Andrew Beltrame v Essential Energy
[2019] FWC 2592
•16 APRIL 2019
| [2019] FWC 2592 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andrew Beltrame
v
Essential Energy
(U2018/10304)
COMMISSIONER JOHNS | SYDNEY, 16 APRIL 2019 |
Application for Relief of Unfair Dismissal - combination of valid reasons - workplace health and safety - harshness - significant personal and economic impact.
Introduction
[1] On 5 October 2018 Andrew Beltrame (Applicant) made an application (UFD Application) to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth)(FW Act) for a remedy in respect of his dismissal by Essential Energy (Employer/Respondent) on 21 September 2018.
[2] On 24 October 2018 the Respondent filed a response to the unfair dismissal application. It took no objection to the UFD Application.
[3] Attempts at conciliation were unsuccessful. Consequently, it became necessary to program the matter for a substantive hearing to determine the merits of the matter.
[4] At the hearing on 15 January 2019:
a) The Applicant was represented by Anastasia Polities from the Electrical Trades Union, NSW. The Applicant gave evidence on his own behalf and was cross examined.
b) The Respondent was represented by John O’Neill, an in-house HR Business Partner of the Respondent. He was assisted by the Respondent’s Andrew Parrish. The following people gave evidence for the Respondent:
i. Luke Jenner – General Manager, Network Services; and,
ii. Brendon Neyland, - Business Change Manger, Customer and Network Services.
[5] Final written submissions were subsequently filed by the parties on 1 February 2019. In coming to this decision I have had regard to those final submissions, the witness evidence at the hearing and the following exhibits:
a) Exhibit 1 – Agreed Statement of Facts,
b) Exhibit 2 – Outline of argument for the Applicant,
c) Exhibit 3 – Witness Statement by Andrew Beltrame,
d) Exhibit 4 – Outline of argument for the Applicant in response,
e) Exhibit 5 – Witness Statement of Steve Magann,
f) Exhibit 6 – Respondent’s outline of argument,
g) Exhibit 7 – Witness Statement of Luke Jenner,
h) Exhibit 8 – Response Witness Statement of Luke Jenner,
i) Exhibit 9 – Response from Mr Beltrame re investigation into accident dated 3 May 2017,
j) Exhibit 10 – Letter from Essential Energy to Adam Moyle dated 12 December 2017,
k) [not numbered] – Final submissions of the Applicant dated 1 February 2019, and
l) [not numbered] – Final submissions of the Respondent dated 1 February 2019.
Background
[6] The following matters were either agreed between the parties or not otherwise substantially contested. Consequently, I make the following findings of fact:
a) The Applicant was an electrical technician with the Essential Energy.
b) The Applicant’s role included the maintenance of overhead and underground lines and to attend to emergencies during the day and when on call 1.
c) The Applicant was based at the Albury depot and would mainly work in Albury and the surrounding areas. 2
d) The Respondent’s predecessor was Country Energy.
e) The Respondent is a NSW State owned corporation constituted by section 7 of the Energy Services Corporations Act 1995 (NSW) and the State Owned Corporations Act 1989 (NSW). 3
f) The Respondent is a corporation that is responsible for the electricity distribution network to approximately 95% of NSW. 4
g) The Applicant commenced employment with the Respondent in January 2002
h) His employment was terminated on 21 September 2018.
Warnings prior to the ladder incident
[7] The Applicant had been given two earlier warnings as follows:
a) On 11 May 2017 when his work vehicle damaged a bus and the Applicant failed to report the incident. 5; and,
b) On 21 January 2015 for inappropriate behaviour at a toolbox talk. 6
[8] On 6 June 2018 the Applicant attended the Respondent’s Safety is Defence Training at the Albury Depot. 7
a) The training was mandatory training for all staff. 8
b) The Applicant took two days personal leave on 7 and 8 June 2018 and returned to work on Tuesday 12 June 2018 after the long weekend. 9
c) On 1 August 2018 the Applicant had received a letter from the Respondent outlining an allegation of misconduct. 10
d) The Applicant responded to the allegations on 15 August 2018. 11
e) On 31 August 2018 the Applicant was given a final written warning about his behaviour at the Respondent’s “Safety is Defence” training. 12
Ladder Incident
a) On 21 August 2018 the Applicant failed to secure a ladder onto his work vehicle. 13
b) The Applicant self-reported this incident on 21 August 2018. 14 This process is referred to as a TotalSAFE.15
c) An Initial Incident Report was completed on 21 August 2018. 16
d) On 22 August 2018 the Applicant was stood down on full pay. 17
e) The Applicant’s conduct in respect of the ladder was the subject to a Disciplinary Action Report (DAR) 18.
f) As part of the DAR allegations were put to the Applicant in writing on 31 August 2018 and the Applicant responded to those Allegations on 7 September 2018. 19
g) The Applicant’s employment was terminated on 21 September 2018. 20
Other employees who failed to secure ladders
a) On 7 August 2018, the Respondent issued a first and final formal warning to Adam Moyle, another employee who failed to secure a ladder. 21
b) On 15 August 2018, the then Assistant Secretary of the CEPU wrote to Luke Jenner regarding Mark Hawkins, who had also failed to secure a ladder. 22
[9] The Applicant submits he was unfairly dismissed and seeks an Order that he be reinstated. In the alternative he seeks an order for compensation.
Protection from Unfair Dismissal
[10] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.
[11] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:
“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.”
[12] There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicant has completed the minimum employment period, and is covered by an enterprise agreement. Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.
[13] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.
Was the dismissal unfair?
[14] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
Was the Applicant dismissed?
[15] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. In the present matter the Respondent concedes and, consequently, I am satisfied that the Applicant was dismissed from his employment with the Respondent within the meaning of s.386 of the FW Act.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[16] The Respondent is not a small business.
Was the dismissal a genuine redundancy?
[17] The present matter does not involve a case of genuine redundancy.
Harsh, unjust or unreasonable
[18] Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, the Commission must consider whether it is satisfied that the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:
“387 Criteria for considering harshness etc.
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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(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; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(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; and
(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.”
[19] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 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.”
[20] I am under a duty to consider each of these criteria in reaching my conclusion. 23
[21] The Applicant submits the dismissal was harsh, unjust or unreasonable. He submitted that:
a) Mr Andrew Beltrame (the Applicant) applied for an Unfair Dismissal under s 394 of the Fair Work Act 2009 (Act) on 5 October 2018. The Applicant commenced employment as an electrical technician with Country Energy, which was the predecessor of the Respondent in January 2002 24.
b) The Applicant’s role involved the maintenance of overhead and underground lines. The role also required the Applicant to attend to emergencies during the day and when on call 25. The Applicant was based at the Albury depot and worked in Albury and the surrounding areas26.
c) The Applicant was terminated on 21 September 2018. At the time of the termination the Applicant had been employed by the Respondent for 16 years and had completed two apprenticeships with the Respondent 27.
Background
d) The Respondent terminated the Applicant on 21 September 2018 for failing to secure a ladder to a company vehicle on 21 August 2018. This was the fourth warning to the Applicant by the Respondent (Warning 4 or the ladder incident).
e) In making the decision to terminate the Applicant, the Respondent also relied on the three prior warnings:
i. Warning 1: A warning about inappropriate behaviour at a Toolbox Talk on 25 July 2014. This warning was issued 21 January 2015 (the Toolbox Talk incident).
ii. Warning 2: A warning about failing to report a motor vehicle accident the applicant had in a Respondent vehicle with a bus. This warning was issued on 11 May 2017 (the bus incident).
iii. Warning 3: A warning about the Applicant’s behaviour at a training session called Safety is Defence Training which occurred on 6 June 2018. This warning was issued on 31 August 2018 (the safety training incident).
f) The Applicant submits that the Respondent invalidly issued warnings for the Toolbox Talk incident, the bus incident and the safety training incident. The warnings were not reasonable and inconsistent with the treatment of other employees. Warning 1 and Warning 3 were manifestly unreasonable and will be discussed below.
g) Further, that the dismissal of the Applicant for failing to secure the ladder was disproportionate to the conduct and inconsistent with the way that other employees have been disciplined for identical conduct. This will also be discussed below.
Warning 1
h) On 21 January 2015 the Respondent was issued a warning for an incident that occurred at a Toolbox Talk on 25 July 2014 28, six months prior.
i) The Applicant’s evidence at the hearing on 15 January 2019 was that the warning was issued because the Applicant made a joke about his colleague at a Toolbox Talk 29.
j) The background to the joke involved the allocation of a limited number of automatic external defibrillators (AEDs or defibrillators) to the work crews for each day’s work. At each Toolbox Talk the two defibrillators that were held by the depot were allocated on the basis of which crews were performing the most high-risk tasks that day.
k) When the Applicant’s colleague, Mr Squires, asked in response to not having the defibrillator allocated to his crew: “how come Steve gets it again” the Applicant said “well we wouldn’t waste it on you, would we” 30.
l) The Applicant provided further evidence that “everyone [at the Toolbox Talk] had a bit of a laugh and then it moved on. That was the entirety of what I said”.
m) The Applicant explained that there was historical conflict between himself and Mr Squires 31, but that he was surprised that to be issued with a warning six months after the incident. He stated at the hearing:
“Actually, when I was given that warning letter, I got out of my chair, when it was given to me. I got up and I walked out of the room in disgust for getting that warning letter at which point someone came after me and told me to come back, calm down and I proceeded to calm down. They talked me though it and told me not to worry about it; it was no big deal, it’s nothing to worry about. It’s only part of the process” 32.
n) The Applicant did not dispute the warning because he was told that it was “no big deal, it’s nothing to worry about. It’s only part of the process.”
o) The Respondent categorised the warning as a safety breach on the basis that the AED is a critical piece of safety equipment. The incident itself was not about safety, but instead about an inappropriate joke which may or may not have offended Mr Squires.
p) The Respondent did not provide an explanation as to why the warning was issued so long after the incident.
q) The Applicant submits that this warning was not issued validly and in line with the Respondent’s policies. The issuing of the warning was manifestly unreasonable and disproportionate to the conduct in question.
r) Further, the reliance on this warning to justify the termination of the Applicant four years after the Toolbox Talk is also manifestly unreasonable.
s) The Respondent did not provide evidence as to why a more appropriate disciplinary action was not considered at the time.
t) In issuing a warning for this incident to the Applicant, after a six month delay, the Respondent treated the Applicant inconsistently compared to other employees who have been found to have behaved inappropriately and who have not been issued a warning. This will be addressed below.
