Australian Workers' Union, The v Alcoa of Australia Limited T/A Alcoa World Alumina Australia
[2017] FWC 5276
•11 OCTOBER 2017
| [2017] FWC 5276 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Workers’ Union, The
v
Alcoa of Australia Limited T/A Alcoa World Alumina Australia
(C2017/448)
DEPUTY PRESIDENT BINET | PERTH, 11 OCTOBER 2017 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] On 24 January 2017, the Australian Workers’ Union of Australia (AWU) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 739 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a dispute with Alcoa of Australia Limited T/A Alcoa World Alumina Australia (Alcoa)in accordance with the dispute settlement procedure contained in clause 19 of The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 (Agreement).
[2] The dispute concerns Alcoa’s decision to dismiss Mr Mark Linning (Mr Linning) following an allegation that Mr Linning intentionally damaged a Collision Avoidance System (CAS) screen (Dispute).
[3] On 17 February 2017, Alcoa filed a response to the AWU’s Application.
[4] On 10 March 2017, the parties attended a conference before me but the Dispute was not able to be resolved at the conference, nor after subsequent correspondence between the parties. On 24 March 2017, the AWU requested that the Application be referred for arbitration.
[5] Directions were issued to the parties on 5 April 2017 and 24 April 2017, in which the parties were directed to file with the FWC and serve on each other their outlines of submissions, witness statements, copies of authorities and any documents on which they relied (Directions). The parties were also directed to file an Agreed Statement of Facts (Agreed Facts).
[6] The Directions required any party who sought to be represented by a lawyer or paid agent at the hearing to file written submissions to this effect addressing the provisions of section 596(2) of the FW Act. On 12 April 2017, Alcoa sought permission for a paid agent, Mr Warren Milward, to appear on behalf of Alcoa at the Hearing. No opposition to this request was made by the AWU. As a matter of fairness between the parties and to enable the matter to be dealt with more efficiently, having regard to section 596(2) of the FW Act, Alcoa was granted leave to be represented by Mr Milward. The AWU was represented at the Hearing by Mr Carl Young.
[7] The Application was heard on 7 June 2017, 8 June 2017, 9 June 2017 and 14 June 2017 (Hearing). Mr Linning gave written and oral evidence on his own behalf. The following witnesses provided statements and/or gave oral evidence on behalf of the AWU:
• Mr David Dunn, Senior Equipment Operator (Mr Dunn);
• Ms Deanne Moulden, Senior Equipment Operator (Ms Moulden);
• Mr Jason Lee Planken, an Alcoa employee (Mr Planken);
• Mr Richard Wightman, Senior Equipment Operator (Mr Wightman);
• Mr Shane McCorkill, Senior Equipment Operator (Mr McCorkill);
• Mr Robert Plenderleith, Senior Equipment Operator (Mr Plenderlieth);
• Mr Casey Hughes, Senior Equipment Operator (Mr Hughes);
• Mr Bradly Gandy, Assistant Secretary, AWU – WA Branch (Mr Gandy);
• Mr Simon Price, Convenor, AWU (Mr Price); and
• Mr Nikola Pavlovic, Senior Equipment Carer – Fixed Plant (Mr Pavlovic).
[8] The following witnesses provided statements and gave oral evidence on behalf of Alcoa:
• Mr Benjamin Paul Robinson, Mine Manager – Willowdale (Mr Robinson);
• Mr Scott James Wotherspoon, Senior Mining Engineer (Mr Wotherspoon);
• Mr Liam Troy Smith, Mobile Maintenance Superintendent – Huntly (Mr Smith);
• Mr Nicholas George Bacon, Human Resources Manager (Mr Bacon);
• Mr James Baron-Croston, Director at Haultrax (Mr Baron-Croston); and
• Mr Craig Milward, Operations Superintendent – Willowdale (Mr Milward).
Relevant Agreement Provisions
[9] The Application concerns a dispute in relation to the interpretation and application of clause 18 of the Agreement.
[10] Clause 18 of the Agreement contains a disciplinary procedure and provides that:
“18. DISCIPLINARY PROCEDURES
(a) The Company shall apply and implement all disciplinary action in a fair and reasonable manner.
(b) The Company may apply disciplinary action up to and including suspension without pay (as an alternative to dismissal for a maximum of 2 weeks on each occasion) or termination. Prior to the application of the discipline, where the employee elects to have a representative, the form and level of discipline will be discussed with their Representative (e.g. Shop Steward or Site Convenor).
(c) If it is deemed appropriate by the Company that the employee be stood aside, the AWU Senior Site Employee Representative will be notified prior to the employee being stood aside. Any such standing aside will be without loss of pay or entitlement until the Company makes its decision on the disciplinary action, if any, to apply. It is expressly agreed that the standing aside of employees will not be prevented as a result of such standing aside being placed in dispute (i.e. the status quo provisions of clause 19 will not apply in circumstances where the standing aside of an employee is put into dispute).
(d) Supervision will conduct an inquiry into the incident, which will involve the employee, relevant Shop Steward and any other appropriate personnel.
(e) If the Company takes a decision to terminate an employee, the Site Convenor or Deputy Convenor, or if required, Union Organiser shall be notified immediately and notified in writing (email acceptable) prior to the termination taking effect. The employee or the Site Convenor (or their nominee) may at that point, put the matter in dispute within a 24 hour period of the formal notification to terminate the employee. This will be based on business hours (Monday to Friday).
(f) If, prior to the termination being activated, the employee or the Site Convenor (or their nominee) has chosen to put the matter in dispute via the dispute resolution procedure in this Agreement (which is agreed to be the only time the employee, the Site Convenor (or their nominee) can do so under this Agreement), the case will be referred to Stage 4 of clause 19 in the dispute resolution procedure, bypassing other levels of the disputes procedure. The continuation of pay and entitlements will be on the condition that no industrial action is taken over the matter.
(g) The provisions of sub-clause (f) above will apply only to employees who have completed the minimum employment period as defined by the Act.
(h) The parties agree to accept any decision and abide by the decision-making processes of the Fair Work Commission.
