Brett Haigh v Bradken Resources Pty Ltd
[2013] FWCFB 2918
•28 JUNE 2013
[2013] FWCFB 2918 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Bradken Resources Pty Ltd
(C2012/6528)
DEPUTY PRESIDENT MCCARTHY | PERTH, 28 JUNE 2013 |
Appeal against decision [[2012] FWA 9780] of Commissioner Williams at Perth WA on 20th November 2012 in matter number U2012/4952.
Introduction
[1] This matter concerns an appeal lodged pursuant to s.604 of the Fair Work Act2009 (the FW Act) by Mr Brett Haigh (the Appellant) against a decision and order dismissing an application for an unfair dismissal remedy. The application was made to Fair Work Australia [now the Fair Work Commission (FWC)]. The Appellant was dismissed from his employment with Bradken Resources Pty Ltd T/A Bradken Limited (the Respondent) on 28 December 2011.
The Commissioner’s Decision
[2] The Decision of the Commissioner outlined the background and circumstances giving rise to the dismissal of the Appellant. The Appellant was an experienced boilermaker and had been employed by the Respondent for 9 years. He was involved in an incident involving cutting a large steel plate and the Respondent asserted that he had undertaken or caused to be undertaken that function in an unsafe manner. The facts involved in the incident were disputed and in particular whether the Appellant acted in an unsafe manner or in breach of safety rules.
[3] The Commissioner found amongst other reasons that (a) Mr Haigh’s actions in setting up a job to cut the steel plate in the way he did was inconsistent with his obligations with respect to safety. This was a valid reason for the dismissal. 1 He found that Mr Haigh was notified of the reasons when the Respondent was considering dismissing him and he was given an opportunity to respond to the reasons. 2
[4] The reasoning critical to the Commissioner in coming to the conclusion that the dismissal of the Appellant was not harsh and unjust or unreasonable is contained in the paragraphs 133 to 138 of his decision. Those paragraphs are repeated below:
“[133] It may well have been preferable for Bradken to have met with Mr Haigh to explain to him in detail its view of the safety breach he had been involved in rather than to simply write to him in relatively brief terms which did not expand on those concerns in any detail.
[134] However Mr Haigh has not during the hearing of this application demonstrated that he now recognises that the manner in which he chose to carry out this cutting job was significantly less safe than cutting the plate whilst it was lying horizontally. Mr Haigh has also never provided any explanation which might amount to mitigating circumstances that would explain why he chose to set up this cutting job in the way he did. Consequently it is apparent from his consistent approach to this incident that a fulsome explanation by Bradken of their safety concerns over the incident would in all likelihood not have led to any different response from Mr Haigh.
[135] Mr Haigh bears the total responsibility for choosing to cut the plate in the way he did.
[136] Mr Haigh at the hearing of this matter continued to rely on the fact that the plate was not free to move, because it was held up by the crane and its bottom edge stood on the ground, as being the total answer to any concerns that the plate was suspended and the job set up was significantly less safe than the standard practice.
[137] It is of concern that from the first time Mr Wu expressed discomfort in completing the cut because of safety concerns right through to the this hearing that Mr Haigh has not accepted that his actions posed an unnecessary risk to himself and others. Mr Haigh rejects the view of Mr Birch, Mr Gorringe and Mr Denham that his actions were a serious breach of safety.
[138] Whilst Mr Haigh had nine years of service at the time of this incident it is reasonable in these circumstances for Bradken to come to the view that Mr Haigh’s conduct in setting up of the cutting job as he did and his failure to heed the safety concerns first raised by Mr Wu and later his failure to accept that his conduct involved a serious safety breach did warrant the termination of his employment.
[139] I do not accept that the dismissal of Mr Haigh was harsh, unjust or unreasonable.” 3
Our approach to the appeal
[5] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4
[6] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal of the FW Act. Section 400(1) of the FW Act provides that permission to appeal must not be granted from a decision made under that Part unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act establishes a higher threshold for a grant of permission to appeal in respect of unfair dismissal appeals than that pertaining to appeals generally.