Warning 2
u) On 11 May 2017 the Applicant was issued with a warning about failing to report an accident 33.
v) The incident occurred on 23 February 2017.
w) The incident involved the Applicant driving a vehicle past a bus that had partially pulled into a bus stop. The back of the bus was sticking out into the road on a 45 degree angle. When the Applicant tried to drive around the bus the vehicle clipped the corner of the bus with his mirror and the mirror folded back but was not damaged.
x) The Applicant did not see any damage to the mirror or the bus, although he failed to get out of the car and investigate whether there was other damage. The Applicant at the time was not aware that the ladder on the vehicle also made contact with the bus and had caused damage to the bus 34. The applicant was given a warning for failing to report the incident.
y) In issuing a warning to the Applicant for this incident, the Respondent has treated the Applicant inconsistently compared to other employees who have been involved in similar accidents and safety breaches as outlined below.
Warning 3
z) On 31 August 2018 the Applicant was issued with a warning about his conduct at the Respondent’s flagship safety training titled Safety is Defence Training 35.
aa) The Applicant had attended the mandatory training on the afternoon of 6 June 2018. The training session was conducted by Russell McCann and Craig Morris, two in house trainers employed by the Respondent. The training session included content on loss of life and suicide 36.
bb) The Applicant was issued with a warning as his behaviour was perceived to be disrespectful. The conduct in question involved the Applicant putting his feet on the table, placing his hoodie over his head and using his mobile phone and being disengaged from the program 37.
cc) There was no proper warning about the content of the training to the attendees, nor was there advice about what to do if the attendees needed a break or were feeling too confronted by the material. The extent of the warning about the content was when “one of the trainers [said] some of the content might be a bit tough, but we will just dive straight into it” 38 .
dd) The Respondent confirmed that no other warnings about the content were given at the beginning of the training session 39 .
ee) The Applicant’s evidence is that he was agitated and uncomfortable to start because he had mixed up the start time, had a large meal and wanted to have a cigarette 40. He was also tired from the morning’s work as he had worked hard to finish on time for the training session. The Applicant put his feet on the table to keep him physically upright and steady, but confirmed that he regretted doing that afterwards41. The applicant also checked his phone to see if his children had texted him especially because his daughter was sick on this day. When he was told to put the phone away he did so immediately42.
ff) The presentation became extremely distressing and confronting to the Applicant when McCann proceeded to discuss the suicide of his brother 43. The Applicant started to cry44. The Applicant’s evidence is that he wanted to walk out of the session but he couldn’t get up and that he did not want his colleagues to see him crying. The Applicant has had suicidal thoughts in the past and has experienced the suicide of friends and family, so the content was particularly distressing for him45.
gg) The Applicant used his hoodie to cover his face to hide his tears from his colleagues.
hh) Following the training, the Applicant then took personal leave for his mental health and returned to work on 12 June 2018.
Applicant was alerted to a complaint by the trainers about his behaviour. The Applicant spoke with Mr McCann on 12 June 2018 on the telephone and had a very frank discussion, using language that he knew would not offend Mr McCann 46.
ii) The Applicant apologised to Mr McCann but also explained how distressing the content had been. The Applicant felt that he and the trainer had resolved the matter during this conversation and that no further action would be taken 47 .
jj) To the Applicant’s surprise he then received the “show cause letter” on 1 August 2018 7 weeks after the conversation and the apology.
kk) The Respondent has failed to indicate why this show cause letter was issued in circumstances where the person who was offended by what happened had accepted the apology of the Applicant 48. The Respondent has not provided evidence from the trainers that they were dissatisfied with the apology, in fact the trainers were not called to give evidence in these proceedings at all.
ll) The file that was produced about this incident at the request of the Commissioner Johns, the Disciplinary Action Report or DAR 49 does not indicate why there was a delay in issuing the show cause letter to the Applicant about this incident. Further, the Respondent has failed to provide evidence as to the reason for the delay between the incident and the issuing of the show cause letter. The chronology on the DAR indicates that there was a 7 week delay in receiving the last statement from Chris Morris and the letter on 1 August.
mm) As the Respondent categorised the behaviour as a serious safety breach it is unclear why the show cause letter not issued promptly after the training session instead of seven weeks later.
nn) The DAR does not include any reference to the conversation and apology that the Applicant had with the trainer on 12 June 2018.
oo) The DAR does not include any reference to the effect the training material had had on the Applicant.
pp) In issuing the safety training warning, Mr Jenner, the decision maker, did not place any weight on the apology or on the effect the content had had on the Applicant 50.
qq) In the DAR, Mr Chris Manns who was the acting RS at the time indicated in his statement that the Applicant was engaged in the session and was
“loud and outspoken during general discussion. But the majority of what he was saying was positive input to the discussion, he just went the wrong way about it. Our group had a lot of people who would rather just sit there and not say anything, so we needed his input. Just a shame the way he gets it across”. 51
Despite this evidence before Mr Jenner, he decided the Applicant was disengaged from the training session.
rr) The Applicant submits that the content may have been overwhelming, but that he remained engaged in the session 52.
Respondent Breached the Fair and Just Culture Policy
ss) The Respondent was first aware of the harm that the content of the training session had caused the Applicant on 12 June 2018. Despite the Applicant’s attempts to explain the harm the content of suicide in the training session had caused his mental health, the Respondent failed to acknowledge its responsibility.
tt) The Respondent breached the Fair and Just Culture Policy (at 2.0 Purpose - 1 A duty of care to those with whom we work i.e. “do no harm” 53) by causing the Applicant harm and failing to provide proper warnings and an adequate de-brief.
uu) The Applicant in his written statement and verbal evidence at the hearing stated:
At no point did anyone take seriously that - we’re not talking about - it’s not kiddy stuff, people taking their own lives or this sort of stuff. To just come out of work and just go straight into it and the be surprised when someone has an emotional reaction. For you to just even stand there and suggest that the content of the meeting had no bearing on the way I reacted during the meeting, it’s very dismissive; it’s dismissive and 54 - - -
… and
Every time I’ve raised an issue from the company, it’s just been dismissed as it’s not valid. Nobody really cared to see - there was no debrief. Once I let it be known how upset I was, nothing was done to make sure I was all right. No help was given to me, even though I have to go through this process to write these - to defend myself from these allegations. Having spoke to the presenter and apologised to him, and he accepted my apology and understood. He understood exactly what was going on. That presentation - there was things in there, put in there to get an emotional response out of people and then they got it and they didn’t like it. He was playing Knocking on Heaven’s Door in the PowerPoint presentation as we walked out the room. To me in my mind that’s the song that they were playing as his brother’s casket went down the aisle, rightly or wrongly. To suggest that this information, that this was appropriate and maybe it might have been good for some people, but it wasn’t good for me at that point in time for me. I didn’t need to hear that. I didn’t want to hear that 55.
Then afterwards, and after when the company knew how badly I was affected, the only thing they say, is you can ring the Employee Assistance Hotline, which I had rung previously before, for another issue and they tell you - they told me - the first thing they do is they asked me if I was suicidal. I said no at that point in time and they range (sic) me back in about a week and I talked to someone for about half an hour, so I chose not to go down that path again. So the reason I didn’t raise a grievance or a dispute or whatever, is because I was exhausted through a long process, I was already undergoing another process with the ladder, and I felt like the dispute resolution process - why was anyone going to listen to me now all of a sudden when I’ve said so much to so many different people and nobody had listened to a word I’d said throughout the process, so why would they start listening to me know (sic) 56.
vv) Mr Jenner in his evidence considered the warning an appropriate way to address the perception that the organisation takes safety seriously, and that its staff should too. Yet despite the “optics” that the Respondent wants to present to its staff and its apparent concern for the perception that the Respondent takes safety seriously, the Applicant’s alleged poor behaviour was not addressed with its staff.
Warning 4
ww) Warning 4, the ladder incident, led to the termination of the Applicant.
xx) The Applicant failed to secure a ladder onto a vehicle on 21 August 2018 when he was due to leave a site he and his colleagues had been working at.
yy) The Applicant acknowledged that it was his mistake and that it was a safety breach, however there were mitigating circumstances including that the ladder had been placed on the vehicle by the Applicant’s colleague, he had worked a 16 hour shift the night before and that he was concerned about the outcome of the safety training incident 57.
zz) The loss of ladders and the failure of staff to secure loads is not uncommon. In his evidence at the hearing Mr Jenner stated that there are between eight to twelve lost each year by the Respondent 58.
aaa) The Applicant provided evidence through its witness, Steve Magann, an organiser with the CEPU, that there had been other employees that had failed to secure ladders and had not been terminated. Further Mr Jenner acknowledged at the hearing that another failure with a cable drum had not resulted in termination 59.
Adam Moyle
bbb) Adam Moyle is a current employee with the Respondent who had failed to secure a ladder on the same day he had participated in a Toolbox Talk about the importance of securing loads. Mr Moyle was not terminated and instead was given a final warning for the incident 60.
ccc) Mr Moyle had been disengaged in the Toolbox Talk and had been “pulled up” for his behaviour 61 . In contrast to the Applicant, Mr Moyle was not issued with a warning about his behaviour at the Toolbox Talk.
ddd) Later that day, about 20 minutes after the Toolbox Talk Mr Moyle failed to secure the ladder that was placed on the vehicle by colleague and it was found by a different colleague when it fell off 62.
eee) A previous letter to Mr Moyle dated 12 December 2017 63 which was produced at the hearing by Mr Magann, indicated that Mr Moyle had been involved in six safety incidents prior to the ladder incident including the following:
i. A vehicle collision on 20 October 2016;
ii. Sustained loss of traction while driving a fork lift on 24 March 2017;
iii. A speeding fine in the Respondent’s vehicle on 28 May 2017;
iv. Wire winder incident on 23 August 2017;
v. Failure to follow the eight step switching rule and failure to ensure a danger tag was placed at an isolation point on 12 September 2017;
vi. Damage to a company vehicle after driving into a drain on 29 September 2017.
fff) Despite Mr Moyle’s safety record outlined in the above paragraph, Mr Moyle was not issued with a warning for any of these incidents nor was he terminated for the ladder incident.
ggg) The letter to Mr Moyle was dated only three months after the last incident, yet the Respondent was not prepared to issue a warning for any of the safety incidents outlined in this letter at the time of writing.