(i) Nothing affects the right of the Company to dismiss any employee without notice for serious misconduct and in such cases payment will be made up to the time of dismissal only.”
[11] Clause 19 of the Agreement contains the dispute resolution procedure and provides that:
“19. DISPUTE RESOLUTION PROCEDURE
(a) The parties recognise that the emphasis is on problem solving and conciliation as a satisfactory means to resolve issues. The parties undertake to, at all times, remain committed to the satisfactory and timely resolution of issues. Accordingly, all disputes including disputes in relation to the National Employment Standards will be progressed in accordance with the relevant procedure prescribed below.
(b) Whilst the resolution of a grievance or dispute is being processed in accordance with the clause the status quo (i.e. the normal conditions/arrangements in existence immediately prior to the cause of the dispute arising) will be observed.
(c) It is the responsibility of the most senior company representative named in the Dispute Resolution Table to schedule meetings in relation to the dispute resolution process. The scheduling of stage dispute meetings shall be agreed by the participants. If the participants are unable to agree on the scheduling of the meeting, the meeting shall take place on the last day within the relevant stage deadline.
(d) The dispute resolution procedure is outlined in the Table contained within this clause. At any stage, the timeframes may be maintained by re-rostering involved personnel to enable attendance at meetings. The onus is on the Company to arrange re-rostering to enable the timeframes to be met. Every reasonable attempt will be made to re-roster within the next block of shifts off or lesser amount of time as agreed between the Company and the representative. Where re-rostering occurs, a full shift may be worked by the employee (including attendance at the dispute resolution meeting).
(e) The process will not stop for the availability of any one individual unless the individual who is unavailable is participating in prior scheduled stage meetings within another dispute matter via the dispute resolution procedure. In this case the required stage meeting will take place at an agreed time as soon as practicable for all involved participants. If the involved personnel identified below are unavailable to attend, their designee will attend in their place. Where a designee is nominated, it is the responsibility of the person making the nomination to ensure that the designee has relevant background information and authority to act on behalf of the nominating individual.
[12] The Dispute Resolution Table outlines the necessary methodology, timeframes, documentation and involved personnel for all stages of the dispute resolution process.
[13] Initially, the parties approached the Application as if it were an unfair dismissal application pursuant to Chapter 3, Part 3-2 of the FW Act. However, the combined effect of subclauses 18(e), 18(f) and 19(b) of the Agreement is that if a proposed termination is put into dispute prior to the termination taking effect, status quo is triggered. The clauses prevent the employee the proposed subject of disciplinary action being dismissed until the dispute is resolved. This is reflected in the Agreed Facts, in which the parties record that “Mr Linning is currently employed by the Respondent as a Senior Equipment Operator”. There is therefore no ‘dismissal’ to trigger the unfair dismissal jurisdiction until the dispute is determined.
[14] Furthermore, clause 18 makes no reference to Chapter 3, Part 3-2 of the FW Act, nor does it use any of the language or ‘tests of conduct’ contained in the provisions contained in that part of the FW Act. The ‘test of conduct’ contained in clause 18 of the Agreement is “fair and reasonable”, as opposed to the test of “harsh, unjust and unreasonable” prescribed by section 387 of the FW Act. The test of conduct set out in clause 18 of the Agreement is not limited in application to dismissals but applies to any disciplinary action imposed by Alcoa. Clause 18 does not exclude an employee from making an unfair dismissal application in the event that they are subsequently dismissed following the protection of status quo being lost.
[15] It would appear, therefore, that clause 18 of the Agreement was not intended by the parties to supplant the unfair dismissal jurisdiction or to mirror it.
[16] The obligations imposed and rights created by clause 18 stand distinct from, and in addition to, any statutory remedy which might be available in the event the employee the proposed subject of disciplinary action pursuant to clause 18 is ultimately dismissed.
[17] The determination of this matter does not involve determining whether Mr Linning has been unfairly dismissed for the purposes of Chapter 3, Part 3-2. Instead, it involves interpreting and applying the obligation imposed on Alcoa by clause 18 to apply and implement all disciplinary action in a “fair and reasonable manner” and to otherwise comply with the other process requirements set out in subclauses 18(b)-(f).
Background
[18] The background of the Dispute is set out in a Statement of Agreed Facts filed by the parties in accordance with the Directions. In that Statement, the parties agree that:
• Mr Linning commenced employment with Alcoa at the Huntly Mine Site on or about 18 October 1999. 1
• The terms and conditions of Mr Linning’s employment with Alcoa are set out in his unsigned contract of employment dated 13 July 2006. Additionally, he is required to comply with obligations set out in the Agreement and in Alcoa’s Code of Conduct. 2
• During the course of his employment, Mr Linning was issued with documentation regarding his conduct and/or performance on 17 December 2004, and 16 dates between 12 April 2011 and 23 August 2016. 3
• Mr Linning does not accept the accuracy of the content of some of those documents. 4
• In November 2016, Alcoa began installing a new electronic monitoring system (CAS Screens) in haul trucks and other equipment used for the mining of bauxite at the Myara location of the Huntley Mine Site. 5
• On 23 November 2016, Mr Linning was provided with training on the use of the CAS Screens. 6
• Mr Linning operated Truck 1283 for the night shift of 6/7 December 2016. During the course of that night shift, Mr Linning reported, as a part of his pre-start Mobile Equipment Inspection Report, that “CAS system loose – can’t tighten – works loose and flops about”. 7
• On 11 December 2016, whilst working day shift, Mr Linning reported that he was experiencing issues with the CAS Screen mount (CAS Mount) in Truck 1283. In the pre-start Mobile Equipment Inspection Report, he recorded that: “CAS is still loose. Problem is with ball mount attached to the ROPS. Tighter you clamp, the more disfigured the ball mount becomes. Need ball mount replaced.” 8
[19] On 23 December 2016, Alcoa issued Mr Linning with a Show Cause letter in relation to the damage to both the CAS Screen and the CAS Mount.
