C McLean v Transfield Services Limited

[2013] FWC 2573

[2013] FWC 2573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

C McLean
v
Transfield Services Limited
(U2012/14575)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 8 MAY 2013

Application for unfair dismissal remedy - arbitration - compensation in lieu of reinstatement.

[1] This is an application by Mr C McLean (the applicant), pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Transfield Services Limited (the respondent).

[2] The applicant was represented by Mr N Campbell, of counsel, instructed by the applicant’s union the Construction, Forestry, Mining and Energy Union (CFMEU). The respondent was represented by Mr D Hope, Executive Manager Industrial Relations for the respondent.

Background

[3] The applicant worked for the respondent on the Qenos Altona Revamp in February 2012, until completion on September 2012   and then on the Qenos Shutdown project from 1 October 2012. The termination of the applicant’s employment occurred on 27 October 2012, following an incident in relation to movement of a control valve from a platform on the LEAL Converter to ground level on 20 October 2012.

[4] The incident of 20 October 2012 was investigated by the respondent, led by Mr T Ibrahim, Safety, Health and Environment (SHE) Field Coordinator, with the involvement of Mr A Campbell, TSL TA HSF Manager. The report prepared - identified as Incident INC-33865 - is in evidence. 1 It states:

● “Whilst removing a control valve via a crane lift the load moved injuring the rigger by trapping his finger between the valve and equipment”;

● “First aid applied, injured person taken to hospital, area isolated”;

● Under “Eye Witness Subform”, the report refers only to Mr P Boicovitis, SHE Field Coordinator, and has attached an electronic form - a statement, identified as img-Y01072612-0001.pdf;

● It records as persons affected Mr R Grunberg (the Dogman) , medically treated injury;

● The incident overview is recorded as “When removing a control valve the valve rigging released resulting in the control valve falling to grade [sic] and injuring a team mate”;

● The sequence of events is recorded as:

• “Work team organise a 25 ton franna and rigged the valve from the 1st (2nd level in Qenos Definition) of the converters for removal. 25 ton crane was to [sic] large which required the Supervisor to request the assistance of the 12 ton franna”:



• “Insufficient headroom for boom of 25T crane. Supervisor requests 12T crane be used for the task. Hook of the 12T crane is removed by the work team to allow additional range of lift.”



• “Work team believed that sling would have been to [sic] long due to head room requirements.”



• “Did not have other alternative at hand.”



• “Failure to complete risk assessment and identify correct lifting methods.”



• “Rigger did not review and sign existing safe work review in the work pack for the task.”



• “Dogman directs crane boom into location and with rigger lift control valve several times for assessment. Load was pre rigged prior to 12 ton crane arriving via the rigger with aid of green 2 ton sling. The control valve weight is approx 250kg.”



• “Balancing the load the crew required a second swing [sic] to assist. Second sling was purple in colour and rated to one ton. All slings are within test date. Supervisor descends to lower level to undertake another activity.”



• “Control valve was rigged off the cranes lifting pin (originally the hook would be in place however was removed to provide more head room). In placing the two slings the tails x 4 where [sic] required to be placed through the crane lifting pin resulting with one of the four tails not being captured during the pin installation.”



• “Pin did not capture fourth tail (end of sling).”



• “Restricted head room contributing to lack of visual information.”



• “Work team choose to use pin rather that [sic] other methods of rigging.”



• “Quicker method rather than seek alternative methods i.e. such as using the crane rhino.”



• “Failure to identify new hazards/changed conditions. Did not stop and review risk assessments or seek advice when decision was made to remove the crane hook.”



• “Load is lifted and checked. Rigger has control of actuator end of the control valve and directing crane. Rigger has stepped back and in process of going to next level to assist in crane movement.”



• “Load moves, rotates anticlockwise and falls to the deck. Crane driver observes what is occurring and immediately lowers on the wire to lower the load.”



• “Supervisor hears the incident and immediately ascends stairs to investigate. Questions work team to any injuries when he is advised by the dogman that he has sustained a finger injury, Supervisor takes dogman to first aid.”



• “Safety coordinator hears incident and immediately proceeds to area. Supervisor and injured person walk past Safety coordinator. Safety Coordinator reviews work area and observes rigger working on control valve rigging. Advises area is to be left alone and all to leave.”

● Under the heading “Analysis Findings”, the report states:

• “After changing the 25T crane for a smaller 12T crane due to restricted liting [sic] area, there was no completed risk assessment (safe work review, reviewed and signed) for the changed conditions.”



• “The rigging of the control valve could have been undertaken differently making the rigging safer and avoiding the need to have double the amount of rigging to the crane safety pin. Stopping and reassessing the task may have identified alternative methods such as using the crane rhino.”

