Antony Batchem v Water Corporation - [2016] FWC 9088

[2016] FWC 9088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Antony Batchem

v

Water Corporation

(U2016/3877)

Commissioner Cribb

MELBOURNE, 21 DECEMBER 2016

Application for relief from unfair dismissal.

Mr Antony Batchem (the Applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in relation to his dismissal, on 30 December 2015, by the Water Corporation (the Respondent, the Corporation).

The application was listed for conciliation, but it did not proceed at the request of the Respondent. Hearings took place on Friday 29 April 2016 and Tuesday, 28 June 2016. Written closing submissions were filed by the Applicant on 28 July 2016 and the Respondent’s closing submissions were filed on 17 August 2016. Closing submissions in reply were then filed by the Applicant on 5 September 2016.

Witness evidence was given by Mr Batchem. For the Water Corporation, Mr C Cooper, Maintenance Supervisor; Ms M Domurad, Waste Water Operations Manager; Mr T Brown, Operations Team Leader, Plant Operations, Kwinana/Mandurah and Mr I Ross, Plant Manager, Kwinana and Mandurah Waste Water Plants and Mr A Dewort, People and Safety Manager.

Mr Batchem was represented by his wife, Ms S Gray whilst the Water Corporation was represented by Ms S Maddern, solicitor.

In order to expedite the issuing of a decision in this matter, a summary of all the witness evidence (oral and written) and the submissions will not be provided. However, it is to be noted that all of the material before the Commission has been carefully considered.

Introduction

Mr Batchem was dismissed by the Water Corporation, on 30 December 2015, for misconduct in relation to a data manipulation breach and a working hours breach[1].
It was suggested by the Respondent that it was common ground that the central issue in this matter is whether there was a valid reason for Mr Batchem’s dismissal. However, it was disputed by Mr Batchem that sections 387(b) to (h) were complied with by the Respondent. This contention was rejected by the Respondent.

In its closing submissions, the Respondent submitted that it was possible to identify a number of factors which were said to not be in dispute[2]. The Applicant challenged some of the statements[3].

However, it was undisputed that, with respect to the question of whether there was a valid reason for the dismissal, this concerns two issues - the data manipulation issue and the working hours issue. In relation to these two issues, it appears to be common ground between the parties that:

·   the Respondent’s Kwinana Waste Water Reclamation plant (KWRP) is a waste treatment plant which treats wastewater for industrial use in the Kwinana area. The KWRP is listed on the critical asset register of the State of Western Australia[4].
·   Mr Batchem was employed as a Process Coordinator at the KWRP.
·   When rostered on-call/standby after hours, Mr Batchem was required to remotely monitor the operation of the KWRP by logging into the system on his work laptop. If Mr Batchem was unable to resolve the issue remotely, Mr Batchem would then attend at the relevant site[5].
·   on 3 November 2015, Mr Batchem was on standby.
·   On 3 November 2015, at around 7pm, the high alarm set points of the chlorine analyser for the post contact tank and the reverse osmosis feed tank at the KWRP were altered by a person using Mr Batchem’s work-issued laptop and login details (data manipulation issue)[6].
·   The KWRP Plant shut down as a result of the alteration of the high alarm set point of the reverse osmosis feed tank which triggered an alarm. The same did not occur in relation to the post contact tank because the alarm system in that tank was not functioning that evening[7].
·   the Operations Control Centre contacted Mr Batchem and advised that the plant had shut down[8].
·   Mr Batchem attended the site to restart for plant (first call out)[9].
·   on restarting the plant, Mr Batchem called Mr Cooper who was the Duty Incident Manager to advise him that he was approaching his fatigue management limit (12 working hours in a 24 hour period)[10].
·   at around 3:20am on 4 November 2015, Mr Batchem received a second call from the Operations Control Centre advising that the KWRP had shut down again[11].
·   Mr Batchem returned to the plant to rectify the problem (second call out)[12].
·   there is a question as to whether or not Mr Batchem had been authorised by Mr Cooper to attend the site for a second time (working hours issue)[13].

Legislative requirements

Section 387 of the Act sets out the criteria that the Commission must take into account in considering whether the dismissal was harsh, unjust or unreasonable. It provides as follows:

“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.”

I will consider each of the criteria in turn.

Section 387(a) - a valid reason for the dismissal?

As indicated in paragraph 9 above, there were two reasons for Mr Batchem’s dismissal – the data manipulation issue and the working hours issue, together with Mr Batchem’s dishonesty in the course of the investigation[14]. The Respondent stated that, if the Commission is unable to make a finding that the working hours issue provides a valid reason for the dismissal, the data manipulation issue alone was said to constitute a valid reason[15].
The Applicant contended that the dismissal was not based on a valid reason and that Mr Batchem’s responses were immediately discounted with little or no concrete consideration[16].

I will deal with each of these two issues in turn.

1. Data manipulation issue

It was common ground that the high alarm set points for the post contact tank and the reverse osmosis feed tank were altered remotely from Mr Batchem’s work laptop with Mr Batchem’s login details, whilst Mr Batchem was at home on standby on 3 November 2015. The issue for determination by the Commission is whether or not Mr Batchem deliberately altered the high alarm set points.

Mr Batchem’s evidence was that he did not alter the alarm set points on 3 November 2015 and then forgot to delete those logs[17]. Mr Batchem confirmed that, in his first written response on 3 December 2015, he had said that it was his 10 year old son who had changed the set points[18]. It was stated by Mr Batchem that his 10 year old son, (and his 8 year old son), had sat on his lap and had watched him monitor the plant remotely when on standby, for years. Mr Batchem said that his 10 year old son has almost a perfect a photographic memory and that it was not implausible for him to have done it.

It was explained by Mr Batchem in the following terms:

“As far as the time line going for the four minutes, the only thing I can work out is because he has shut the plant down, it has gone red, he has panicked and bolted, and because I hadn't had the phone call, I was actually out the front of the house with my wife at the car, and then he has come back and then reset the thing. That's the only way we can work it out. It's the only way I can explain it, but my children can sit there and - they know the system very well, so that's why I believed him when he said that he did it. I actually questioned my youngest son. We were questioning my youngest son, my eight-year-old, because he's more computer savvy than anyone else in the house. We questioned him about that and he continually denied it. And then on the Wednesday morning when we questioned him again, that's when our eldest son turned around and said, "No, it was me." And we asked him what he was doing, he says, "Well, I was playing around, being dad at work." And we haven't questioned him on that ever since because I knew from that moment that I was being - my job was being terminated. I knew from the moment I received the letter - the first letter - that I had lost my job. And I will not put my son through that, I will not let my son think for the rest of his life that he cost me my job. You know, that's a big thing to live with and I won't let him live with that. So as far as exactly what he did, I don't know. Is it plausible? Yes, it is, because that's what he said he did. As far as figures and everything else go, I don't know where he got them from. As I said, he sits beside me or he sits on my lap and watch me work. He knows exactly what to do. He probably knows how to operate that system better than Ian Ross does, but, you know, that's all I can say. That's the truth as far as I know it, and that's - I can't pluck something out of thin air.”[19]