[7] The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Tribunal identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 5
Grounds of appeal
[8] There were six grounds of appeal raised by the Appellant. In summary the grounds can be summarised under four main headings of complaint viz that;
(i) the Commissioner made significant errors of fact [Grounds 1,3,5,6]
(ii) the reasons given by the Commissioner were inadequate [Grounds 3 and 4]
(iii) the Decision made by the Commissioner was plainly unjust and unreasonable [Ground 2] and;
(iv) the Commissioner failed to give consideration to relevant issues [Ground 6].
Grounds relating to significant errors of fact
[9] In the Appellant’s first ground he says that he was dismissed for one alleged breach of safety rules. He complains that he disputed that is was a breach of the safety rules and that there was conflicting evidence. It is clear the Appellant did dispute that he breached the safety rules and it is also clear that there were clear differences of opinion between the Appellant and others who gave evidence. Essentially his complaint is that he believes the decision reached by the Commissioner was not open on the evidence.
[10] The decision of the Commissioner however was not as described by the Appellant. The Commissioner did not find that the Appellant had breached safety rules. Rather what the Commissioner found was that;
“[89] Considering all this evidence on balance I find that the way Mr Haigh set up the job to cut the plate had the potential to harm himself and whomever was assisting him and as such was hazardous and I find the risk of harm occurring to himself and those assisting was significant.
[90] I find also that the less hazardous and lower risk way of cutting the plate, with it lying horizontally on either a plasma cutting waterbed, trestles or gluts was standard practice. Further there was no reason why this set up for cutting the plate was not used by Mr Haigh on this occasion. Indeed at no time has Mr Haigh explained why he chose to set up the job in the way he did and why he did not follow the suggestion of Mr Ireland to cut it using the plasma cutter in bay 2 of GF and R division where it would have been laid horizontal and fully supported.” 6
[11] The Commissioner did not find any breach of safety rules or policy at all. Rather he found that the conduct was unsafe, was not standard practice and no explanation was given why the appellant chose to perform the task in the way that he did.
[12] In the proceedings before the Commissioner evidence was given by the Appellant and by all of those that were involved in the incident and the investigation and discussions that followed from it. The Commissioner outlined the evidence and accurately summarised it. He weighed up that evidence, identified conflicts and made a conclusion from it. We can find no errors of fact in the Commissioner’s reasons or findings and certainly no significant errors of fact.
[13] In the Appellant’s fifth ground he complains and asserts that it was not the task of the Commissioner to determine whether the task undertaken by the Appellant was or was not unsafe. It appears that the Appellant is of the opinion that the Commissioner was either confined to examining the reasons given for the dismissal by the employer and or confined to consider whether or not the Appellant breached any safety rules or policies. The Commissioner was not so confined.
[14] In arriving at that conclusion and more generally in matters of this nature, the scope of enquiry and basis for the determination to be made by the Commission can and invariably does involve an examination of all of the relevant circumstances before and potentially after a dismissal. This may also include reasons not relied upon by the employer for the dismissal. It also relies heavily on evidence about customary practice and relevant opinions about safe practice. Those opinions can, as here, often differ in essence and in degree. The Commissioner was obliged to consider that evidence objectively and was entitled to prefer the evidence of other witnesses in preference to that of the Appellant as he did. He also identified why he preferred that other evidence.