● The “Root Cause”: was reported as: “People directly involved chose to take a short cut to save time or reduce effort”;

● “Contributing Factors” were recorded as: “People directly involved chose to take a short cut to save time or reduce effort Managers/Supervisors did not provide proper guidance by communicating clear performance standards”;

● The report records in respect of both the applicant and Mr H Richert, the Supervisor/Manager, unintentional error as the behaviour and coaching/training as the consequence;

● The conclusion/recommendation is recorded as:

“The work team and individuals were coached on rigging techniques, SWR’s and rereviewing the works when conditions change. This was prestarted [sic] and discussed with supervision over the week since the event.

Whilst completing the investigation the investigation team with Qenos identified that the incident scene had been modified. The rigging identified after the event was not correct to the incident, this was confirmed with the dogman and second witness. When confronted to why the rigging had been modified he stated the valve was unsafe. This was proven as incorrect as the location he advises the valve landed in, had no evidence of damage, paint or scuffing. Furthermore the dogman and witness advise that where the valve landed is correct . . . and the valve did not need moving. When questioned the rigger denied altering the rigging despite being asked on several occasions. When advised of the information gathered during the investigation and of other people’s accounts including the safety coordinator who requested the ‘area is to be left alone and all to leave’. [H]e admitted altering the rigging as one of the sling ends had not been located properly.

The rigger was removed from site due to tampering with an incident scene after an accident, despite being asked not to change anything and failing to provide accurate information to the investigation team on several occasions.”

[5] The report is shown to have been created by Mr Ibrahim. It had a number of attachments to it.

[6] The employment of the applicant was terminated on 17 October 2012, following an incident with the lifting of a valve on 20 October 2012. The termination letter, 2 dated 27 October 2012, said:

● The respondent’s management had completed an investigation into the lifting incident on 20 October 2012;

● Statement by the applicant and other employees had been taken as part of the investigation and review;

● The outcome of the investigation had been discussed with the applicant and management had a concern with discrepancy in the detail the applicant provided against other witnesses;

● In addition the respondent had a concern with the applicant “tampering with rigging of the lift following an accident and before the statutory Worksafe investigation”;

● Considering all of the circumstances, the respondent had concluded that the applicant “misled the safety incident investigation” in his statement and had “breached the Occupational Health & Safety Act by handling the rigging of the lift immediately after the incident and before the statutory Worksafe investigation”;

● The respondent concluded that these “actions constitute serious breaches of workplace health and safety standards”;

● The respondent had therefore decided to terminate the applicant’s employment on the day - 27 October 2012; and

● The respondent advised that the applicant would be paid for the remainder of the day and that “all entitlements accrued will be forwarded to your nominated bank account”.

[7] The termination letter was signed by Mr G Mawson, Turnaround Manager for the respondent.

[8] The respondent’s investigation of the lifting incident itself resulted in conclusions by the investigators of the proposition that the applicant had tampered with the incident scene and misled the investigators. The two issues - the applicant’s behaviour/performance in the lift itself and the alleged misconduct immediately after the incident and during the investigation - the allegations were treated as separate matters in terms of the respondent’s disciplinary processes (Transfield Fair Play Model). In relation to the lift itself, the respondent determined that the applicant should be required to undertake additional training in relation to his “unintentional error”. In relation to the alleged misconduct, the respondent decided to terminate the applicant’s employment.

Evidence

[9] The applicant gave evidence on his own behalf. The applicant was recalled for further cross-examination in order for the respondent to put any matters to him, arising from the respondent’s evidence or submissions on which it intended to rely. 3 The applicant also called evidence from Mr A Brodie, a Rigger/Scaffolder employed by the respondent and the CFMEU delegate and Mr J Duggan, a CFMEU organiser.

[10] The respondent brought evidence from Mr Boicovitis, Mr Ibrahim and Mr Mawson. The respondent also called evidence from Mr Grunberg, who appeared subject to an order to attend sought by the respondent.

[11] The evidence is addressed throughout this decision in relation to specific issues.

Submissions

The applicant

[12] The applicant submitted that the Fair Work Commission (the Commission) ought to be satisfied that:

“ Mr McLean was dismissed within the meaning of section 386 of the Fair Work Act 2009 (‘the Act’);

● the dismissal was harsh, unjust and unreasonable;

● the dismissal was not consistent with the Small Business Fair Dismissal Code;

● the dismissal was not a genuine redundancy.”

[13] The applicant submitted that the only criteria in dispute is whether the dismissal was harsh, unjust or unreasonable.

