1
Fair Work Act 2009
s.394—Unfair dismissal
Michael Van Kampen
v
Transfield Services
(U2013/6064)
DEPUTY PRESIDENT BOOTH SYDNEY, 24 OCTOBER 2013
Termination of employment - alleged unfair dismissal - jurisdiction - whether employee at the
time - minimum employment period.
[1] On 1 February 2013 Mr Michael Van Kampen (the applicant) lodged an application
pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy. His
employer was Transfield Services (Transfield). He cited his date of dismissal as 17 January
2013.
[2] Transfield lodged a jurisdictional objection to his application on the basis that the
applicant was not an employee of Transfield on 17 January 2013, having been dismissed on
21 December 2012; he had not served the minimum employment period of 6 months and, if
he was relying on his dismissal on 21 December 2012, he had lodged his application out of
time.
[3] This jurisdictional objection came before me for hearing on 27 September 2013
following 5 attempts at resolution of the matter by conciliation before Gooley Con 15 March
2013, Conciliator Mackay on 5 and 9 April 2013 and Riordan C on 13 and 23 September
2013.
[4] Transfield was represented by Mr John Lee, Industrial Relations Manager and the
applicant was self-represented.
[5] At the conclusion of the hearing on 27 September 2013 I commenced an ex tempore
judgement however I was interrupted by the applicant who questioned the account of his work
history provided by Mr Lee. This account had not been contradicted in his earlier
submissions, however as it had become uncertain I adjourned the matter. Directions were
given to Mr Lee to provide verification of the account he provided in his submissions by close
of business on 4 October and for the applicant to provide his submissions in relation to this
account by close of business on 11 October. These directions were complied with and the
applicant did not contest the accuracy of the work history provided by Mr Lee.
[6] On 17 October 2013 my Chambers emailed the parties indicating my intention to
make a decision based on the submissions received and providing them with the opportunity
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DECISION
E AUSTRALIA FairWork Commission
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to comment by 23 October 2013. Mr Lee agreed with this course of action. No comment was
received from Mr Van Kampen.
[7] This decision takes the place of the partial decision recorded in transcript on 27
September 2013 and is based on written submissions received prior to the hearing, the hearing
itself and the written material received subsequent to the hearing.
Contentions
[8] The applicant contends that he was a “long term casual” employed by Transfield from
2009 to 2013 and he was unfairly dismissed when, on 17 January 2013, they withdrew an
offer of employment to work on the Queensland Gas Corporation (QCG) site in Chinchilla,
Queensland. Transfield was engaged by QCG to provide services associated with the drilling
of gas wells to extract coal seam gas in the Surat Basin in the Western Downs of Queensland.
[9] Transfield contends that the applicant was a casual employee who was most recently
engaged by Transfield from 22 August 2012 to 21 December 2012 to perform work at the
Shell Clyde refinery in Rosehill, NSW. They concede that he was employed episodically from
2005 to 2012 however say that each occasion was a separate period of employment relevant to
specific contractual work being undertaken by Transfield for clients, Shell and QCG being
examples.
[10] They concede that they offered the applicant employment to work on the QCG site on
16 January 2013 however their client, QCG, exercised a right of veto over the applicant and
they withdrew the offer on 17 January 2013, before he had accepted that offer on 21 January
2013.
[11] They contend that the applicant was not an employee of Transfield at the time and
accordingly is not able to bring an unfair dismissal application. Furthermore they contend that
at the time of his dismissal from Transfield on 21 December 2012 he had not served the
minimum employment period of 6 months required by s.382 of the Act for a person to be
protected from unfair dismissal.
Background facts
[12] Transfield is a global provider of operations, maintenance and construction services to
the resources, energy, industrial, infrastructure, property and defence sectors.
[13] The applicant is a mechanical fitter with a work history of undertaking shut downs for
major refit projects. He worked as a casual employee for Transfield during the period 2005-
2012 as follows:
Year Week of the year Total weeks
2005 33-35; 38-40 6
2006 18-23; 41; 43-47 12
2007 5, 8-11; 38; 40-43 10
2008 12-17; 19-26 14
2009 27-28; 33-40; 48-50 13
2010 34-36; 14-37; 41-52 38
2011 2; 6-36 35
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2012 11-14; 18-19; 34-51 23
[14] It is uncontroversial that when the applicant worked for Transfield in the weeks
indicated he was generally employed for full-time hours, often working overtime as well.
[15] The applicant’s most recent employment with Transfield commenced on 22 August
2012 following an offer of employment by letter on 21 August 2012 which was accepted on
22 August 2012. He was employed as a casual employee and his position was noted as
“Mechanical Fitter – TETE – Level 5 and his location was Shell Clyde refinery, Rosehill,
Sydney NSW”.1
[16] In week 51 of 2012, on 21 December, he received a letter of termination from
Transfield Services including the following:
“Effective immediately, your period of casual employment with the Company is to be
terminated with your last day of work being today, Friday 21st December 2012.”2
[17] Mr Lee described the background to this as being the permanent closure of the Shell
Clyde refinery resulting in the cessation of work by Transfield and the consequential
retrenchment of over 100 employees by Transfield, as well as the loss of around 600 jobs
from Shell itself. The applicant concedes he was terminated on this day.3
[18] During the last week at the Shell Clyde refinery the applicant attended a meeting
during which the prospect of employment at the QCG site in Queensland was canvassed.