[15] The Commissioner did not find, as the Appellant asserts, that there was a breach of safety rules; rather he found that “the way Mr Hague set up a job that had the potential to harm himself and another employee who was assisting him and as such was hazardous and I find the risk of harm occurring to himself in those assisting was significant”. 7 He also found that there was a less hazardous and lower risk of cutting the plate in a different way was standard practice.8
[16] The conduct complained of by the employer included whether the conduct engaged in by the Appellant amounted to unsafe conduct. The Commissioner made a number of findings including a finding directed at that specific point. This was essential in deciding whether there was a valid reason for the dismissal. The Commissioner thus had ample grounds and explained clearly why he came to the conclusion that; “Consequently I accept that the actions of Mr Haigh in setting up the job to cut the plate as he did and then directing others to cut the plate was inconsistent with his obligations contained in his contract of employment and position description with respect to safety.” 9
[17] In arriving at his conclusions regarding the safety issues of the conduct the Commissioner assessed the evidence of Mr McDonald (an Overlay Machine Operator) who did not consider it was unsafe, 10 Mr Lodge (an Advanced Rigger) who did not consider it unsafe, although he thought the task could be performed in a safer way. Mr Birch was the Manufacturing Manager and considered it could be performed in a much safer manner. 11 Mr Ireland, was the Senior Leading Hand, and evidenced that plates had been cut on other occasions in the manner the Appellant used but “...that plates are normally cut whilst resting horizontal and that is the safest method of cutting a plate”. 12Mr Gorringe the Fabrication Machining Manager who had extensive experience evidenced that there were safer methods which he explained13, Mr Denham, the Plant Engineering Manager who evidenced the “...safer method is to cut the plate whilst it is resting horizontally on trestles” 14
[18] The Commissioner thus had a significant body of evidence which he considered in arriving at his conclusion. His conclusion was consistent with most of the evidence that there was a safer method and he found accordingly and in so doing did not accept the evidence of the Appellant. There was no error by the Commissioner in the manner in which he approached the matter, nor his conclusions about it.
[19] The Commissioner also examined the procedures involved leading up to the dismissal. He found that the Appellant was notified and stated that the Appellant(i)was notified verbally, (ii) that he would be stood down, (iii) there would be an investigation, (iv) that the investigation would involve what had occurred the previous day when the plate was cut, and (v) the investigation of the incident involved discrimination and safety issues. 15
[20] The Commissioner also found that there was a meeting held on 13 December 2011 regarding the incident. Present at the meeting were the Appellant Mr Gorringe and Ms Hayley. Mr Gorringe was the Fabrication Machining Manager and Ms Hayley was the Regional Human Resources Co-ordinator. The Commissioner’s findings in respect of that meeting was that at the meeting the Appellant “...was made fully aware in the meeting .... of the allegations against him.” 16There were two issues raised at that meeting one of which was the safety incident. The Appellant’s own evidence acknowledged that it had been raised and the allegations explained to him, 17 although it is apparent that he disputed elements and extent of the allegations put to him. 18 The evidence before the Commissioner included evidence of Mr Gorringe who gave evidence that the safety issues were explained 19 and that he had difficulty getting the Appellant to concentrate on the issues under investigation. 20 There was also evidence about the conduct and demeanour of the Appellant during that meeting. 21 Ms Haley also gave evidence that the allegations were put to the Appellant and what she described as witness statements were read out to him. 22
[21] The Commissioner also referred to a letter sent to the Appellant requesting that he show cause why he should not be dismissed. 23 The Commissioner repeated the content of the letter in his decision that asserted that the Appellant was involved in an incident “relating to cutting of plate in a suspended condition.” 24
[22] The Commissioner considered the full but brief response to the letter by the Appellant which stated “...I submit to you that there is no just cause for me to be terminated. In relation to the cutting of a suspended plate on 12 December 2011, as the plate was not suspended when the plate was cut.” 25
[23] A few days after that response the Appellant’s employment was terminated.
[24] The Commissioner’s finding was that the Appellant “...was notified of the reason Bradken was considering terminating him for and he was given an opportunity to respond to that reason before the final decision to terminate him was made.” 26
[25] This finding was challenged on the basis that there was no real or adequate opportunity for the Appellant to respond.
[26] The Commissioner appeared to be of that mind as well as he observed that “It may well have been preferable for Bradken to have met with Mr Haigh to explain to him in detail its view of the safety breach he had been involved in rather than to simply write to him in relatively brief terms which did not expand on those concerns in any detail”. 27
[27] It is also relevant that a mock repeat of the setup and incident was conducted by the Respondent’s management, however the Appellant was not invited to participate or given his opportunity to comment of the accuracy or similarity of the mock-up with the incident that occurred.