[20] On 6 January 2017, in accordance with sub clause 18(e) of the Agreement, Mr Bacon notified Mr Price, the Huntley Convenor, of Alcoa’s intention to terminate Mr Linning’s employment. 9 The email attached a letter entitled “Termination of Employment with Alcoa of Australia Ltd” confirming Alcoa’s intention to terminate Mr Linning’s employment (Termination Letter). On the same day by return email, Mr Price notified Alcoa in accordance with subclause 18(e) that the matter of Mr Linning’s proposed dismissal was in dispute.10
[21] A Stage 4 dispute resolution meeting was scheduled for 17 January 2017, as required by subclause 18(f) of the Agreement. On 12 January 2017, Mr Linning’s son was admitted to an ICU in NSW in a critical condition and Mr Linning flew to his bedside. He informed Mr Milward and Mr Price of his situation and requested that the Stage 4 meeting be postponed. The meeting was not postponed and Mr Linning participated by telephone. The parties at the meeting were unable to resolve the dispute. The matter was referred by the AWU to the FWC on 24 January 2017, in accordance with clause 19 of the Agreement. 11
[22] On 10 March 2017, the parties attended a conference before me. The Application was not able to be resolved at the conference, nor after subsequent correspondence between the parties. On 24 March 2017, in accordance with the timeframe prescribed in Clause 19 of the Agreement, the AWU requested that the Application be referred for arbitration. 12
Consideration
[23] It is not contested, and I am satisfied, that the AWU complied with the steps contained in the dispute resolution procedure such that the Application is properly brought before me.
[24] The determination of this matter involves interpreting and applying the obligation imposed on Alcoa by clause 18 to apply and implement all disciplinary action in a “fair and reasonable manner” and to otherwise comply with the other process requirements set out in subclauses 18(b)-(f).
[25] The obligations imposed and rights created by clause 18 are that:
• Disciplinary action must be implemented in a fair and reasonable manner.
• Disciplinary action may include suspension without pay for a maximum of two weeks, or termination.
• If an employee elects to have a representative, the form and level of disciplinary action must be discussed with the employee’s representative before the disciplinary action is applied.
• An employee may be stood aside without loss of pay if the AWU Senior Site Employee Representative is firstly notified.
• Alcoa must include the employee, relevant shop steward, and other appropriate personnel in the investigation into the conduct prompting the disciplinary action.
• If Alcoa decides to dismiss an employee, it must immediately notify the Site Convenor or Deputy Convenor and confirm its intention in writing.
• The employee, Site Convenor (or their nominee) has 24 hours to put the matter in dispute before the termination can take effect.
[26] It is not contested, and I am satisfied, that Alcoa complied with the process obligations contained in subclauses 18(b) – (f) of the Agreement. What is in contention between the parties is whether the proposed disciplinary action of terminating Mr Linning’s employment has been applied and implemented by Alcoa in a fair and reasonable manner.
[27] The words “fair and reasonable” must be given their ordinary and usual meaning. 13 “Fair” can be defined as “just, unbiased, equitable and impartial” and “reasonable” as “within limits of reason, not greatly less or more than might be thought likely or appropriate”.14
[28] The grounds for imposing the disciplinary sanction of dismissal are set out in the Termination Notice. 15 The Termination Notice sets out a number of purported findings of fact in relation to the CAS Screen incident and the CAS Mount incident, namely that Mr Linning:
a. caused impact damage to the CAS Screen during the nightshift on 6/7 December 2016;
b. was required to report the damage and failed to do so; and
c. damaged the CAS Mount by overtightening the ball mount and moving the screen with undue force during his day shift on 11 December 2016.
[29] These findings are then relied upon as grounds for concluding that Mr Linning’s conduct constituted misconduct warranting dismissal. In the Termination Notice, Alcoa indicate that, having determined that Mr Linning was guilty of serious misconduct justifying dismissal, they have taken into account his “prior employment history” (including a first and final warning issued in June 2015).
CAS Screen Incident
[30] Alcoa assert that Mr Linning caused impact damage to the CAS Screen in Truck 1283 during the nightshift on 6/7 December 2016 and that this alone justified his dismissal.
[31] The CAS Screen is approximately 20cm long, 10cm wide and 1cm deep. It has a plastic frame with a glass touchscreen. The CAS is used to alert the driver when another vehicle is near the vehicle or on a collision course. The CAS has an audible alarm which gets louder as the vehicle gets closer. To override the automatic audio alarm, the CAS is reset by touching/tapping the glass screen. 16
[32] The CAS Screens are produced by GE and supplied and installed by Haultrax. Haultrax have installed roughly 200 CAS screens in Alcoa vehicles since 2014. Mr Baron-Croston, who is a Director of Haultrax, has been responsible for installing and maintaining CAS Screens for Alcoa and conducting training in the use of the CAS Screens. At the end of the day shift on 6 December 2016, Mr Baron-Croston conducted a training session in Truck 1283 with Mr Ben Vladich, a Labour Hire Production Operator. Mr Baron-Croston says, at that time, the CAS Screen and Mount were undamaged. 17 Mr Vladich confirmed this in a written statement provided to Mr Milward on 8 December 2016.18 Alcoa assert that no other person used Truck 1283 before Mr Linning commenced a 12 hour night shift at 6:00 pm on 6 December 2016.19
[33] The driver’s seat in Truck 1283 is on the left-hand side of the truck cabin. The CAS Screen is mounted on the rollover protection system (ROPS) pillar on the left-hand side of the cabin between the door and the windscreen. The CAS Screen is joined to a metal base plate welded to the ROPS by a 3cm long metal rod that has a ball mount at either end. The ball mount is a moulded rubber ball which sits inside a clamp. The clamp is tightened by winding a wingnut. The position of the CAS screen is adjusted by loosening the wingnut, moving the CAS, and then re-tightening the wingnut.
