DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew James Richmond
v
Teekay Shipping (Australia) Pty Ltd
(U2019/2232)

Application for an unfair dismissal remedy – whether minimum employment period met.

[1] On 28 February 2019, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application pursuant to s.394 of the Fair Work Act 2009 on behalf of its member, Mr Andrew James Richmond, with respect to an alleged unfair dismissal by Teekay Shipping (Australia) Pty Ltd (Teekay).

[2] This decision deals with the jurisdictional objections raised by Teekay, namely that Mr Richmond has not met the minimum employment period as he was a casual employee who was not regularly and systematically engaged and had no reasonable expectation of continuing employment; and in the alternative, his application was filed outside the 21 day time period prescribed by the Act. In its submissions in reply, Teekay further contended that having regard to the material filed on behalf of Mr Richmond, the Commission would also need to determine whether Mr Richmond has been dismissed for the purposes of section 385 of the Act and if so the date on which the dismissal took effect.

[3] Mr Richmond was one of four casual employees of Teekay whose unfair dismissal application was the subject of similar jurisdictional objections. These four applications were listed on 29 May 2019 for hearing, however two were withdrawn during the course of the day.

[4] Mr Richmond was represented by the Union and Mr Slevin of Counsel, and Mr Rauf of Counsel appeared for Teekay, instructed by K&L Gates, both with permission.

[5] Evidence was given by Mr Richmond and by Mr Stephen Bertram, Human Resources Manager of Teekay.

Background

[6] Employees employed by Teekay on the vessel MV Mariloula are covered by the Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015 (the Agreement).

[7] The vessel is operated by BHP Billiton (BHP), and seems to sail between Port Hedland, Port Kembla, and various ports in China.

[8] Employees on board the vessel work a roster system known as a ‘swing’. At the conclusion of each swing, the crew leave the vessel and hand over the vessel to the crew on the next swing.

[9] On 10 January 2019, Teekay received notification from BHP that it was terminating its commercial contract with Teekay. The result of this decision was that the crew management services provided by Teekay on the MV Mariloula and another vessel were no longer required.

[10] On 7 February 2019, around 68 employees of Teekay were terminated on the ground of redundancy. The Union says this was the date of Mr Richmond’s dismissal. Teekay says he was not dismissed on this date because he was a casual employee, and his employment ended on 29 September 2018, being the final day of his second swing.

[11] I now turn to deal with whether Mr Richmond met the minimum employment period.

Minimum Employment Period

[12] A person is protected from unfair dismissal only if the required minimum employment period has been completed. If Mr Richmond has not completed the minimum employment period, he is not a person protected from unfair dismissal pursuant to s.382(a) of the Act.

[13] Teekay contended that Mr Richmond has not completed the minimum employment period, because the period of continuous service was the period of the swing that commenced on 9 June 2018 and ended on 29 September 2018. The period of continuous service was therefore less than six months.

[14] The Union did not dispute that Mr Richmond was a casual employee and submitted that the calculation of his minimum employment period turned on the test in section 384(2)(a).

[15] Section 384 of the Act provides that:

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) ……”

[16] “Service” is defined in section 22 of the Act as follows:

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

[17] Section 383 of the Act is also relevant and provides that the period of employment starts on the date the employment commences and finishes on either the date the employee is notified of the dismissal or immediately before the dismissal, whichever is the earlier.

[18] Teekay submitted that in applying section 383 of the Act, the dismissal occurred at the time Mr Richmond completed his engagement on 29 September 2018, being the end of the swing.

The evidence

[19] In support of its argument, Teekay relied on two witness statements of Mr Bertram as to the circumstances and nature of the engagement of Mr Richmond.

[20] The evidence of Mr Bertram demonstrated that the majority of Teekay’s workforce is engaged on a permanent basis, and casual employees are engaged on an ad hoc basis to cover periods where a permanent employee is unable to join the vessel during a particular swing, or increased employees are required to service a vessel over a particular swing. In cross examination, Mr Bertram confirmed that for the MV Mariloula, there were a higher proportion of casual employees than on other vessels.

[21] Mr Bertram’s evidence also set out the process by which a casual employee is notified of the approximate start and end date of the casual employment, being the dates they join and leave the vessel.

[22] Mr Bertram explained that its Marine Personnel Officers (MPO) were allocated particular vessels and were required to ensure proper crewing of that vessel taking into account the qualifications and ranks that are required for the vessel. He said that Teekay’s preference in sourcing suitable casual employees was to use people it had previously used and had experience with. For this purpose, it retained the contact details and records of casual employees in case of future use. Additionally, if Teekay was unable to identify and engage a suitable candidate, then it referred to the Employment Assistance System (EAS), being a database maintained and distributed by the Union, which contained the details of seafarers who were qualified, available and ready to work.

