Was Mr Visscher discharged at the conclusion of the two voyages? Was his employment terminated at the same time?
135 For s 75 (and therefore s 78) to apply, Mr Visscher must have been "discharged" at the conclusion of each voyage. As I mentioned in [50] "discharged" is not defined in the Navigation Act, but the noun "discharge" is defined in s 6 as "the certificate of discharge given to a seaman upon his or her discharge from a ship". The effect of the certificate, as Mr Visscher put it, is to sever the relationship between the seafarer and the master but not the relationship between the seafarer and his or her employer. The evidence shows that a certificate of discharge may be given to a seaman in a range of different circumstances, including when the seaman takes leave. It is common ground that a certificate of discharge is given when a seaman changes his articles. That is what happened when Mr Visscher left the Broadwater in Dampier on 3 May 2004. In each case the seaman remains an employee of the shipowner. Yet, Mr Visscher does not contend that the provisions of ss 75 and 78 apply in these cases.
136 Unless the contrary intention appears, the verb should have the corresponding meaning: Acts Interpretation Act 1901 (Cth), s 18A. The arguments in this case proceeded on the assumption that s 75 only applies where a seaman is discharged from employment. But I do not consider that it is limited in its application in this way, except where the termination of employment coincides with discharge from the ship. The Navigation Act regulates service on ships. A seaman enters into articles of agreement with the master for service on a ship. A certificate of discharge is provided when the seaman leaves the ship, that is, when he leaves the service of the master, not when he leaves the service of the employer. The rights conferred by s 78 are rights conferred on discharge from a ship, not discharge from employment.
137 But the rights accruing on discharge do not apply if the seaman leaves the ship temporarily. Section 6(4C) of the Navigation Act provides that:
A person who, in pursuance of articles of agreement, ceases temporarily to be a member of the crew of a ship shall not be taken to have been discharged from the ship.
138 Clause 7A of the articles of agreement provided that:
A seafarer who is temporarily absent from the ship in accordance with the terms of an award or agreement relating to his/her service as a seafarer shall cease temporarily to be a member of the crew of the ship.
139 Plainly, then, if Mr Visscher, in accordance with the terms of his contract, ceased temporarily to be a member of the crew of the Broadwater on 3 March 2004 and/or on 26 May 2004, he was not "discharged" from the ship for the purpose of s 75 (so as to trigger the operation of s 78), regardless of whether his employment came to an end at that time. That is because (with one qualification to which I will come later) the claim for the first voyage is a claim for accrued leave entitlements. Under the terms of his contract Mr Visscher was only entitled to be paid those entitlements on leaving the company. Those entitlements were only due on 3 March 2004 if discharge from the Broadwater coincided with termination of employment. It is therefore necessary to determine whether Mr Visscher's employment was terminated on 3 March 2004. That depends on whether he resigned and Teekay accepted his resignation or whether, as Mr Visscher maintained, he was constructively dismissed.
140 Mr Visscher's case was that Capt McLellan had accepted that his employment with Teekay had come to an end and it was not necessary to decide these questions. Attractive though it may be to accept that proposition, for a number of reasons I cannot do so.
141 In para 46 of his first affidavit of 27 April 2007 Mr Visscher said that he discussed Mr Scott's letter with Capt McLellan but that Capt McLellan told him it would be no good discussing the matter with Mr Scott, who, from the content and tone of his letter, seemed to be "very firm". In para 48 of that affidavit Mr Visscher said that the conversation ended with the following exchange:
Mr Visscher: My employment with Teekay is at an end due to Teekay's intention to demote me. Please give me my discharge when I leave the vessel when we arrive in Kurnell.
Capt McLellan: I agree.
142 Although Mr Visscher produced contemporaneous diary notes to support his account of some conversations, he did not do so in relation to this particular conversation. Indeed, neither party appears to have made a contemporaneous note of it. That Mr Visscher asked for his discharge is not controversial. But in the absence of a contemporaneous record, there must be some doubt about the precise terms of the conversation.