[14] The applicant submitted that the respondent did not have a valid reason for the termination related to the applicant’s capacity or conduct. It did not have a reason that was sound and defensible. 4 The applicant submitted that the onus of proving the valid reason is on the party seeking to establish the reason5 and that due to the serious nature of the consequences for the applicant from any finding of the alleged misconduct and the seriousness of the allegations, which included a breach of the Occupational Health and Safety Regulations 2007 (Vic) (OHS Regulations). It is submitted that the test in Briginshaw vBriginshaw6 should be applied in making findings of fact relevant to whether the misconduct occurred.

[15] The applicant submitted that his evidence was that “when the valve fell one end was caught on the bolts of the flange of an adjacent pipe . . . He adjust [sic] the sling at the end of the valve which was caught on the pipe to give himself more room so he could pull the valve down without the risk of injury to himself . . . He moved the valve a very short time after the accident . . . due to the risk of the heavy value [sic] sitting at a 35 to 45 degree angle on a raised platform a short distance from the edge of the platform.” The applicant was concerned about the possibility of movement in the workplace causing vibration allowing the valve to slip, “steel slipping on steel”.

[16] The applicant submitted that photographs tendered in the proceedings indicated that “the valve is very close to the adjacent pipe”. He submitted that his “version of events is inherently likely to be what occurred”.

[17] The applicant submitted that his evidence was that he advised Mr M Credaro, Rigging Supervisor, who was the first to arrive on the platform “that he had moved the valve to make it safe” and that this evidence was not contested by the respondent and should be accepted.

[18] The applicant submitted that the respondent relied on the evidence of Mr Boicovitis in relation to the events immediately after the valve fell but that he had arrived on the platform some time afterwards. He submitted that the failure of the respondent to call persons who were on the platform at the time - Mr T Martin, a Fitter and Mr L Josevski, a Trades Assistant - and persons who arrived on the platform before Mr Boicovitis - Mr Credaro and Mr Richert - warrants a Jones v Dunkel and another 7 inference, to be drawn from the failure to call these witnesses.

[19] The applicant submitted that the respondent “called no evidence whatsoever to contradict the applicant’s evidence as to the valve being stuck on the bolts of the flange and Mr McLean moving the valve to make the area safe”. It submitted that, in relation to the question of where the valve fell, the respondent sought to rely upon evidence from Mr Ibrahim, that “there was no mark on the pipe where the valve struck the pipe”. In this respect, the “photographs supplied by the respondent do not assist in establishing whether there was a mark on the pipe or not” and the applicant was “not taken back to the site of the accident by the respondent during the investigation or afterwards to explain where the valve came to rest on the pipe”. The respondent’s position rests entirely on the assertion of Mr Ibrahim that “he would expect to find a mark on the pipe”.

[20] The applicant submitted that “the evidence of Mr Ibrahim is unreliable”, given contradictions in his evidence in relation to access to the incident scene and the implausibility of his evidence as to the taking of notes, in the context of the evidence of the applicant and Mr Grunberg.

[21] The applicant submitted that the evidence of Mr Boicovitis does not assist the respondent’s case. He did not give evidence about what he saw the applicant doing with the slings when he arrived after the accident. Whilst Mr Boicovitis states in his witness statement that he noticed the applicant “still handling the Slings”, he does not state what the applicant was allegedly doing with the slings. The evidence of Mr Boicovitis is contested by the applicant “but even if this evidence is accepted it does not assist the respondent, as it does not indicate that there was any interference with the site of the accident”.

[22] The applicant submitted that in relation to the second allegation of misconduct “being that the applicant mislead the investigation, no evidence has been given by the respondent’s witnesses as to what misleading statements were made by the applicant. Nothing in the respondent’s witness statements or in the evidence given in the witness box provides particular allegations of misleading conduct or statements by the applicant during the investigation. Mr McLean has given clear evidence that he denies having misled the investigation”. He submitted that “there is no factual basis for any finding that Mr McLean mislead the investigation”.

[23] The applicant submitted that “notes of the investigation have not been produced”, despite Mr McLean and Mr Grunberg both giving evidence that “notes were taken during their interviews”. The applicant further submitted that “as a matter of practicality, an investigation of this scope and complexity could not be undertaken without notes”. The applicant submitted that “a Jones v Dunkel inference should arise from the failure of the respondent to produce the notes of interview with the applicant and other witnesses during the investigation”.

[24] The applicant submitted that “the Commission is required to make a finding as to the guilt or otherwise of the applicant where there is an allegation of misconduct”. 8 The applicant submitted that the evidence does not support a finding that he was “guilty of any misconduct”.

[25] The applicant submitted that it is not open to the Commission “to find a valid reason for the termination when the decision maker for the employer has not given evidence as to the valid reason or reasons that it relies upon”.