[23] Mr Bertram further explained that it was the role of the MPO to identify any potential gaps in the crew and to place suitably qualified casual relief employees for the duration of the swing. He said that as a matter of practice, the MPO would call the individual and explain that work was available between certain dates, and ask the person if they were interested in undertaking the work during the dates of the swing. The individual would then indicate to the MPO whether they were interested or not, and the individual was under no obligation to make themselves available.

[24] Mr Bertram said that at the end of each swing, the casual employee’s employment was terminated and the employee was paid all of their entitlements. He further said that casual employees are not engaged on any ongoing basis because it is not possible to do so within the offshore industry given the nature of vessel operations, the need to confirm the number of employees required for a swing, and the number of permanent employees who will be available.

[25] Mr Richmond gave evidence that he had been contacted by Teekay because his name was on the EAS database maintained by the Union, and was offered a swing on the MV Mariloula.

[26] Mr Richmond said that he joined the vessel for his first swing in Port Kembla on 8 December 2017 as a casual Chief Caterer. He sailed to Hay Point where the vessel was loaded with coal, and then sailed to China where coal was discharged. The vessel then sailed to Port Hedland where it loaded iron ore, and then sailed to Port Kembla where the vessel was discharged and the crew changed. He said he left the vessel on 5 March 2018.

[27] Mr Richmond said that a swing is normally anywhere between 10 to 12 weeks, but can be longer due to anchorage time in China and the availability of berths.

[28] He said that about one week prior to the conclusion of his first swing, he sent an email to the MPO, Ms Gillian Stewart, indicating he had enjoyed his time on the Mariloula, and “I would certainly love to come back in the foreseeable future if that’s OK”.

[29] On the same day Ms Stewart responded as follows:

“Hi Andy

I’m glad you’ve enjoyed your time on the Mariloula, that’s great to hear.

I’ve had very good feedback from the ship about your work on board.

I’ll lock you in to come back as a relief”.

[30] Mr Richmond replied saying, “that’s awesome news, thank you so much”.

[31] Mr Richmond explained that one day’s leave is accrued for each day at sea. In cross examination, Mr Richmond confirmed that at the conclusion of his first swing, he was paid out all of his entitlements including his accrued leave. The payroll advice for his final pay, annexed to Mr Bertram’s statement, included in the Comments section to “please pay leave and short term leave entitlement then terminate relief complete”. Mr Richmond also confirmed in cross examination that the discussions with Teekay leading up to his first swing were only in relation to that particular period of employment only.

[32] Mr Richmond joined the vessel in Port Kembla on 9 June 2018 for his second swing as Chief Caterer. At the conclusion of the swing on 29 September 2018 he was again paid out his accrued annual leave and final pay. The same comment regarding termination was included on his final payroll advice.

[33] In cross examination, Mr Richmond confirmed that during the second swing, the position of Bosun was held by a permanent employee of Teekay, in contrast to the first swing where this position was filled by a casual. He acknowledged that at the time the second swing ended, it was always possible that Teekay could utilise a permanent employee in the role of Chief Caterer, as it had done with the Bosun role.

[34] Mr Richmond said he did not email Ms Stewart at the end of his second swing because he expected to return on the next available swing. He gave evidence that he discussed his return with the Captain and Chief Engineer of the vessel while at the airport after disembarking the vessel.

[35] On 21 December 2018, Mr Richmond received an email from Ms Stewart, indicating that the vessel would likely be in China when the next crew change was due (being mid January), and providing ‘advance notice’ of this. The email goes on to say:

“During the course of next week you will receive another email from us advising of the requirements in order for you to be issued the necessary visa to enter China so that you can join the ship. We ask that you comply with these requirements as soon as possible as it can take some time to have your application processed and your visa issued”.

[36] On 27 December 2018, Mr Richmond received an email from Ms Stewart requesting the completion of the visa application, which he did. Mr Richmond was subsequently advised that he would be joining the vessel in Port Headland around 22 January 2019.

[37] On around 10 January 2019 Mr Richmond said he received a telephone call from another crew member of the vessel to the effect that “we all got the arse”. He then contacted Ms Stewart the following day. She confirmed the crew were not “coming back”, and that he should keep in contact as he had “done a good job”. She confirmed that there was no further work available at that time but Teekay would keep him in mind, and that he should call her once a month.

[38] He said that he requested a separation certificate via an email to Ms Stewart on around 18 March 2019 so he could access unemployment benefits, and this was provided on around 20 March 2019.

[39] Mr Richmond also gave evidence that at the conclusion of his second swing in September 2018, he expected to return to the Mariloula on the next swing. He said he did not work as he was ‘on leave’ and ready to go back to sea. He said he would have started looking for work earlier than February 2019 if he had known there would be no further work.

