual agreement with the employee/s impacted. Any changes mutually agreed by employees concerned (or affected) and the company must be in line with FW Act flexibility provisions.”

[75] On Friday 25 June 2021 Mr Roff left his home to take his son camping in a remote area of Queensland without telephone reception. 62

[76] Effective 27 June 2021 at 6:00pm (AWST) the Western Australian Government classified Queensland as a ‘low risk’ jurisdiction. The low risk classification meant that, from 6pm on 27 June 2021, all arrivals from Queensland were required to self- quarantine for fourteen days and be tested for COVID-19 on arrival (within forty eight hours) and on day eleven after arrival.⁶³

[77] The consequence of this reclassification was that Mr Roff needed to leave Queensland and arrive in Western Australia or another location classified as ‘low risk’ by the Western Australian Government before midnight on Monday 28 June 2021 in order to complete a fourteen day quarantine period before commencing his next rostered period ‘on duty’ on 13 July 2021.⁶⁴

[78] On 28 June 2021 Mr Ty Cerlenizza, Maintenance Supervisor, Jadestone (Mr Cerlenizza) and Mr Stephen Brown (Mr Brown) texted Mr Roff to let him know he would need to mobilise before midnight that day in order to complete his quarantine period in time to commence his next rostered period on duty. 65

[79] Effective 29 June 2021 at 3:00pm (AWST) the Western Australian Government designated Queensland as a ‘medium risk’ state. The medium risk classification meant that travel from Queensland was no longer permitted unless an individual was an ‘exempt traveller’.⁶⁶

[80] Exempt travellers were required to: ⁶⁷

a. self-quarantine in a suitable premise for 14 days;

b. present for an initial COVID-19 test within 48 hours;

c. present for a COVID-19 test if any symptoms develop during quarantine; and

d. present for a COVID-19 test on day 11 after arrival in WA (if still in WA).

[81] On 29 June 2021 Mr Roff contacted Mr Cerlenizza, and explained that he had been out of telephone range the previous day but was ready to travel to Western Australia. Mr Cerlenizza told him that it was probably too late to travel directly to Western Australia but that he should apply for a G2G Pass and relocate to a third state. 68 Mr Cerlenizza told him that he had arranged for Mr Shepherd to perform the first two weeks of Mr Roff’s roster while he completed quarantine.69

[82] Mr Roff says that he made further investigations and established that he could fly to directly to Western Australia if he acquired a G2G pass. The past practise of Jadestone had been to provide employees seeking G2G Pass with a letter of support identifying the reasons why the exemption should be granted (Letter of Support). Mr Roff therefore requested that Jadestone provide a Letter of Support. 70

[83] On 2 July 2021 Mr Cerlenizza sent an email to Mr Roff, indicating that he had requested a Letter of Support from HR for Mr Roff, and two other Queensland based employees on 1 July 2021. After suggesting that Mr Roff immediately apply for a G2G Pass Mr Cerlenizza relevantly says: 71

“The last information I have from HR regarding your upcoming swing is this: If you can't make it offshore for the start of the swing, you'll go on LWOP. If you have a medical cert or otherwise, your personal leave will be used up and then you will go on LWOP. You will remain on LWOP until you are able to mobilise to the MV.”

[84] On 5 July 2021 Jadestone issued Mr Roff with a Letter of Support for his G2G Pass. 72

[85] On 6 July 2021 Mr Shepherd who was then on leave and able to return to Western Australia without restriction informed Mr Cerlenizza that he was happy to perform a period of Mr Roff’s upcoming roster in return for Mr Roff performing a portion of his roster. Mr Shepherd says that mutual roster swaps occur regularly and are encouraged by Jadestone to ensure continuous staffing. 73

[86] Mr Shepard says that Mr Roff and Mr Cerlenizza were experiencing some difficulty in finding a period for Mr Roff to complete the roster swap. Mr Shepherd says that he then offered to perform an ‘over cycle’ roster which would mean Mr Roff would not need to perform any of Mr Shepherd’s roster. Mr Shepherd also says that he informed Mr Cerlenizza that there were two other Western Australian based employees able to make themselves available at short notice. 74

[87] On 7 July 2021 a G2G application made by Mr Ross was approved.⁷⁵ Mr Roff called Mr Cerlenizza to let him know that that the application had been approved and that he would be able to fly to Western Australia to commence his quarantine period. 76

[88] Later on 7 July 2021 Mr Cerlenizza sent an email to Mr Read informing him that Mr Roff’s G2G Pass had been approved and that an arrangement had been reached that Mr Shepherd would perform the first two weeks of Mr Roff’s roster while he completed quarantine in Western Australia. Mr Certlenizza pointed out that this was operationally more preferable because Mr Shepherd held tickets that the casual replacement did not.⁷⁷

[89] On 8 July 2021 at 1:39pm, Mr Roff received an email from Mr Read saying that as Mr Roff’s G2G pass had been approved Mr Roff was required to make contact with the travel team to coordinate mobilisation to the Montara. 78

[90] On the same day Jadestone sent Mr Roff a letter dated 8 July 2021 (8 July 2021 Letter). Relevantly the 8 July 2021 Letter stated that:⁷⁹

“By choosing to stay in Queensland in the lead up to your current swing, should the Hard Border with Queensland persist, and or you are required to undertake 14 days quarantine on arrival into WA, either of which prevents you from making the 13th July crew change, you will not be able to undertake your rostered swing and therefore be in breach of your contractual employment obligations to Jadestone.

As previously communicated to you and all our offshore employees, a situation whereby you are not ready, willing and able to perform your assigned work swing would place your continued employment with Jadestone in jeopardy. A failure to attend and undertake your assigned work enables Jadestone to exercise its contractual right to terminate your employment due to a frustration of our employment contract.

Any termination so actioned would be in accordance with clause 11 Termination of Employment, as outlined within the Jadestone Energy Montara Venture Enterprise Agreement 2021.”

[91] On 9 July 2021 the Australian Workers' Union (AWU) sent Jadestone a letter. The letter disputes Jadestone’s assertion that the AWU’s members were not ready willing and able to work and asks that Jadestone consider alternative duties for the affected employees or consider granting them leave until they are able to re-join the facility. ⁸⁰

[92] On 10 July 2021 Mr Roff sent Mr Cerlenizza, an email initiating a dispute in pursuant with clause 27.1 of the Enterprise Agreement in relation to the threatened termination of his employment. In his email Mr Roff stated that:⁸¹

“To Ty Cerlenizza

I wish to advise that I am in dispute with Jadestone regarding their decision to issue me a written warning to terminate my employment with Jadestone as a consequence of my inability to mobilise to Western Australia as a result of a decision by the WA Government to restrict my entry into Western Australia.

I am seeking the Company withdraw their threat to terminate my employment. I am also seeking Jadestone commence discussions with my representative (the Australian Workers Union) about the WA Border restrictions and the impact such restrictions have on the ability for employees to mobilise to the facility.

This Dispute is lodged pursuant to Clause 27.1 of the Jadestone Energy Montara Venture Enterprise Agreement 2021 (the Agreement). I am also seeking a time for me to discuss this either today or tomorrow. I am contactable on my mobile number 0429670079. If you can please advise what time you will call me so I can ensure I will be available at the designated time.

I am also seeking to ensure that the status quo arrangements relating to my employment are maintained whilst I am in dispute with the Company.”