In addition, Mr Batchem explained that the sequence of events on 3 November 2015, shortly before 7pm, was that, whilst he was logged onto the system, he was called to provide assistance to his wife who had a fractured ankle. He had briefly left his laptop unattended and he had then received a call from the Aroona Central Operations desk advising him that the plant had shut down. Mr Batchem stated that he had returned to his laptop and found it had shut down. Mr Batchem had rebooted the laptop and had attempted to login but was unable to do so. This had resulted in him having to proceed to the site and restart the plant.[20]

Mr Batchem stated that the changes to the high alarm set points for the reverse feed tank analyser and post contact analyser were extremely odd. Mr Batchem said that the plant had shut down on the RO feed changes and that he had had a look to check. Mr Batchem explained that he was in a hurry to try and get things fixed up because he had just had a blasting from his wife because he had to go to work. Mr Batchem said that he had therefore got it fixed as quickly as he could and got the plant up and running[21]. It was stated by Mr Batchem that he thought it was odd but that he did not look at the specific changes because he did not think anyone had made a change[22].
Mr Batchem recounted that, the next morning (4 November 2015), he contacted Mr Romano when he woke up. It was said that he had advised Mr Romano that he had had a “strange” callout the previous night and asked that Mr Reid be requested to review the incident as he was unable to explain what had closed the plant down[23].
It was also Mr Batchem’s evidence that he had left his laptop unattended in the active mode and that he had always left it in the active mode. This was because he believed that the laptop was fairly secure in his home on the dining table. Mr Batchem said that, prior to 3 November 2015, he had never had an issue with his children playing with his work computer. It was stated that he had just been making sure that everything was okay at the plant and had then walked from there to the bedroom to assist his wife get ready for work[24].

Ms Gray (Mr Batchem’s wife) provided a witness statement which stated that, on the evening of 3 November 2015, she was urgently due to attend the workplace as her contract was scheduled to terminate the next day, on 4 November 2015. This was said to have been the first opportunity for her to do so since she fractured her ankle[25].

On the other hand, the Respondent contended that, on the balance of probabilities, Mr Batchem himself had changed the high alarm set points. This was said to be on the basis that the numbers typed in were not random or meaningless but were precise numbers which were guaranteed to trigger an alarm and cause the KWRP to shut down[26].
In support of this contention, Mr Ross gave extensive and detailed evidence and also demonstrated, for the Commission, his view as to how the changes to the set points were made on 3 November 2015. It was Mr Ross’s view that a child could not have made the particular changes. Mr Ross stated that, in his opinion, if it was just a random kid mucking around, he would have expected a whole multitude of stuff to be done, not just the targeted points. Mr Ross also commented that he did not see it as being random[27]. It was also Mr Ross’s evidence that, at the time he was advised about what had happened, on the information before him, he had considered that the only likely explanation was that Mr Batchem had deliberately changed the set points[28].

Ms Domurad gave evidence that the evidence that pointed to the conclusion that Mr Batchem had changed the alarm set points deliberately[29]. Ms Domurad formed the view that Mr Batchem’s responses to the allegation were not credible and she considered that Mr Batchem was being dishonest. In her witness statement, Ms Domurad stated that:

“His explanation that his 10 year old son had triggered the alarm, simply defies belief.”[30]

It was Ms Domurad’s oral evidence that she found it very incredible to understand that a 10 year old child can do this[31].
Ms Domurad considered that Mr Batchem was being dishonest when he said that his 10 year old son had made the alterations[32]. It was said by Ms Domurad that she had not met the 10 year old son[33]. It was explained by Ms Domurad that it was her assumption that the 10 year old could not have made the changes. This was said to be on the basis of her knowledge of the control system and how difficult it is to find the relevant set points etc.[34] Ms Domurad acknowledged that she did not have a lot to do with children these days but confirmed that the basis of her assumption was her knowledge of the control system and the difficulty in making the changes[35]. It was stated by Ms Domurad that, in her opinion, it was impossible for a child to make those changes[36].

It was also Ms Domurad’s evidence that she made the decision to dismiss Mr Batchem based on the evidence presented to her. The overwhelming evidence from the investigation was said to be of tampering of the alarms and that she had also considered Mr Batchem’s explanation in relation to the changes. The latter (Mr Batchem’s explanation) was stated to be a deciding factor in her decision making[37]. The evidence was stated to be that the tampering of the set points was done under Mr Batchem’s password and that the set points were tampered with in order to raise the alarm[38].

Mr Derwort, in his witness statement, said that, in deciding to dismiss Mr Batchem, the Respondent had determined that Mr Batchem had deliberately altered the alarm set points without authorisation and had lied to the investigators when he had responded to the allegations[39]. It was also stated by Mr Derwort that other factors were taken into account in deciding to dismiss Mr Batchem, rather than give a lesser penalty. These were Mr Batchem’s prior warning for falsifying timesheets; Mr Batchem’s attitude that he did not want to be part of the Alliance or part of the team and Mr Batchem’s persistent belief that people were out to get him which led to his inability/unwillingness to accept responsibility for his conduct[40].

In his oral evidence, Mr Derwort stated that Mr Batchem was dishonest because his explanation that his 10 year old son had made the changes was not plausible. Mr Derwort explained that, on the basis of what he understood was required to shut the plant down, it seemed completely implausible that a 10 year old could do that[41].

In addition, the Respondent submitted that, if the Commission accepted that Mr Batchem’s son had changed the alarm set high points, it was still serious misconduct by Mr Batchem. This was because he was responsible for the security of the work laptop and the data on it. It was argued that Mr Batchem’s son had been able to cause the shutdown of an asset listed on the State critical asset register because Mr Batchem had left his work laptop logged on and unattended. The Respondent contended that it was an act of negligence on the part of Mr Batchem because his act of neglect had the potential to cause considerable damage to the employer, their property or their employees[42].

It was common ground that the high alarm set points for the post contact tank and the reverse osmosis feed tank were altered remotely from Mr Batchem’s work laptop on 3 November 2015. Because the alarm was not operational on the post contact tank at the time, this alarm did not trigger but the alarm on the reverse osmosis feed tank triggered and the plant shut down. As indicated earlier, the question for the Commission to determine is whether or not Mr Batchem deliberately altered the high alarm set points on these two tanks. I have carefully considered all of the material before me regarding this issue. I find that Mr Batchem did not alter (deliberately or otherwise) the high alarm set points as alleged by the Respondent. I accept Mr Batchem’s evidence that it was his 10 year old son who changed the high alarm set points. I also accept Mr Batchem’s evidence as to why it was possible for his son to have done so.