[28] We are of the view that the Commissioner fell into error in finding that the Appellant was given an adequate opportunity to respond to the allegations regarding his conduct on 12 December 2011. We accept that a form of the allegations was explained to him at a meeting on 13 December 2011 but it was clear that at that meeting the Appellant disputed the allegations and further he was in an agitated state. The Respondent seemed to recognise the state he was in and purported to give him an opportunity to respond in writing to the allegations. However the letter sent to him was poorly framed and merely stated that he had been involved in the “cutting of plate in a suspended condition”. He disputed that, primarily on the basis that the plate was not “suspended”. Following the Appellant’s response without any further discussion or involvement the Appellant’s employment was terminated.
[29] The sequence of did not constitute an adequate opportunity to respond given the particular circumstances evident here.
[30] The FW Act requires that the Commission must take into account each of the criteria prescribed in s.387. Each of those criteria is important although the weight to be given to each depends on the circumstances of the case and the significance of each criteria as assessed by the Member in the ultimate determination of whether the dismissal was harsh unjust or unreasonable.
[31] Whether conduct is unsafe or not can often be objectively determined by whether a policy or rule has been breached. Conduct can also often be objectively determined by reference to standard practice in carrying out of a function or task. However, where there are no express rules or specific policies in place and there is a dispute about what was standard practice, an unsafe act can often only be determined by reliance on individual assessments and opinions about that act. The importance of providing a proper and precise explanation to the employee accused of unsafe conduct in these circumstances is of significant importance in order that the employee can truly be regarded as having had an opportunity to respond to the accusation.
[32] Here the Appellant was accused of conduct that was considered to be unsafe. He was not given a proper explanation of what he was accused of and the accusation that was made was ambiguous. Furthermore the Respondent re-enacted the incident but without the Appellant’s knowledge or involvement. The importance of a proper opportunity to respond and confirm the accuracy of the re-enactment was critical in such circumstances.
[33] The finding to the contrary by the Commissioner was an error. The error is a significant error in the context of this matter.
[34] The Commissioner went on to infer that even if a better opportunity had been given it would have made no difference to the outcome. It may be sufficient in some circumstances to decide what an employee’s response may have been, but in the circumstances here we consider that without express and proper explanation it was unsafe to make such speculation. The Appellant may or may not have responded in the way he did if the accusation was properly put to him. This is significant given that the dismissal was founded upon differing views about the safety of the Appellant’s actions.
[35] In part of the third ground of appeal the Appellant complains of what he contends was a finding that his actions constituted a grave breach of contract. In fact, the Commissioner did not find that there was a grave breach of contract at all. What the Commissioner actually found was that” I have found that Mr Haigh’s actions in setting up the job to cut the steel plate in the way he did was inconsistent with his obligations with respect to safety. This was a valid reason for his dismissal”. 28He also found that his conduct was “...inconsistent with his obligations contained in his contract of employment and position description with respect to safety.” 29
[36] The Commissioner did refer to the Respondent’s view that the Appellant’s conduct involved a serious safety breach in deciding to terminate his employment, 30 however that was not a finding of the Commissioner.
Grounds relating to inadequate reasons
[37] In the Appellant’s third ground he complains that the Commissioner gave inadequate reasons for preferring one set of evidence in relation to safety over another. He also complains that there was no reasoning why the actions of the Appellant in cutting the sheet metal in the manner in which he did constituted a grave and serious breach of contract. We have dealt with that second element above. 31
[38] There was extensive evidence from those that were directly involved in the incident and by those that investigated the incident. That evidence from the Respondent’s witnesses was that the conduct of the Appellant was unsafe. The Commissioner relied on that evidence and specifically referred to his preferring of it over the evidence of the Appellant. Indeed the Commissioner included in full the statement by Mr Wu in his reasons who was another employee central to the incident. The Commissioner expressly accepted the evidence of Mr Wu in preference to that of the Appellant. The Commissioner at paragraph 45 of his decision gave the express reason why he preferred the other evidence, “....this finding is supported by Mr Wu’s evidence and Mr Western’s evidence and is consistent with the evidence that Mr Hague was repeatedly asking Mr Gutierrez if Mr Wu had spoke to him about safety.” 32 The Commissioner clearly gave reasons why he preferred Mr Wu’s evidence and referenced the specific matters that influenced him in arriving at that decision.