143 The words attributed to Capt McLellan in this exchange acquired some importance in the Full Court appeal in Visscher. The Full Court interpreted them to mean that Capt McLellan was agreeing that Mr Visscher's employment was at an end. But, assuming these words were uttered, they were ambiguous. With what was he agreeing? Was he agreeing with the proposition that Mr Visscher's employment was at an end? Was he agreeing with Mr Visscher's assertion that Teekay was intending to demote him? Was he agreeing that his employment was at an end for that reason? Or was he merely agreeing to give Mr Visscher his discharge when he left the vessel at Kurnell?
144 After the Full Court allowed the appeal, Teekay adduced its evidence. Capt McLellan said that he did not at any time accept Mr Visscher's resignation but he also said that he could not remember the above exchange or a conversation to that effect. That is scarcely surprising. The first time he was asked to apply his mind to the conversation was in March this year. Mr Visscher, on the other hand, has been through two court cases in which this conversation was an important feature. That fact alone, however, does not mean that everything Mr Visscher said must be true. Indeed, I think it is very likely that Mr Visscher's recollection of events has been coloured by his ongoing dispute with Teekay.
145 Capt McLellan did give Mr Visscher a certificate of discharge when he left the Broadwater in Kurnell. The certificate, however, recorded the reason for discharge as "leave". The signatures of both Capt McLellan and Mr Visscher appeared on the document. Capt McLellan's evidence, which I accept, was that "leave" signified that the seaman would be on shore for a period of time before returning to the Broadwater or another of Teekay's ships. On the face of the document, then, Mr Visscher was not discharged within the meaning of s 75 when he left the Broadwater on 3 March 2004.
146 In cross-examination Capt McLellan said he did remember talking to Mr Visscher about his draft email and Mr Scott's fax and Mr Visscher insisting he had not resigned.
147 In a statement filed in reply to Capt McLellan's affidavit on 11 April 2012, Mr Visscher said that in the same conversation the following exchange took place:
Capt McLellan: Vince Scott seems very firm in what he writes. You are no longer employed by the Company. It will do you no good to discuss the letter with him.
Mr Visscher: Yes, that is certainly the case. My employment with Teekay is at an end due to Teekay's intention to demote me. Please give me my discharge when I leave the vessel when we arrive in Kurnell.
Capt McLellan: Very well, I agree. Teekay are fools for letting someone like you go like this. It is a shame.
(Emphasis added.)
148 The words appearing in bold above remove the ambiguity in the words "I agree". The first two emboldened passages appeared in Mr Visscher's affidavit in reply sworn on 27 April 2010 but not in his first affidavit sworn three years earlier. The emboldened words in the last two sentences, attributed to Capt McLellan, appeared for the first time in the statement filed in April this year. None of the emboldened passages appeared in the statement Mr Visscher prepared for the AIRC proceeding in August 2004. There, the notion that Mr Visscher's employment had ended was entirely his. The AIRC statement might cast a different light on the first comment attributed to Capt McLellan that Mr Scott seemed "very firm". It leaves open the inference that Capt McLellan's comment might simply have related to the requirement that Mr Visscher sail as Second Mate. None of the detail of the conversation that emerged in the evidence in this Court, so many years later, appeared in the AIRC statement.
149 Having now heard from Capt McLellan, I think it is most unlikely that he agreed at the time that Mr Visscher's employment was at an end. And I do not accept that Capt McLellan actually told Mr Visscher that he was no longer employed by Teekay. Indeed, I do not accept that any of the additional words were uttered. Why, in the case of the first two additional sentences, they emerged three years after the first affidavit was sworn (and six years after the event) and, in the case of the last, five years afterwards (and eight years after the event), was never explained. Whatever the reason, however, I do not think the additional evidence is reliable.