In addition, there is no evidence before me that substantiates the Respondent’s contention that Mr Batchem deliberately altered the high alarm set points in order to generate a situation whereby Mr Batchem would be required to attend the plant and receive the additional payment as a result of a call out. In my view, the evidence points against this being the situation. Because Mr Batchem was required to attend the plant after the alarm triggered and the plant shut down, Ms Gray was unable to attend at her workplace that night. Mr Batchem gave evidence that he had received a “blasting/copped a razzing” from his wife because he had to go to the site[43]. This is accepted.

The Respondent also submitted that Mr Batchem’s actions, in leaving his work computer logged on and accessible to his 10 year old son, constituted serious misconduct. This was because Mr Batchem was responsible for the security of the work computer and the data contained therein. The concerns of the Respondent, in Mr Batchem leaving the work laptop in active mode and unattended, are acknowledged. However, in all of the circumstances of what happened around 7pm on 3 November 2015, I do not consider that Mr Batchem was being negligent in leaving his laptop active and unattended for a short period of time. The reason Mr Batchem left his laptop was that he was required to provide assistance to his wife who had a broken ankle so that she could attend her workplace. Mr Batchem’s actions were unremarkable (although in hindsight- not wise) in that he left his laptop in active mode, on the dining room table in a family situation, for a short period to assist his wife go to work. Mr Batchem’s actions in unwisely leaving his laptop whilst in active mode are not condoned. However, it does not to provide a valid reason for his dismissal.

2. Working hours issue

One of Aroona Alliance’s policies is the Working Hours Standard which provides that employees are not permitted to work more than 12 hours in a 24 hour period without prior approval from a supervisor or plant manager. Approval will only be given in extreme circumstances where the supervisor or plant manager is satisfied that it is safe for the employee to do so[44]. It is clear from the evidence that fatigue management is taken very seriously by the Respondent. Mr Batchem’s evidence was that he was aware of the 12 hour rule.

It was contended by the Respondent that Mr Batchem contravened the Working Hours Standard when he attended a second call out at around 3:20am on 4 November 2015. Further, the Respondent argued that, in attending the second call out, Mr Batchem had failed to follow Mr Cooper’s clear, lawful and reasonable direction that Mr Batchem was not to attend any further callouts and was, if possible, to complete telemetry calls only to resolve issues with the plant[45]. It was submitted that, even if the Commission does not accept that Mr Cooper clearly instructed Mr Batchem as to what he was to do, it was irrefutable that Mr Cooper was, at least unclear, during the second telephone call with Mr Batchem[46].

On the other hand, it was Mr Batchem’s submission that he did not exceed the 12 hour limit as he had been given approval by Mr Cooper for the excess hours[47].

Central to deciding the question whether or not Mr Batchem exceeded the 12 hour working hour limit, are the conversations that took place between Mr Batchem and Mr Cooper on the night of 3 November 2015. It was Mr Batchem’s evidence that, around 9pm, after he had restarted the plant, he had telephoned Mr Cooper and advised him that he was approaching his 12 hour fatigue management limit and asked whether Mr Cooper wanted to try to contact somebody so he could re-divert the phone to them[48]. About 15 minutes later, Mr Batchem called Mr Cooper again and Mr Cooper advised that there was no relief available[49]. Mr Cooper was said to have then told Mr Batchem that, as he was approaching his 12 hour limit, he was to try and solve any further issues that arose remotely using telemetry[50]. Mr Batchem recalled that he had told Mr Cooper that this was likely not a viable option as he had experienced difficulties logging on remotely and his inability to access the system remotely had resulted in his current site visit[51].

Mr Batchem recalled that Mr Cooper had been told him that he still had 2 hours that he could use him for and to call him if there were any dramas[52]. It was stated that Mr Batchem believed that he was given permission to go to 14 hours and that, if he was nearing the 14 hour limit and looked likely to require more time, he should call Mr Cooper again[53].With respect to Mr Cooper’s entry in the duty incident manager’s diary on 3 November 2015, about the discussions between Mr Cooper and Mr Batchem, Mr Batchem said that he could not tell what Mr Cooper was thinking when he wrote his entry[54].

It was Mr Cooper’s evidence that he had made the diary entry as soon as he arrived at work at 6:30 AM the next morning. Mr Cooper confirmed that the diary entry was an accurate reflection of his conversation with Mr Batchem in terms of what he said to Mr Batchem as he recalled it the next morning[55]. Mr Cooper conceded that the diary entry indicated that he only received one call from Mr Batchem when he had received two calls[56].

Mr Cooper gave evidence that he was quite shocked to find out the next day that Mr Batchem had attended a second call out. This was said to be because he expected to have had another call if there was another problem[57]. Mr Cooper indicated that telemetry calls do count as work. It was his view that there was enough of a buffer between the 12 hours and the 14 hours to allow for a few telemetry calls. If that was defined as work, Mr Cooper agreed that he had effectively authorised Mr Batchem to go to 14 hours but not on-site[58].

It was Mr Cooper’s evidence that, when Mr Batchem first called him, Mr Batchem had told him that he had been on a callout and that he was about to reach 12 hours and what would he (Mr Cooper) like him to do[59]. Mr Cooper explained that when he responded, he was thinking out aloud a little while and was thinking to himself. He then said that Mr Batchem had reached 12 hours and that, if he needed Mr Batchem to go to 14 hours, it would have to be something very important. Mr Cooper said that he was bouncing things off Mr Batchem – that he (Mr Batchem) has reached 12 hours. He could use him (Mr Batchem) for 14 if he needed to (for emergency type work) but that he didn’t really want to do that. Mr Cooper explained that he was talking to Mr Batchem, trying to get feedback[60].

Mr Cooper indicated that Mr Batchem could have possibly construed, from the way he was talking, that he (Mr Batchem) had permission to do whatever needed to be done for another 2 hours. Mr Cooper stated that the call had ended with him saying that he was going down the option of only using him (Mr Batchem) on telemetry and that he didn’t want him (Mr Batchem) to go out for another call. Mr Cooper said that he did not say those words exactly though. It was explained that he (Mr Cooper) would have expected Mr Batchem to understand that he did not want him to go out on another call because Mr Batchem had already reached 12 hours and he thought that Mr Batchem knew that another call would make him go close to 14 hours, if not over. This was even though, in talking about the options, he had said that he still had 2 hours up his sleeve with Mr Batchem[61].