[34] Mr Linning says that, when he got in the truck, the CAS Screen was facing downwards and he adjusted the screen to his liking. He says that, about two hours later, the screen became loose due to the jarring caused by the condition of the haul road and began dropping down again. He says that he readjusted the clamp and, within an hour, the screen had dropped again. 20
[35] Mr Linning says that he endeavoured to advise Dispatch of the problem, but was unable to do so because his two-way radio was not operating. He says that, instead, he relayed the information through a number of operators via the CB UHF system. Mr Linning says that, later in the evening, he received confirmation that his message had been received by Dispatch. 21
[36] At around 9:00 pm, Mr Linning recorded in the Pre-Start Mobile Equipment Inspection Book (Pre-Start Book) that “CAS system loose – can’t tighten – works loose and flops about”. The Pre-Start Book is a book consisting of approximately 50 pages alternating between an original white page and a carbon copy pink duplicate. The purpose of the Pre-Start Book is to provide a place to record details of the vehicle, operator, date and any vehicle faults. The Pre-Start Book is completed by the operator and remains in the vehicle. The original white page is removed from the Pre-Start Book and handed to the Group Leader by the operator at the end of shift. 22
[37] Mr Linning says that he became concerned that, if the screen kept sliding down, it might hit the dashboard and be damaged. He says that, during the night, he placed the screen facedown about 2cm above the dashboard to prevent it being damaged. 23
[38] Mr Linning left Truck 1283 at approximately 5:45 am on the morning of 7 December 2016. He says that, at the muster point, he informed his Group Leader, Mr Robert Thomson (Mr Thomson), about the faulty two-way radio, the loose CAS Mount and the position he had left the screen, and handed Mr Thomson his white page from the Pre-Start Book. During a subsequent investigation, Mr Thomson could not recall Mr Linning advising him of these matters. Mr Thomson did not give evidence at the Hearing, and I have accepted Mr Linning’s evidence on this point. 24
[39] Mr Linning finished his shift at around 6:00 am on 7 December 2016. 25 At 8:00 am on 7 December 2016, Mr Hughes entered the cabin of Truck 1283 to commence driving.26 Mr Hughes says that, when he entered the cabin, the CAS Screen was facing downwards. He says that, as he repositioned the screen in an upwards facing direction, he observed that the screen had cracks on it. As the two-way radio was not working, he used the UHF CB radio to report the damage to the CAS Screen to Dispatch. Mr Hughes was never interviewed by Alcoa in relation to this incident.27
[40] The Group Leader of Dispatch informed Mr Milward of the damage to the screen. Shortly thereafter, Mr Milward inspected the damage and noted that the crack started on the right-hand edge approximately halfway up the screen then spider-webbed out, covering most of the screen. Mr Milward said that the mounting appeared secure. He says that he noted the ball mounts could be adjusted such that the screen could make contact with part of the dashboard but, given the padded nature of the dashboard, it was his initial view that the damage had not occurred due to contact with the dashboard. 28
[41] The same day, Mr Milward undertook inquiries and established that Mr Linning was operating Truck 1283 on the shift which preceded Mr Hughes’. Mr Milward requested the CAS Screen fault log from Dispatch, and found that there was no record of Mr Linning reporting damage to the CAS Screen during his night shift on 6/7 December. 29
[42] Mr Milward also arranged for the damaged CAS Screen to be inspected by Mr Baron-Croston. Mr Baron-Croston says that, when he inspected the screen, he found a large number of cracks which emanated from a point approximately one third of the way up the right hand side of the screen. He says that he had not previously seen damage of this nature, and his initial view was that it was likely that the screen had been hit with a blunt object. He also says that, in the course of inspecting the damage, he moved the screen around and noticed no problem with the mounting. Mr Baron-Croston says that he took a number of photos of the screen in different positions “ … including when it was orientated to make contact with the dash board of the truck”. 30
[43] At 9:26 pm that evening, Mr Baron-Croston sent an email to Mr Milward, reporting his assessment that the CAS was operational but the screen needed replacement. In his email, he hypothesised that the damage to the screen was caused either as a result of:
a. the ball mount being loose and the screen bumping against the corner of the dashboard; or
b. by the operator damaging the screen accidently by knocking it with a bag or helmet as they entered the vehicle, or intentionally by hitting the screen.
[44] Mr Baron-Croston indicated that the cracks did not appear to be where the screen would touch the dash. However, he could not definitely say what caused the damage. 31
[45] On 8 December 2017, Mr Baron-Croston replaced the CAS Screen in Truck 1283. 32
CAS Mount Incident
[46] Alcoa assert that Mr Linning caused damage to the CAS Mount in Truck 1283 during the dayshift on 11 December 2016 by overtightening the wingnut then moving the CAS Screen with force and that this alone justified his dismissal. 33
[47] Truck 1283 was used for five consecutive shifts from the night shift on 8 December 2016 until the night shift on 10 December 2016. During the night shift on 10 December 2016, Truck 1283 was operated by Mr Chris Roberts (Mr Roberts). 34 Mr Roberts operated Truck 1283 from 10:00 pm on 10 December 2016 until 2:00 am on 11 December 2016. During a subsequent investigation, he provided a witness statement to Mr Milward on 16 December 2016, in which he stated that the CAS Screen and Mount were in good condition during his shift.35
[48] Mr Linning was offered, and accepted, a supplementary overtime day shift to work on Sunday, 11 December 2016 from 7:00 am to 7:00 pm. He was assigned Truck 1283, which had been used by Mr Roberts at 2:00 am that morning. Mr Linning says that, when he entered Truck 1283 at the commencement of his shift, he noted that the two-way radio had been fixed and he adjusted the CAS screen to his liking. He says that the wingnut on the clamp was tight, taking some effort to loosen the wingnut to allow him to adjust the position of the screen. Mr Linning said that, around 9:30 am, the screen began to drop again so he readjusted it and tightened it firmly. He says that, within an hour, the screen had dropped once more and was bouncing and vibrating with every pothole. According to Mr Linning, tightening the clamp again made no difference and, upon closer inspection, he observed that the ball mount attached to the ROPS was moving and not the clamp.