Mark Hawkings
hhh) Mr Magann identified another union member, Mark Hawkins who also failed to secure a ladder onto the vehicle he was driving 64. Mr Hawkings was not terminated, nor was he subject to a warning. Mr Hawkins was issued with an expectations letter65.
iii) The Applicant submits that there were three almost identical incidents and three different outcomes for three different employees. Regardless of the personal safety record of each of the employee, Mr Magann put it succinctly when he stated: “A ladder still fell off a truck. It still does the same damage” 66.
jjj) The applicant was protected from unfair dismissal
kkk) The Applicant has applied for relief from unfair dismissal under s394 of the Fair Work Act 2009 (the Act).
lll) For the Applicant to be protected from unfair dismissal and for an order for either reinstatement or compensation to be made by the Fair Work Commission (the FWC), the Applicant must meet the criteria under section 382 of the Act….
mmm) The Applicant worked for the Respondent from 2002 until the time of his dismissal on 21 September 2018. This period exceeds the minimum employment period required in s383 of the Act. The applicant meets the criteria under s382 (a).
nnn) At the time of the dismissal the applicant was covered by the Essential Energy Enterprise Agreement 2018. The Applicant meets the criteria under s382 (b).
ooo) The Applicant is eligible to be protected from unfair dismissal within the meaning of s382.
The applicant was dismissed at the initiative of the employer
ppp) The Applicant was sent a letter terminating is his employment on 21 September 2018. The Act provides a definition of dismissed…
qqq) The Applicant was terminated by the employer as per s 386 (1)(a) and was not on a training arrangement, nor on a contract for a fixed period as per s386 (2) (i) and (ii). The Applicant was dismissed at the initiative of the Respondent.
The dismissal was unfair
rrr) The dismissal meets the criteria set out in section 385 of the Act…
sss) The Respondent is not a small business. The dismissal did not need to be consistent with the Small Business Fair Dismissal code.
ttt) The dismissal was not a case of genuine redundancy within the meaning of s389.
Harsh, Unjust or Unreasonable
uuu) The FWC must take the following matters into account when determining the criteria for harshness, unjustness or unreasonableness…
vvv) Each of the subsections of s387 must be taken into account and be given appropriate weight by the FWC. In Nestle Australia Ltd v Federal Commissioner of Taxation (187) 16 FCR 167 at 184 and referred to in Moran v KDR Victoria Pty Ltd T/A Yarra Trains [2018] FWC 6144 at para 92 Wilcox J explained what “taken into account” involves:
“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter not taken into account by being noticed and erroneously discarded as irrelevant”.
www) The weight given to a matter is for the FWC to decide if the decision of the decision maker is “manifestly unreasonable”:
“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising statutory power…I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend) [1986] HCA 40 at [15].
xxx) The terms “harsh, unjust or unreasonable” are well established in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 (Byrne decision):
“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 be reasonably have been drawn from the material before the employer, an 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”.
yyy) Armed with the Byrne decision’s ambit of “harsh, unjust or unreasonable” the FWC must take into account all the subsections in s387.
S387(a) valid reason
zzz) The FWC must consider “whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct”. Moran v KDR Victoria Pty Ltd T/A Yarra Trams [2018] FWC 6144 at 97.
aaaa) The Respondent has not indicated that the dismissal is related to the Applicant’s capacity or performance, but has relied on the Applicant’s conduct or behaviour.
bbbb) The termination letter (ref) refers to behaviours that have breached Operational Procedures, NSW Road Laws and the Code of Conduct.
cccc) In considering the validity of the termination based on the ladder incident on its own, Commissioner Johns at PN1218 stated that the maximum penalty for failing to secure a ladder is a fine of $2200. In the case of the applicant he lost his job of 16 years which was equivalent of an annual financial penalty of $86 000. The contrast in these amounts indicates the disparity between the way the NSW parliament has assessed the seriousness of the incident and the way the Respondent has assessed it.
dddd) The Applicant acknowledged his failure to secure the ladder to the Respondent at the earliest opportunity 67. The Applicant attempted to alleviate the loss to the Respondent by searching for the ladder immediately upon discovering that it was missing and he disclosed his error formally to the Respondent68.
eeee) The Applicant submits that the failure to secure the ladder was a simple error and a result of the stress placed on him because of the training session warning and fatigue.
ffff) The Respondent has relied on the failure to secure the ladder as a valid reason for termination in the context of an emphasis by the Respondent on the importance of securing loads. However, despite extensive training, the Respondent has failed to prevent the loss of ladders and failed to ensure that its employees secure their load on each occasion. The Respondent’s training and materials are evidently not effective in preventing the failure of securing loads.
gggg) The Respondent acknowledges that failing to secure the ladder in it of itself is not a valid reason to terminate and employee. Mr Neyland stated at the hearing in response to the question about when failing to secure a ladder could be a simple error:
Mr Neyland:…I guess where there was confusion, as an example in the top - the employee’s behaviour under simple error, using that as an example, “Did the employee misunderstand what was expected of them?” So it might have been, as an example, a couple of people or multiple people that were at the vehicle at the time, not sure whose obligation it was to actually tie the ladder down or secure the load, so things like that would have to play into, I guess, my decision making if that actually occurred and I had to play out, requiring me to get all the facts before I made a [sic] informed decision as to which box it would - or which table it would fall under.
Q: Are you saying - is it the driver’s responsibility to secure the ladder or is it - - -
Mr Neyland: No, it’s the driver’s responsibility.
Q: But in a circumstance where there was confusion and there were more than one person around the ladder, you could see it as being a simple error?
Mr Neyland: I could. Again, and it would need to - from my perspective, all the facts would have to be drawn out before I made a decision because the fair and just tool, for me, is used at the end of the process to understand, but for me, the disciplinary outcome 69
hhhh) Contrast Mr Neyland’s evidence above with the Applicant’s evidence at the hearing:
Q: That being the case, you would agree would you not, that it’s critical that the responsible driver would ensure that the vehicle is fit for purpose, fit for travel, including and ensuring that all leads are restrained before undertaking that travel?
Applicant: Yes, I agree, but I’d also say that it’s an established work practice that if you put a ladder on a roof that you tie it down 70.
The reliance of the prior warnings by the Respondent in the dismissal
iiii) The Respondent in the termination letter to the Applicant relied on a number of warnings about the Applicant’s behaviour and conduct.
jjjj) The Commission must satisfy itself of the validity of the warnings issued to the Applicant prior to the ladder incident which resulted in the dismissal. In Sirijovski v Bluescope Steel Ltd [2014]71 FWCFB 2593 the FWC explores this issue:
“In our view s387(e ) does not refer only to warnings which relate to specific kind of performance failure or conduct which has given rise to a dismissal…[the warning] was a relevant factor to be taken into account in determining whether the dismissal was unfair” 72
and
“…the warning should be viewed having regard to the circumstances and employment context in which it was issued” 73.
Safety Training warning
kkkk) The warning given to the Applicant about his behaviour at the training session, the content of which affected his mental health, was not valid and was manifestly unreasonable given the circumstances.
llll) The Applicant describes his own mental health issues and the circumstances which resulted in his presentation being perceived as “disrespectful”. Further the Applicant describes how he made many attempts to explain the circumstances of his “disrespectful” presentation 74.
mmmm) The Respondent had already decided to issue the warning to the Applicant about the training session prior to investigating the incident and prior to speaking to the Applicant. The Applicant’s supervisor Ray English was aware that the Applicant on 12 June 2018 that the Respondent would take the matter further. This is despite the Applicant and the trainer having resolved the matter between themselves 75.
nnnn) There is irony in the Applicant being given a warning about behaviour at a training session about mental health, when his behaviour was a result of his own mental health problems. The Applicant’s “disrespectful” behaviour was an attempt to hide the emotional turmoil that he was experiencing when the trainer spoke of his brother’s suicide.
oooo) At the training Russell stated: “you can never be sure of someone’s state of mind, you never know what someone is thinking” 76. It is clear that the trainer in question was not aware of what was in the Applicant’s mind and what the Applicant was thinking when his behaviour was being perceived as disrespectful. The Applicant’s own thoughts of suicide were not evident to the trainer77.
pppp) This irony in the Respondent making mental health training mandatory while ignoring the mental health of the participants of the training, in addition to failing to provide warnings prior to the session and an adequate de-brief afterwards makes the issuing of the warning to the Applicant in the circumstances as manifestly unreasonable.
Motor vehicle accident warning
qqqq) The warning when the Applicant had conceded that he should have reported the bus incident was also not valid as per s387(a) and inconsistent with the treatment of others involved in motor vehicle accidents.
rrrr) The issuing of a warning under the circumstances was unreasonable and the Respondent’s reliance on this warning in the termination of the Applicant was invalid.
Toolbox Talk warning
ssss) It is manifestly unreasonable for the Respondent to be relying on the Toolbox Talk warning in its decision to terminate the applicant when the warning was for an incident over four year prior for something trivial and given to the Applicant six months after the incident. The Respondent cannot rely on a warning without “regard to the context in which it was issued” 78 .
S387(b) notification of valid reason
tttt) The Respondent notified the Applicant of the reason for the termination and the warnings given. The delay in the notification of the warnings, particularly the Toolbox Talk warning and the safety training session warning were such that the Respondent failed to afford procedural fairness to the Applicant. Certainly, the issuing of Warning 1 six months after the incident would make it difficult for the Applicant to respond to.
S387(c) opportunity to respond
uuuu) The Applicant was given an opportunity to respond to the allegations to do with the ladder incident, bus incident and the safety training incident.
vvvv) The Applicant was assured that he did not have to respond to the first warning of his behaviour at the Toolbox Talk in 2015. Had the Applicant at the time known that the Respondent would be relying on this warning to terminate his employment, the Applicant would have responded and challenged this warning.
wwww) It appears that the Applicant did not have a genuine opportunity to respond to the allegations as the issuing of a warning for the safety training incident was predetermined. The DAR does not clarify why the matter escalated after the apology of the Applicant to the trainer, nor why there was a delay or even why the disclosure of the Applicant about the content and its effect on him was not recognised 79.
S387(d) unreasonable refusal by the employer to allow for a support person
xxxx) The Respondent allowed for the Applicant to have a support person present.
S387 (e) warnings regarding unsatisfactory performance
yyyy) The Respondent did not terminate the Applicant for unsatisfactory performance.