Mr Cooper recalled that he told Mr Batchem that he was going to ring around to see if there were any other operators who could take over Mr Batchem’s duties[62]. It was recounted by Mr Cooper that, following calling to people, he was thinking about who to call next when Mr Batchem rang back. He told Mr Batchem that he was unable to find anyone. Mr Cooper stated that he made sure that the callout was finished and then told Mr Batchem to go home and take any further calls, but only telemetry. If there was a need for him to go out, Mr Batchem was to call him back[63]. Mr Cooper did not recall Mr Batchem having told him that he was having trouble logging in remotely because he would not have told Mr Batchem to monitor telemetry[64]. Mr Cooper agreed that Mr Batchem had definitely not said anything about this[65].

It was stated by Mr Cooper that he was sure that he did not give Mr Batchem permission to attend the plant for a second call out[66]. Mr Cooper indicated that he did not say to Mr Batchem that he was only to do to telemetry up to 12 hours. It was explained by Mr Cooper that, when he instructed Mr Batchem to only do telemetry, it was with the intention of having one telemetry callout. If Mr Batchem could not resolve the issue at that time, Mr Batchem was to call him because he would need to go out onto site. It was explained that he had not mentioned the fact that, if the telemetry calls were over the 14 hour mark, Mr Batchem was to call him back. Mr Cooper said that he had not mentioned that because Mr Cooper had assumed that Mr Batchem knew that limit[67].
Mr Cooper explained that it was a new event for him – operations guys and callouts/telemetry. This was because all his callouts were generally with the maintenance guys and they don’t do telemetry callouts. Mr Cooper admitted that he did not tell Mr Batchem at the time that, if he did monitor the telemetry call and it fixes it, that is fine and then you can do another one. He had assumed that, if Mr Batchem’s telemetry calls went over/were close to 14 hours, Mr Batchem would know to call him and tell him that there were problems[68]. It was recounted by Mr Cooper that he had not told Mr Batchem that he was done when Mr Batchem called him at 9 PM. This was because there was still time left for Mr Batchem to go home and take a telemetry call. Mr Cooper said that he had assumed one call and that, if there was more than one call, Mr Batchem would have rung him back[69].

In relation to the first call from Mr Batchem, it was conceded by Mr Cooper that he did not remember word for word Mr Batchem’s side of the conversation. Mr Cooper indicated that he could only remember Mr Batchem telling him that the initial problem had been fixed – in response to a question from himself. Other than that, Mr Cooper said that he did not remember any other conversation along that line. Mr Cooper agreed that he was clearer about what he had said to Mr Batchem[70].

With respect to the second conversation with Mr Batchem, Mr Cooper explained that he did not remember the full conversation nor Mr Batchem’s exact words. Whether there were logging in issues would not have been brought up, otherwise, that would have influenced his decision to let Mr Batchem take telemetry calls. Mr Cooper said that he did not remember Mr Batchem raising any issues with him about login problems[71].
Mr Cooper conceded that he was trying to piece the conversation together in retrospect and that Mr Batchem must not have said that he had login problems because, if he had told him that, he would not have then said to do telemetry calls. It was conceded by Mr Cooper that, beyond that sort of logical trail, he could not actually remember what Mr Batchem had said[72]. Mr Cooper recounted that he did not discuss multiple calls with Mr Batchem. Rather it was a telemetry call. It was agreed by Mr Cooper that his diary entry referred to Mr Batchem only taking telemetry resets for any further calls (plural). Mr Cooper explained that he was relying on Mr Batchem’s experience to know that, if he had multiple calls and it got too much after one, even two, Mr Batchem would call him and tell him that there were problems[73].

With respect to the apparent contradiction between his previous evidence, what he had just said and his diary entry, Mr Cooper put it down to filling out the diary the next morning (nine hours later) and trying to recollect what he had said[74]. It was Mr Cooper’s view that the diary note was more accurate as it was written earliest based on his recollection[75].

In terms of the diary entry, Mr Cooper recalled that Mr Batchem had told him that he has reached 12 hours. Mr Cooper had added the word “Fatigue”. Mr Cooper explained that the diary entry was his general overview of what happened the night before and was supposed to be a very summarised account. It was stated that the diary entry was not meant to be a word for word account of what happened[76]. The diary entry was said to be the best recollection of Mr Cooper’s take out of the conversation with Mr Batchem, written the next morning[77].

The note in the diary that “Ant will call me if an operator is required on-site overnight” was described by Mr Cooper as not anything that he said specifically. Rather, it was that he had left it as Mr Batchem would call him if an operator is required[78]. It was stated by Mr Cooper that, when he and Mr Batchem were discussing the options of taking telemetry calls, Mr Cooper said that he had said to Mr Batchem to take telemetry calls and that, if there is another call and an operator is required on site, Mr Batchem would call him and he would get someone else to go out[79].

With respect to the discussion with Mr Ross on 16 December 2015, it was Mr Cooper’s view that he would have told Mr Ross that he had instructed Mr Batchem to do telemetry calls (not one telemetry call)[80].

It was Mr Ross’s evidence that he spoke with Mr Cooper the next day and asked Mr Cooper what had gone on the night of 3 November 2015[81]. This was as a result of Mr Brown bringing the set point changes to his attention[82]. Mr Ross recalled that he spoke to Mr Cooper about the second call out and recalled that Mr Cooper was not aware of the second call out. Mr Cooper had brought him the DIM diary and had said that he knew that Mr Batchem had blown his hours at 12 but he couldn’t get anybody and so he (Mr Cooper) had said to Mr Batchem to call him if there was any further need to go to site[83].

After the performance conduct meeting on 3 December 2015, Mr Ross recounted that he had spoken again to Mr Cooper (on 16 December 2015) because there were two different accounts of what had been said. Mr Cooper was said to have told him that he had said to Mr Batchem that he could take him to 14 hours. After that, Mr Cooper had indicated that his instruction was to take to telemetry calls for the rest of the night and that, if he needed to go to site, to give the DIM a call. Mr Ross stated that he had specifically asked Mr Cooper if he had specifically told Mr Batchem that he needed to call him if he needed to go to site. Mr Cooper had responded that he had told Mr Batchem that[84].

Mr Ross expressed the view that, consistent with Mr Batchem’s previous pattern of behaviour, Mr Batchem had heard Mr Cooper say that he could take him to 14 hours and so Mr Batchem had then taken it upon himself to assume that that meant he could go out on site when he had been given a specific instruction to call Mr Cooper if he needed to go out and visit the site[85].