[49] Mr Linning then recorded in the Pre-Start Book that the “CAS is still loose. Problem is with ball mount attached to the ROPS. Tighter you clamp the more disfigured the ball becomes”. 36
[50] While making the record in the Pre-Start Book, Mr Linning says that he read the previous entries. This included an entry made on 7 December 2016 by Mr Hughes, in which he had reported cracks in the CAS Screen. Mr Linning says that this was the first time he became aware that the CAS Screen in Truck 1283 had been damaged. 37
[51] Mr Linning says that, at 10:30 am, he attempted to contact Dispatch to let them know about the loose CAS clamp. He says that he was told by Dispatch that they would call him back. When Dispatch did not call him back, he says he tried to contact Dispatch again. He says that he eventually got through to Dispatch at about 11:00 am, at which time he reported the loose mount and requested that Despatch inform the CAS service crew. Mr Linning says he asked Dispatch what they knew of the cracked screen. He says that that Dispatch initially thought that he was reporting a second cracked screen. When he clarified that he was not, Dispatch informed Mr Linning that they would check with the CAS service team and report back to him. 38
[52] Mr Linning swapped out of the vehicle to undertake his crib break and was replaced by Mr McCorkill, who drove the vehicle in Mr Linning’s absence. During the crib break, Mr Linning contacted Dispatch to get further details about the previously cracked screen, but was told no further information was available. At the end of his crib break, Mr Linning returned to Truck 1283. He says that, when he returned to the vehicle, the CAS Screen was in a vertical position and had some cloth rags placed under the screen to support it. He says he left the CAS Screen as it was. He subsequently completed his shift and left the site at 7:00 pm. 39
[53] Truck 1283 was then operated by Mr Darren Thompson (Mr Thompson) on a night shift. Mr Thompson did not report any damage to the CAS Screen or Mount. 40 Mr Thompson was never interviewed in the course of the investigation into the damaged CAS.
[54] At 6:30 am on 12 December 2016, Dispatch informed Mr Milward that Mr Linning had reported damage to the ball mount of the CAS Screen in Truck 1283 at 11:00 am on the previous day. Shortly thereafter, Mr Milward inspected the CAS in Truck 1283, and says that he observed that the screen was leaning forward, was very loose, and that the rubber ball had been crushed and the Screen torn off its Mount. 41
[55] Mr Milward reviewed the Pre-Start Book and determined that Mr Linning had operated Truck 1283 prior to Mr Thompson.
[56] Mr Milward says that he informed his supervisor, Ms Sarah van Sickler, that it appeared the damage to the CAS Screen and the CAS Mount had been caused by Mr Linning. It was agreed that both incidents be dealt with simultaneously. 42
[57] Later the same day, Mr Milward contacted Mr Baron-Croston and informed him that the CAS Mount in Truck 1283 had been damaged. Mr Baron-Croston inspected the damage, and says that he concluded the damage occurred because someone had attempted to move the CAS Screen without first loosening the ball mount clamp. In an email to Mr Milward at 4.16 pm on 12 December 2016, Mr Baron-Croston hypothesised that this might have occurred if an Operator had caught their bag on the CAS Screen and pulled the CAS Screen with force. 43 The following day, Mr Baron-Croston sent a revised email to Mr Milward, which removed any reference to the hypothesis that the damage could have occurred if a bag had got caught on the mount.
[58] The following day, Mr Baron-Croston informed Mr Milward that GE had reviewed the damaged Mount, and informed him they had never seen damage of that nature and that it would take considerable force to crush a rubber ball mount (GE Report) 44
[59] On 13 December 2016, Mr Milward met with Mr Linning and his support person. Mr Milward put to Mr Linning the allegations that Mr Linning had damaged the CAS Screen during the shift of 6/7 December 2016 and the CAS Mount during the 11 December 2016 shift. At the interview, Mr Linning denied damaging the CAS Screen and suggested that the screen must have been damaged when lying on the dash after he had laid it down. He explained that he had not noted any damage because he had been in the vehicle during night shift and the light was poor. He also denied damaging the CAS Mount, saying that he had merely endeavoured to tighten it because it was floppy. Mr Linning says that he inspected the damaged CAS Mount and noted that it was missing a spring, which he understood was designed to prevent overtightening. Mr Milward concluded that it appeared Mr Linning had damaged both the CAS Screen and the CAS Mount and, therefore, stood him down on full pay pending the finalisation of the investigation process. 45
[60] Mr Milward subsequently arranged for the damaged CAS Screen to be dismantled. He says this revealed that the aluminium frame, which retains the screen in its mounting, was bent at the location where the screen cracks emanated. He concluded that, because there was no damage to the protective casing, it appeared that the damage had been caused by excessive force applied to the screen. 46
[61] On 21 December 2016, Mr Baron-Croston provided a report to Mr Milward. The report sought to identify the cause of damage to three CAS Screens, including the one Mr Linning was accused of damaging, along with the cause of the damage to the CAS Mount attributed to Mr Linning. The GE Technical Specialist who prepared the report concluded that the damage to two of the screens (including the one Mr Linning was alleged to have damaged) occurred because the screen was pressed with excessive force or was knocked into the dash with excessive force. The specialist concluded that the third screen had been damaged by a blunt object, such as a helmet or knuckle being applied with excessive force. In relation to the CAS Mount, the specialist concluded that it had been damaged by the screen being moved with excessive force when the wingnut had been excessively tightened. 47
[62] Based on the report, Mr Milward concluded that Mr Linning had damaged the CAS Screen and could only have done so as a result of deliberate misconduct. Mr Milward arranged to meet with Mr Linning and his support person on 23 December 2016 to put this to Mr Linning. Mr Linning again denied he had intentionally damaged the CAS Screen or Mount, but conceded that the screen could have hit the dash in Truck 1283 after he had laid it down. Mr Linning says he pointed out that the spring was missing from the CAS Mount, and that this could explain how overtightening could have inadvertently occurred. Mr Milward was not satisfied with Mr Linning’s explanation and, at the end of the interview, Mr Linning was issued with a Show Cause letter. 48
[63] Mr Linning responded to the Show Cause letter on 3 January 2017. 49
[64] Mr Milward and Mr Bacon subsequently endeavoured to replicate the damage on the CAS Screen on another screen. A video recording of this reveals that Mr Bacon was required to punch the screen numerous times with considerable force before damage replicating the damage alleged to be have been caused by Mr Linning was duplicated. 50
[65] On 6 January 2016, Mr Milward met with Mr Linning to provide him with a final opportunity to respond to the allegations that he had caused the damage to the CAS Screen and the CAS Mount. Mr Linning was informed that his explanation of the cause of the damage was not consistent with the findings of Alcoa’s investigation. Mr Milward says that, taking into account that the incidents occurred in the context of Mr Linning receiving a final warning in June 2015 for misconduct, a decision was made to terminate Mr Linning’s employment. 51
Was the proposed disciplinary action applied and implemented in a fair and reasonable manner?