[39] We find the Commissioner did give adequate reasons for preferring one set of evidence over another and that on a fair reading of his decision he accepted that the actions by Mr Haigh involved unsafe conduct by him.
[40] In the fourth ground the Appellant states that it is not sufficient to simply recite the evidence and state a finding without providing reasons. We accept that reasons are not sufficient if they merely set out the evidence and material upon which findings are based without any commentary as to why the evidence is said to lead to those findings.
[41] We do not agree with the complaint by the Appellant that the Commissioner simply recited the evidence and stated a finding without providing reasons. Throughout the decision the Commissioner identifies the evidence he prefers and it is clear from a fair reading why he prefers that evidence. He applied the proper approach and gave reasons for reaching his conclusions about the evidence he referred to.
Ground relating to whether the decision was plainly unjust and unreasonable
[42] In ground 2 of the appeal the Appellant complains that it is not appropriate to dismiss an employee for an isolated act of misconduct, unless that misconduct goes to the foundation of the relationship between employer and employee, or is of grave and serious nature. The ground is more a statement and observation than a ground of appeal. However clearly what the Appellant is asserting is that termination of employment was a disproportionate discipline for the conduct.
[43] The ground also seems to encompass the view that the Commissioner did not take into account all of the factors that should have been taken into account in deciding whether the termination of employment was harsh unjust or unreasonable. We deal with this issue below.
[44] The Commissioner in his decision as shown above weighed up the nature of the incident and the seriousness against the responses by the Appellant in the investigation that followed. That is evident from the extracts of paragraphs above. The Commissioner clearly on a fair reading of his decision gave significant weight to the refusal by the Appellant to accept that his conduct was unsafe. It is also reasonable to imply that this element weighed into his overall assessment of the nature of the dismissal.
[45] Each matter that comes before this Commission turns on its own facts and circumstances surrounding those facts. There is no rule that an isolated incident involving unsafe conduct cannot form the basis for a fair dismissal. All elements relating to the conduct involved in a specific incident include the behaviour, the surrounding circumstances and the consequences of that conduct, and reactions to the incident may be relevant. The Commissioner was entitled to take into account the apparent refusal by the Appellant to acknowledge that he was responsible for the conduct of work in a manner that was not in accordance with the manner the Respondent wanted that work to be performed.
[46] However, it is probable that the Appellant’s response to the allegations was influenced in part by the manner in which they were raised with him by the Respondent. The lack of precision in the allegations about the state of the steel plate and the consequences of it being suspended did not assist the Appellant to fully explain his position, including in relation to how it should be done in the future.
[47] On that basis, although the Commissioner correctly took the Appellants’ attitude into account, this was influenced by the error we have earlier identified.
Ground relating to failure to consideration to relevant matters
[48] The sixth ground appears to us to be simply a summary of all the other grounds relied on by the Appellant.
[49] Subject to what follows, in arriving at his decision the Commissioner dealt with each of the matters he was required to take into account.
[50] He found that the Appellant’s “...actions in setting up the job to cut the steel plate in the way he did was inconsistent with his obligations with respect to safety. This was a valid reason for his dismissal.” 33
[51] However, as part of the Appellant’s explanation for his actions, he indicated that he had set up the steel plate as he did because it was consistent with how other similar operations were conducted and was more efficient. It is not readily apparent that the Commissioner took this relevant consideration into account.
Leave to Appeal
[52] The errors we have identified in the Commissioner’s decision above are such that leave to appeal is granted. We also consider it is in the public interest that the appeal be upheld.