S387 (f) size of the respondent and s387(g) dedicated human resources
zzzz) The Respondent is a large employer with a dedicated human resources department. Neither the employer’s size nor its dedicated HR department impacted on the procedures in the dismissal.
S387 (h) other relevant matters
Harshness - Differential Treatment of the Applicant
The Ladder incident
aaaaa) The Applicant has been treated differently to other employees in similar circumstances and the Respondent has implemented its policies and procedures in a harsher way than it has for other employees.
bbbbb) The differential treatment of these employees can be taken into account by the Commission 80. Sexton v Pacific National (ACT) Pty Ltd, PR931440 (AIRC, Lawler VP, 14 May 2003) at [33].
ccccc) In considering the differential treatment of other employees to the Applicant, the Commission must be satisfied that the termination of the Applicant is properly comparable to the non-termination of Mr Moyle and Mr Hawkins. The Commission must compare “apples with apples” 81.
ddddd) The fact that Mr Moyle has been involved in six other safety incidents and had participated in the Toolbox Talk presentation about the importance of securing loads on the day he failed to secure the ladder when the Applicant had only been involved in one other genuine safety incident, indicates the comparison cannot be fairly categorised as “apples with apples”, as the Applicant’s safety record at the time of the termination was in a better state than that of Mr Moyle.
eeeee) Yet, despite the history of the two other employees, they were all involved in an identical incident that had the potential to cause the same damage.
fffff) Despite Mr Moyle’s six other safety breaches, he was not issued a warning for any of these. The result has been that Mr Moyle’s safety history was not taken into account when Mr Neyland used the decision support tool in the Fair and Just Culture policy to determine the disciplinary outcome of the ladder incident. By contrast, the Applicant’s safety record was taken into account by Mr Jenner when using the tool because he was issued with formal warnings, whether or not they were valid. This meant that Mr Jenner took into account the Applicant’s safety record, while Mr Neyland did not take into account the record of Mr Moyle. The policy allows for the inconsistent treatment of employees and has resulted in different outcome for employees who are involved in identical conduct.
ggggg) The treatment of the Applicant in dismissing him for this event is inconsistent and manifestly unjust.
The Safety Training incident
hhhhh) The Applicant submits that that James McCallum who participated in another session of the Safety is Defence Training used his iPad throughout the training. Unlike the Applicant who was given a warning about his behaviour, Mr McCallum was not disciplined 82.
iiiii) The Applicant’s perceived “disrespectful” behaviour resulted in a final warning when Mr McCallum’s behaviour did not attract any disciplinary action by the Respondent.
Faulty policies and their inconsistent application
jjjjj) The Respondent’s Disciplinary Action Policy 83 contains the following at
clause 5:
Key Requirements:
Develop and maintain a consistent framework for disciplinary action.
kkkkk) These proceedings have indicated that there has been an inconsistent application to discipline despite consistency being a key requirement of the Respondent’s own policy.
lllll) Respondent issued warnings inconsistently, it applied safety inconsistently. The Respondent did not give warnings in relation to all safety incidents. It gave a warning about an inappropriate joke at a toolbox meeting that occurred six months prior to the incident but not a warning for conduct that could jeopardise the safety of the public or its employees in the case of Mr Moyle.
mmmmm) The policies that the Respondent is relying on do not provide a true assessment of the risk each employee’s behaviour and conduct poses for the organisation and its stakeholders. The inconsistent approaches and outcomes by two decision makers indicate that the policies are faulty and result in outcomes for employees that differential and therefore harsh.
Harshness – Personal Circumstances
nnnnn) The Applicant has sought work within the Albury region and has been able to secure limited casual work since the dismissal. The work available in the region is less secure, with conditions that are inferior and income that is substantially less.
ooooo) The Applicant is unable to leave Albury to pursue work that may be better paid because of his family’s circumstances.
ppppp) The Applicant is a single father who is the subject of Family Law orders. The Applicant has his children 60 per cent of the time and is their main financial provider. The mother of his children also resides in Albury. He is unable to leave Albury as his children must remain in the area.
qqqqq) The Applicant’s position with the Respondent also provided him with a suitable work life balance to be able to look after his children and support them financially.
The Applicant is seeking reinstatement a remedy
rrrrr) The Applicant is seeking an order for reinstatement. Section 390 identifies reinstatement as the primary remedy…
sssss) The Applicant is seeking reinstatement to his position as an electrical technician in the Albury depot with both an order to maintain continuity and an order to restore lost pay. There is no reason that reinstatement to his previous position would be unreasonable. …
ttttt) The Applicant submits that in making its decision the FWC should apply the principle of a “fair go all round”. The notion is embodied in s 381 of the Act.
uuuuu) The issuing of the three warnings were invalid and manifestly unreasonable. The Respondent placing excessive weight on the warnings has also resulted in the dismissal being manifestly unreasonable.
vvvvv) The dismissal for the ladder incident was unreasonable and harsh. It was harsh because it was disproportionate to the incident at hand, it is inconsistent with the treatment of other employees and because of the personal impact it has had on the Applicant.
wwwww) The Applicant will not be able to secure work in the Albury area with the same pay and conditions that will enable him to look after his children.
xxxxx) The Applicant submits that should the Commission find that the dismissal was unfair, then reinstatement is the primary and most appropriate remedy.
yyyyy) Wilcox CJ, Marshall and North JJ in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (Perkins) decided that reinstatement was the appropriate order in that matter and appreciated that the parties would have to display some “magnanimity towards each other at the recommencement of their working relationship”.
zzzzz) While the relevant test in Perkins was whether reinstatement was “impracticable”, the Commission must consider instead whether reinstatement is “inappropriate” section 390 (3)(a).
aaaaaa) The relevant consideration for the FWC is whether the Respondent has lost trust and confidence 84.
bbbbbb) Trust and confidence is necessary in the employment relationship. However in Perkins, Wilcox CJ, Marshall and North JJ stated at 191 that
“…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… 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 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…
It may be difficult or embarrassing for the employer to be required to reemploy 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.”
cccccc) There is no evidence before the Commission that the Applicant’s supervisors, trainers or colleagues have lost “trust and confidence” in him. There is no evidence that those employees who worked with the Applicant closely and on a daily basis have lost trust or confidence in his abilities or his commitment to safety.
dddddd) The Applicant reaffirms he is seeking reinstatement to his position as an electrical technician in the Albury depot with both an order to maintain continuity and an order to restore lost pay. There is no reason that reinstatement to his previous position would be inappropriate.
eeeeee) The Applicant seeks the following orders from the Commission, that:
i. Essential Energy reinstate Mr Andrew Beltrame to his position of electrical technician based at the Albury depot.
ii.
iii. Essential Energy recognise the continuity of service of Mr Beltrame’s employment and the reimbursement of any leave accruals paid out on termination; and
iv.
iii. Essential Energy make payment to Mr Beltrame an amount equal to the gross remuneration lost since his termination on 21 September 2018.
ffffff) Should the FWC decide that reinstatement is inappropriate, then the Applicant seeks the maximum compensation available.
[22] The Respondent submits the dismissal was not harsh, unjust or unreasonable. It submitted that:
a) The Applicant’s employment with the Respondent was terminated on 21 September 2018 for safety breaches in respect of vehicle load restraints.
b) Contrary to the Applicant’s submissions filed 2 December 2018 (Applicant’s Submissions), the Applicant’s employment was terminated for a valid reason and in circumstances that were not harsh, unjust nor unreasonable pursuant to s 387 of the Fair Work Act 2009 (Cth) (FW Act).
c) It is not in issue that the Applicant:
i. was notified of the reason why he was dismissed (s387(b)) 85;
ii. had an opportunity to respond to the reason for termination (s387(c)) 86;
iii. was not unreasonably refused a support person (s387(d)). 87
a) In addition to those matters, it is also clear the following matters should not be in issue:
i. the size of the Respondent’s enterprise (s387(f); and
ii. the degree to which the absence of a dedicated human resources management specialist or expertise in the enterprise would be likely to impact procures followed in effecting the dismissal (s387(g)).
b) Accordingly, the Fair Work Commission (FWC) is required to consider only three of the criteria in s387 of the FW Act, namely:
i. whether there was a valid reason for the dismissal (s387(a));
ii. whether the Applicant had been warned prior to the dismissal (s387(e)); and
iii. any other matters the Commission considers relevant (s387(h)).
iv. Each of these matters will be considered in turn.
Valid Reason for the dismissal - Section 387(a)
c) In accordance with section 387(a) it must first be determined whether there existed a valid reason for the Applicant’s dismissal.
d) The term “valid reason” has been well considered by Courts and industrial tribunals. The oft quoted passage from Northop J’s decision in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 provides that a “valid reason” is:
“… sound, defensible or well founded … the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business”.
e) The conduct or capacity that can for the basis of a “valid reason” particularly in respect of a safety breach has been explored by the FWC.
As discussed in [76] of Hanley v Stramit Corporation Pty Limited [2016] FWC 1150, conduct does not have to be willful, malicious or intentional to form the basis of a valid reason:
[76] Section 387(a) of the Act requires the Commission to have regard to “whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employee’s). It appears to me that the kind of conduct exhibited by Mr Hanley is the kind of conduct that is intended to be captured by the Act. The conduct in question need not be willful, malicious or intentional conduct. Conduct that results from carelessness, inattentiveness, deficient concentration in balancing both immediate operational responsibilities and wider situational safety environments, or lack of application of learned rules, are not excuses for non-compliance, but the cause of non-compliance (which in turn give rise to safety risks).”
i. The FWC has consistently identified safety breaches as being a valid reason for dismissal (see Blackney v CSR Limited trading as Viridian New World Glass88; Carrick v Patrick Stevedores Holdings Pty Ltd89; Douglas v SSX Services90; Brown v K&S Freighters Pty Ltd91).
ii. See also, for example, Donald v Macklyn v G&S Engineering Services Pty Ltd92, where Deputy President Asbury found:
“A serious breach of a workplace health and safety policy or an incident where an employee places health and safety at risk, will generally constitute a valid reason for dismissal. This is particularly so when the breach is wilful or reckless and is committed in circumstances where the employee is aware of the employer’s policy and the risks associated with his or her conduct. In my view the Commission should not lightly interfere with the right of an employer to establish, maintain and enforce workplace health and safety policies, through the use of appropriate disciplinary processes.”
iii. Furthermore, in the decision O’Hehir v Toll Holdings [2012] FWA 328 SDP Hamberger stated;
[19] Mr O’Hehir was dismissed for failing to check that a trailer was properly fixed to a prime mover prior to driving off resulting in the trailer dropping to the ground. This was not the first incident of that kind that Mr O’Hehir was involved in. An incident in January 2010 resulted in Mr O’Hehir being given a first written warning letter. Mr O’Hehir was involved in further incidents in 2010 that resulted in his receiving a written verbal warning letter that stated that further instances or errors due to lack of attention to detail and/or failure to follow set procedures would result in disciplinary action and may lead to termination. I am satisfied based on the Applicants conduct there was a valid reason for termination. I am also satisfied that the Applicant was aware that his conduct could result in termination.