[93] Clause 27 of the Enterprise Agreement provides as follows:⁸²

“27. ISSUE RESOLUTION PROCEDURE

The Parties commit to making every endeavour to settle issues raised by employees concerning their employment in a timely fashion by frank and open discussion and direct cooperative negotiation using the following process:

27.1 The employee will raise and discuss the issue with his or her immediate supervisor whilst on the facility. The employee may have his or her nominated representative present in any discussion on the issue at his or her choice. As discussions will be initially held on the facility, the representative must also be present on board.

27.2 If agreement is not reached at this level, the supervisor will refer the issue to the Offshore Installation Manager (OIM) then on the facility.

27.3 If the issue remains unresolved, the employee concerned may request the OIM to inform the Operations Manager of the issue and the discussions that have taken place with a view to it being resolved at this level.

27.4 The Company undertakes to recognise the representatives of the employee in their role of assisting in the settlement of the issue.

27.5 Whilst the above process is being followed the status quo will be preserved and employees will continue to perform their normal duties, subject to safe working practice and without prejudicing the rights of the employee or the Company.

27.6 Should the issue still not be resolved after discussions between the Company and the employee (and his or her representative), either the Company or the employee may refer the issue to the Fair Work Commission for mediation or conciliation and if necessary, arbitration. The Fair Work Commission will have the power to interpret and determine any dispute that arises during the life of this Agreement. This includes exercising the procedural powers in relation to hearings, compulsory attendance, witnesses, evidence and submissions which are necessary to make the arbitration effective. Such determinations are agreed as final and binding on the parties.”

[94] On 10 July 2021 Mr Cerlenizza sent Mr Roff an email acknowledging receipt of Mr Roff’s initiation of a dispute but not otherwise responding to it.⁸³

[95] On 11 July 2021 Mr Roff proposed to Jadestone that it charter a helicopter from the Northern Territory to the Montara to assist employees affected by the border changes in Queensland. 84

[96] On 13 July 2021 Jadestone sent Mr Roff a letter with the subject line “Re: Termination for frustration of employment contract” informing him that his employment had been terminated effective immediately.⁸⁵

“Dear Wayne,

Further to our letter of 8th July 2021, you have failed to make yourself available to mobilise to the facility on 13th July 2021 in accordance with your contractual employment obligations.

The Company has carefully considered all information concerning this matter, particularly the events leading up to your decision to not mobilise for work:

•  On June 27, the Western Australian Government advised that Queensland had been moved to a "low risk" jurisdiction meaning anyone arriving into Western Australia from Queensland would need to quarantine or self-isolate for 14 days.

•  On the morning of June 28, you were contacted by the Montara OIM and requested to mobilise immediately. There were numerous flight options available that day and the following day for you to travel to Western Australia.

•  On the afternoon of June 29, Queensland was then moved to " medium" risk by the Western Australian Government meaning people from Queensland could only travel to Western Australia with a special exemption and would need to undertake 14 days quarantine on arrival.

You therefore had ample opportunity to freely travel to Western Australia, including being specifically requested to do so by the company prior to Queensland being moved to "medium risk" by the Western Australian Government, in order to undertake quarantine and ensure you would be able to mobilise for your roster.

Jadestone has regularly and consistently reminded you and all employees, through direct written advice, townhalls, shift change border updates and/or general employee notices, that if you reside outside of WA you are exposed to fluid border restrictions and at risk of not being able to meet your employment obligations.”

[97] Mr Roff’s salary at the time of his dismissal was $188,225.⁸⁶

[98] On 15 July 2021 Mr Roff sent Mr Cerlenizza an email confirming he was ready to mobile as arranged. ⁸⁷

[99] On 26 August 2021 the Western Australian Government announced that Queensland would be classified as a "low risk" jurisdiction, which meant that arrivals from Queensland were required to undergo health screenings upon arrival, self-quarantine for 14 days in a “suitable premises”, and present for a COVID-19 test on day 12 of isolation. ⁸⁸

[100] On 22 October 2021 the Western Australian Government removed its existing hard border exemption system and replaced it with a new controlled interstate regime to allow for travel into Western Australia from interstate with conditions. Queensland was designated as a "very low risk", which meant that travel to Western Australia from Queensland was permitted, subject to conditions, including provision of a G2G PASS declaration, health screening and temperature checks, and a possible Perth Airport COVID-19 test. ⁸⁹

[101] After 22 October 2021 and until the Hearing, Queensland remained classified as ‘very low risk’.⁹⁰ Border restrictions between Western Australia and the rest of Australia were lifted completely on 3 March 2022.

[102] Mr Roff submits it would be appropriate for the FWC to order his reinstatement and continuity of service and to make an order for back pay.

Is Mr Roff protected from unfair dismissal?

[103] An order for reinstatement or compensation may only be issued if Mr Roff was unfairly dismissed and Mr Roff was protected from unfair dismissal at the time of his dismissal.

[104] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

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:

•  a modern award covers the person;

•  an enterprise agreement applies to the person in relation to the employment;

•  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 Fair Work Regulations 2009 (Cth) (FW Regulations), is less than the high income threshold.

[105] For the purposes of Part 3-2 of the FW Act an employer means a national system employer and an employee means the employee of a national system employer. It is not disputed that Jadestone is a national system employer and therefore Mr Roff is a national system employee.

[106] If the employer is not a small business, the ‘minimum employment period’ is six months ending at the earlier of the following times:⁹¹

a. the time when the person is given notice of the dismissal; or

b. immediately before the dismissal.

[107] There is no dispute, and I am satisfied, that Jadestone is not a small business employer for the purposes of section 383 of the FW Act.

[108] Mr Roff commenced employment with Jadestone on 9 December 2019. 92 Mr Roff’s employment with Jadestone came to an end on 13 July 2021.93

[109] I am therefore satisfied that, at the time of dismissal, Mr Roff was an employee who had completed a period of employment of at least the minimum employment period.

[110] There is no dispute, and I am satisfied, that the Enterprise Agreement applied to Mr Roff’s employment at the time of his dismissal. Consequently, I am satisfied that Mr Roff was protected from unfair dismissal.

Was Mr Roff unfairly dismissed?

[111] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

a. the person has been dismissed;

b. the dismissal was harsh, unjust or unreasonable;

c. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and

d. the dismissal was not a case of genuine redundancy.

Was Mr Roff’s dismissal a case of genuine redundancy?

[112] Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

a. the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

b. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[113] It was not in dispute, and I find, that Mr Roff’s dismissal was not due to Jadestone no longer requiring his job to be performed by anyone because of changes in Jadestone’s operational requirements.

[114] I am therefore satisfied that the dismissal was not a case of genuine redundancy.

Was Mr Roff’s dismissal consistent with the SBDC Code?

[115] Section 388 of the FW Act provides that a person’s dismissal is consistent with the SBFD Code if:

a. immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

b. the employer complied with the SBFD Code in relation to the dismissal.

[116] It was not in dispute, and I find, that Jadestone was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of fourteen employees.

[117] As Jadestone is not a small business employer within the meaning of the FW Act, I am therefore satisfied that the SBFD Code does not apply to Mr Roff’s dismissal.

Was Mr Roff dismissed?

[118] Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.

[119] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[120] Neither party asserts that Mr Roff resigned from his employment.

[121] Mr Roff asserts that he was dismissed by Jadestone. Jadestone deny dismissing Mr Roff.

[122] In the Termination Letter Jadestone indicated that they believed that Mr Roff’s contract was frustrated. 94 In submissions filed in accordance with the Directions prior to the Hearing Jadestone submitted that Mr Roff’s contract was frustrated or in the alternative that he abandoned his employment.95 Jadestone abandoned its jurisdictional objection that the contract was frustrated at the Hearing. For completeness I note that I am not satisfied that on the factual circumstances of the case an argument of frustration of contract could have been made out.