[53] We rescind the Order of Commissioner Williams and deal with the matter by way of rehearing ourselves.
The Rehearing
[54] We have considered the relevant considerations established by s.387 of the Act. In so doing we rely upon much of our earlier discussion of these matters.
Was there a valid reason for dismissal?
[55] For reasons outlined above, we agree with the conclusion reached by the Commissioner that there was a valid reason for termination,
Was the Appellant notified of the reason?
[56] As found above, we agree with Commissioner Williams’ finding that the Appellant was notified of the reason for his dismissal.
Was the Appellant given an opportunity to respond?
[57] For the reasons given above, we find that the Appellant was not given an adequate opportunity to respond to the allegations about his conduct.
[58] In this particular case, the failure to involve the Appellant in the mock of the incident and to properly outline with some particularity the nature of the Respondent’s concerns means that what the outcome of the discussions that should have taken place open to pure conjecture. On one view it may have been extremely improbable that the Appellant would recognise a safer way to perform the tasks. On another view a more explanatory rather than condemnatory approach of why the Respondent considers the conduct unacceptable might have led to a totally different response by the Appellant.
Was there any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal?
[59] We agree with and adopt the findings of Commissioner Williams on this issue.
(e) if the dismissal related to unsatisfactory performance by the person-whether the person had been warned about that unsatisfactory performance before the dismissal;
[60] The dismissal fundamentally concerned the Appellant’s conduct and the issue of work performance is not relevant.
(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
[61] We agree with and adopt the findings of Commissioner Williams
(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
[62] We agree with and adopt the findings of Commissioner Williams
(h) any other matters that the FWC considers relevant.
[63] The other matters that are relevant include the length of service and previous history of the Appellant. The Appellant is experienced and has had a good record with the Respondent. These issues generally weigh in favour of the Appellant’s application. However, at the same time they weigh against the Appellant. A tradesman with his expertise and experience should readily acknowledge and be willing to participate in discussions about safer conduct. Perhaps the manner in which the Respondent’s approached the issue in conjunction with other complaints, which were later not pursued or relied upon, may have influenced the Appellant’s lack of cooperation, but nevertheless once he got the latter he should have been more forthcoming and explanatory rather than flatly rejecting the accusation.
[64] On balance, the decision to dismiss the applicant was harsh in all of the circumstances.
[65] Taking all of the relevant considerations into account we find that the dismissal was unfair.
[66] We have decided not to determine the remedy but rather remit the application to Commissioner Cloghan for his consideration and determination on that issue. We have adopted this course of action given the lack of evidence concerning remedy presently before the Commission and the timeframes involved since any evidence on those matters was provided.
DEPUTY PRESIDENT
Appearances:
Mr B Haigh self-represented Appellant
Mr D Jones for the Respondent
Hearing details:
2013.
Perth:
March, 5.
1 [2012] FWA 9780 at paragraph [120]
2 [2012] FWA 9780 at paragraph [129]
3 [2012] FWA 9780 at paragraphs [133] to [140]
4 See: Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
5 (2010) 197 IR 266 at paragraph [27]
6 At paragraphs [88]-[89]
7 At paragraph [89]
8 At paragraph [90]
9 At paragraph [91]
10 At paragraph [69]
11 At paragraphs [72]-[77]
12 At paragraph [78]
13 At paragraphs [79]-[84]
14 At paragraphs [85]-[88]
15 At paragraph [122]
16 At paragraph [113]
17 Transcript PN624, PN636
18 Transcript PN634, PN635
19 Transcript PN1677, PN 11685
20 Transcript PN1693, PN2024
21 Transcript PN1686, PN1690, PN2025-PN2026
22 PN1953, PN 1999
23 At paragraphs [112] [122]
24 PN122
25 At paragraph [126]
26 At paragraph [129]
27 At paragraph [133]
28 At paragraph [120]
29 At paragraph [91]
30 At paragraph [138]
31 At paragraph [14]
32 At paragraph [45]
33 At paragraph [120]
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