The employment record of the employee is also a relevant consideration when determining the validity of the reason to terminate the employment. Senior Deputy President Hamberger in Douglas v SSX Services Pty Ltd T/A Australian Reinforcing Company [2010] FWA 2693 stated:
[8] Not all breaches of health and safety procedure will automatically entitle an employer to dismiss an employee. The severity of the breach needs to be considered. Moreover an employee’s previous record may well be a relevant consideration. In this case, as already noted, the respondent, in deciding to terminate the applicant’s employment, had regard to a number of prior warnings concerning breaches of health and safety procedures.”
Similarly, in the decision Mr Joao Gomes v Qantas Airways T/A Qantas [2014] FWC 3432 Commissioner Riordan said;
[91] Mr Gomes did not have a clean performance record. He has received two prior formal warnings and was one month into a detailed performance improvement plan. His actions on 2 October, 2013 showed that he had scant regard for the safety of his fellow employees and has taken no notice of previous warnings. [92] Qantas claim, quite appropriately, that safety is their number one priority. Qantas has a statutory obligation to provide a safe workplace for all its employees. The repeated breaches of safety policies and work practices by Mr Gomes placed that obligation at an unnecessary risk. No employee or employer has the right or self-sanctioned privilege to ignore the safety requirements of a role or function. The mutual obligation in the employment contract is not open for debate or negotiation. It is sacrosanct and protected by legislation. Mr Gomes did not fulfil his obligation. He has exhausted his “fair go.”
f) The Applicant’s employment was terminated following an investigation into an incident on 21 August 2018, where the Applicant failed to secure a ladder to his Essential Energy vehicle, resulting in the loss of the ladder. Prior to the termination of his employment, the Applicant had been subject to prior warnings regarding safety breaches. He was aware of what was expected of him, and aware of the risk of further disciplinary action should he not comply with the safety obligations imposed on him.
g) The Applicant’s failure to secure a ladder to his Essential Energy vehicle occurred in circumstances where Essential Energy had a safety focus on load restraint including:
i. Toolbox talks and the discussion of Safety Brief SB-800 Issue 27/07/2018 Load Restraint - Securing our Ladders. 93
ii. Luke Jenner GM Customer & Network Services audio safety message contained in the Network Services weekly communications week beginning 30 July 2018 in relation to load restraints. 94
iii. Fleet Awareness Presentation on Thursday 9 August 2018 that included the need to ensure that vehicle loads are properly restrained and are the responsibility of the driver.
iv. Fleet roll-out of the electronic pre-operational inspection process on Thursday 9 August 2018. 95
v. Distribution of Southern Safety Message Titled “Load Restraint/Fleet Safety – Have We Got It Right?” dated 16 July 2018. 96
h) The Applicant admits that he was aware of the specific focus on load restraints. 97 In addition, the Applicant was required to comply with the Essential Energy Fleet Drivers Handbook and the Code of Conduct. The Fleet Drivers Handbook requires drivers to use tie down points to restrain their load and adequately cover loose material. The Code of Conduct obliges employees to look after and not misuse Essential Energy Assets, to comply with Essential Energy’s policies and procedures and the company’s operating license. It also obliges employees to satisfactorily meet the requirements of their position and follow instructions that are reasonable and lawful and within the employee’s capability and training. Employees are also required to follow all health and safety rules and procedures and ensure they work in a safe manner and not put themselves or others at risk.
i) The Applicant admitted his failure to properly restrain his ladder 98. The Applicant’s failure to properly secure the ladder was considered a safety breach of Essential Energy Drivers Handbook, NSW Road Laws and Essential Energy’s Code of Conduct. It was also a failure to follow directions issued in the Toolbox talks and other sessions listed in paragraph [17] above. This safety breach was the reason for the decision to terminate the Applicant’s employment.
j) The Applicant admits that the loss of a ladder was a safety breach. 99
k) The Applicant’s conduct could have resulted in significant injury to Essential Energy personnel or a member of the public, and could also have resulted in damage to Essential Energy property and exposed Essential Energy to reputational risk.
l) The evidence before the FWC is that safety is one of Essential Energy’s top priorities 100 The Applicant was aware that he was obliged to ensure that his load was safely secured. He was unable to provide an acceptable explanation for why he had failed to properly secure his load. He had a history of disciplinary issues relating to safety matters. It is submitted that the Applicant’s safety breach in respect of his failure to secure his load was a valid reason for the decision to terminate the Applicant’s employment.
Prior Warnings - Section 387(e)
m) The Applicant has submitted that the Respondent relied on three previous warnings when making the decision to terminate his employment. The Applicant has also submitted that as a consequence of the Respondent’s reliance of these warnings, the FWC should apply the criteria set out in s387 of the FW Act to each of the incidents the subject of the warnings to satisfy itself of the validity of the warnings.
n) This submission is rejected. The criterion set out in s387 is applied to determine whether or not the decision to terminate the employment was harsh, unjust or unreasonable, and not whether prior warnings, that have not been the subject of earlier challenge, were valid or not.
o) Section 387(e) of the FW Act requires the FWC, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, to take into account, where the dismissal relates to unsatisfactory performance by the employee, whether the employee had been warned about the unsatisfactory performance before the dismissal 101. It is not necessary that the warning relate to the specific kind of performance failure or conduct which gave rise to the dismissal. It is sufficient that the warning and the dismissal relate to the employee’s “unsatisfactory performance”.102
p) It has been determined that the purpose of a warning contemplated by s387(e) of the FW Act is to “demonstrate the seriousness with which an employer regards an employee’s performance and/or conduct and to provide an opportunity for the employee to address those concerns and thereby avoid or reduce the risk of dismissal.” 103. The FWC must consider the previous warnings to and determine if the Applicant had been appropriately warned prior to the dismissal.
q) The Applicant has received a number of prior warnings as follows:
i. 21 January 2015 in respect of Inappropriate Behaviour Toolbox Talk 104
ii. 11 May 2017 - Motor Vehicle Incident Wyse St Albury 23 February 2017 105
iii. 31 August 2018 - Final Written Warning - Safety is Defence Training 106 .
r) Each of these warnings identifies the behaviour or conduct that needs to be improved and warns of the potential consequences to the Applicant if his behaviour or conduct does not improve.
s) The first two warnings were not subject to challenge. It is submitted that in circumstances where warnings have not previously been the subject of a challenge, s387(e) does not require that the FWC determine whether those warnings were valid. The role of the FWC when exercising its functions under s387(e) is to consider the warnings and determine whether, given the circumstances and employment context in which they were issued, they were satisfactory for the purposes of s387(e).
t) Whist the third warning was challenged by the union on the Applicant’s behalf; it has not been varied or removed. It is submitted that despite the challenge, the role of the FWC when considering that warning is limited to determining whether the warning satisfies the requirements of s387(e) and should therefore be a matter considered when determining whether the termination was harsh, unjust or unreasonable.
u) In this matter the Applicant’s employment was terminated as a consequence of his safety breach. As part of the decision making process, Luke Jenner considered the Applicant’s employment history, including his 3 prior warnings for safety breaches. In particular the final warning put the Applicant on notice that further breaches of company policy and procedure may result in further disciplinary action including termination of employment 107.
v) This final warning, in respect of the Applicant’s conduct in Safety is Defence Training (Final Warning) was given in the context where the Applicant engaged in inappropriate conduct during safety training that underpinned Essential Energy’s safety culture and systems. The Applicant only acknowledged that his conduct was inappropriate when it was drawn to his attention. Prior to that time he did not acknowledge that his conduct was inappropriate. The warning was also given in the context that the Applicant had been given previous counselling and warnings in respect of his conduct and behaviour and that the Applicant had made a commitment not to contravene the values and expectations that Essential Energy required of him in the future. 108
w) Under cross examination the Applicant accepted that on reflection his conduct at the Safety is Defense training was unacceptable and needed to be addressed 109 In evidence the Applicant also accepted that it is vitally important to participate fully and actively in all training and that in the performance of his role he was required to comply with Essential Energy’s Safety policies and procedures110.
x) It is alleged that the Respondent had already decided to issue the Final Warning to the Applicant prior to the investigation. This is denied. The investigation into the alleged conduct was instigated following an email from Greg White on 12 June 2018 to John O’Neill and Ray English, provided to the Commission at its direction on 16 January 2019. As a consequence the matter was investigated. The decision to issue the first and final warning was made after the investigation was finalised 111.
y) Any suggestion that the other warnings referred to as part of the decision to terminate the Applicant’s employment are invalid is denied.
z) Under cross examination the Applicant accepted that he received the 3 previous warnings and that on each occasion the evidence demonstrated that he was afforded procedural fairness prior to the warnings being issued 112. The warnings were issued following an appropriate investigation and clearly set out the expectations of the business in respect of the Applicant’s safety obligations in the future. It is submitted that given the decision to terminate the Applicant’s employment was as a consequence of a safety breach, the FWC is obliged to take into account the warnings in this matter.
aa) It is submitted that the FWC should find that the Applicant had been warned prior to the decision to terminate his employment.