Mr Derwort gave evidence that Mr Batchem had breached the Alliance Fatigue Management Policy by working beyond 12 hours without permission. It was Mr Derwort’s view that telemetry calls were a different thing as a telemetry call of less than fifteen minutes was not considered to be working.[86] Mr Derwort explained that the main thing is about fatigue and that fatigue becomes an issue when a person is leaving home and attending site.[87]

[58] It was Mr Derwort’s understanding that Mr Batchem attended site and was at site beyond the 12 hours. Mr Derwort conceded that he was not specific in relation to Mr Batchem having been at site over the 12 hours.[88] The Fatigue Management policy was said, by Mr Dewort, to state that an employee needs to be aware that he cannot work beyond 12 hours without specific permission. It was stated that it doesn’t need an absence of instruction from the manager for that policy to be in place.[89] There was no specific approval process but Mr Dewort anticipated that there would be some definitive action or communication on the part of the manager to authorise it. It was explained by Mr Derwort that it was up to the manager as to the way approval would be conveyed that he expected that the conveyance would be definitive.[90] In the event that the approval was not definitive, Mr Derwort stated that it should default back to the policies which say that an employee shall not work beyond 12 hours without approval from the manager.[91]

The Respondent submitted that, even if the Commission finds that there was no clear direction by Mr Cooper for Mr Batchem not to attend site a second time, Mr Batchem did work more than 12 hours in a 24-hour period. This was stated to be without the clear authorisation of Mr Batchem’s manager to do so and so constituted a breach of the applicable policies and procedures[92].

Having carefully considered the material before me regarding the working hours issue, I have formed the view that it was reasonable for Mr Batchem to have understood/considered that he was given permission by Mr Cooper to work up to 14 hours over 3 November/4 November 2015. It was Mr Cooper’s evidence that Mr Batchem could possibly have construed their second telephone discussion to have been that Mr Batchem could work up to 14 hours. This discussion, on Mr Cooper’s evidence, included reference to 14 hours and a statement that Mr Cooper had two hours of Mr Batchem up his sleeve. It was also Mr Cooper’s evidence that he was not exact with Mr Batchem about him not going out for another call out/on site. On the basis of the material before me, I find that Mr Cooper told Mr Batchem that he had another two hours of him up his sleeve and for him to take telemetry calls. I am not satisfied that Mr Cooper told Mr Batchem that he was not to go onto site again. Therefore, I find that Mr Batchem was given permission to work up to 14 hours by Mr Cooper.

Mr Batchem rang Mr Cooper when he was at the 12 hour mark expressly to get direction from Mr Cooper as to what he wanted him to do and to whether he was going to replace him on standby. It was Mr Cooper’s responsibility to direct Mr Batchem as to what he was to do and whether he was to work beyond 12 hours. Mr Batchem acted in accordance with the policies by ringing Mr Cooper at the 12 hour mark to get hid direction as to what Mr Cooper wanted him to do. In ringing Mr Copper at the point in time that he did, Mr Batchem therefore fulfilled his obligations under the policy. As Mr Batchem understood from Mr Cooper that he had permission to work another two hours, Mr Batchem was acting in accordance with the policies when he worked beyond the twelve hour limit when he went out on the second call out. It was not a situation which Mr Dewort described because Mr Batchem understood that he had been given permission to work up to 14 hours by his supervisor.

Therefore, I find that Mr Batchem did not breach the fatigue management policies by going out on a second call out which took him beyond the 12 hours in a 24-hour period limit. This is because it was reasonable for Mr Batchem to have understood, following his telephone discussion with Mr Cooper, that Mr Cooper had approved him working another two hours in that 24 hour period and that he was not told not to go out on site.

Accordingly, in relation to both the data manipulation issue and the working hours issue, I find that neither issue or both issues provide a valid reason for Mr Batchem’s dismissal.

Section 387(b) – notified of the reason

With respect to the procedural requirements of section 387, the Applicant did not share the Respondent’s view that it was common ground that there were no procedural issues in relation to Mr Batchem’s dismissal.

These will be dealt with as they arise in considering the remaining requirements of section 387.

In relation to whether Mr Batchem was notified of the reason for his dismissal, it was not disputed that Mr Batchem was provided with a letter, dated 30 November 2015, which set out the allegations. The allegations were that Mr Batchem’s actions had breached the Alliance Code of Conduct by not complying with a lawful and reasonable direction and by wilfully altering the alarm set points which resulted in a plant shutdown. Both of these actions were said to have resulted in a fraudulent out of hours call out to obtain a financial gain.[93]

The reasons for Mr Batchem’s dismissal were notified to Mr Batchem in a letter dated 30 December 2015.[94]

Section 387(c) – opportunity to respond

On behalf of Mr Batchem, a number of issues were raised regarding the opportunity to respond and the conduct of the investigation. Firstly, it was argued that Mr Batchem was never afforded the opportunity to discuss the allegations with Ms Domurad which resulted in a flawed decision-making process in relation to Mr Batchem’s dismissal. This was said to be in the context that Ms Domurad had sought Mr Cooper out for an informal discussion about his version of events on 3 November 2015. It was submitted that it was distinctly probable that Ms Domurad was prejudiced against Mr Batchem. This was said to be so, given that Ms Domurad had partially based her decision on this information.[95]

It was Ms Domurad’s evidence that she had preferred Mr Cooper’s version of events to that of Mr Batchem. This was because she considered that Mr Cooper was more trustworthy and had a better recollection than Mr Batchem.[96] Ms Domurad indicated that she did not interview Mr Cooper but that she did have a conversation with him. It was explained that it was not a formal conversation and was not part of the investigation process. Ms Domurad said that she did not have a similar conversation with Mr Batchem.[97]

With respect to the investigation conducted by the Corporation in relation to the data manipulation issue and the working hours issue, it was submitted on behalf of Mr Batchem that Mr Batchem was denied procedural fairness. This was said to be on the basis of serious and fundamental flaws in the investigation and decision-making process.

It was argued by the Applicant that the investigator had failed to make sufficient enquiries relating to the reliability of Mr Cooper’s evidence. Rather, it was stated that Mr Ross had admitted that he had made assumptions rather than enquiries, following receipt of Mr Batchem’s response to the allegations.[98] The Applicant argued that, as a result of this, the allegations put to Mr Batchem on 30 November 2015 were based on inaccurate information obtained by the investigator. This was said to have been conceded by Mr Ross.[99]

Further, the Applicant contended that the investigator had determined that there was no need to investigate the validity of Mr Batchem’s explanation regarding the changes to the alarm high set points based on his pre-existing views of Mr Batchem together with unfounded assumptions about Mr Batchem’s son’s abilities.[100]

The Memorandum that was forwarded to senior management for approval was stated to have been based on factual inconsistencies and inaccuracies, unsubstantiated assumptions and the inconsistent evidence of Mr Cooper and Mr Ross. The relevant senior managers who endorsed the recommendation to dismiss Mr Batchem were said to have done so on the basis of a flawed investigation.[101]

For the Respondent, it was argued that Mr Batchem was given an opportunity to respond to the reasons for his dismissal. The first opportunity was said to have been the invitation to Mr Batchem (in the letter dated 30 November 2015) to attend a meeting, the purpose of which was to allow Mr Batchem to respond to the data manipulation issue and the working hours issue. Secondly, it was stated that Mr Batchem, when he attended the meeting on 3 December 2015, had responded by reading out a prepared written response. In addition, the Respondent submitted that Mr Batchem, during his evidence, had confirmed that he was given sufficient details of the allegations against him to enable him to respond and that he was given a reasonable opportunity to prepare a response to the allegations.[102]