[66] In contention between the parties is whether the proposed disciplinary action of terminating Mr Linning’s employment has been applied and implemented by Alcoa in a fair and reasonable manner.
[67] The grounds for imposing the disciplinary sanction of dismissal are set out in the Termination Letter and are that Mr Linning:
a. caused impact damage to the CAS Screen during the nightshift on 6/7 December 2016;
b. was required to report the damage and failed to do so; and
c. damaged the CAS Mount by overtightening the ball mount and moving the screen with undue force during his day shift on 11 December 2016.
[68] These findings are then relied upon as grounds for concluding that Mr Linning’s conduct constituted misconduct warranting dismissal. In the Termination Notice, Alcoa indicate that, having determined that Mr Linning was guilty of serious misconduct justifying dismissal, they have taken into account his “prior employment history” (including a first and final warning issued in June 2015).
[69] Alcoa’s assertion that Mr Linning caused impact damage to the CAS Screen in Truck 1283 during the nightshift on 6/7 December 2016, and that this alone justified his dismissal, relies on a finding in the course of the investigation that no other person entered the cab of Truck 1283 between Mr Linning completing his shift at 6:00 am and Mr Casey commencing his at 8:00 am. Mr Linning gave evidence that he left the truck cabin at 5.45 am. This is consistent with the Truck Operation Log (LEICA Report) attached to Mr Milward’s statement. However, the same log appears to indicate that the ignition of Truck 1283 was off from 5:45am only until 6:40 am. In its Closing Submissions, the AWU assert that the LEICA Report indicates that Truck 1283 was active from 6:40 am until 7:10 am. Mr Casey did not commence his shift until 8:00 am. Consistent with this, the LEICA Report indicates that Truck 1283 was operated from 8:35 am. The AWU submit this establishes that Truck 1283 was potentially operated by an identified person in the period between Mr Linning leaving the vehicle and Mr Casey entering it. As noted by Alcoa in its written Closing Submissions, this proposition was not put to Mr Milward in cross-examination, but also remained unanswered by Alcoa within its Final Submissions in Reply. It appears to be a possibility that, contrary to the findings of Alcoa, the vehicle may have been operated by someone in the time between Mr Linning completing his shift and Mr Casey commencing his. 52
[70] Alcoa assert that the impact damage to the CAS Screen was caused by Mr Linning punching, hitting or pressing the CAS Screen excessively. 53 In the video of Alcoa’s attempts to replicate the damage caused to the CAS Screen, a sample CAS Screen is repeatedly punched directly from above while resting on a hard table top before equivalent damage is sustained.54 In the re-creation, the CAS Screen is lying on a hard surface and, therefore, the screen absorbs the full force of the punches. However, in Truck 1283, the CAS Screen was not resting against a hard surface. The CAS Screen was mounted on the CAS Mount and a portion of any impact would have dissipated into the CAS Mount. Mr Baron-Croston acknowledged that the force of punches required to generate the damage in question would necessarily need to be of an even greater force than that demonstrated in the recreation.55 It therefore seems unlikely that aggressively tapping or pressing the screen, as Mr Linning is alleged to have, could have caused the relevant damage. To cause the alleged damage, he must have had to punch the CAS Screen.
[71] The only potential explanation Alcoa have identified for Mr Linning intentionally punching the CAS Screen, with the degree of force demonstrated by the re-creation to be necessary to account for intentional damage, was that the CAS alarms annoyed Mr Linning and he lashed out and struck the CAS Screen. The re-creation clearly demonstrates that multiple punches are required to intentionally cause the damage sustained by the CAS Screen. This contemplates an elevated level of anger. There is no evidence of Mr Linning opposing the introduction of the CAS. Mr Linning is aware that the CAS is a safety device. Intentional damage to a safety device is inconsistent with his voluntary service as a safety representative for many years. Mr Linning has no record of intentional or even reckless damage to company property in his nearly 20 years of service to Alcoa. 56
[72] The expert evidence obtained by Alcoa in the course of the investigation suggests three alternative explanations for the damage:
a. The wingnut being loose and the screen bumping on the dash.
b. Accidental operator damage if the screen was hit with a helmet or bag.
c. Intentional operator damage caused by aggressively hitting the screen.
[73] Mr Baron-Croston, who provided this expert evidence, stated in his report that he was unable to identify which of these was the cause of the damage. In his first report, provided on 7 December 2106, he indicated that the crack did not appear to match the position that the screen might hit the dash. However, in his subsequent report on 21 December 2016, he stated that “screen case knocked into dash” was a probable cause of the damage. 57 During cross-examination at the hearing, he conceded that it was possible that the CAS Screen could hit the dash if the CAS Mount was loosened and the CAS Screen was laid down. He also gave evidence that the back of the CAS Screen could come in contact with the vehicle, but he had discounted this as a possibility because of the location of the damage. He conceded that, in fact, he had done no testing to determine what damage might be sustained if the back of the CAS Screen impacted with the vehicle.58 Under cross-examination, Mr Milward also conceded that the damage could have occurred by the screen hitting the dash or supporting ROPS. 59
[74] Mr Linning consistently denied intentionally causing the damage. In the course of the investigation, Alcoa proceeded on the basis that Mr Linning intentionally caused the damage maliciously, but did not identify any direct proof that he did so and conceded this in their Closing Submissions. 60 Alcoa now assert that it is not necessary for them to establish that Mr Linning intended to break the CAS Screen. However, Alcoa have not established why it would be fair and reasonable to dismiss Mr Linning if the damage to the screen was not caused maliciously or recklessly. More importantly, Alcoa have not proved that Mr Linning, in fact, caused the damage.