Other Relevant Matters - Section 387(h) - Differential Treatment
bb) Much has been made by the Applicant of the alleged differential treatment between himself and Adam Moyle a line worker based in northern NSW.
cc) The Respondent acknowledges that it is established that differential treatment of similar conduct by an employer may be a legitimate basis for a finding that a dismissal is unfair 113. However it is submitted that the FWC must apply this principle with caution to ensure that the comparable case in which there was not a termination of employment is properly comparable.114 In particular it is submitted that when determining if there is a basis on which a finding that a termination was harsh, unjust or unreasonable, the FWC must be satisfied that that the cases that are advanced as comparable cases in which there was no termination to support such a finding must in truth be properly comparable. The evidence of the comparable circumstances must be sufficient to ensure that a proper comparison can be made.115
dd) It is submitted that there is not, in this case, sufficient evidence to enable a proper comparison to be made.
ee) Whilst both Mr Moyle and the Applicant failed to properly secure ladders to their Essential Energy vehicles, which resulted in the loss of the ladders, the disciplinary history of both employees was significantly different. In particular whilst Mr Moyle had been involved in a number of safety incidents in the 12 months prior to December 2017, the matters were significantly different to those engaged in by Beltrame, there was no evidence that Mr Moyle was individually responsible for those matters and a number of the matters did not warrant any further action 116. As a consequence Mr Moyle has not previously been subject to disciplinary action.
ff) In particular the evidence in clear that:
i. in respect of the vehicle collision within the Coffs Harbour depot (and not on a public road) that the incident was discussed with Mr Moyle and behavioural expectations about driving in depots was reinforced 117;
ii. there was no evidence available to determine with certainty how Mr Moyle lost traction. In these circumstances given the only evidence available was that Mr Moyle had operated the forklift safely, no action was taken 118.
iii. Essential Energy dealt with Mr Moyle’s speeding infringement in the same way that it has dealt with similar infringements across the business 119.
iv. Mr Moyle received a business expectations letter in respect of the Wire Winder incident following findings that a series of factors contributed to a lack of communication and co-ordination on the relevant job and Mr Moyle could not be held individually responsible for the incident 120.
v. After an investigation into the alleged failure to follow the Eight Step Switching Rule and failure to ensure a danger tag was placed on an isolation point, it was determined that the incident was attributable to an error and did not expose the participants on the job to danger. It was determined that this matter was due to the failings of the team and not just Mr Moyle 121.
vi. An investigation into how Mr Moyle damaged a vehicle after driving it into a drain, determined that there was long grass that would have obstructed Mr Moyle view of the terrain. As these types of incidents are not uncommon due to the difficult and challenging conditions in which employees can be required to drive, and do not generally result in disciplinary action, no action was taken in respect of Mr Moyle 122.
gg) The evidence is equally clear and shows that the Applicant made admissions in respect of his conduct, particularly with respect of the motor vehicle accident, the Safety is Defence training and the ladder incident, such that the conduct alleged could be directly attributable to him.
hh) It is submitted that the evidence shows that the various safety matters involving Mr Moyle are sufficiently different to those involving the Applicant, such that the two cases are not comparable.
ii) Under cross examination Mr Magann accepted that Mr Hawkins had no other disciplinary issues and has a good record. He agreed that Mr Hawkins’ situation is very different to Mr Beltrame 123.
jj) It is submitted that the factual circumstances between this application and the conduct of Mr Hawkins and Mr Moyle’s conduct are sufficiently different that the FWC is unable to make a proper comparison. It is submitted that as the matters referred to above are not comparable on the basis of the evidence presented that the differential treatment between the Applicant and Mr Moyle and Mr Hawkins, it is not open to the FWC to find on the basis of that differential treatment that Essential Energy’s decision to terminate the Applicant’s employment was unfair.
Other Relevant Matters - Section 387(h) - Weight of evidence
kk) It is submitted that little weight should be given to the evidence of the Applicant.
ll) The Applicant has provided 4 different versions of what he says occurred when he failed to secure the ladder to the Essential Energy vehicle.
mm) Under cross examination the Applicant was unable to confirm which of the 4 explanations he has provided was correct 124. One of the only common aspects of the 4 versions was the Applicant’s admission that he had failed to properly restrain the ladder. It is therefore submitted that other than the Applicant’s admission as to the safety breach, the remainder of his evidence should be given little if any weight.
Harsh, Unjust or Unreasonable
nn) The Respondent submits that whilst the FWC is obliged to consider each of the matters set out in section 387(a)-(h) of the FW Act, and consider the totality of the dismissal, it may give various degrees of weight to those matters. 125
oo) The Respondent submits that the termination of the Applicant’s employment was not harsh, unjust or unreasonable in the circumstances. In particular, the decision of the Respondent to terminate the Applicant’s employment:
i. was not unjust because the Applicant admitted the alleged safety breach;
ii. was not unreasonable because the evidence before the Respondent supported the conclusion;
iii. was not harsh on the Applicant because the dismissal was not an unreasonable or disproportionate response to the Applicant’s conduct and instead was proportionate to the gravity of the conduct.
pp) The Respondent submits that in considering whether the termination were harsh, unjust or unreasonable, the FWC should have regard to a broad of range of issues as outlined in Wayne Chadwick v Woodside Energy Limited 126.
qq) In applying the issues outlined in that decision to the circumstances of this case, the FWC should have regard to:
i. the safety procedures and policies that the Respondent’s employees are obliged to comply with and the importance of those procedures and policies;
ii. the emphasis that Essential Energy puts on safety due to the nature of the industry and the high risk to employees and others;
iii. the fact that the Applicant was involved in a direct breach of Essential Energy’s policies and procedures;
iv. the fact that the Applicant was aware of the focus on load restraint and the need to comply with Essential energy’s policies and procedures;
v. the fact that the requirement to ensure loads are properly restrained had been communicated to employees including the Applicant; and
vi. the fact that management carefully considered the appropriate action to take 127.
rr) The above considerations all support the conclusion that the termination of the Applicants employment was not harsh, unjust or unreasonable.
ss) In Parmalat Food Products Pty Ltd v Mr Kasia Wililo 128 the Full Bench of the FWC held that it is “anomalous that an employee found guilty of serious misconduct of breaching safety rules, and hence dismissed for a valid reason, after due process, could be considered to be harshly terminated in absence of discernible and significant mitigating factors”.
tt) No discernible or significant mitigating factors exist in this case.
uu) The Applicants clearly committed a serious breach of the Respondent’s Policy, a policy designed to ensure the safety of himself, other employees and the public in an industry that is classified as safety critical. As a consequence, the employment of the Applicant was terminated.
Remedy - Reinstatement
vv) The Applicant is seeking reinstatement and, in the alternative, then seeks to address the FWC on the issue of compensation. The Respondent submits that reinstatement of the Applicant to the position of Electrician Technician, or another position on terms and condition no less favourable than those on which the Applicant was employed immediately before they were dismissed is inappropriate in the circumstances.
ww) When considering reinstatement, the FWC must be satisfied that it is appropriate. This applies not only to the form of reinstatement, but whether it should be ordered at all. 129 This requires the FWC to have regard to all the relevant circumstances of the case relating to the employer and the employee and to evaluate the practicability of a reinstatement order in a common sense way.
xx) Mr Jenner in his statement sets out his concerns should the Applicant be reinstated. These include his concerns that the Applicant:
yy) does not understand the seriousness of his conduct and the risk his actions exposed to the general public and other employees;
i. has a history of poor safety practices despite being aware of Essential Energy’s safety policies and procedures;
ii. has a lax attitude to safety policies and procedures and that in circumstances where a failure to comply with the safety policy can be fatal, the Applicant may expose the Applicant’s colleagues and members of the public to a risk to their health and safety. 130
iii. It is also Mr Jenner’s view that reinstatement of the Applicant would send a damaging and negative message to the Respondent’s employees in Albury and the broader region, that safety policies can be breached without consequence. This is submitted would undermine Essential Energy’s message that safety is critical and non-compliance with safety policies is unacceptable.
iv. The Respondent submits that in determining the appropriateness or otherwise of a reinstatement order, the FWC must consider:
A. the safety obligations the Respondent has to its employees and the public;
B. the ongoing concerns about compliance by the Applicant with the Respondent’s policies particularly in relation to safety; and
C. that reinstatement of the Applicant to his role as Electrical Technician has the potential to expose him, the Respondent and members of the public to further risk.
zz) It has been recognised that 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. (see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186)
aaa) The Employment relationship relies on the maintenance of trust and confidence. In this case Essential Energy has completely lost trust and confidence in the Applicant.
bbb) The Applicant has demonstrated a pattern of inappropriate conduct and behaviour and in particular in relation to safety.
ccc) Given the Applicants’ conduct, the Respondent submits that an order for reinstatement is inappropriate when viewed against the evidence.
Remedy - Compensation
ddd) With respect to compensation, Essential Energy submits that no order for compensation should be made.
eee) Section 392 of the FW Act sets out the matters the FWC must take into account when determining the amount of compensation to be paid.
fff) It is submitted that should the FWC determine that it is appropriate that an order for compensation be made that the following factors should be considered:
ggg) From the 22 August 2018 up until the Applicant’s dismissal on 21 September 2018 he was on paid special leave and on termination received four (4) weeks payment in lieu of notice and any accrued entitlements that were due. Any additional remuneration earned by the Applicant since the termination of his employment should also be considered.
hhh) The Applicant has failed to put on any evidence about the work he has been doing or his earnings since his employment terminated with Essential Energy.
iii) The Applicant has obligations to mitigate his loss and has failed to inform the FWC of steps he has taken to mitigate his loss.
jjj) Despite the Applicant’s period of employment with Essential Energy, given the Applicant’s employment history and his disregard for Essential Energy’s safety policies and procedures, it is unlikely that the Applicant would have remained employed by Essential Energy for an extended period of time. Rather it is more likely that the Applicant’s anticipated period of employment would have been short.
kkk) The Applicant’s poor conduct contributed to his dismissal and should be a factor that contributes to the deduction of any amount ordered. (see Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080 and Mahony v Betchel Construction (Australia) Pty Ltd [2014] FWC 6294).
lll) Any amount should be reduced to account for contingencies including the Applicant’s poor employment record.
mmm) It is submitted that the Application should be dismissed.
[23] I will now consider each of the criteria at s.387 of the FW Act separately.
Valid reason - s.387(a)
[24] It is not for the Commission to ‘stand in the shoes’ of the employer but I am required to be satisfied that the termination of the employee was for a valid reason. 131 In order for the Respondent’s reason/s to be valid they should be “sound, defensible and well founded”132 and should not be “capricious, fanciful, spiteful or prejudiced.”133
[25] In deciding whether there was a valid reason relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred. 134
[26] The question is then, whether the conduct was sufficiently serious so as to justify dismissal.