With respect to whether Mr Batchem was given an opportunity to respond to the reasons for his dismissal, I have not been persuaded that Mr Batchem was given that opportunity. It would appear from Mr Ross’s evidence that, on 30 November 2015, when he and Mr Brown read to, and then gave the letter to, Mr Batchem which set out the allegations, he had told Mr Batchem that there would be no discussion about the matter at that time.[103] At the meeting on 3 December 2015, Mr Batchem had read from a lengthy prepared written response which he then gave to Mr Ross and Ms Stratford. Following the reading of Mr Batchem’s response by Mr Batchem/Mr Bailey, there appears to have been some questions put to Mr Batchem by Mr Ross. There was a dispute between the parties as to whether the record of the interview prepared by Mr Ross was an accurate reflection of what had been said.[104] On the basis of Mr Bailey’s notes of the meeting, together with Mr Ross’s record of interview with Mr Batchem’s handwritten comments on it, it would appear that there were only a few questions asked by the Respondent.[105] Given that there was a real possibility that Mr Batchem would be dismissed if his explanations were not accepted by the Respondent, it would seem that the opportunity for Mr Batchem to respond could best be described as perfunctory.

In relation to the issues raised by the Applicant about the investigation, on the basis of the material before the Commission, it can be said that the investigation was flawed as was every following document and decision that was based on the findings of the investigation. It is important to note that the evidence Mr Cooper gave to the Commission was not the same as what he had told the Corporation both prior to, during and following the investigation. Therefore, on the basis of what Mr Cooper told the investigator, there cannot be criticism of the investigator on that basis.

However, there are two aspects of the process which are of concern and which have resulted in a flawed process. The first aspect concerns that the fact that Ms Domurad, who was the decision maker, had an informal discussion about the working hours issue with Mr Cooper but did not have a corresponding conversation with Mr Batchem. Ms Domurad’s actions in firstly, having a conversation with Mr Cooper in the first place, and then not having a similar conversation with Mr Batchem, would seem to be contrary to the principles of natural justice. These actions would also suggest a bias by the decision maker, Ms Domurad, against Mr Batchem.

Further, assumptions seem to have been made about the allegations based on preconceived views about Mr Batchem and his attitude and behaviour in the workplace. This was apparent in the evidence of Mr Ross, Ms Domurad and Mr Derwort. These preconceptions would also appear to be contrary to the principles of natural justice.

Section 387(d) – support person

The evidence shows that Mr Batchem had a union representative (Mr Bailey) with him at both the meeting on 3 December 2015 and the termination meeting on 30 December 2015.

Section 387(e) – unsatisfactory performance

This subsection is not relevant in this matter because Mr Batchem was dismissed for misconduct and not unsatisfactory performance.

Sections 387(f) and (g) – size of the enterprise and absence of human resource specialists

The Corporation is a large employer and human resources personnel were involved in the process.

Section 387(h) – any other matters that the Commission considers relevant

On behalf of the Applicant, it was submitted that the Respondent did not investigate the fact that one of the two alarms (on the post contact tank), that were the focus of the data manipulation issue, was not operational on 3 November 2015 and was non-operational for at least two weeks. It was argued that, when this particular alarm was associated with Mr Batchem, it became critical but when it was another operator(s), there was no investigation or action taken by the Corporation. Therefore, it was contended that Mr Batchem was subject to a different set of standards/expectations to other operators.[106]

It was submitted by the Respondent that the Commission should have regard to:
·   Mr Batchem has previously been issued with a first and final warning (29 May 2014) for submitting false timesheets fraudulently.
·   Mr Batchem was dishonest when responding to the data manipulation issue and the working hours issue.
·   Mr Batchem has raised no mitigating factors other than to deny the allegations.
·   The gravity of the misconduct, together with his previous fraudulent behaviour (first and final written warning).[107]

Given the findings made in relation to the data manipulation issue and the working hours issue and the fact that the first and final warning was given to Mr Batchem about 18 months previously, there are no other matters that the Commission considers relevant.

Considerations and conclusion

In all of the circumstances of this matter and, having taken account of each of the factors set out in section 387, I determine that Mr Batchem’s dismissal was harsh, unjust and unreasonable. It has been found that there was not a valid reason for Mr Batchem’s dismissal although concern has been expressed in relation to Mr Batchem having left his work laptop in active mode when he left it to assist his wife. In addition, the Commission has identified a number of natural justice issues and flaws in the investigative and decision-making process.

In balancing all of these factors, I find that Mr Batchem’s dismissal was harsh, unjust and unreasonable.

Accordingly, it follows that, pursuant to section 385 of the Act, Mr Batchem was unfairly dismissed.

Remedy

Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

“390      When the FWC may order remedy for unfair dismissal
(1)       Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a)       the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b)       the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.
(3)       The FWC must not order the payment of compensation to the person unless:
(a)       the FWC is satisfied that reinstatement of the person is inappropriate; and
(b)       the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

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

With respect to the requirements of section 390, I am satisfied that Mr Batchem was protected from unfair dismissal at the time of his dismissal (section 390(1)(a)) and that he has been unfairly dismissed (section 390(1)(b)). Further, Mr Batchem has made an application under section 394 of the Act (section 390(2)).

Section 390(3) states that the Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is appropriate (section 390(3)(a)). In this matter, reinstatement was actively sought by Mr Batchem and equally actively resisted by the Corporation.

On behalf of Mr Batchem, it was submitted that reinstatement is a viable option. It was stated that the Respondent is a large corporation and that Mr Batchem could be redeployed into a similar position of equal standing.[108]

The Respondent, on the other hand, submitted that reinstatement would not be an appropriate remedy as there is no longer a relationship of trust and confidence between the Respondent and Mr Batchem. It was argued that it would not be feasible to re-establish the employment relationship.[109] This was on the basis of Mr Batchem’s attitude and behaviour.