[123] At the Hearing and in its Closing Submissions Jadestone submitted that Mr Roff abandoned his employment by placing himself in a situation where he may not be able, and was not able, to meet a fundamental obligation of his contract, namely being ready, willing and able to start work as scheduled. 96

[124] The concept of abandonment in the employment context was considered in detail by the Full Bench of the FWC in Abandonment of Employment 97. The Full Bench relevantly stated as follows (citations omitted): 98

“[21] Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.”

[125] An employer may accept the employee's repudiation in order to bring the contract of employment to an end, or elect to keep the contract afoot. Until the repudiation is accepted, the employment contract will remain on foot. Once the repudiation is accepted, the employment contract will come to an end. 99

[126] Although it is the action of the employer which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations. As such, abandonment cannot constitute a dismissal on the employer’s initiative for the purposes of section 386 of the FW Act. 100

[127] Abandonment of employment may arise where an employee is absent from the workplace without consent or notification and there is no reasonable excuse for their absence. However, such absence must be such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it.  101

Unilateral Variation to Contractual Arrangements

[128] Mr Roff was recruited and engaged on a fly in fly out basis as a resident of Queensland. 102

[129] It never was, and never has been, a condition of his employment that he reside in Western Australia, although by way of the 30 March Letter Jadestone attempted to unilaterally change his contractual terms of engagement to make it so. 103

[130] Mr Roff’s Initial Employment Conditions provided for a fifteen week roster cycle consisting of three weeks rostered ‘on duty’ on the Montara, three weeks rostered ‘off duty’ on leave, three weeks rostered ‘on duty’ on the Montara and six weeks rostered ‘off duty’ on leave. This contract provided for the ‘on duty’ periods to be varied to 4 and 5 weeks but only by agreement. 104 

[131] On 7 April 2020 Jadestone sought to unilaterally amend his Initial Employment Conditions to impose the Covid Roster.

[132] The COVID Roster comprised: 105

a. 2 weeks of non-work time prior to the commencement of each work swing to permit time for quarantine should it be required;

b. 4 weeks of ‘on duty’ on the Montara; and

c. 6 weeks of ‘off duty’ on leave.

[133] There is no evidence before me that Jadestone formally sought Mr Roff’s agreement to this variation to his contractual arrangements. Notwithstanding that they did so for this and subsequent variations to his contractual arrangements.

[134] Jadestone renegotiated the terms of Mr Roff’s engagement in 2021 after the COVID-19 pandemic emerged. These negotiations cumulated with the parties entering into a new Enterprise Agreement and a new common law contract on 1 June 2021 incorporating the terms of the Enterprise Agreement. 106

[135] The terms of engagement secured by the 1 June Contract of Employment and set out in the Enterprise Agreement at clause 14 provide that Mr Roff will work a roster of three weeks rostered ‘on duty’ on the Montara, three weeks rostered ‘off duty’ on leave, three weeks rostered ‘on duty’ on the Montara and 6 weeks rostered ‘off duty’ on leave. The Enterprise Agreement provides that the roster may only be changed by agreement. 107

[136] Jadestone were presumably aware that they could not alter Mr Roff’s terms of employment without his consent and therefore sought written confirmation of his agreement to vary his contract by removing Appendix A and replacing it with the terms and conditions contained in the Enterprise Agreement. 108

[137] Jadestone did not take the opportunity to agree to terms of engagement with Mr Roff which would have required his residency in Western Australia notwithstanding that the risk of restrictions on interstate travel had become a possibility from March 2020. Nor did Jadestone take the opportunity to confirm Mr Roff’s agreement to an alternative roster cycle such as the COVID Roster.

[138] Jadestone say that the COVID Roster is a “significantly more beneficial roster” because employees are rostered ‘on duty’ for less days per year than the roster enshrined in the Enterprise Agreement (and in their common law contracts) with no reduction in their per annum renumeration. I do not accept that a change in roster pattern can necessarily be entirely compensated by paying the same renumeration. The COVID Roster provides for longer continuous periods ‘on duty’ and when combined with a quarantine period longer continuous periods away from home. Long periods isolated from family and friends can have adverse consequences for employees and those who rely on them which are not necessarily compensable by cash.

[139] I note that no variation has been made to the Enterprise Agreement as at the date of the Hearing.

Reasonableness of request to relocate

[140] Initially Jadestone demanded that employees relocate to Western Australia. Jadestone offered to provide accommodation for employees and a LAFHA allowance of $60 per day to cover the cost of meals and all incidentals. Employees were told that they would be responsible for sourcing and paying for airfares and accommodation for their families. Unsurprisingly this direction was resisted by employees.

[141] After unsuccessfully directing employees to relocate to Western Australia from 7 April 2020 Jadestone agreed to pay a LAFHA allowance of $65 per day to interstate based employees while they completed a 14 day quarantine period prior to commencing their rostered period on duty. ¹⁰⁹

[142] Later in April 2020 Jadestone agreed to also pay the $65 per day LAFHA to employees who chose to remain in Western Australia between swings. These employees were also offered an accommodation allowance of up to $135 per night. ¹¹⁰

[143] Given the dislocation of being away from their families and friends for extended periods of time, the costs of living away from home and the inflated Perth living and rental prices it is unsurprising that very few employees took up this offer.

[144] In August 2020 Jadestone again asked employees to relocate to Western Australia. Jadestone indicated that it would be unable to confirm how long any temporary relocations would need to remain in place or how long the financial incentives would be offered. This lack of certainty would no doubt have made the decision to relocate more difficult for employees particularly those with families and/or other commitments outside of Western Australia. 111 

[145] Jadestone eventually increased the financial and non-financial support it was prepared to offer employees to relocate on either a temporary or permanent basis. The revised offer included airfares for family members, four weeks accommodation for family members, a lump sum payment of between $3000 and $15,000 plus some social support. Jadestone was clear that all other costs would be at the employee’s expense. It would appear likely that for most employees this package would still result in the employee being out of pocket financially. No doubt employees considering the request to relocate also took into account difficulties in finding schooling for their children, housing for their families and employment for their working spouses.¹¹²

[146] At no point did Jadestone engage with individual employees to seek to renegotiate the terms of their contractual arrangements to agree terms which would secure relocation by consent.

Consequences of border restriction preventing an employee commencing their roster

[147] The question of what would happen if an employee was unable to travel to the Montara because of Western Australian Government border restrictions was canvassed at the August Townhall.

[148] Mr Roff and Mr Shepard’s recollections of what was discussed differs from that of Mr Read and Ms Leahy.

[149] Mr Roff and Mr Shephard’s recollection is consistent with the Enterprise Agreement which provides at clause 14.1.11: 113

“14.1.11 Should an employee without reasonable excuse fail to report for duty or report for duty unfit for work, they will be suspended without pay until they can either:

•  Rejoin the facility on a scheduled flight;

•  Be engaged on alternate useful work at the Company's option; or

•  Have the period of suspension approved by the Company, in whole or part, as an approved absence, with or without pay.”

[150] On the evidence before me I believe it most probable that Mr Read indicated to the employees that employees who are unable to get to work due to border restrictions would be placed on unpaid leave at least initially however, if the situation persisted at some unspecified time in the future their contracts may be terminated. I express no view as to if, or when, that might be a legally available option. Given the existence of clause 14.1.11 in the Enterprise Agreement this unspecified period arguably might be expected to be longer than in cases of contract frustration where such a condition did not exist.