[26] The applicant submitted that he was not notified of the reasons for termination. He relied on a Full Bench of the Australian Industrial Relations Commission in Crozier v Palazzo Corporation Pty Ltd, 9 which found that “to satisfy the requirements of the Act, the notification of the reasons for termination had to be provided to the employee prior to the decision to terminate the employment being made”.10 The applicant submitted that “as there was no evidence as to who made the decision to terminate Mr McLean’s employment, there was also no evidence as to when the decision to terminate the employment was made”, whilst the applicant’s evidence was that “he had heard when he arrived at work on 27 October 2012 that he would be sacked”. He submitted that “the respondent did not call evidence to contradict the inference that the decision had been made prior to 27 October 2012”.

[27] The applicant submitted that he was not given an opportunity to respond to the reasons for termination. He submitted that the opportunity to speak in the termination meeting was only given to the applicant after the decision to terminate his employment was made, providing him with no real opportunity to respond to the reasons before the decision was made. The applicant further submitted that he was not given any detail whatsoever about the allegations of tampering with the slings or misleading the employer’s investigation.

[28] In relation to warnings in cases of misconduct, the applicant submitted that “the absence of a warning was a matter which the commission may take into account in determining whether a termination was harsh, unjust or unreasonable when the termination was for the reason of misconduct”. 11 The applicant submitted that if the Commission finds that “there is some lower level of misconduct [which the applicant denied], this principle may be relevant”.

[29] In relation to ss.387(f) and (g), the applicant submitted that the respondent is a very large employer and has very senior industrial relations staff.

[30] The applicant submitted that the termination was harsh, unjust and unreasonable and that he was unfairly dismissed, permitting the Commission to affect a remedy in relation to the termination.

The respondent

[31] The respondent submitted that there “was a valid reason for the termination as detailed in the letter of termination . . . in that the applicant tampered with the scene of a safety incident and continued to do so after being lawfully directed [by Mr Boicovitis] to leave the slings alone and move away”.

[32] The respondent submitted that the applicant’s evidence that “the valve landed partially on the bolts of a flange and that he re rigged the sling so he could manually drag the end of the valve away from the flange and on to the floor . . . because he was concerned the valve may have slipped over the edge of the platform approximately 1½ to 2 feet away” is implausible for several reasons:

● There are no marks, scratches or damage on the flange as would be expected if such a heavy object had landed on it.

● “The valve landed too far from the flange to have been dragged off it by hand.”

● “The applicant stated in his evidence that he did this in just a few seconds.”

● “[T]he valve assembly weighed in the order of 250 to 300Kg.”

● “A valve of this size and weight doesn't just slip off a flat work platform with a safety rail and kick plate it would have been too heavy.”

● The applicant did not “call out any warnings to others to stay clear of the platform”.

[33] The respondent submitted that Mr Boicovitis was on the scene in about 40 to 60 seconds, observed the applicant working on the sling and instructed the applicant to leave the area and slings alone.

[34] The respondent also submitted that it “was not satisfied that the applicant was frank and honest in his response to the questions put to him at the meetings held to investigate the incident and this has affected our trust and confidence in him”.

[35] The respondent submitted that the applicant’s suggestion his employment was “terminated because he submitted hand written safety observations is fanciful and strongly denied by the respondent . . . all employees are encouraged to report any suspected safety breaches”.

[36] In summary, the respondent submitted that there was a valid reason for the dismissal in that “[f]ollowing a serious accident on site the applicant tampered with the rigging prior to the investigation so as to hide the incorrect rigging set up, in order to protect himself from implication to the cause of the accident” and, in addition, the applicant “misled the investigation team during the investigation of the accident”. It submitted that these “actions amount to serious misconduct in that the applicants’ [sic] actions were wilful and deliberate behaviours that are inconsistent with the continuation of the contract of employment”.

[37] The respondent submitted that the applicant had been notified that “his actions in relation to the accident were being investigated. He was questioned several times as part of the investigation”. When the applicant attended the manager’s office on 27 October 2012, “he was told the meeting was to discuss the outcome of the investigation and the evidence he tampered with the rigging. The applicant fully understood the purpose of the meeting and he had his site delegate with him and his union official also joined in latter [sic] as well”.

[38] The respondent submitted that during the meeting of 27 October 2012, the applicant was “given ample opportunity to respond. The meeting broke up several times to allow both parties time to consider what had been discussed during the meeting”. Support was offered to the applicant and was provided when requested.