[27] Where the employee’s conduct affects the safety and welfare of other employees the Commission may find that this is a valid reason for the dismissal. 135 The kind of conduct that is relevant need not only be wilful, malicious or intentional conduct, but conduct that can imperil or put other employees in the workplace in jeopardy.136
[28] Where safety issues arise the Commission may take into account the following issues when determining whether there has been a breach of safety:
a) the seriousness of the breach/incident
b) company policies setting out safety procedures and consequences for breaches
c) relevant OHS training by the employer
d) whether the incident/breach was isolated or recurring in nature, and
e) whether or not the employee concerned was a supervisor and expected to set an example. 137
[29] Finally (by way of a statement of relevant principles), the unfair dismissal provisions in the FW Act are intended to operate in a common sense way. The procedures and remedies and the manner of deciding and working out remedies are intended to ensure that a ‘fair go all round’ is accorded to the employee and employer concerned. 138
[30] In the present matter the Respondent operates in an environment where safety is important. That is not to say that every safety breach provides a valid reason for termination. The Respondent conceded as much when Mr Jenner gave evidence that, considered in isolation, none of the breaches engaged by the Applicant would have justified dismissal. 139
[31] The question about whether the Applicant’s conduct was sufficiently serious so as to justify dismissal must also be considered in light of what training the Applicant had. In the present matter the Applicant had been trained in safety matters. In particular there has been an emphasis on load restraints including:
a) Toolbox talks and the discussion of Safety Brief SB-800 Issue 27/07/2018 Load Restraint - Securing our Ladders. 140
b) Luke Jenner GM Customer & Network Services audio safety message contained in the Network Services weekly communications week beginning 30 July 2018 in relation to load restraints. 141
c) Fleet Awareness Presentation on Thursday 9 August 2018 that included the need to ensure that vehicle loads are properly restrained and are the responsibility of the driver.
d) Fleet roll-out of the electronic pre-operational inspection process on Thursday 9 August 2018. 142
e) Distribution of Southern Safety Message Titled “Load Restraint/Fleet Safety – Have We Got It Right?” dated 16 July 2018. 143
[32] I am satisfied that the following conduct was engaged in by the Applicant:
a) Incident 1 – Toolbox Incident on 25 July 2014 (warning issued on 21 January 2015).
b) Incident 2 – Bus Incident on 23 February 2017 (warning issued on 11 May 2017).
c) Incident 3 – Safety Training Incident on 6 June 2018 (warning issued on 31 August 2018).
d) Incident 4 – Ladder Incident on 21 August 2018 (termination on 21 September 2018).
[33] I am not satisfied that any of the incidents/conduct engaged in by the Applicant when considered in isolation would have provided a valid reason for termination.
[34] In particular, in my view, Incident 1 should not be in the mix at all. It does not justify a valid reason for termination and in combination with the other Incidents, adds nothing. Before me, Mr Jenner conceded that the applicant made a “stupid, off-the-cuff remark.” 144 By the time it came to be relied upon as a basis for termination in combination with other matters it was already more than four years old. It should have been treated as a stale breach. However, there is a real question about whether a warning should have been given at all. The Applicant made an inappropriate comment at a tool box meeting. He made a joke in poor taste about a colleague. The colleague was entitled to be offended. However, to characterise the breach as a safety breach is nonsense. The poor joke was made at a safety briefing but that does not make the breach a safety breach. It is also to be noted that it took the Respondent six months to issue a warning in respect of the matter. That is the priority that the Respondent gave the matter. Even that was too high. The giving of a formal warning in the context of the breach was disproportionate.
[35] However, Incident 2 in combination with Incident 4 while not providing a valid reason in their own right, in combination with each other do provide a valid reason for termination. This is because both incidents involve serious safety breaches only 18 months apart.
[36] Incident 2 occurred on 23 February 2017. The Applicant failed to report an accident that he had with a bus. The failure to report a motor vehicle accident is serious. Further, although the Applicant knew that he had collided with the bus he did not get out of his vehicle to investigate whether any damage was done to the bus. This is very concerning conduct.
[37] Incident 4 occurred on 21 August 2018. It is very clear, and the Applicant understood this to be the case, that it is the driver’s responsibility to ensure that ladders are secured. In the present matter, the ladder was put in place by another employee, but the Applicant failed to check it. By way of mitigation it was submitted that the Applicant was coming off having worked a 16 hour shift the day before. However, there is no suggestion that the Applicant was fatigued (although his evidence before me he did indicate he was tired). If he was fatigued then he should have not reported for work. It was also submitted that the loss of ladders is not uncommon. The evidence suggests that between 8-12 ladders go missing each year. However, that is not a basis for suggesting that the loss of a ladder is not serious. It is and it could have very serious repercussions for the safety of the general public. It is also very clear, as stated above, that the Respondent has invested a good deal of time and energy in seeking to train its employees about the importance of securing loads. The Applicant has participated in the training. It follows, while not all safety breaches will lead to termination, in circumstances where the Respondent has trained its employees, and despite such training, a breach still occurs, an employer is entitled to take disciplinary action. The Commission should not lightly interfere with the right of an employer to establish, maintain and enforce workplace health and safety policies.
[38] If Incident 4 was the only breach by the Applicant he would only have received a warning. But it is when Incident 4 is considered in combination with the other breaches (in particular Incident 2) that its seriousness increases.
[39] Coming then to Incident 3. It occurred on 6 June 2018 and involved the behaviour of the Applicant during safety in defence training. This is the Respondent’s flagship training program. During that training the Applicant was disrespectful to the trainers. I accept that the Applicant was discomfited by the content of the training and, further, that there was not sufficient warning given about the content of the training. However, while this explains the conduct of the Applicant, it does not excuse it. The Applicant indicated that he did not want to hear the content relating to suicide. He was entitled to that opinion. But, rather than engage in the behaviour he did he could have excused himself from the training in circumstances where it was causing him discomfort. He could have left the training and gone to a supervisor to explain why he had absented himself. The Applicant gave evidence that he pulled his hoodie over his head so colleagues would not see that he was crying. He also said that he did not leave because he did not want his colleagues to see his reaction. I reject that as an excuse for his behaviour. It is false machismo. I accept also that the Applicant apologised to one of the trainers.
[40] Having considered all the circumstances concerning Incident 3 I have decided that it adds something when considered in combination with Incidents 2 and 4. Incident 3 in combination with,
a) Incident 2, or
b) Incident 4,
would not have provided a valid reason for termination.
[41] Only when it is added to Incident 2 and Incident 4 (i.e. when the three are in combination) does it strengthen the validity of the reason for termination.
[42] The Respondent’s Annual Report highlights that a continuous improvement in safety, culture and performance is a key business objective (one of four). The Respondent is entitled to prioritise safety in this way. It has a legal obligation to do so.
[43] The combination of Incidents 2, 3 and 4 demonstrate, over an 18 month period, the Applicant’s inattentiveness to safety matters. Consequently, I find there was a valid reason for the dismissal arising out of the Applicant’s safety breaches.
Notification of the valid reason - s.387(b)
[44] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 145 in explicit terms146 and in plain and clear terms.147
[45] In the present matter the evidence clearly establishes that the Applicant was notified of the valid reason for his dismissal. This was conceded by the Applicant.
[46] I find the Applicant was notified of the reason for the dismissal.
Opportunity to respond - s.387(c)
[47] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 148
[48] In the present matter the evidence clearly establishes that the Applicant was provided with opportunities to respond to Incidents 2, 3 and 4. This was conceded by the Applicant.
[49] I find the Applicant was given an opportunity to respond to the reason for the dismissal.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[50] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[51] In the present matter there is no suggestion that the Applicant was denied the opportunity to have a support person.
[52] I find the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Warnings regarding unsatisfactory performance - s.387(e)
[53] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 149
[54] The termination in the present matter was not for a reason of unsatisfactory performance. The Applicant was dismissed because of a combination of conduct issues. Consequently, it seems to me s.387(e) is not relevant.
[55] However, if I am wrong with the consequence that Incidents 2, 3 and 4 are considered performance matters then, in any event, I would find that the Applicant was warned about his performance concerning safety matters.
Impact of the size of the Respondent on procedures followed - s.387(f)
[56] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[57] The absence of dedicated human resource management or expertise in the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
[58] In the present matter the parties agreed that ss.387(f)-(g) were neutral matters.
Other relevant matters - s.387(h)
[59] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.
[60] I consider the following matters weigh in favour of a determination that the dismissal was unfair:
a) The Applicant has worked for the Respondent for 16 years.
b) One of the warnings relied upon by the Respondent (in relation to Incident 1) was not properly characterised as a safety incident and was disproportionate to the conduct engaged in.
c) The Applicant’s family circumstances necessitate that he stays in Albury and therefore he is unable to move to find alternative employment.
d) Had the police pulled over the Applicant and fined him for failing to secure a load (i.e. the ladder) he would have been fined no more than $2,200. It is therefore obvious that the financial penalty he has suffered (through the loss of his job which paid him nearly $87,000 per annum) has been significantly more.
e) The Applicant was honest about the loss of the ladder and disclosed it.
f) As a regional centre, Albury has limited work opportunities particularly at the rate of pay the Applicant was being paid.
[61] I consider the following matters weigh against determining that the dismissal was unfair:
a) The Applicant received three warnings within an 18 month period.
b) All the breaches can properly be characterised as relating to safety issues.
c) Safety is an important issue.
[62] Finally I should address the submissions, made on behalf of the Applicant, that the Respondent applied inconsistent treatment to the Applicant when compared with other employees who engaged in safety breaches.
[63] Having considered the circumstances of the other employees I’m not satisfied that there was inconsistent treatment or that the comparisons could be likened to comparing “apples with apples”. The other employees did not have the same pattern of breaches over an 18 month period as the Applicant. The Applicant was treated differently in relation to the loss of ladder because this was the third occasion in 18 months that he engaged in a safety breach. An “expectations letter” is something that he too could have expected if it was his first breach. However, it was not.
[64] On the face of the documents, it is the experience of Mr Moyle that appears to stand out as the greatest example of inconsistent treatment. However, when further consideration is given to the circumstances of the breaches (as detailed in the evidence of Mr Neyland), the apparent litany of breaches engaged in by Mr Moyle fall away.
[65] For these reasons, I am not satisfied that there was inconsistent treatment and I do not consider the treatment of the other employees as relevant in the present matter.