Alleged renunciation of contract

[151] On Friday 25 June 2021 during a period in which he was rostered off duty on leave Mr Roff left his home to take his son camping in a remote area of Queensland without telephone reception. 114 He says that he intended to return home on Sunday 27 June 2021 however he was delayed in his return until Tuesday 29 June 2021 by mechanical difficulties with his car. Jadestone produced no evidence to the contrary and I therefore accepted Mr Roff’s evidence in this regard.

[152] Effective 27 June 2021 at 6:00pm (AWST) the Western Australian Government classified Queensland as a ‘low risk’ jurisdiction. The consequence of this reclassification was that Mr Roff needed to leave Queensland and arrive in Western Australia or another location classified as ‘low risk’ by the Western Australian Government before midnight on Monday 28 June 2021 in order to complete a fourteen day quarantine period before commencing his next rostered period ‘on duty’ on 13 July 2021.¹¹⁵

[153] Effective 29 June 2021 at 3:00pm (AWST) the Western Australian Government designated Queensland as a ‘medium risk’ state. The medium risk classification meant that travel from Queensland was no longer permitted, unless an individual was an ‘exempt traveller’.¹¹⁶

[154] On 29 June 2021 when he returned to an area with mobile coverage Mr Roff contacted Mr Cerlenizza, and explained that he had been out of telephone range but was ready to immediately travel to Western Australia. Mr Cerlenizza told him that it was probably too late to travel directly to Western Australia but that he should apply for a G2G Pass and relocate to a third state.  117 Mr Cerlenizza told him that he had arranged for Mr Shepherd to perform the first two weeks of Mr Roff’s roster while he completed quarantine. 118

[155] Notwithstanding Mr Cerlenizza’s advice that he could not travel directly to Western Australia Mr Ross says that he made further investigations and established that he could fly to directly to Western Australia if he acquired a G2G pass. The past practise of Jadestone had been to provide employees seeking G2G Pass with a Letter of Support. Mr Roff therefore requested that Jadestone provide a Letter of Support. 119 This is not the conduct of someone intent upon the renunciation of their employment contract as a whole or their fundamental obligations under it.

[156] Notwithstanding the evidence of Jadestone that Mr Roff’s availability was critical to its operations the Letter of Support was not provided on the day Mr Roff requested it nor did Mr Cerlenizza even request it that day. It was not until 1 July 2021 that Mr Cerlenizza requested the Letter of Support and it was not until 5 July 2021 that Jadestone eventually issued Mr Roff with a Letter of Support for his G2G Pass. 120

[157] Relevantly on 2 July 2021 Mr Cerlenizza told Mr Roff: 121

“The last information I have from HR regarding your upcoming swing is this: If you can't make it offshore for the start of the swing, you'll go on LWOP. If you have a medical cert or otherwise, your personal leave will be used up and then you will go on LWOP. You will remain on LWOP until you are able to mobilise to the MV.”

[158] This is consistent with clause 14.1.11 of the Enterprise Agreement. It is consistent with what Mr Roff and Mr Shepard recall being told at the Townhall on 24 August 2020. This gives further weight to the evidence of Mr Roff and Mr Shepard as to what employees understood to be the consequences of an inability to mobilise as a consequence of a sudden border change.

[159] On 6 July 2021 Mr Shepherd who was then on leave and able to return to Western Australia without restriction informed Mr Cerlinizza that he was happy to perform a period of Mr Roff’s upcoming roster in return for Mr Roff performing a portion of his roster. Mr Shepherd says that mutual roster swaps occur regularly and are encouraged by Jadestone to ensure continuous staffing. 122

[160] Mr Shepard says that Mr Roff and Mr Cerlenizza were experiencing some difficulty in finding a period for Mr Roff to complete the roster swap. Mr Shepherd says that he then offered to perform an ‘over cycle’ roster which would mean Mr Roff would not need to perform any of Mr Shepherd’s roster. Mr Shepherd also says that he informed Mr Cerlenizza that there were two other Western Australian based employees able to make themselves available at short notice. 123 There were therefore arrangements which Jadestone could have put in place to ensure that it had adequate staffing available in the absence of Mr Roff.

[161] On 7 July 2021 a G2G application made by Mr Ross was approved.¹²⁴ Mr Roff called Mr Cerlenizza to let him know that that the application had been approved and that he would be able to fly to Western Australia to commence his quarantine period as scheduled on 13 July 2021. 125 This is not the conduct of someone intent upon the renunciation of their employment contract as a whole or their fundamental obligations under it.

[162] Later on 7 July 2021 Mr Cerlenizza sent an email to Mr Read informing him that Mr Roff’s G2G Pass had been approved and that an arrangement had been reached that Mr Shepherd would perform the first two weeks of Mr Roff’s roster while he completed quarantine in Western Australia. Mr Cerlenizza pointed out that this was operationally more preferable because Mr Shepherd held tickets that the casual replacement did not.¹²⁶ Some difficulties emerged in agreeing the date of the roster swap between Mr Roff and Mr Shepherd. Mr Shepherd then offered to perform an ‘over cycle’ roster which would mean Mr Roff would not need to perform any of Mr Shepherd’s roster. Mr Shepherd also says that he informed Mr Cerlenizza that there were two other Western Australian based employees able to make themselves available at short notice. There were therefore arrangements which Jadestone could have put in place to ensure that it had adequate staffing available in the absence of Mr Roff. Jadestone complain that the overcycle roster would have increased Jadestone’s costs. Had Jadestone informed Mr Roff that his employment would be terminated if the roster swap could not be agreed it is very likely that Mr Roff would have made greater effort to find a mutually agreeable date to swap rosters.

[163] On 8 July 2021 at 1:39pm, Mr Roff received an email from Mr Read saying that as Mr Roff’s G2G pass had been approved Mr Roff was required to make contact with the travel team to coordinate mobilisation to the Montara. 127

[164] In complete contradiction to its actions:

a. arranging for substitute labour;

b. reassuring Mr Roff that he would be able to take leave without pay;

c. providing the Letter of Support; and

d. instructing Mr Roff to contact the travel team to arrange mobilisation

[165] Jadestone then sent Mr Roff the 8 July 2021 Letter informing of an intention to terminate his employment on the grounds of frustration of contract. ¹²⁸

[166] On 10 July 2021 Mr Roff sent Mr Cerlenizza, an email initiating a dispute in pursuant with clause 27.1 of the Enterprise Agreement in relation to the threatened termination of his employment. ¹²⁹

[167] The dispute resolution procedure set out in clause 27 of the Enterprise Agreement provides at clause 27.5 that: ¹³⁰

“27.5 Whilst the above process is being followed the status quo will be preserved and employees will continue to perform their normal duties, subject to safe working practice and without prejudicing the rights of the employee or the Company.”

[168] Initiating a dispute which he believed would preserve his employment by virtue of status quo obligations is not the conduct of someone intent upon the renunciation of their employment contract as a whole or their fundamental obligations under it.

Jadestone’s Circumstances

[169] While sympathetic to the pressures on Jadestone to ensure adequate staffing, its circumstances are not uncommon or unique. Many businesses require minimum staffing of qualified and/or experienced personnel to operate safely and/or effectively. For almost all fly in and fly out operations the unavailability of incoming employees impacts on those scheduled to fly out. It is expensive for most businesses to secure replacement labour at short notice. Particularly during the COVID Pandemic when international and state border restrictions have severely impacted on the available local labour pool. Arguably a smaller business would be even more adversely impacted by staff absences than one of the size and resources of Jadestone.

[170] In any event the evidence is that there were employees ready willing and able to perform the start of Mr Roff’s rostered period on duty if he was unable to perform it. It was not in fact the case that Jadestone would have had to retain other employees onboard the Montara or that it would not have been able to meet its minimum manning requirements.