[39] The respondent submitted that the “dismissal was not harsh unjust or unfair the incident was a serious one and the actions of the applicant amounted to serious misconduct. Based on the evidence it was open to the defendant to reach the conclusion it did . . . The applicants response, along with the seriousness of the incident, was taken into account when considering the appropriate penalty to apply”. The respondent submitted that “[b]ased on the evidence and the applicant’s responses it was open to the respondent to terminate the applicant [and] [a]s such the Commission should not overturn the decision of the respondent in this matter”.

[40] The respondent submitted that if it was found that the applicant’s employment had been unfairly terminated, he was “not likely to have had a career with the company because he was specifically employed as a casual on the Shut project, being employed by Transfield as a Rigger/TA on two separate projects at Qenos Altona”:

● The first engagement “was on the Qenos Revamp project which commenced in February 2012 until completion at the end of September 2012”; and

● The second engagement was as “a casual from 1st October on the Qenos Shut project with this project winding down from early November until 15th November 2012 with all employees being made redundant as a result”.

[41] The respondent submitted that on this basis the applicant had a casual position on the Shut project from 1 October 2012 until the conclusion of the Shut project on 15 November 2012 at the latest and the “short-term tenure of the applicant position should be given due consideration in determining any remedy”.

[42] The respondent submitted that the calculations of the applicant “includes over time and other variable components that should not be included in remuneration calculations. This is particularly applicable when calculating future earnings”. It submitted that “any calculation of remuneration should be based on the applicants hourly rate of $46.93750 including casual loading and because the applicant would only have been employed until 15th November 2012 at the latest, for a period of up to three weeks”.

Relevant Legislation

[43] No submission has been made or evidence advanced to suggest that the applicant is not protected from unfair dismissal. 12 The issues which arise in this matter are therefore whether the applicant was unfairly dismissed and, if so, what, if any, remedy should follow.

Section 385 of the Act - What is an unfair dismissal, provides that:

“A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[44] It is agreed that the applicant had been dismissed, within the meaning of s.386 of the Act. It is not suggested that the respondent is a Small Business, subject to the operation of the Small Business Dismissal Code. There is no suggestion that the dismissal was not a case of genuine redundancy. The only question within s.385 of the Act which arises for determination in the present matter is whether the dismissal was harsh, unjust or unreasonable.

[45] Section 387 of the Act sets down criteria to be taken into account in determining whether the dismissal was harsh, unjust or unreasonable:

“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.”

[46] The relevant legislative provisions in respect of remedy will be addressed later in this decision if it becomes necessary to consider remedy.

Decision

Section 387(a) was there a valid reason for the dismissal related to the person’s capacity or conduct?

[47] The respondent contends that there was a valid reason for the termination - the applicant tampered with the slings on the valve immediately after the incident, so as to hide his accountability and misled the respondent during the course of its investigation of the incident.

[48] In Edwards v Giudice and Others (Edwards), Moore J made the following observations about the Commission’s obligations under s.170CG(3)(a) of the Workplace Relations Act 1996, which is materially in the same terms, in respect of the capacity or conduct of the employee, as s.387(a) of the Act:

“[6] . . . the paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s.170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

[7] The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason.” 13

[49] A Full Bench in King v Freshmore (Vic) Pty Ltd , 14 having cited Edwards concluded:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 15

[50] In assessing whether there is a valid reason for the termination, my task is not to assess whether it was open to the respondent to terminate the applicant. 16 I am required to determine on the basis of the evidence before me whether the applicant engaged in the conduct which constitutes a valid reason for his termination: specifically tampering with an incident scene after the incident and failing to provide accurate information to the incident team on several occasions.17

1. The lift of the valve on 20 October 2012

[51] It is unnecessary to review the evidence in relation to the lift itself. There is little dispute as to what occurred. The investigation of the failed lift itself by the respondent concluded that the behaviour of the applicant and his supervisor, Mr Richert, in relation to the incident involved unintentional error on their part, resulting in coaching/training as the consequence. It is not suggested that the applicant’s unintentional error constituted a valid reason for termination. There is no reasonable basis, on the evidence, for me to find otherwise.

2. Tampering with the incident scene

[52] Only the applicant and Mr Grunberg had direct knowledge of the circumstances immediately following the fall of the valve.