150 First, it is unlikely that Mr Visscher's memory has improved over the years since the conversation took place. In fact, the contrary is more likely. As McLelland CJ in Eq observed in Watson v Foxman (1995) 49 NSWLR 315 at 319:
human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
151 Secondly, Mr Visscher's evidence contains one obvious misrepresentation. In his second affidavit (sworn in April 2010) he insisted that neither the AMOU nor Teekay had told him of any threat by the union to take protected industrial action over his promotion. That evidence was, at best, misleading, at worst false. On 6 September 2001 a circular was sent by email to AMOU members on all Teekay ships alerting them of the union's intention to go on strike over the recent promotions. Later that day Fred Ross, a former AMOU president, sent an email to one of Teekay's second mates stating that he had completed the legal formalities to take protected industrial action from 10 September 2001. These two emails were forwarded by the master of the Karratha Spirit to the ship's Chief Officer and on the following day to Mr Visscher at his home email address. Doubtless, it was in response to the information in these emails that Mr Visscher wrote to the union on 10 September 2001 giving notice that he would sue the AMOU if it did anything to affect his income, referring to its attempt to instigate industrial action that could affect his promotion. During cross-examination (in May 2012), Mr Visscher's maintained that what he said in his second affidavit was correct, and after his attention was specifically drawn to this chain of emails he said the correspondence had "slipped [his] mind" but maintained that Teekay and AMOU had not told him of the threat of industrial action. In my view, this evidence was disingenuous.
152 Thirdly, Capt McLellan thought very highly of Mr Visscher. In 2001 he had written to Teekay that it was rare to sail with someone so dedicated. Mr Visscher said they got along "like a house on fire". I therefore consider it is unlikely that he would readily have agreed to an assertion that the employment of his valued deputy was at an end. If he did, indeed, signify agreement with Mr Visscher, as Mr Visscher testified, in my view, all he was doing was agreeing to give him his discharge. This conclusion is supported by what Capt McLellan said in cross-examination:
MR VISSCHER: Now, from this discussion you had with Scott, from the email which I had sent, from your own interpretation of that it being a resignation, coupled with the Scott letter?
MR McLELLAN: I didn't say it was a resignation.
…
MR VISSCHER: When the Scott letter arrived, and you gave it to me, all those things point to one common fact: that I won't be returning to the ship after I'm discharged, would you agree with that?
MR McLELLAN: Not necessarily.
MR VISSCHER: Well, can you explain why?
MR McLELLAN: Yes. You told me you weren't resigning. Mr Scott said he was accepting your resignation, so a master would usually enter one of four standard entries when a person was leaving the ship. One would be "leave", one would be "resign" - you hadn't resigned, or you told me you hadn't, dismissed" - you weren't dismissed, and the other entry would usually be in relation to illness. So I used my best professional judgment, at that time, in 2004, to enter the word "leave".
153 If Capt McLellan had regarded Mr Visscher's employment as at an end, it is inconceivable he would have given him a discharge certificate recording the cause of leaving the ship as "leave". Capt McLellan's evidence was that if a seafarer were to leave a ship of which he was the master in circumstances in which their employment was coming to an end he would have recorded either dismissed or resigned. He stressed that he would write "leave" where he understood the person to be returning to the ship. Capt McLellan had over 30 years of experience of seafaring in Australia. As I mentioned earlier, it is a criminal offence to knowingly sign or give a false certificate of discharge (Navigation Act, s 68). It is easy to understand why Capt McLellan would have been concerned to get it right.
154 The certificate of discharge appears to have been prepared on 25 February 2004 but when on that date it is impossible to say. That date appears in numerals in a box underneath the subheading "Particulars of Discharge, Death, Disappearance or Desertion". It is then crossed out and the date 3 March 2004 (the date the ship arrived in port) is inserted in numerals beside it. 25 February 2004 appears at the side of the certificate of release in a box below. It is also crossed out there and above it "3/3/04" and "March" appears. Similar alterations are made in Part 7 of the document, the section containing details of sea service. Capt McLellan conceded that he probably "populated" the document in advance of the ship's arrival in port and that he probably wrote the word "leave" before he had the conversation with Mr Scott. But he was emphatic that he did not sign it until the ship arrived in port on 3 March. The cause of leaving the ship remained unaltered. I do not believe that, if Capt McLellan considered Mr Visscher's employment with Teekay was at an end, the certificate of discharge would not in some way reflect that position. Assuming that the certificate was partially completed before the conversation with Mr Visscher on 25 February 2004, I do not accept that Capt McLellan carelessly disregarded what he had written concerning the reason for discharge before signing it or giving it to Mr Visscher.
155 Mr Visscher, however, relied on an email Capt McLellan sent him on 7 April 2004 stating:
Hi Tim,
A little bird informed me you would continue your employment with TK. I really hope this is correct as I felt so sorry regards the last swing and the way it all turned out for you.