[171] Employees who are engaged on a fly in fly out basis and their employers agree to that employment on the basis that those employees are able to return home to their houses, families and friends when not rostered on duty. The renumeration of those employees reflects those arrangements.

[172] Notwithstanding he was not formally asked and did not formally agree to a change in roster and to relocate during off duty periods Mr Roff did so to accommodate Jadestone’s circumstances.

[173] If Jadestone wished to employ only local labour they could have chosen to offer Mr Roff and his colleagues renumeration packages dependent upon local residency which were sufficiently lucrative to cause Mr Roff and his colleagues to relocate. The financial incentives which Jadestone offered were clearly insufficient to do so.

[174] Jadestone agreed to the terms of the new Enterprise Agreement after the impacts of the COVID-19 pandemic became apparent. The Enterprise Agreement contained a term which is of particular relevance to the circumstances in which Mr Roff and Jadestone found themselves. Had Jadestone not intended the clause to apply to such circumstances it should have negotiated an amendment to the clause to exclude absences as a consequence of border closures. Jadestone can not simply choose to ignore terms of an industrial instrument by which it is bound.

Conclusion

[175] There is nothing about Mr Roff’s conduct which suggests that he intended to renunciate his employment contract as a whole or his fundamental obligations under it when he did not commence work on 13 July 2021. To the contrary he appeared to take multiple proactive steps to ensure he could attend his shift as rostered and inform his employer that he wished to continue in employment.

[176] On multiple occasions Mr Roff relocated two weeks in advance of the start of his rostered shift to ensure that he was able to work when rostered to do so. On the only occasion he was unable to do so Jadestone complied with the terms of the Enterprise Agreement.

[177] Based on the terms of the Enterprise Agreement, his prior experiences and the discussions at the Townhall it was reasonable for him to presume that if he couldn’t get to Western Australia as a consequence of border restrictions he would have the option to take unpaid leave for some period of time before his employment would be at risk.

[178] I am not satisfied that Mr Roff abandoned his employment.

[179] I find, that Mr Roff’s employment with Jadestone was terminated at the initiative of Jadestone.

[180] I am therefore satisfied that Mr Roff has been dismissed within the meaning of section 385 of the FW Act.

Was the Application made within the period required?

[181] Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.

[182] Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.

[183] It is not disputed, and I find, that Mr Roff was dismissed from his employment on 13 July 2021 and made the Application on 29 July 2021. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.

Was the dismissal harsh, unjust or unreasonable?

[184] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

“…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”131

[185] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

a. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

b. whether the person was notified of that reason;

c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

d. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;

f. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;

g. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

h. any other matters that the FWC considers relevant.

[186] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.¹³²

Was there a valid reason for the dismissal related to Mr Roff’s capacity or conduct?

[187] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”¹³³ and should not be “capricious, fanciful, spiteful or prejudiced.”¹³⁴ However, the FWC will not stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.¹³⁵

[188] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.¹³⁶ The question of whether the alleged conduct took place and what it involved is to be determined by the FWC on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.¹³⁷

[189] The Termination Letter identifies the reason for termination as follows: 138

“RE: Termination for Frustration of Employment Contract

Dear Wayne,

Further to our letter of 8th July 2021, you have failed to make yourself available to mobilise to the facility on 13th July 2021 in accordance with your contractual employment obligations.

The Company has carefully considered all information concerning this matter, particularly the events leading up to your decision to not mobilise for work:

•  On June 27, the Western Australian Government advised that Queensland had been moved to a "low risk" jurisdiction meaning anyone arriving into Western Australia from Queensland would need to quarantine or self-isolate for 14 days.

•  On the morning of June 28, you were contacted by the Montara OIM and requested to mobilise immediately. There were numerous flight options available that day and the following day for you to travel to Western Australia.

•  On the afternoon of June 29, Queensland was then moved to "medium" risk by the Western Australian Government meaning people from Queensland could only travel to Western Australia with a special exemption and would need to undertake 14 days quarantine on arrival.

You therefore had ample opportunity to freely travel to Western Australia, including being specifically requested to do so by the company prior to Queensland being moved to "medium risk" by the Western Australian Government, in order to undertake quarantine and ensure you would be able to mobilise for your roster.”

[190] Mr Roff was not rostered to mobilise or to commence work on 13 July 2021 in accordance with his contract and the Enterprise Agreement. He was rostered according to a roster unilaterally imposed by Jadestone.

[191] Mr Roff did not fail to make himself available. Nor did he have ample opportunity to freely travel to Western Australia. Rather a sudden reclassification of Queensland by the Western Australian State Government required him to complete a 14 day quarantine period before he could commence work in Western Australia.

[192] Mr Roff indicated that he was ready to travel on 29 June 2021 which is a period in which he was rostered off duty on leave. He was told by Jadestone that arrangements had been made for Mr Shepherd to perform the first two weeks of his roster and that he would be placed on leave without pay until he could mobilise to the Montara. Mr Roff immediately proceed to secure a G2G pass so that he could enter Western Australia. When he informed Jadestone that he had secured a G2G Pass he was told to contact the travel team to arrange his flights.

[193] Based on the terms of the Enterprise Agreement, the discussions at the Townhall and the information provided to him by Mr Cerlenizza and Mr Read on behalf of Jadestone it was not unreasonable for Mr Roff to presume that he would be placed on unpaid leave and join the Montara mid roster.

[194] On 10 July 2021 Mr Roff sent Mr Cerlenizza, an email initiating a dispute pursuant to clause 27 of the Enterprise Agreement in relation to the threatened termination of his employment. Notwithstanding the existence of a status quo provision in the dispute resolution procedure and its assertion that Mr Roff’s availability to perform his roster was critical to its operations Jadestone proceeded with his dismissal.

[195] Ultimately I find that Mr Roff was dismissed because he refused to relocate to Perth for an indefinite period as that is the only one in which he could have avoided the possibility that a sudden border change would prevent his mobilisation. I am not satisfied that this is a valid reason for his dismissal in the circumstances including that:

a. Mr Roff was hired on fly in fly out basis.

b. His employment contract recognises that his residential location is outside of Western Australia.

c. Jadestone did not formally obtain his agreement to vary his contract to make permanent or temporary residence in Western Australia a term of employment.

d. In agreeing to the Enterprise Agreement and incorporating it into the common law contract the parties had provided a mechanism to deal with the possibility of an employee being unable to attend their rostered shift. This mechanism was not utilised by Jadestone.

e. Jadestone did not make adequately clear that failing to relocate would result in dismissal and/or the basis on which it lawfully might prior to his dismissal.

[196] While it was operationally inconvenient that Mr Roff was unable to commence his shift as rostered I am not satisfied that it is a valid reason for his dismissal particularly in circumstances where other employees were available and willing to perform his rostered period on duty even if that was at a premium.

Was Mr Roff notified of the valid reason?

[197] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,¹³⁹ and in explicit,¹⁴⁰ plain and clear terms.¹⁴¹

[198] The proposed reasons for the decision to terminate Mr Roff’s employment were communicated to him in the 8 July 2021 Letter as follows: 142

“By choosing to stay in Queensland in the lead up to your current swing, should the Hard Border with Queensland persist, and or you are required to undertake 14 days quarantine on arrival into WA, either of which prevents you from making the 13th July crew change, you will not be able to undertake your rostered swing and therefore be in breach of your contractual employment obligations to Jadestone.

As previously communicated to you and all our offshore employees, a situation whereby you are not ready, willing and able to perform your assigned work swing would place your continued employment with Jadestone in jeopardy. A failure to attend and undertake your assigned work enables Jadestone to exercise its contractual right to terminate your employment due to a frustration of our employment contract.