[19] On 16 January 2013 he received an offer of employment at the QCG site in
Queensland by email.
[20] On 17 January 2013 he received a phone call to advise that the client had rejected his
employment and the offer was withdrawn.
[21] Over the period the applicant tried in vain to obtain particulars of the reason the client
had rejected his employment. He was concerned that his integrity has been impugned and his
reputation damaged. He was finally successful in ascertaining the background to his being
rejected by the client on 22 February 2013. It is unnecessary to go into the detail here, save to
say it was based on a personal matter.
Statutory framework
[22] The Fair Work Commission (the Commission) exercises its discretion in relation to an
application for an unfair dismissal remedy pursuant to Part 3-2 Unfair Dismissal of the Act.
There are certain conditions that an applicant must meet in order to have their application
considered.
[23] Section 382 of the Act requires, amongst other things, that the person making the
application is an employee and, as an employee, has completed a period of employment with
his or her employer of at least the minimum employment period.
[24] Section 382 reads as follows:
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382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with
his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in accordance with
the regulations, is less than the high income threshold.
Note: High income threshold indexed to $129,300 from 1 July 2013
[25] Section 383 of the Act provides that the minimum employment period for an
employee who is employed by an employer who is not a small business is 6 months.
[26] Section 383 of the Act reads as follows:
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the
earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
[27] Section 384 of the Act describes what a period of employment is for the purposes of
calculating the minimum employment period. It provides that an employee’s period of
employment is the period of continuous service the employee has completed with the
employer at that time and says that a period of service as a casual employee does not count
towards the period of employment unless the employment was on a regular and systematic
basis and the employee had a reasonable expectation of continuing employment on a regular
and systematic basis.
[28] Section 384 of the Act reads as follows:
384 Period of employment
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(1) An employee’s period of employment with an employer at a particular time is the
period of continuous service the employee has completed with the employer at that
time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the
employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and
systematic basis; and
(ii) during the period of service as a casual employee, the employee had
a reasonable expectation of continuing employment by the employer on
a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of
business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities
when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new
employment started that a period of service with the old employer
would not be recognised;
the period of service with the old employer does not count towards the employee’s
period of employment with the new employer.
Consideration
[29] In relation to Transfield’s first jurisdictional objection I consider that the last day that
there was an employment relationship or a contract of employment between the parties was
21 December 2012. The applicant’s employment was clearly terminated by letter on 21
December 2012. On 16 January 2013 an offer of employment was communicated via email to
the applicant. On 17 January 2013 that offer was withdrawn. That offer having been
withdrawn prior to its acceptance created no relationship or contractual obligation. Therefore
there can be no competent application for unfair dismissal arising from this event on 17
January 2013 because the applicant was not an employee of Transfield on 17 January 2013.
This disposes of his application. It must be dismissed.
[30] As both parties made submissions in relation to Transfield’s second jurisdictional
objection I will give it consideration, however I think it is redundant in the light of my
conclusion above. Transfield is not a small business employer pursuant to s.23 of the Act
therefore the minimum employment period in accordance with s.383 is 6 months.
[31] It is uncontroversial that the applicant was a casual employee. He was dismissed on 21
December 2012. That then is the relevant date to calculate his period of employment to. The
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question that arises is whether his period of employment commenced at the outset of the most
recent employment at the Shell site, 22 August 2012 or sometime earlier when he was
employed to perform work at other sites.
[32] This requires a consideration as to whether he was a casual employee who was
employed on a regular and systematic basis and had a reasonable expectation of continuing
employment.
[33] The Commission has given consideration to the characteristics of a casual employee
who was employed on a regular and systematic basis and had a reasonable expectation of
continuing employment on a number of occasions.
[34] In Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic4 (the
Ponce decision) Roe C said:
“[66] It is the employment which must be on a regular and systematic basis. This does
not mean that the hours or days of work must be regular and systematic. Although the
previous legislation referred to the period or periods of casual engagement rather than
the period of casual employment I do not think that this change is of much practical
significance. The previous authorities have also established that employment or
engagement can be regular and systematic even if it is seasonal, or where the times
and dates of work are quite irregular or are not rostered, or where there are breaks due
to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the
hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding
that the employment was regular and systematic. It is clear that to establish ‘regular
and systematic’ there must be sufficient evidence to establish that a continuing
relationship between the employer and the employee has been established. This is
clearly a reason why there is a legislative requirement for a reasonable expectation of
continuing employment.”
[35] The Commission has held that separate periods of service with a single employer
counted towards a single period of continuous service. In Shortland v The Smiths Snackfood
Co Ltd (the Shortland decision)5 the Full Bench said at paragraphs 10-14:
“[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.
[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.
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[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 (i.e. where the
conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (i.e. 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.