[75] Mr Linning went to some effort to report the damage to the CAS Mount during his shift. He did not report any damage to the CAS Screen. The damage to the CAS Screen was not reported until Mr Casey commenced his shift. If Mr Linning had intentionally damaged the screen, it seems unlikely that he would report damage to other parts of the CAS, thereby drawing attention to the CAS Screen. Alternatively, if he did cause damage to the screen intentionally, it would seem more likely that he would report the damage with an excuse as to how it occurred rather than report only part of the damage to the CAS.
[76] Given these evidentiary gaps in the case against Mr Linning, I am not satisfied that the disciplinary action of terminating Mr Linning’s employment on the grounds that he caused impact damage to the CAS Screen in Truck 1283 during the nightshift on 6/7 December 2016 has been applied and implemented by Alcoa in a fair and reasonable manner.
[77] Alcoa also asserted in the Termination Letter that Mr Linning’s failure to report the damage to the CAS Screen in Truck 1283 during the nightshift on 6/7 December 2016 independently justified his dismissal.
[78] Mr Linning gave evidence that he endeavoured to advise Dispatch of the damage to the CAS Screen but was unable to do so because his two-way radio was not operating. 61 This is consistent with the evidence that the two-way radio was not working when Mr Hughes discovered the damage to the CAS Screen.62 Mr Linning says that, instead, he relayed the information through a number of operators via the CB UHF system to Dispatch.63 Mr Milward gave evidence that Dispatch had no record of Mr Linning reporting any damage to the CAS.64 However, the Dispatch operator was not called by Alcoa to give evidence and, in the absence of this evidence, I accept the evidence of Mr Linning.
[79] There is no dispute that Mr Linning recorded the damage to the CAS Mount in the Pre-Start Book. Mr Linning says that, at the muster point, he informed his Group Leader, Mr Thomson, about the faulty two-way radio, the loose CAS mount, and the position he had left the screen, and handed Mr Thomson his white page from the Pre-Start Book. During a subsequent investigation by Mr Milward, Mr Thomson was unable to recall whether, in fact, Mr Linning did so. 65 As noted above, Mr Thomson was not called by Alcoa to give evidence and, in the absence of Mr Thomson’s evidence, I accept the evidence of Mr Linning.66
[80] Mr Linning reported the damage to the CAS Mount during his subsequent shift.
[81] Alcoa did not identify any evidence that Mr Linning had a pattern of failing to report damage.
[82] Mr Darren Thompson, who did not report the damage to the CAS Mount, did not have the disciplinary sanction of dismissal imposed on him.
[83] Mr Linning has consistently maintained that he was unaware that the CAS Screen was damaged until he read the Pre-Start Book during his following shift.
[84] In all of these circumstances, I am not satisfied that the disciplinary action of terminating Mr Linning’s employment on the grounds that he failed to report the damage to the CAS screen in Truck 1283 during the nightshift on 6/7 December 2016 has been applied and implemented by Alcoa in a fair and reasonable manner.
[85] Alcoa also assert that Mr Linning caused damage to the CAS Mount in Truck 1283 during the dayshift on 11 December 2016 by overtightening the wingnut, then moving the CAS Screen with force and that this alone justified his dismissal. 67
[86] Mr Linning reported that the CAS Mount was in a damaged state when he commenced his shift. Before the nature of the damage was assessed and recorded by Alcoa, Truck 1283 was operated by:
a. Mr Roberts, during the shift before Mr Linning reported the damage;
b. Mr McCorkill, during Mr Linning’s shift in which he reported the damage; and
c. Mr Thompson, for a twelve hour shift after the shift in which Mr Linning reported the damage. 68
[87] Neither Mr Thompson nor Mr McCorkill were interviewed by Alcoa in the course of the investigation. Mr Milward accepted at face value Mr Robert’s assertion that the CAS Mount was undamaged during his shift. The investigation merely proceeded on the basis that Mr Linning was responsible for the full extent of the damage because he was the employee who reported the damage, and who accounted for the damage during the investigation process. 69 There appears to have been no effort to assess whether Mr Thompson or Mr McCorkill contributed in any way to the extent of the damage. Nor does there appear to have been any effort to assess the possibility that Mr Roberts perhaps damaged the CAS Mount unbeknownst to him, perhaps on his exit from the Truck.
[88] Alcoa have never proffered a motivation for Mr Linning to intentionally or maliciously damage the CAS Mount. There is no evidence of Mr Linning opposing the introduction of the CAS. Mr Linning is aware that the CAS is a safety device. Intentional damage to a safety device is inconsistent with his voluntary service as a safety representative for many years. There is no evidence that Mr Linning has intentionally or even recklessly damaged company property in his past nearly 20 years of employment with Alcoa. In fact, given the previous damage to the CAS Screen, it is not surprising that Mr Linning was particularly diligent in ensuring that the CAS Screen was firmly secured. 70
[89] Alcoa’s decision to treat the damage to the CAS Mount as serious misconduct relied on ‘expert’ opinions provided by Mr Baron-Croston of his own views or those he attributes to employees of GE. It appears that the opinions of the GE experts were never provided directly to Alcoa by GE, and are merely Mr Baron-Croston’s hearsay evidence of what GE concluded. Under cross-examination, Mr Baron-Croston was unable to identify which photographs he had provided to GE, and which formed the basis of their conclusions in relation to the extent and cause of the damage. Alcoa were provided with an opportunity to subsequently file these materials post-hearing and chose not to do so. No GE representatives were called as witnesses. 71
[90] In any event, none of the expert opinions link Mr Linning to the damage. Instead, the expert reports discuss the severity and possible causes of the damage. Interestingly, the ‘expert’ reports provided by Mr Baron-Croston identified potential non-intentional and accidental causes for the damage, including that a bag had been inadvertently caught on the mount when the driver was exiting the vehicle. At the hearing, Mr Baron-Croston also conceded that the CAS Screen obscured the CAS Mount. An operator could loosen the CAS Mount to adjust the Screen and inadvertently capture the ball within the Mount, leading to the ball becoming disfigured when the CAS Mount was tightened without the operator being aware of the damage 72
[91] Reporting the damage to the CAS Mount, particularly when that proved challenging, is not consistent with intentional or reckless damage. Given the lack of consequences for Mr Thompson in relation to his failure to report the damage, there seemed little motivation for Mr Linning to report the damage if, indeed, he was responsible for it because, without doing so, the damage might never have been traceable to him.