[53] The applicant’s evidence was that immediately following the fall of the valve and the crane driver lowering the valve, he observed the end of the valve was caught on the bolts of the flange on the other pipe. “The silver end where most of the weight is landed on the deck and the lighter end landed on those bolts.” 18 He returned to the valve and pulled the slings out of the head block19 to make the sling lower so as to lower the valve to the deck safely, pulling it by the sling at the green end of the valve20 to ensure that it was flat on the deck and secure. He changed the format of the sling at the green end, putting “one end through the other to make the sling longer so [he] could get a hand on it to pull it safely to the ground”21 and did not alter the sling at the grey end.22 At the time that he did this no-one else had come up the platform. After he secured the valve he asked Mr Grunberg if he was OK.23

[54] The applicant believed there were scratches on the light (green) end from the bolts.²⁴

[55] The applicant believed that there was a risk of the valve moving because the platform floor was “very slippery and steel on steel is very slippery. It was on a 35 to 45-degree angle . . . any vibration could’ve allowed it to slip”. 25 It was an immediate reaction to move it to the safest place quickly and how he could “manhandle it”.26

[56] The applicant’s evidence was that part of his duty of care under his rigging ticket was to make an area safe before leaving it - a common and central safety principle. 27 All three witnesses for the respondent accepted that a Transfield employee should make an area safe if they think there is a risk before they leave that area.28 Both Mr Ibrahim and Mr Mawson accepted the general principle that if there was a 200 or 300 kilogram object that was in a precarious position that an employee in the area would have some responsibility to secure it safely if possible before leaving the area.29

[57] Mr Grunberg’s evidence shed no light on the actions of the applicant immediately after the valve falling. His evidence was that the load was difficult to balance but upon applying the second sling it looked fine, but when he was guiding it out, the valve just rolled out. 30 He saw the valve fall.31 His evidence was that it all happened quickly that he was “really not too sure where or - what it hit”32 and he “wasn’t really taking any notice of much”.33

[58] Mr Grunberg, Mr Martin, and Mr Josevski, were on the platform 34 but there is no evidence that they witnessed what occurred after the valve fell from its rigging. The evidence is that they had moved away from the valve location and were having a conversation on the other side of the building at the time the valve fell.35 Neither Mr Martin nor Mr Josevski were able to contribute much to the respondent’s investigation.36 Neither gave evidence.

[59] The applicant did not recall how long after the incident that Mr Boicovitis arrived at the scene, 37 but that Mr Boicovitis arrived after supervisors Mr Credaro, who arrived first, and Mr Richert.38 The applicant’s evidence was that he told Mr Credaro that he had “moved the valve to make it safe”.39 His evidence was that by the time Mr Boicovitis arrived, he had already moved the valve and Mr Boicovitis told him not to touch anything.40 The applicant did not recall Mr Boicovitis telling him not to touch the rigging or to leave the rigging alone.41

[60] In his witness statement, 42 Mr Boicovitis’s evidence was that he was walking along 2nd Street on site when he heard a large bang, he looked up and noticed a Franna with its boom inside the BP1 area LTFE Level 2. People at ground level stated something had dropped so he made his way quickly (“double-timed”43) to the area. On his way up the stairs Mr Richert and Mr Grunberg were descending the stairs. When he reached the platform he came across the applicant, Mr Martin and Mr Josevski. Mr Martin and Mr Josevski left. He advised the applicant “not to touch anything, please leave as is”. Mr Boicovitis then turned away and looked over the ledge and spoke to Mr B Matthews, SHE Field Coordinator. As he turned back, he noticed the applicant was “still handling the Slings”. He advised the applicant to “leave them and move away”. The applicant said he did not know what had happened and stated that he “was making the area safe”.44

[61] In his oral evidence, Mr Boicovitis arrived on the deck to find the applicant, Mr Martin and Mr Josevski. After asking if anyone had injured themselves, Mr Boicovitis said “Leave everything the way it is”. 45 His evidence was that the valve was “[l]ying down fully on the platform” at the time he arrived.46 Mr Boicovitis did not see the applicant adjusting the slings as he moved up there initially, but whilst Mr Boicovitis was there “in that motion he was”.47 Asked if he instructed the applicant to not touch the slings, Mr Boicovitis’ evidence was “I did; not only the slings, just to leave the area the way it was”.48 He could not recall if the applicant acknowledged his instruction.49

[62] Boicovitis’ evidence was that he arrived at the platform 40 seconds to a minute after the incident. 50 The applicant’s evidence was that Mr Boicovitis arrived within four to five minutes of the incident.51

[63] The applicant could not remember Mr Boicovitis “physically coming and talking to me with slings in my hand”. 52

[64] Neither Mr Credaro nor Mr Richert gave evidence.

[65] After the applicant left the platform to return to the sheds, Mr Ibrahim approached him, said to relax and that he would come and talk to him soon. 53 About half an hour later, Mr Ibrahim checked in with the applicant again and then the applicant went home.54

[66] Two groups of photographs of the incident scene were tendered. 55 All of the photographs were taken by Mr Ibrahim about 20 minutes after the incident on 20 October 2012,56 other than those which showed the rigging after it was re-arranged by Mr Grunberg to replicate the rigging used for the lift, which were taken by Mr Matthews on 23 October 2012. The photographs taken by Mr Ibrahim to show the rigging after it had been adjusted by the applicant immediately following the incident.