Conclusion
[66] Having considered each of the matters specified in s.387, and balancing those matters that are in favour of finding that the dismissal was unfair and those matters that are against such a finding it is necessary, in the exercise of my discretion, to determine if the dismissal of the Applicant was harsh, unjust or unreasonable.
[67] In the present matter the termination might be considered unjust if, for example, the Applicant did not engage in the conduct alleged against him. However, I have already found that the Applicant did engage in the conduct alleged against him (Incidents 2, 3 and 4). He did not deny it. For this reason the termination was not unjust.
[68] Further, if the termination was decided upon inferences not open to the Respondent, it would be unreasonable. In the present matter the evidence about the Applicant’s breach of policy was clear and unequivocal. For this reason the termination was not unreasonable.
[69] That brings me to consider whether, all things considered, the termination was harsh. Even accepting the impact on the Applicant (i.e. the significant personal and economic consequences for Mr Beltrame), the three breaches I have treated in combination with each other demonstrate a pattern of behaviour constituting a disregard for safety. I give weight to the pattern (over 18 months) of safety breaches because safety is of great importance. In combination, Incidents 2, 3 and 4 are significant. Consequently, I am not satisfied that the decision to dismiss the Applicant was disproportionate to the gravity of Mr Beltrame’s breaches. Consequently, I am also not satisfied that the dismissal was harsh.
[70] The Commission, as presently constituted, is satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. Accordingly, I find the Applicant’s dismissal was not unfair.
[71] Consequently the UFD Application is dismissed. An order will be issued with this decision.
COMMISSIONER
Appearances:
Ms A Polities, ETU NSW, for the Applicant
Mr J O’Neill, for the Respondent
Hearing Details:
15 January 2019 in Sydney
18 January 2019 in Melbourne via video conferencing to Sydney
Final Submissions:
1 February 2019
Printed by authority of the Commonwealth Government Printer
<PR707075>
1 Statement of Andrew Beltrame filed 3 December 2018, paragraph 6.
2 As above, paragraph 8.
3 Statement of Luke Jenner, filed 17 December 2018, paragraph 8.
4 As above, paragraph 9.
5 Andrew Beltrame statement, paragraph 14 and attachment 8 to "LJ-5".
6 Attachment 7 to "LJ-5".
7 As above, paragraph 21.
8 As above, paragraph 21.
9 As above, paragraph 49.
10 As above, attachment A.
11 See reference to response in attachment 9 to "LJ-5".
12 As above, attachment C.
13 As above, paragraph 72.
14 As above, paragraph 75.
15 Luke Jenner statement, paragraph 16.
16 Luke Jenner statement, paragraph 27 and "LJ-7".
17 As above, paragraph 36.
18 Luke Jenner statement, paragraph 26 and "LJ-5"..
19 Attachments 5 and 6 to "LJ-5".
20 Andrew Beltrame statement, attachment F.
21 Statement of Steve Magann filed on 21 December 2018, attachment A.
22 As above, attachment B.
23 Sayer v Melsteel[2011] FWAFB 7498.
24 Exhibit 1 at [4]
25 Ibid at [6]
26 Ibid at [8]
27 Ibid at [4]
28 Exhibit 7 at [26] page 13 page of attachment LJ-5
29 Transcript of 15 January 2019 PN235 and PN534
30 Transcript of 15 January 2019 PN235 and PN534
31 Ibid PN235
32 Ibid PN534
33 Exhibit7 at [26] Attachment LJ 5 page 14
34 Exhibit 1 at [16] – [18]
35 Exhibit 1 at [64] Attachment C
36 Exhibit 1 at [37]
37 Exhibit 1 at [56] Attachment A
38 Exhibit ] at [31]
39 Transcript of 15 January 2019 PN931
40 Exhibit 1 at [32]
41 Ibid at [34]
42 Ibid at [35]
43 Ibid at [40]
44 Ibid at [41]
45 Ibid at [42]
46 Transcript of 15 January 2019 at PN651
47 Ibid
48 Ibid at PN1029
49 Exhibit 12
50 Transcript 15 January 2019 at PN1471
51 Exhibit 12 at page 4
52 Exhibit 1 at [46]
53 Exhibit 7 at [56] Attachment LJ-10
54 Transcript 15 January 2019 at PN411
55 Ibid at PN414
56 Ibid PN415
57 Exhibit 1 at [70]
58 Transcript 15 January 2019 at PN1101
59 Transcript 18 January 2019 at PN1305
60 Exhibit 5 at [10] Attachment A
61 Transcript 18 January 2019 at PN1549 the evidence of Mr Neyland and Exhibit 5 at [7]
62 Exhibit 5 at [6]
63 Exhibit 10
64 Exhibit 5 at [12] to [15]
65 Transcript of 18 January 2019 at PN1305
66 Transcript of 15 January 2019 at PN743
67 Exhibit 1 at [71]-[73]
68 Ibid at [75]
69 Transcript 18 January 2019 at PN1552 to PN1555
70 Transcript 15 January 2019 at PN437
71 Sirijovski v Bluescope Steel Ltd [2014]FWCFB 2593
72 Ibid at [42]
73 Ibid at [43]
74 Exhibit 1 at [50] to [66]
75 Ibid at [53]
76 Ibid at [39]
77 Ibid at [42]
78 FWCFB 2593 at [43]
79 Exhibit 12
80 Sexton v Pacific National (ACT) Pty Ltd , PR931440(AIRC, Lawler VP, 14 May 2003) at [33]
81 Ibid at [36]
82 Exhibit 1 at [66]
83 Exhibit 7 at LJ-10
84 Nguyen v Vietnamese Community in Australia t/s Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 [17].
85 Exhibit 2 - Applicant's outline of submissions [40]
86 Exhibit 2 - Applicant's outline of submissions [41]
87 Exhibit 2 - Applicant's outline of submissions [44]
88 [2011] FWA 3307
89 [2012] FWA 4480
90 [2010] FWA 2693
91 [2010] FWA 1424
92 [2013] FWC 5303 at [66]
93 See Exhibit 7 - LJ-1
94 See Exhibit 7 - LJ-2
95 See Exhibit 7 - LJ-3
96 See Exhibit 7 - LJ-4
97 See Exhibit 7 - attachment 6 to LJ-5.
98 Exhibit 3 - [72] Statement of Andrew Beltrame dated 2 December 2018
99 Exhibit 3 - [77] Statement of Andrew Beltrame dated 2 December 2018.
100 Exhibit 7 -See LJ-10, page 2, [3] Essential Energy's Code of Conduct, [14]- [16] and [68(c)] of Luke Jenner Statement dated 17 December 2018.
101 BlueScope Steel Limited v Peco Sirijovksi[2014] FWCFB 2593 [36].
102 Ibid [42].
103 BlueScope Steel Limited v Peco Sirijovksi[2014] FWCFB 2593 [37].
104 Exhibit 7, LJ5 - Attachment 7
105 Exhibit 7, LJ5 - Attachment 8
106 Exhibit 7, LJ5 - Attachment 9
107 Transcript PN859
108 Exhibit 3 -Attachment C Statement of Andrew Beltrame dated 2 December 2018
109 Transcript PN 356 and PN 362 and Exhibit 3 -Attachment B Statement of Andrew Beltrame dated 2 December 2018
110 See transcript PN107 - PN108 and PN111
111 See Exhibit 12
112 See Transcript PN238 - PN239 and PN 399 - PN401
113 Linfox Australia Pty Ltd v Stutsel[2012] FWAFB 7097 at [32]-[33]
114 Darvell v Australian Postal Corporation [2010] FWAFB at [21] - [24].
115 Sexton v Pacific National (ACT) Pty Ltd (Lawler VP, PR931440 at [36]).
116 Statement of Brendan Neyland [9(a)] to [9(f)].
117 statement of Brendan Neyland [9(a)]
118 statement of Brendan Neyland [9(b)]
119 statement of Brendan Neyland [9(c)]
120 statement of Brendan Neyland [9(d)]
121 statement of Brendan Neyland [9(e)]
122 statement of Brendan Neyland [9(f)]
123 See Transcript PN740 - PN743
124 See Transcript PN508
125 Briggs v Cockburn Cement Limited[2011] FWA 7160
126 [2001] FWA 2890
127 Exhibit 7 - Paragraphs [26] - [61] of Luke Jenner's statement dated 17 December 2018
128 [2011] FWAFB 1166
129 Patterson v Newcrest Mining Ltd (1996) 68 IR 419 at 420
130 Exhibit 7 - [68] of the Statement of Luke Jenner dated 17 December 2018
131 Miller v University of New South Wales [2003] FCAFC 180 (14 August 2003) at para.13, [(2003) 132 FCR 147]. See also Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267 (12 June 1996), [(1996) 142 ALR 681 at p. 685].
132 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
133 Ibid.
134 Edwards v Justice Giudice [1999] FCA 1836 (23 December 1999) at paras 6–7, [(1999) 94 FCR 561]. See also Rail Corporation New South Wales v Vrettos [2008] AIRCFB 747 (Kaufman SDP, McCarthy DP, Blair C, 8 October 2008) at para. 27, [(2008) 176 IR 129]; Container Terminals Australia Limited v Toby, Print S8434 (AIRCFB, Boulton J, Marsh SDP, Jones C, 24 July 2000) at para. 13.
135 The AWU-FIME Amalgamated Union v Queensland Alumina Limited [1995] IRCA 346 (17 July 1995), [(1995) 62 IR 385]; cited in Tenix Defence Systems Pty Ltd v Fearnley, Print S6238 (AIRCFB, Ross VP, Polites SDP, Smith C, 22 May 2000) at para. 22.
136 Gottwald v Downer EDI Rail Pty Ltd [2007] AIRC 969 (Richards SDP, 30 November 2007) at para. 102. See also Hudson v Woolworths Ltd [2007] AIRC 912 (Thatcher C, 24 October 2007).
137 Butson v BHP Billiton Iron Ore Pty Ltd [2010] FWA 640 (McCarthy DP, 1 February 2010).
138 Fair Work Act 2009 (Cth) s.381(2).
139 Transcript PN882.
140 See Exhibit 7 - LJ-1.
141 See Exhibit 7 - LJ-2.
142 See Exhibit 7 - LJ-3.
143 See Exhibit 7 - LJ-4.
144 Transcript PN870.
145 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
146 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
147 Previsic v Australian Quarantine Inspection Services Print Q3730.
148 RMIT v Asher (2010) 194 IR 1, 14-15.
149 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
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