Any termination so actioned would be in accordance with clause 11 Termination of Employment, as outlined within the Jadestone Energy Montara Venture Enterprise Agreement 2021.”

[199] The 8 July 2021 Letter identified the proposed reason for dismissal as a breach of contractual obligations. The Termination Letter identifies the reason for dismissal as “termination for frustration of employment contract”.

[200] In the submissions filed in advance of the Hearing Jadestone identified the reason for dismissal as frustration of contract or in the alternative abandonment of contract. At the Hearing Jadestone abandoned the argument that the contract had been frustrated in favour of an argument that it had been abandoned.

[201] Breach of contract, frustration of contract and abandonment of contract are very different legal concepts. Not identifying the ground upon which Jadestone dismissed Mr Roff until after his dismissal denied him the opportunity to properly respond to the reasons for his dismissal.

[202] I find that Mr Roff was not notified of the reasons for his dismissal before the decision was made to terminate his employment,¹⁴³ in explicit,¹⁴⁴ plain and clear terms.¹⁴⁵

Was Mr Roff given an opportunity to respond to any valid reason related to his capacity or conduct?

[203] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.¹⁴⁶

[204] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.¹⁴⁷ Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance, and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.¹⁴⁸

[205] Mr Roff was not invited to respond to the reasons for his dismissal.

[206] Mr Roff independently lodged a dispute notification pursuant to clause 27 of the Agreement. Jadestone did not provide him with this opportunity. It was a right which existed by virtue of the Enterprise Agreement. The dispute notification merely notified of the existence of a dispute. Jadestone did not seek further details of the dispute such that the dispute resolution process might have been characterised as having provided an opportunity for Mr Roff to respond to the reasons for his dismissal.

[207] On 13 July 2021 Jadestone sent Mr Roff the Termination Letter without further discussions with him informing him that his employment had been terminated effective immediately.

[208] I find that Mr Roff was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss him being made.

Did Jadestone unreasonably refuse to allow Mr Roff to have a support person present to assist at discussions relating to the dismissal?

[209] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[210] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 149

[211] No discussions were held with Mr Roff in relation to his dismissal, therefore no opportunity arose for him to request that a support person be present or for that request to be denied.

[212] I have therefore treated this as a neutral factor.

Was Mr Roff warned about unsatisfactory performance before the dismissal?

[213] As the dismissal did not relate to unsatisfactory performance, I have treated this as a neutral factor.

To what degree would the size of Jadestone’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[214] Where an employer is substantial and has dedicated human resources personnel, and access to legal advice, there will likely be no reason for it not to follow fair procedures.¹⁵⁰

[215] Jadestone is a large business with the financial resources and sophistication such that its size provides no explanation for its failure to observe procedural fairness.

[216] Having found that Jadestone’s size was not likely to impact on the procedures it followed in effecting the dismissal I have therefore treated this as a neutral factor.

To what degree would the absence of dedicated human resource management specialists or expertise in Jadestone’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[217] The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”¹⁵¹

[218] Jadestone’s enterprise did not lack dedicated human resource management specialists and expertise. In these circumstances the failure to observe procedural fairness is inexplicable.

[219] Having found that Jadestone did not lack dedicated human resource management specialists and expertise I have treated this as neutral factor.

What other matters are relevant?

[220] Section 387(h) requires the FWC to take into account any other matters that the FWC considers relevant.

[221] Mr Roff submits that the following matters are relevant considerations:

a. Clause 14.1.1 of the Enterprise Agreement

b. Clause 27 of the Enterprise Agreement

[222] Both clauses of the Enterprise Agreement are incorporated into Mr Roff’s employment contract.

[223] Clause 14.1.11 of the Enterprise Agreement specifically contemplates circumstances in which an employee fails to attend for duty: 152

“14.1.11 Should an employee without reasonable excuse fail to report for duty or report for duty unfit for work, they will be suspended without pay until they can either:

•  Rejoin the facility on a scheduled flight;

•  Be engaged on alternate useful work at the Company's option; or

•  Have the period of suspension approved by the Company, in whole or part, as an approved absence, with or without pay.”

[224] Jadestone submit that clause 14.1.11 “has no part to play” in the FWC’s considerations. Jadestone do not articulate why. Jadestone go on to submit that clause 14.1.11 does not override the right to dismiss in the event an employee fails to report to duty. Rather they say it confirms that the minimum disciplinary consequence is suspension and emphasises the seriousness of failing to report to duty.

[225] The FWC has no power to enforce this provision of the Agreement or to impose penalties for its breach. However, the existence of the clause is highly relevant to these proceedings. It demonstrates that the parties had turned their minds to the possibility of an employee failing to commence a rostered period of work and that they had agreed a mechanism to deal with such an incident other than by dismissal.

[226] The existence of the clause suggests that the parties contemplated something other than dismissal as a consequence for an employee failing to attend for duty. In fact the clause contemplates Jadestone granting paid leave for such absences. While the clause would not necessarily act as a bar to prevent a contract ever being frustrated the clause must have some work to do. The approval of the Enterprise Agreement and the consequential contractual variation to include it in Mr Roff’s contract all occurred in the course of the COVID-19 pandemic when the parties were aware that absences from work as a consequence of COVID disruptions was a real possibility. Arguably the clause decreases the seriousness of a failure to report to duty than might otherwise be the case without such a clause.

[227] Jadestone submit that the dispute resolution procedure was not properly activated by Mr Roff because clause 27.2 of the Enterprise Agreement states that, “The employee will raise and discuss the matter with his or her immediate supervisor whilst on the facility,” and that therefore a dispute cannot be activated while an employee is not on the facility. Furthermore, Jadestone submit that the dispute raised by Mr Roff did not fall with the scope of clause 27 of the Enterprise Agreement.

[228] The Full Bench, in Princess Linen Services Pty Ltd v United Workers’ Union¹⁵³ at [15] and [16] of its decision explained the principles of interpretation of enterprise agreements as follows:

“The most succinct expression of the correct approach is that articulated by the Federal Court Full Court in WorkPac Pty Ltd v Skene as follows (citations omitted):

“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose…”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”

The Full Court observations are consistent with the approach taken by the Full Bench of this Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).”

[229] The principles of interpretation applicable to enterprise agreements are well-settled. The terms are to be given their plain and ordinary meaning, read within the instrument as a whole and in light of the instrument’s industrial context and purpose, and against the legislative background against which the instrument was made and is to operate. It is justifiable to read the agreement to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. A Court or Tribunal will not adopt a narrow or pedantic approach to the interpretation of enterprise agreements.¹⁵⁴

[230] It is not strictly necessary for me to reach a concluded view as to whether Mr Roff validly initiated a dispute. However, I am inclined to the view that it is unlikely that the parties intended such a strict application of the language used in clause 27 such that an employee would have to travel to the facility in order to commence the process of resolving a dispute relevant to their return to the facility.

[231] Mr Roff described his dispute in the following way: ¹⁵⁵

“I wish to advise that I am in dispute with Jadestone regarding their decision to issue me a written warning to terminate my employment with Jadestone as a consequence of my inability to mobilise to Western Australia as a result of a decision by the WA Government to restrict my entry into Western Australia.

I am seeking the Company withdraw their threat to terminate my employment. I am also seeking Jadestone commence discussions with my representative (the Australian Workers Union) about the WA Border restrictions and the impact such restrictions have on the ability for employees to mobilise to the facility.”

[232] The dispute resolution procedure has a broad scope: ¹⁵⁶

“The parties commit to making every endeavour to settle issues raised by employees concerning their employment …”.