Teekay’s submissions

[40] In its submissions, Teekay contended that Mr Richmond’ two swings constituted two periods of employment, the second of which ended on 29 September 2018.

[41] Teekay submitted that there was no dispute that the discussions between Mr Richmond and Teekay prior to the commencement of his first swing only related to an offer of employment for that swing.

[42] Counsel for Teekay contended that Mr Richmond’s employment could not be properly characterised as regular and systematic, given Mr Bertram’s evidence as to the nature and circumstances of the engagement of Mr Richmond by Teekay. The employment was not on a regular and systematic basis because the each period of employment was of differing durations and discrete in nature. They related only to particular swings, and each swing was broken by significant time periods in which Mr Richmond was free to engage in other work. Teekay also contended that there was no guarantee of further work given that the employment was terminated at the end of each engagement, including with the paying out of all leave entitlements.

[43] Further, Mr Richmond could not have had a reasonable expectation of continuing employment on a regular and systematic basis because the words or actions of Teekay made it clear that the casual relief engagement had ended, by confirming the date of dismissal and paying out Mr Richmond’s entitlements.

Mr Richmond’ submissions

[44] Counsel for Mr Richmond said that the calculation of Mr Richmond’s minimum employment period turned on the test in section 384(2)(a), that being whether Mr Richmond’s employment as a casual employee was on a regular and systematic basis; and during the period of service as a casual employee, whether Mr Richmond had a reasonable expectation of continuing employment by Teekay on a regular and systematic basis.

[45] In the written submissions filed on behalf of Mr Richmond, it was outlined that the Commission’s approach to section 384(2)(a) was well settled. Particular reliance was placed on a Full Bench decision in Shortland v The Smiths Snackfood Co Ltd¹ (Shortland). The relevant paragraphs are as follows:

[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed. (citation omitted)

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury. (citation omitted)

[46] Reliance was also placed on a Full Bench decision in Jefferson Bell v Aboriginal Legal Service (NSW/ACT) Limited² (Bell):

[10] It is evident that s.384 does not proceed on the basis that a casual employee’s period of employment starts and ends with each separate contract of employment, as understood in the common law of employment. Periods of casual employment punctuated by gaps between successive contracts may be included in a casual employee’s period of employment, depending on whether the employment was on a regular and systematic basis. It is the employment that must be on a regular and systematic basis, not the hours worked, but a clear pattern or roster of hours is strong evidence of regular and systematic employment.

[11] The word “regular” should be construed liberally.  It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant. Employment on a “regular” basis may be constituted by frequent though unpredictable engagements. The word “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”. The concept of engagement on a “systematic” basis does not require the employee to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance on the employee’s services as an incident of the business by which he or she is engaged.

[12] The Act does not define the phrase “reasonable expectation of continuing employment”, nor does it set out any particular matters which should be taken into account in assessing whether a particular employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis during that employee’s period of service as a casual employee. Whether an employee had such an expectation will depend on the particular circumstances.

[13] It is also to be observed that the relevant “reasonable expectation” in s.384(2)(a)(ii) is as to continuing employment with the employer on a regular and systematic basis. This plainly suggests that the relevant reasonable expectation is as to continuing casual employment by the employer on a regular and systematic basis. Were it otherwise, the words “on a regular and systematic basis” would be otiose. The connection between “employment as a casual employee” and “on a regular and systematic basis” is established by s.384(2)(a)(i) and that connection seems to us to be maintained in s.384(2)(a)(ii). Section 384(2) is concerned with the circumstances in which a casual employee’s period of service as a casual employee is included in that employee’s period of employment for the purposes of s.383. (citations omitted)

[47] Additionally, in Bronze Hospitality Pty Ltd v Hansson³ a Full Bench said:

[29] We make some observations about the construction of s.384(2)(a)(ii). First, ‘during’ can mean either ‘throughout the course of’ or ‘at a point in the course of’. In our view, the first of these meanings is intended. The sub-provision is an exception to an exception; a period of casual service does not count, unless two requirements are met. Both of these requirements concern states of affairs that can develop over time. This context points to the word ‘during’ connoting a continuous period, rather than a point in time. Further, the alternative construction would mean that a casual employee need only have a reasonable expectation of continuing employment for any fleeting period in the course of the casual employment. There is no apparent rationale that would support this being the intended meaning. Finally, we note that the explanatory memorandum to the Fair Work Bill states simply that ‘service as a casual employee does not count towards the period of employment unless it was on a regular and systematic basis and the employee had a reasonable expectation of continuing engagement on a regular and systematic basis.’⁴ This wording is consistent with the interpretation we favour, and inconsistent with a ‘point in time’ meaning. The effect of this is that a particular period of service as a casual employee only ‘counts’ in respect of periods when the casual employment was regular and systematic and the employee had a reasonable expectation of continuing employment.