[14] The Commissioner did not find that Mr Shortland’s employment was not
continuous and correctly so. Prior to June 2009 Mr Shortland worked almost every
week. There were a total of 4 isolated weeks in the period of almost three years prior
to June 2009 when Mr Shortland performed no work. Those breaks should not be
treated as a discontinuity in Mr Shortland’s employment such that periods of service
before them should be discounted.”
[36] This decision has been distinguished in a case with similar circumstances to that of the
applicant. In Leslie Holland v UGL Resources Pty Ltd T/A UGL Resources (the Holland
decision) McCarthy DP considered the case of a casual employee employed by a company
providing onsite mechanical and electrical maintenance work on power stations during their
shutdowns for regular compliance and maintenance purposes. After describing the pattern of
employment of the casual employee he said at paragraph 23:
“[23] I have gone to some lengths to explain my reasoning of the construction of the
FW Act because on the face of it, it might be regarded as being at odds with the
findings of the Full Bench in Shortland v The Smiths Snackfood Co Ltd. However, the
circumstances there and the issue under consideration were markedly different to here.
There, the Applicant had been employed almost every week for over three years. His
only time off was for four isolated weeks, presumably as a period of authorised
absence. Shortland sustained an injury in 2009 and had been on worker’s
compensation or other absences since that time until his employment was terminated.
Here, the periods of work and the periods of absences are significantly different.”
[37] He went on to say at paragraphs 29-33:
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“[29] In the circumstances here, the five or six separate engagements over three years,
to some minds, would be regarded as regular and systematic. To others it would not. It
depends on ones perception of timeframes. A person that has greater reliance on the
income derived from the work might also have a different view of it than a person who
had less reliance. Similarly, one person may have a reasonable expectation of
receiving income from engagements and others may not.
[30] It thus becomes a judgement based on the circumstances and ordinary meaning of
the relevant words in the FW Act.
[31] Here, the periods were discrete; the engagements were of different durations;
there was not an established pattern of when the work was to be performed, and the
engagements were clearly expressed on each occasion as being discrete. Importantly,
there were also extensive absences between periods of employment. Certainly, the
shutdowns were planned as it would be impossible for them not to be. But the
character of the planning for the shutdowns does not turn the discrete periods into
regular and systematic employment.
[32] Even if the periods of employment were regular and systematic, I do not consider
the Applicant should have had a reasonable expectation of continuing employment on
that basis. UGL made it clear on each occasion that there should be no expectation.
[33] In the circumstances and facts here, I do not regard the periods of employment
involved as regular and systematic. The requirement of s.384(2)(a) is thus not met. I
regard each of these periods to be discrete separate periods with no regular and
systematic nature of the type s.384(2) refers.”
[38] As in the Holland decision, the applicant’s sequence of engagements did not amount to
a regular and systematic pattern over his entire employment history, although it did become
more so in recent years. In 2005 he was employed for two periods amounting to a total of 6
weeks, for the next four years he was employed on two to three occasions amounting to totals
of 12,10,14 and 13 weeks respectively. In the last three years he was employed on two to
three occasions amounting to totals of 38, 35 and 23 weeks respectively. In 2012 there was 3
weeks between the first and the second occasion and 14 weeks between the second and the
third and last occasion.
[39] However he could not have had an expectation of continuing employment once the
contract between Transfield and its client was concluded, as happened in the case of the Shell
contract in December 2012. This is because as each contract came to an end the probability of
him being offered employment on another Transfield contract depended upon a number of
uncertain factors. These included whether Transfield secured another contract at all, if so,
whether the work required his skills and whether the client of Transfield approved his
employment.
[40] The applicant’s separate periods of service with Transfield could not count towards a
single period of continuous service because it could not be said, to use the words from the
Ponce decision, that a continuing relationship between the employer and the employee had
been established.
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[41] I find that the date from which the period of employment must be calculated to
ascertain if it meets the minimum employment period of 6 months is the date the applicant
was employed to work on the Shell project, 22 August 2013. On this basis he was employed
for no more than 18 weeks, 8 weeks short of the required 26 weeks or 6 months of the
minimum employment period. Accordingly had the application been in relation to the
termination of employment on 21 December 2012 then the application would have been
dismissed because the applicant did not have a period of employment that would have
allowed him to make a competent application.
[42] Transfield’s third jurisdictional objection was that if the applicant was relying on his
dismissal on 12 December 2012 then the application was lodged out of time. I consider that
in the light of my findings in relation to the first and second objections it is not necessary to
address it.
[43] The application is dismissed. An order will issue with this decision.
DEPUTY PRESIDENT
Appearances:
M Van Kampen, the Applicant
J Lee for Transfield Services
Hearing details:
2013.
Sydney:
September 27.
Printed by authority of the Commonwealth Government Printer
Price code C, PR543411
1 Exhibit L3 - Offer of Casual (Weekly) Employment
ORK COMMISSION
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2 Exhibit L4 - Termination of Casual Employment
3 Transcript PN107
4 [2010] FWA 2078
5 [2010] FWAFB 5709