[233] I am inclined to the view that a dispute of the nature raised by Mr Roff comfortably falls within the scope of the dispute resolution procedure set out in clause 27 of the Agreement.

[234] The status quo provision provides that: ¹⁵⁷

“27.5 Whilst the above process is being followed the status quo will be preserved and employees will continue to perform their normal duties, subject to safe working practice and without prejudicing the rights of the employee or the Company.”

[235] The status quo clause would have no work to do if the Company was able to simply ignore it and continue the course of action the subject of the dispute. The dispute resolution process could have proceeded without prejudicing the rights of Jadestone to ultimately dismiss Mr Roff once the dispute was resolved.

[236] In my view the existence of clauses 14 and 27 of the Enterprise Agreement weigh in favour of Mr Roff’s dismissal being unfair.

[237] Jadestone submits that the following matters are relevant considerations:

a. The importance of the roster system.

b. Jadestone’s efforts to ensure employees were able to perform their rostered shifts

c. Safety requirements imposed on Jadestone

d. The volatile border situation

e. Townhall meeting

[238] These are all matters which are considered earlier in the decision in relation to the question of whether Mr Roff was dismissed and whether his dismissal was for a valid reason. I have also taken them into account when considering whether his dismissal was harsh, unjust or unreasonable more broadly. I also note the following in relation to those submissions:

a. Jadestone say that the COVID-19 “roster system is fundamental to the employment relationship between Mr Roff and Jadestone…” however Jadestone never sought to enshrine the COVID roster in the Enterprise Agreement or employees’ contracts of employment.

b. Jadestone say its employees receive a high salary however this reflects the market value of the negative aspects of their employment. They spend lengthy periods away from their families, in a remote and dangerous location with limited opportunities for exercise or entertainment performing long shifts. They, and consequently their families, have limited flexibility to participate in significant events during their rostered periods of work. Whether it is the birth of child, an illness of a family member or the wedding of a best friend. It does not follow that, just because Jadestone employees receive a high salary, the negative aspects can be made worse, or significantly altered, by the unilateral decisions of Jadestone.

Conclusion

[239] For the reasons set out earlier in this decision I am view that Mr Roff’s dismissal was procedurally unfair.

[240] Jadestone submit that even if it is accepted that Mr Roff was denied procedural fairness the dismissal was not harsh, unjust or unreasonable given the reasons for his dismissal. Jadestone cite a number of cases in support of this submission. In each of these cases a valid reason was found to have existed for the dismissal. In Scott v Aqua Environmental Pty Ltd, 158 the applicant was absent from work on multiple occasions without approval. In Oren v Garry Crick Auto Group,159 the applicant failed to perform his duties properly despite training and contrary to law. In De Silva v ExxonMobil Chemical Australia Pty Ltd160 the applicant had consistently failed to perform their duties properly.

[241] In its submissions Jadestone point out that: 161

“In circumstances where the employee is aware of the precise nature of the employer’s concern about his or her conduct and has an opportunity to provide a response, the Commission has previously found the procedural deficiency is not of sufficient significance to render the termination harsh, unjust or unreasonable.”

[242] This case is fundamentally different. There was no valid reason for Mr Roff’s dismissal. Mr Roff was not aware of the precise nature of his employer’s concern. Mr Roff was not provided with an opportunity to provide a response, rather, he was forced to create his own by initiating a dispute pursuant to the dispute resolution procedure.

[243] I have considered each of the matters specified in section 387 of the FW Act. I am satisfied that the dismissal of Mr Roff was harsh given the barriers to him securing alternative employment with comparable renumeration given his age. I am satisfied that the dismissal of Mr Roff was unjust because it was without a valid reason. I am satisfied that the dismissal of Mr Roff was unreasonable because he had taken steps to ensure his availability for work but was unable to do so due to no fault of his own conduct. Accordingly, I find Mr Roff’s dismissal was unfair.

Remedy

[244] Mr Roff seeks an order that he be reinstated with continuity of service and be compensated the remuneration lost between the date of his dismissal and his reinstatement.

[245] Section 390 of the FW Act sets out the circumstances in which an order for reinstatement or compensation may be made:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[246] I am satisfied that Mr Roff was protected from unfair dismissal pursuant to section 382 of the FW Act and was dismissed unfairly.

[247] Reinstatement is the FW Act’s primary remedy for unfair dismissal and must be ordered if sought unless the FWC is satisfied on proper grounds that reinstatement is not appropriate.

[248] In DP World Sydney Limited v Lambley, 162 the Full Bench of the FWC said:

“The language of s.390 makes the position pellucidly clear. The Commission “must” order reinstatement unless reinstatement of the person is inappropriate.”

[249] The Directions required the parties to file submissions and evidence in relation to remedy.

[250] Mr Roff submits that reinstatement would be appropriate given the circumstances of his dismissal.

[251] Jadestone submits reinstatement would be inappropriate because it says the relationship of trust and confidence between Jadestone and Mr Roff has been destroyed “… as a result of Roff’s failure to attend for work as required by Jadestone.” Jadestone submit that this failure creates a likelihood that additional absences will occur in the future with adverse consequences to Jadestone’s operations. Jadestone say that given Mr Roff’s absence on 13 July 2021 and the controlled border arrangements put in place by the Western Australian Government that further performance by Mr Roff of his contractual obligations would either be impossible or radically different than his contractual obligations.

[252] Trust and confidence are a necessary ingredient in any employment relationship. Where trust and confidence have been lost, reinstatement may be impractical. 163

[253] It is not sufficient to merely state there has been a loss of trust and confidence. 164 The reason for the loss of trust and confidence must be ‘soundly and rationally based’.165 The assessment requires the FWC to carefully consider the facts of the matter by scrutinising the basis for any alleged breakdown of trust and confidence. The FWC is entitled to consider the rationality of any attitude taken by a party.166

[254] Jadestone’s assertion that there has been a breakdown of trust and confidence is evidenced only by the opinion of Mr Read.

[255] The proper assessment of an alleged loss of trust and confidence in the employment relationship was extensively considered in Perkins v Grace Worldwide (Aust) Pty Ltd, 167 (Perkins) In Perkins Wilcox CJ and Marshall and North JJ made the following statement:168

“So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”

[256] The question of whether the relationship can be restored if the employee is reinstated cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. 169

[257] Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement. 170

[258] Mr Roff has not demonstrated a pattern of failing to attend work without excuse.

[259] There is no evidence to suggest that he is likely to fail to attend to work in the future without lawful excuse.

[260] As at the date of this decision the Western Australian Government has removed the hard border and travel between Western Australia and Queensland is now unrestricted.

[261] While it may be embarrassing or frustrating for Jadestone to be required to re-employ a person it believed to have been unsympathetic to the position in which Jadestone found itself and ungrateful for the steps taken by Jadestone to minimise the impact of COVID-19 on its operations I do not think that this makes the restoration of the employment relationship impracticable.

[262] In all of the circumstances I consider that an order for the reinstatement of Mr Roff is appropriate.

[263] Section 391(1) of the FW Act provides that an order for reinstatement must be an order that Jadestone reinstate Mr Roff by:

a. reappointing him to the position in which he was employed immediately before the dismissal; or

b. appointing him to another position on terms and conditions no less favourable than those on which he was employed immediately before the dismissal.

[264] There is no evidence before me to suggest that the position in which Mr Roff was employed in immediately before his dismissal no longer exists.

[265] I am satisfied that it is open to me to make an order reappointing Mr Roff within seven days of the date of this decision to the position in which Mr Roff was employed immediately before his dismissal.