[48] In applying these principles to Mr Richmond, it was argued that as to the regular and systematic nature of the employment, Mr Richmond worked on a number of swings (i.e. two), and worked the same swings as permanent employees.

[49] Counsel for Mr Richmond argued that it would be contrary to authority to proceed on the basis that Mr Richmond’ employment started and ended with each swing. Rather, Mr Richmond had “a series of periods of service on swings that counted towards a single period of employment” and that “the swings constituted established sequences of engagements”. The gaps between the swings were said to be explained by the work patterns that applied to all crew members, whether casual or permanent, and the patterns were arranged in accordance with the Agreement which was argued to be strong evidence of regular and systematic employment.

[50] It was further argued that the application of authority to the circumstances of the work performed by Mr Richmond leads inexorably to the conclusion that the nature of employment was regular and systematic for the purposes of the first limb of section 384(2)(a) of the Act.

[51] As to the second limb of section 384(2)(a), Counsel for Mr Richmond argued that he did hold a reasonable expectation of continuing employment, and there was no evidence that the service was broken by words or actions that there would be no further swings of duty. It was argued that Mr Richmond was in a position to foresee or predict when his services may be required because of his knowledge of the approximate start date of next swing. This constituted a reasonable expectation that he would continue in accordance with the regular and systematic employment on the swing arrangements that had applied since his employment commenced.

[52] Counsel also relied on the fact that Mr Richmond was notified of a third swing and he considered he was ‘on leave’ in the period between the conclusion of the second swing and the commencement of the third (which did not eventuate).

[53] As a consequence, Counsel for Mr Richmond argued that Mr Richmond was protected from unfair dismissal for the purposes of section 382 of the Act.

Consideration and Conclusion

[54] As noted earlier, section 383 provides that a period of employment finishes on the date the employee is notified of their dismissal.

[55] Of importance here is the evidence that Mr Richmond was terminated at the end of each swing. His final payment was made and his payroll advice confirmed his termination. The cases relied on by the Union can be distinguished from this situation, in that the casual employment being considered in the cases referred to did not involve clear evidence of the termination of the employment at the end of the engagement, as is the case here.

[56] Mr Richmond’s circumstances involve more than merely the starting and ending of each engagement, punctuated with gaps in between. The termination of his employment at the end of the swing concluded the period of employment.

[57] Without doubt, Mr Richmond did expect a third swing. However given his employment was terminated at the end of the second swing, a third swing would have constituted a new period of employment, not a continuation of an existing period of employment.

[58] Because of the termination at the end of each swing, I find that Mr Richmond’s periods of employment do not constitute continuous service. Accordingly, given the period of the second swing was less than six months’ duration, Mr Richmond has not met the minimum employment period.

Date of dismissal and extension of time

[59] If I am wrong if finding that Mr Richmond has not met the minimum employment period and the employment relationship continued past the conclusion of the second swing, then I consider that Mr Richmond’s employment ended on 11 January 2019, being the date he was advised by Ms Stewart that the crew were “not coming back” to the MV Mariloula. At this time, Mr Richmond asked Ms Stewart whether there was further work for him. He was told that there was no work at that time and Teekay would ‘keep him in mind’. He was asked to give Teekay a call once a month. The swing Mr Richmond had been offered was cancelled and he was aware there would be no further work on the MV Mariloula.

[60] Counsel for Mr Richmond asserted that the employment relationship between Mr Richmond and Teekay was specifically in relation to swings on the MV Mariloula, not on other vessels. Accordingly, if I am wrong about the minimum employment period, then I consider that the employment relationship ended at the time Mr Richmond was notified that all work on the MV Mariloula had ended.

[61] Given Mr Richmond’s application was made on 28 February 2019, his application was made outside the 21 day time period allowed by the Act and cannot proceed unless an extension is granted. No evidence was given by Mr Richmond as to the existence of ‘exceptional circumstances’ which would warrant an extension to the 21 day time period, despite this being one of Teekay’s jurisdictional objections. If I am wrong in my finding as to the minimum employment period, I would not have extended time because of the absence of any evidence of exceptional circumstances.

[62] Mr Richmond application for an unfair dismissal remedy is dismissed. An order will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

T Slevin of Counsel for Daniel Richmond.

B Rauf of Counsel for Teekay Shipping (Australia) Pty Ltd.

Hearing details:

2019.

Sydney:

May 29.

Printed by authority of the Commonwealth Government Printer

<PR708784>

1 [2010] FWAFB 5709.

2 [2018] FWCFB 6102.

3 [2019] FWCFB 1099.

4 Explanatory Memorandum, Fair Work Bill 2008 at [1518]