[92] Drawing Mr McCorkill’s attention to the damage is also not consistent with the actions of someone who has maliciously or even recklessly seriously damaged company property.
[93] Mr Linning proffered a plausible explanation for tightening the CAS Mount, and was consistent in his explanation throughout the investigation and during the hearing.
[94] At worst, it appears possible that Mr Linning inadvertently caused damage to the CAS Mount while endeavouring to stabilise the CAS Screen. Whilst malicious or even reckless damage to company property might form the basis of disciplinary action, Alcoa have failed to explain how an inadvertent instance of damage might, of itself, justify the strongest disciplinary sanction of dismissal, particularly when the employee promptly reported the damage and willingly participated in the investigation process.
[95] I note that, on 23 December 2016, Mr Wightman was issued with a Show Cause letter relating to his failure to report a broken CAS Screen, of which he was aware. 73 Mr Wightman received a final written warning and was suspended without pay for a week. However, Alcoa chose not to impose such a serious sanction as dismissal in response to this incident.74
Conclusion
[96] On the evidence available to me, I am not satisfied that it was fair or reasonable for Alcoa to conclude that Mr Linning was responsible for any or all of the damage to the CAS Screen or CAS Mount or, to the extent that he did damage the CAS, that this occurred in circumstances which could only have constituted misconduct warranting dismissal.
[97] According to their Closing Submissions, Alcoa “…did not expressly have regard for the earlier disciplinary record of Mr Linning … in coming to a decision to terminate his employment …”. Therefore the fairness and reasonableness of the decision to impose the disciplinary action of terminating his employment must be assessed based on his involvement in the CAS Screen and CAS Mount incidents. Given I am not satisfied it is fair and reasonable for Alcoa to conclude that Mr Linning’s involvement in either incidents amounted to misconduct warranting dismissal, it is not necessary to consider the evidence in relation to his prior employment record.
DEPUTY PRESIDENT
Appearances:
C Young for the applicant.
W Milward for the respondent.
Hearing details:
2017.
Perth:
June 7, 8, 9, 14.
Final written submissions:
Applicant, 13 July 2017.
Respondent, 26 July 2017.
1 Exhibit A13 at [1].
2 Ibid at [3]-[4].
3 Ibid at [6].
4 Ibid.
5 Ibid at [7].
6 Ibid at [8].
7 Ibid at [10].
8 Ibid at [12].
9 Exhibit A3 at Attachment 28.
10 Ibid at Attachment 30.
11 Exhibit A13 at [17]-[19] and Exhibit A12 at [29]-[32].
12 Exhibit A13 at [20].
13 Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447 at [19]-[20].
14 AWU Closing Submissions, Pope v Lawler (1996) 41 ALD 127.
15 Exhibit A13 at Attachment 26.
16 Exhibit A12 at [24].
17 Exhibit R6 at [1]-[17], [22]-[23] and Exhibit R7 at Attachment 2.
18 Exhibit R7 at Attachment 4.
19 Exhibit R1 at [21].
20 Exhibit A12 at [24].
21 Ibid.
22 Ibid.
23 Ibid.
24 Exhibit R7 at [57] and Attachment 9.
25 Exhibit A12 at [24].
26 Exhibit R7 at [38]-[40].
27 Exhibit A8.
28 Exhibit R7 at [24].
29 Ibid at [27]-[30].
30 Exhibit R6 at [24]-[29].
31 Ibid at Attachment 1.
32 Ibid at [31].
33 Exhibit A3 at Attachment 29.
34 Exhibit R7 at [53].
35 Ibid at Attachment 7.
36 Exhibit A12 at [24].
37 Ibid.
38 Ibid.
39 Ibid.
40 Exhibit R7 at [49].
41 Ibid at [42]-[46].
42 Ibid at [54].
43 Exhibit R6 at [36]-[43].
44 Exhibit R7 at [56].
45 Exhibit R7 at [58]-[70] and Exhibit A12 at [24].
46 Exhibit R7 at [71]-[77].
47 Exhibit R7 at [80]-[81] and Attachment 10.
48 Exhibit R7 at [83]-[92] and Exhibit A12 at [25].
49 Exhibit R7 at [93].
50 Ibid at [97]-[100].
51 Ibid at [101]-[110].
52 AWU Closing Submissiona at [46]; Exhibit R7 at Attachment 5; Alcoa Closing Submissions at [65].
53 Transcript PN4112-4115, PN4249 and PN4203.
54 Exhibit R7 at Attachment 11.
55 Transcript PN3844-3850 and PN4142-4140.
56 Transcript PN4205-4217 and PN4232-4236.
57 Exhibit R6 at Attachment 1 and 4.
58 , Transcript PN3851-3857.
59 Transcript PN3964-3977 and PN4155.
60 Alcoa Closing Submissions at [80].
61 Exhibit A12 at [24].
62 Exhibit A8 at [10].
63 Exhibit A12 at [24].
64 Exhibit R7 at [30].
65 Exhibit R7 at [57] and Attachment 9.
66 Exhibit A12 at [24].
67 Exhibit A3 at Attachment 29.
68 Transcript PN3907, PN3941 and PN3909-3913.
69 Transcript PN3956-7.
70 Transcript PN4205-7.
71 Transcript PN3603 -3610.
72 Exhibit R6 at Attachment 2; Transcript PN3560-3566.
73 Exhibit A14 at [8].
74 Ibid at [9].
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