[266] Section 391(2) of the FW Act provides that, if the FWC makes an order for reinstatement and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

a. the continuity of an applicant’s employment; and

b. the period of an applicant’s continuous service with the employer or, if applicable, the associated entity.

[267] In all the circumstances, particularly that Mr Roff was denied procedural fairness and that no valid reason existed for his dismissal I consider it appropriate to make an order to maintain Mr Roff’s continuity of employment and period of continuous service with Jadestone.

[268] Section 391(3) of the FW Act provides that, if the FWC makes an order for reinstatement and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to an applicant an amount for the remuneration lost, or likely to have been lost, by the applicant because of the dismissal.

[269] Section 391(4) of the FW Act provides that, in determining an amount for the purposes of such an order, that I must take into account:

a. the amount of any remuneration earned by Mr Roff from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

b. the amount of any remuneration reasonably likely to be so earned by Mr Roff during the period between the making of the order for reinstatement and the actual reinstatement.

[270] An order to restore lost pay does not necessarily follow an order for reinstatement. The FWC may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.¹⁷¹ Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.¹⁷²

[271] In all the circumstances, particularly given that Mr Roff was denied procedural fairness and that no valid reason existed for his dismissal, I consider it appropriate to make an order to restore lost pay.

[272] An Order giving effect to this Decision will be issued with this Decision.¹⁷³

DEPUTY PRESIDENT

Appearances:

Mr B Wilson, for the Applicant.
Mr J Bourke QC, for the Respondent.

Hearing details:

2021
Perth
16 December

Final written submissions:

Applicant, 27 January 2022
Respondent, 10 January 2022

Printed by authority of the Commonwealth Government Printer

<PR741081>

1 Warrell v Walton (2013) 233 IR 335, 341 [22].

2 Digital Court Book, 44-51 (‘DCB’).

 3   Ibid 99-100.

 4   Ibid 175-303.

 5   Ibid 304-308.

 6   Ibid 309-322.

 7   Ibid 323-326.

8 Ibid 176.

9 Ibid 176.

 10   Ibid 178.

 11   Ibid 277.

 12   Ibid 3, 101, 199-224.

13 Ibid 3, 199.

 14   Ibid 204-224.

15 Ibid 209.

16 Ibid 209.

17 Ibid 3.

18 Ibid 264-265.

19 Ibid 3.

20 Ibid 4, 266-267.

21 Ibid 4.

22 Ibid 4, 45, 328, 271-272.

23 Ibid 4.

24 Ibid 4.

25 Ibid 4.

26 Ibid 4.

27 Ibid 4.

28 Ibid 5, 329.

29 Ibid 5.

 30   Ibid 182.

 31   Ibid 103

 32   Ibid 185.

33 Ibid 183-184, 277.

34 Ibid 5.

35 Ibid 5, 273-275.

 36   Ibid 279.

37 Ibid 5.

38 Ibid 5, 47-48, 99, 186-187, 330, 323-324.

39 Ibid 47-48.

40 Ibid 99.

41 Ibid 187.

42 Ibid 324.

43 Ibid 325.

44 Ibid 5, 277.

45 Ibid 5, 280.

46 Ibid 6.

47 Ibid 331.

48 Ibid 332.

49 Ibid 6.

50 Ibid 6.

51 Ibid 6.

52 Ibid 7.

53 Ibid 6, 333.

54 Ibid 7.

55 Ibid 7.

56 Ibid 8.

57 Ibid 339.

58 Jadestone Energy (Australia) Pty Ltd [2021] FWCA 2942.

59 DCB 339.

60 Ibid 89-90.

61 Ibid 236-237.

 62   Ibid 49, 105, 192, 334.

63 Ibid 8.

64 Ibid 335-336.

 65   Ibid 105, 334, 285.

66 Ibid 8.

67 Ibid 8.

 68   Ibid 8.

 69   Ibid 8, 49.

 70   Ibid 49.

 71   Ibid 49-50, 92-93.

 72   Ibid 91.

 73   Ibid 100.

 74   Ibid 100.

75 Ibid 8, 94.

 76   Ibid 50.

77 Ibid 9, 322.

 78   Ibid 50.

79 Ibid 290-291.

80 Ibid 9, 292-293.

81 Ibid 294-295.

82 Ibid 7, 249.

83 Ibid 7, 294.

 84   Ibid 50.

85 Ibid 301-303.

86 Ibid 9.

87 Ibid 9, 299.

88 Ibid 10.

89 Ibid 10.

90 Ibid 10.

91 Fair Work Act 2009 (Cth) s 383.

 92   DCB, 3.

 93   Ibid 9.

 94   Ibid 301-303.

 95   Ibid 151-174.

 96   See for example Respondent’s Closing Submissions at 2.

 97   [2018] FWCFB 139.

 98   Abandonment of Employment [2018] FWCFB 139 at [21].

 99   Visscher v Giudice (2009) 239 CLR 361, [55].

 100   Abandonment of Employment [2018] FWCFB 139, [21], citing Visscher v Giudice (2009) 239 CLR 361, [53].

 101   Sharpe v MCG Group Pty Limited [2010] FWA 2357, [29].

 102   DCB, 3.

 103   Ibid 2, 264-265.

 104   Ibid 199-224.

 105   Ibid 4, 328.

 106   Ibid 89-90.

 107   Ibid 89-90, 198-234.

 108   Ibid 89-90.

109 Ibid 5, 329.

110 Ibid 5.

 111   Ibid 246-248.

112 Ibid 5.

 113   Ibid 33, 64, 167.

 114   Ibid 49.

115 Ibid 8.

116 Ibid 8.

 117   Ibid 8.

 118   Ibid 49.

 119   Ibid 49.

 120   Ibid 91.

 121   Ibid 49-50.

 122   Ibid 100.

 123   Ibid 100.

124 Ibid 8.

 125   Ibid 50.

126 Ibid 9, 261.

 127   Ibid 50, 95.

128 Ibid 290-291.

129 Ibid 294-295.

130 Ibid 7, 249.

131 (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).

132 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

133 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

134 Ibid.

135 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

136 Edwards v Justice Giudice (1999) 94 FCR 561, 565 [7] (Moore J).

137 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23] - [24].

 138   DCB, 301-303.

139 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73] (‘Crozier’).

140 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998) (‘Previsic’).

141 Ibid.

 142   DCB, 290-291.

143 Crozier (n 139)..

144 Previsic (n 140).

145 Ibid.

146 Crozier (n 139), 151 [75].

147 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

148 Gibson v Bosmac Pty Ltd (n 147).

149 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

150 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].

151 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].

 152   Ibid 237.

153 [2021] FWCFB 1903.

154 See Kucks v CSR Ltd (1996) 66 IR 182, 184; WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005 at [114].

155 Ibid 294-295.

156 Ibid 7, 249.

157 Ibid 7, 249.

 158   [2011] FWA 3713.

 159   [2014] FWC 6553.

 160   (SDP Lacy, 9 January 2002, PR910623).

 161   DCB, 167.

 162   [2013] FWCFB 9230 at [138].

 163   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 at [24], [40].

 164   Perkins v Grace Worldwide (n 163), 191..

 165   Ibid.

 166   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198,[28].

 167   [1997] IRCA 15.

 168   Ibid.

 169   Haigh v Bradken Resources Pty Ltd [2013] FWC 7493 at [13] citing Regional Express Holdings Limited trading as REX Airlines v R Richards [2010] FWAFB 8753 at [26].

 170   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (n 166) at [27] citing Tenix Defence Pty Ltd v Galea [2003] AIRC (11 March 2003) at [7]-[8].

171 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].

172 See Regional Express Holdings Ltd v Richards [2010] FWAFB 8753, [29].

173 PR741080.