Findings as to the applicant’s conduct and valid reason

[67] An issue arose in proceedings as to notes made by the respondent’s investigators during the course of their investigation. Such notes were the subject of an order to produce, but none were produced on the basis that there were no notes made, save for notes of the 27 October 2012 meeting at which the termination of the applicant’s employment occurred, made by Mr B Fleiner, an Industrial Relations officer of the respondent. 57 The respondent submitted that Mr Fleiner no longer works for the respondent and his notes were not accessible to the respondent.58

[68] According to Mr Ibrahim’s statement, 59 the applicant, Mr Martin, Mr Josevski, Mr Richert, Mr Grunberg and Mr Boicovitis were interviewed during the respondent’s investigation. The respondent submitted that “they were verbal discussions and the outcome of those discussions and any further investigations are all summarised in that incident report” and made “without recourse to notes or any statement”.60

[69] Mr Ibrahim’s evidence was that he did not take notes during his interviews in the course of his investigation. 61

[70] The applicant’s evidence was that Mr Ibrahim took notes during the conversation between them on 22 October 2012. 62

[71] Mr Grunberg’s evidence was that notes of his interview were taken by the (other) person, attending with Mr Ibrahim. 63

[72] The evidence as to the taking of notes is in conflict. The applicant’s evidence was that Mr Ibrahim made notes during at least one discussion with him. Mr Ibrahim’s evidence was to the contrary. Mr Grunberg’s evidence was that another person made notes during his interview. That evidence came after Mr Ibrahim’s evidence, who did not have an opportunity to respond to that proposition. I find that it is highly unlikely that no notes at all were made during the course of the investigation. The proposition that the respondent’s incident report was prepared entirely from memory and without recourse to any notes of interviews (save for the statement of Mr Boicovitis attached to the incident report) is unlikely. To the extent that notes were made, I infer that they would not have assisted the respondent’s case.

[73] Whilst the incident report documentation provides for the recording of details and statements obtained from “any eye witnesses”, the incident report in this instance records only Mr Boicovitis as a witness, attaching a statement by him. If statements had been obtained from other employees interviewed they would have assisted an evaluation of the evidence both in respect of the conduct of the applicant immediately after the incident on 20 October 2012 and the proposition that the applicant had misled the investigation.

1. Tampering with an incident scene to hide his incorrect rigging method

[74] The applicant does not and has not at any point disputed the fact that he altered the slings, releasing the wings and reformatting one of the slings. In doing so he disturbed the incident scene. However, I find on the evidence that he did so out of a concern to make safe what he regarded as an unsafe situation: the valve being at an angle, resting at one end on a raised pipe flange, with the risk of the valve shifting. The only direct evidence was that of the applicant. There is no reason to question his account of the events.

[75] The circumstantial evidence raised by the respondent does not displace the direct evidence of the applicant. In that respect, the respondent relied, in its submissions on:

● The absence of marks, scratches or damage on the flange which would be expected if such a heavy object had landed on the platform.

● “The valve landed too far from the flange to have been dragged off it by hand.”

● “The applicant stated in his evidence that he did this in just a few seconds.”

● “The valve assembly weighed in the order of 250 to 300Kg.”

● “A valve of this size and weight doesn't just slip off a flat work platform with a safety rail and kick plate, it would have been too heavy.”

● The applicant did not call out “any warnings to others to stay clear of the platform”.

[76] There is no evidence to support these contentions.

[77] Mr Ibrahim’s evidence was that there is no evidence of scratching on the green end of the valve, consistent with the evidence of the applicant that the green end of the valve settled on the bolts of the flange on the other pipe and there was no evidence of markings on the flange. The applicant’s evidence was that scratches from the bolts were evident.⁶⁴ The photographs do not allow an assessment of whether there is scratching on the green end of the valve, which may have been caused by the valve first settling on the other pipe. Whilst photographs 11, 13, 14, 15, 16, 21, 25 and 26 65 show some marking on the green end of the valve, none of them shows the bottom section of the valve on which would have been in contact with the other pipe. The photographs do not assist in determining whether there was any scratching on the green end of the valve associated with it falling on the bolts of the flange on the other pipe. On the evidence, I am unable to determine whether there was any such scratching of the valve.