In relation to Mr Batchem’s attitude, the Corporation highlighted the following:

Mr Ross’s evidence that he had lost trust regarding Mr Batchem being on site working without constant supervision.
Mr Brown’s evidence that he found it difficult to manage Mr Batchem.
Mr Derwort’s evidence that Mr Batchem was unwilling to accept his role as part of the Aroona Alliance.
Mr Batchem’s failure to adhere to the core values of the Alliance as demonstrated by Mr Batchem being placed on a Performance Improvement Plan.[110]

With respect to Mr Batchem’s behaviour, the Respondent referred to:

the first and final warning for deliberately submitting fraudulent timesheets for personal gain.
Mr Batchem’s ongoing poor performance.
Mr Batchem’s dishonest behaviour during the investigation and the serious and fraudulent nature of his misconduct in relation to the data manipulation issue and the working hours issue.[111]

It was submitted by the Respondent that it was plain that there is more than mere friction between Mr Batchem and the Respondent. It was argued that, in these circumstances, reinstatement would be untenable.[112] Finally, the importance of the assets that Mr Batchem would be required to maintain was said to mean that reinstatement is inappropriate.[113]

The Full Bench, in the decision in Thinh Nguyen and Than Le v Vietnamese Ethnic School South Australia Chapter (Thinh)[114], set out the propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate, as follows:

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
·Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
·Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
·An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
·The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
·The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

As the Full Bench has observed, ultimately, the question is whether a sufficient level of trust and confidence can be restored to make the relationship viable and productive. In this matter, as has been set out above, the Respondent contended very firmly that a sufficient level of trust cannot be restored and that the relationship between the parties had not been mere friction.

As indicated in Thinh, a loss of trust and confidence, whilst it will often be an important consideration, it is not the sole consideration.[115] An important criterion which must not be lost sight of is that the Commission has found that neither of the two allegations against Mr Batchem have been made out and that Mr Batchem was unfairly dismissed i.e. that Mr Batchem has been found to be “not guilty” in relation to the data manipulation issue and the working hours issue.

The Respondent has contended that the nature of the relationship between Mr Batchem and the Corporation is more than mere friction in accordance with one of the principles set out in Thinh. The first thing to be said is that the principle in Thinh talked about the relationship withstanding “some friction and doubts”, rather than simply “friction”.[116]

It was submitted by the Respondent that Mr Ross had expressed a loss of trust and confidence in Mr Batchem. On reading Mr Ross’s evidence, Mr Ross explained that this was because Mr Batchem had changed the set points and had shut the plant down that he was trusted to keep running. Mr Ross also made reference to his view that Mr Batchem was resistant to change and that Mr Batchem liked to do it his way and that was the only way he wanted to do it. It was said by Mr Ross that a lot of management time and effort had been put in to get Mr Batchem to comply with the change (an example of which was Mr Batchem being placed on a Performance Improvement Plan). Mr Ross also said that he never felt that Mr Batchem was on board with the direction of the Alliance and that Mr Batchem was fighting the whole process.[117]

Mr Ross’s evidence was also that Mr Batchem’s difficulties with change were a consideration, but not a major consideration in the decision to dismiss him.[118] It was Mr Ross’s evidence that it was more the changes to the alarm set points that was the primary factor in the decision to dismiss Mr Batchem rather than the working hours issue.[119]

In Mr Brown’s witness statement, Mr Brown stated that he found Mr Batchem very difficult to manage despite having twenty years’ experience managing people.[120]

Mr Derwort’s evidence was that he had had a number of feedbacks from people in his team and from Mr Batchem’s representatives, that Mr Batchem was not supportive of the Alliance and that he did not accept that the Alliance could manage him.[121] It was not apparent from Mr Derwort’s evidence that he had formed this view based on a conversation(s) that he had had himself with Mr Batchem.

Mr Batchem, when he gave evidence, agreed that he was required to comply with Aroona Alliance policies. He denied that he had ever said that he did not accept that he was part of the Alliance. It was stated that he had always said that he worked with the Alliance but that he was a Water Corporation employee. Mr Batchem indicated that he did not have a problem with the Alliance. Rather, it was said that he had a problem with some of the Alliance managers and the way he was dealt with.[122] Further, it is noted that the first and final warning was given to Mr Batchem in May 2014, 18 months or so before Mr Batchem’s dismissal. Given the length of the passage of time between receipt of the first and final warning and Mr Batchem’s dismissal, some weight, but not considerable weight, will be placed on this warning.

As provided for in Thinh, the onus of proof in establishing a loss of trust and confidence rests, in this case, with the Corporation. As was also set out in Thinh, ultimately, the question is whether a sufficient level of trust and confidence can be restored to make the relationship viable and productive.[123] On the basis of the analysis of the evidence before me in paragraphs 96-102 above, on balance, I have not been persuaded that a sufficient level of trust and confidence cannot be restored between Mr Batchem and the Respondent so as to make the relationship viable and productive. The fact that an employee is difficult to manage and is resistant to change does not amount to a loss of trust and confidence by the employer in that employee. Mr Ross’s evidence was that his loss of trust and confidence in Mr Batchem, was due to his finding during the investigation that Mr Batchem had deliberately changed two alarm set points. However, the Commission has now found that Mr Batchem did not deliberately change the alarm set points. In addition, it needs to be noted that one of the alarms concerned (the post contact tank) was not operational at the time and that it remained non-operational for a period of two weeks before it was discovered.

The other two considerations are that the Act provides for reinstatement as the primary remedy. Secondly, the Commission has found that Mr Batchem did not take either of the actions of misconduct as alleged by the Respondent.

Taking all of this into account, I find that I am satisfied that, on balance, reinstatement of Mr Batchem is appropriate. Therefore, I must order the reinstatement of Mr Batchem.

Section 391 of the Act sets out the requirements for an order for reinstatement in the following terms:

“391      Remedy—reinstatement etc.
Reinstatement
(1)       An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a)       reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b)       appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A)     If:
(a)       the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b)       that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c)       appoint the person to the position in which the person was employed immediately before the dismissal; or
(d)       appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay
(3)       If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4)       In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a)       the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b)       the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

As provided for in section 391, the Commission has the option of reappointing the person to the position in which the person was employed immediately before the dismissal or appointing the person to another position on no less favourable terms and conditions. It was indicated on behalf of Mr Batchem that Mr Batchem could be redeployed to a position of similar standing. As it is unclear as to what Mr Batchem was seeking in this regard, Mr Batchem will be reappointed to the position in which Mr Batchem was employed immediately before the dismissal (section 391(1)(a)).

Pursuant to section 391(2), I consider it appropriate to order that Mr Batchem have continuity of employment and that his period of service with the Respondent should be continuous.

With respect to section 393(3) of the Act, in all the circumstances of this matter, I consider it is appropriate to make an order to restore Mr Batchem’s lost pay. In making such an order, the Commission is required to take into account the amount of remuneration Mr Batchem earned between his dismissal on 30 December 2015 and the order for reinstatement (21 December 2016) (section 391(4)(a)). The Commission is also required to take into account the amount of remuneration reasonably likely to be earned between the making of the order for reinstatement and the actual reinstatement (section 391(4)(b)).

The Commission does not have sufficient information before it to perform the calculations required by section 391(4)(a) and (b) and therefore to finalise the terms of the order.

Accordingly, Mr Batchem is directed to provide to the Commission and to the Respondent’s legal representative, the amount Mr Batchem has earned (including the payment received in lieu of notice) from 31 December 2015 until 21 December 2016. Secondly, Mr Batchem is directed to provide details of his likely weekly earnings and whether they are expected to be his regular remuneration over the next two months. Supporting documentation is to be provided in relation to both sets of calculations. This material is required by Friday 6 January 2017.