Just relax and enjoy yourself, you will do OK I am sure. Let everything take care of itself you have so much to offer.
I leave Monday to go out west for courses and join the Karratha Spirit. I am sure I will be happier there after being on the Broadie for too long!!
Anyway Tim I am pleased you will be staying and fly west where we can sail again.
Take good care and once again thanks for all your help last swing.
Keep in touch.
John
156 Mr Visscher put to Capt McLellan in cross-examination that this e-mail only made sense if he had known that Mr Visscher's employment was not going to continue. But Capt McLellan did not agree. He said that when Teekay told him that Mr Visscher would be returning to the Broadwater he thought back to the word "leave" on the certificate and it "reinforced the idea in [his] mind" that it was the correct entry to make. It is, of course, possible that Capt McLellan was merely reconstructing events. He frankly admitted that he did not recall "a lot" of the conversation and it appears that no detailed statement was taken from him about the events in question until March this year. But I accept this evidence as a genuine recollection. Capt McLellan impressed me as a very honest witness. I made a note to that effect during his cross-examination. He had no apparent incentive to support Teekay's case over Mr Visscher's. While it might be thought extraordinary for him to remember what was in his mind when he completed one of many certificates of discharge, this was an extraordinary set of circumstances that he might very well remember.
157 I have come to the conclusion that Capt McLellan wrote "leave" on the certificate of discharge because he believed that the dispute between Mr Visscher and the company would in time be resolved, that one or other party would come to his or its senses or reach an accommodation, and that Mr Visscher would return to the Broadwater or to another of Teekay's ships.
158 Capt McLellan gave evidence that Mr Scott told him he would accept the resignation and that he should receive written confirmation soon. Capt McLellan said that he was told to hand Mr Visscher the hard copy letter of acceptance of his resignation after he received it on board ship. That might suggest that Teekay had, indeed, accepted Mr Visscher's resignation. Still, the only letter Capt McLellan received from Teekay soon after his conversation with Mr Scott invited Mr Visscher to confirm acceptance and receipt. That expression is ambiguous. It might mean merely acceptance and receipt of the letter. But Mr Visscher did not take it that way and neither do I. Under the terms of the Certified Agreement resignation did not take effect immediately. The Certified Agreement required that any officer, who had been employed for more than three months, provide 28 days' notice in writing (cl 24.2). Teekay could certainly waive or shorten the period of notice. On the other hand, the evidence does not indicate that this was Teekay's intention. Mr Parmeter, who had seen and vetted the letter before it was sent, said that he had experience of seafarers making threats in relation to their employment to achieve a particular outcome. As Director of Human Resources, he said, his practice was not to accede to these tactics. He said he required Mr Visscher to take a positive step to confirm his intention to end the employment. In cross-examination he confirmed this was the company's intention:
MR PARMETER: Well, my recollection is that we see this - what was happening - as a threat of resignation and we wanted to be clear that you intended to go ahead with it.
MR VISSCHER: Can you tell the court how you intend to be clear?
MR PARMETER: By having the sentence at the end of the letter requiring you to respond to our letter.
159 As he did not take that step, Mr Parmeter said he was satisfied that Mr Visscher's "threat to resign" was an empty one.
160 In the circumstances, it seems that the purpose of the request that Mr Visscher confirm acceptance and receipt was to ensure that Mr Visscher really intended to leave Teekay's employ and his email of 22 February 2004 was not simply a rush of blood to the head. In other words, it was an attempt to call his bluff. All the evidence indicates that Mr Visscher was a valued employee and that Teekay was keen to retain his services. I do not consider (despite what Mr Scott may have said to Capt McLellan) that Teekay regarded its contract with Mr Visscher to be at an end. On the contrary, on 12 March 2004 Teekay deposited $5,580.66 into Mr Visscher's bank account just as it had always done and did so again on 14 April 2004 and on 14 May 2004. That conduct is inconsistent with the proposition that Teekay was treating Mr Visscher as having resigned.
161 So the next question is whether the employment was terminated at Teekay's initiative because of its anticipatory breach, or, as Mr Visscher put it, he was constructively dismissed.