Once this information is to hand, the Commission will be in a position to finalise the terms of the order.

Appearances:

S Gray appeared for the Applicant
S Maddern of Herbert Smith Freehills appeared for the Respondent

Hearing details:

2016.
Melbourne:
April 29, June 28.

Final written submissions:

Applicant, 28 July 2016
Respondent, 17 August 2016
Applicant, 5 September 2016

[1] Exhibit R1 at paragraphs 10, 13 and 19 and Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 5.

[2] Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 4.

[3] Applicant’s Response to Respondent’s Closing Submissions, dated 5 September 2016, at paragraph 4.

[4] Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 4(a)

[5] Exhibit R1 at paragraphs 7 –9 and ibid at paragraph 4(c) and Applicant’s Response to Respondent’s Closing Submissions, dated 5 September 2016, at paragraph 4 (b)

[6] Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 4(d)

[7] Ibid at paragraph 4(i) and (j)

[8] Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 4(k) and exhibit A3 at page 2

[9] Ibid and ibid

[10] Ibid at paragraph 4(m) and ibid at pages 2 –3

[11] Ibid at paragraph 4(p) and ibid at page 3

[12] Ibid at paragraph 4(q) and ibid at page 3

[13] Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 4(r)

[14] Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 16 and exhibit R1 at paragraph 18.

[15] Ibid at paragraph 17 – 18 and ibid at paragraph 19

[16] Applicant’s Closing Submissions, dated 28 July 2016, at 43

[17] Transcript PN 389

[18] Ibid PN 391

[19] Ibid PN 442

[20] Exhibit A3 and Transcript PN 375

[21] Transcript PN 360 – 365

[22] Ibid PN 365 and 376 – 377

[23] Exhibit A3 and Transcript PN 378 and 386 and 617

[24] Transcript PN 412 – 419

[25] Exhibit A2

[26] Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 60

[27] Transcript PN 1971 and 1973

[28] Exhibit R5 at paragraph 44

[29] Exhibit R4 at paragraph 51 and Transcript PN 1054 – 1056

[30] Exhibit R4 at paragraph 54

[31] Transcript PN 1178

[32] Ibid PN 1074

[33] Ibid PN 1075

[34] Ibid PN 1076 and 1174

[35] Ibid PN 1091

[36] Ibid PN 1091 – 1095

[37] Ibid PN 1156 – 1157

[38] Ibid PN 1156 – 1157 and 1167 and 1175

[39] Exhibit R7 at paragraph 42

[40] Ibid at paragraph 45 and Transcript PN 2499

[41] Transcript PN 2532 – 2534

[42] Respondent’s Closing Submissions, dated 17 August 2016, at paragraphs 68 – 70

[43] Transcript PN 614

[44] Exhibit R1 at paragraphs 36 – 38

[45] Ibid at paragraphs 39 – 43 and Respondent’s Closing Submissions, dated 17 August 2016, at paragraphs 74 – 75

[46] Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 75

[47] Exhibit A1

[48] Exhibit A3 and Transcript PN 316

[49] Ibid and ibid PN 327

[50] Ibid and ibid PN 328

[51] Exhibit A3

[52] Ibid and Transcript PN 301 and 342

[53] Ibid and ibid PN 230 and 302

[54] Transcript PN 337 – 340

[55] Ibid PN 680 – 684

[56] Ibid PN 825 – 826

[57] Ibid PN 688 – 689 and 822

[58] Ibid PN 736 – 738

[59] Ibid PN 659

[60] Ibid PN 729 and 734 and 875 – 876 and 660

[61] Ibid PN 877 – 879

[62] Ibid PN 660

[63] Ibid PN 662 and 793

[64] Ibid PN 664 and 829 and 831 and 841 – 842

[65] Ibid PN 830

[66] Ibid PN 667 – 668

[67] Ibid PN 741 – 744

[68] Ibid PN 745

[69] Ibid PN 746 – 747

[70] Ibid PN 844 – 846

[71] Ibid PN 847 – 848

[72] Ibid PN 849 – 850

[73] Ibid PN 853 – 856

[74] Ibid PN 857 – 859

[75] Ibid PN 860 – 861 and 867

[76] Ibid PN 864 – 866

[77] Ibid PN 870 – 872

[78] Ibid PN 873

[79] Ibid PN 874

[80] Ibid PN 929 – 930

[81] Ibid PN 1875

[82] Ibid PN 1877 – 1879

[83] Ibid PN 1885

[84] Ibid PN and Exhibit R1 (amended) at Document 66

[85] Transcript PN 1930

[86] Ibid PN 2536 – 2537

[87] Ibid PN 2538

[88] Ibid PN 2540 – 2541

[89] Ibid PN 2544

[90] Ibid PN 2545 – 2546

[91] Ibid PN 2548

[92] Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 79

[93] Exhibit R1 at Document 10

[94] Ibid at Document 3

[95] Applicant’s Closing Submissions, dated 28 July 2016, at paragraph 25

[96] Transcript PN 1061 – 1062

[97] Ibid PN 1061 – 1073

[98] Applicant’s Closing Submissions, dated 28 July 2016,at paragraph 17

[99] Ibid at paragraph 23

[100] Ibid at paragraphs 34 – 35

[101] Ibid at paragraphs 36 – 39

[102] Respondent’s Closing Submissions, dated 17 August 2016, at paragraphs 90 – 91

[103] Exhibit R5 at paragraphs 48 – 50

[104] Exhibit R1 at Document 8

[105] Ibid at Documents 8 and 9

[106] Applicant’s Closing Submissions, dated 28 July 2016, at paragraphs 27 –30

[107] Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 98

[108] Applicant’s Closing Submissions in Reply, dated 5 September 2016, at page 3

[109] Respondent’s Closing Submissions, dated 17 August 2016, at paragraph 106 and Exhibit R1 at paragraph 58

[110] Ibid at paragraph 107

[111] Ibid at paragraph 107

[112] Ibid at paragraph 108

[113] Ibid at paragraph 106

[114] [2014] FWCFB 7198

[115] Ibid at paragraph 27

[116] Ibid at paragraph 27

[117] Transcript PN 1799, 1934 – 1952 and 1948 – 1958

[118] Ibid PN 1946

[119] Ibid PN 2210 – 2212 and 2307 – 2312

[120] Exhibit R6 at paragraph 18

[121] Transcript PN 2498

[122] Ibid PN 347 – 350 and 355

[123] [2014] FWCFB 7198 at paragraph 28

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Citations

Antony Batchem v Water Corporation [2016] FWC 9088

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Water Corporation v Antony Batchem [2017] FWCFB 760

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Water Corporation v Antony Batchem [2017] FWCFB 760

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