[78] The photographs do not provide an adequate basis to assess damage to the flange, nor the physics of the precise location of the valve, fully on the ground, relative to the pipe. There was no evidence as to the feasibility of pulling the valve from a precarious resting position to the platform, using a sling, reformatted to allow it to be pulled. Given the un-contradicted evidence of the applicant that when the valve dropped, “it bounced several times”, 66 propositions as to the manner and force with which it impacted on the surrounding structures before coming to rest and its stability upon coming to rest is wholly speculative.

[79] Whilst it could be suggested in a hypothetical way that the applicant’s actions were not the best actions to achieve a safe work site, 67 there is no reason not to accept his evidence as to the location of the valve, his concern about the safety of the valve if left in an unsafe position and his belief that his actions, taken in the heat of the moment, represented the best option for making the situation safe.

[80] The speculative propositions relied upon by the respondent provide no basis to displace the clear direct evidence of the applicant. I find that the applicant had removed the tails from the head and reformatted one sling in order to make the area safe. There is no evidence that he did so, as suggested by the respondent, to cover up his actions in rigging the lift.

[81] Mr Ibrahim’s evidence was that when questioned on 23 October 2012, Mr Grunberg told the investigation that “the valve is laying is where it fell”. 68 This evidence of what Mr Grunberg said at the time was not put to him in the witness box and cannot be relied on as to the fact of the location of the valve in light of Mr Grunberg’s direct evidence that it all happened that quick that he was “really not too sure where or - what it hit”69 and he “wasn't really taking any notice of much”.70

[82] Mr Ibrahim also gave evidence that Mr Boicovitis told the investigation that he had seen the applicant “tampering with the slings as [sic] was instructed to not to”. 71 Mr Boicovitis’ evidence was that at one point, after Mr Boicovitis communicated with Mr Matthews, he observed the applicant was “still handling the Slings”72 and was “in that motion”73 although there was no suggestion in his evidence that he was earlier handling the slings. The applicant could not remember Mr Boicovitis “physically coming and talking to me with slings in my hand”.74 I find that the applicant did handle the slings in the presence of Mr Boicovitis, although the evidence does not support a finding that the applicant was further adjusting them, nor that he was seeking to cover up any culpability, on his part, in the incident. The further handling of the slings is consistent with the motivation of the applicant to ensure that the area was safe. Mr Boicovitis’ evidence was that the applicant put this explanation to him.75

[83] The evidence does not support a finding that the applicant continued to adjust the slings in the face of an explicit direction by Mr Boicovitis not to do so. On Mr Boicovitis’ evidence, a more generalised instruction to leave the area “as is” was given by him (and to Mr Martin and Mr Josevski) and when Mr Boicovitis observed the applicant touching the slings he advised the applicant to leave them and move away. There is no suggestion in the evidence that the applicant did not comply with that specific direction.

[84] I find that the applicant did alter the incident scene by removing the tails from the pin and reformatting one sling. I find that he did so in order to make the area safe in light of the precarious position in which the valve landed, consistent with his responsibility not to leave the area unsafe. There is no evidence to suggest that he did so for any other reason, including the proposition advanced by the respondent that he did so in order to hide the incorrect sling method used for the lift.

[85] Whilst there may be varying views as to whether the course of action taken by the applicant to make the platform safe was the best available to him, that does not affect the fundamental question - Did the applicant tamper with the accident scene in order to protect his position in relation to the investigation of the incident? A failure, if it occurred, to adopt the best action to make an area safe, does not constitute misconduct.

[86] I find that the conduct of the applicant in altering the rigging after the incident on 20 October 2012, does not constitute a valid reason for the termination of his employment.

2. Misleading the investigators

[87] The respondent’s investigation report 76 concluded that the applicant had failed to provide accurate information to the investigation on several occasions. This conclusion is based on the proposition that the applicant initially denied that he had altered the rigging on several occasions, admitting that he had altered the rigging when confronted with information gathered during the investigation and of other people’s accounts. The full conclusion of the investigation, in this respect, is recorded earlier in this decision.

[88] The only evidence supporting the proposition that the applicant denied altering the rigging or otherwise misled the investigation is:

● the vague, non-specific evidence of Mr Ibrahim that “Corey advised to what he remembered although throughout the discussion Corey was at times not clear and back tracked over the events eventually stating that the valve was left unsafe”; 77

● the evidence of Mr Ibrahim was that the applicant admitted on 24 October 2012 78 to having rigged the valve, whilst his previous comments to the investigation were that Mr Grunberg had done all of the rigging;79 and

● the evidence of Mr Mawson that during the 27 October 2012 meeting, with Mr Brodie in attendance, but before Mr Duggan attended the site, the applicant “changed his explanation and didn’t provide any substantial reason for tampering with the slings”. 80

[89] It may be seen that the evidence of the respondent is extremely vague as to the basis upon which it is said that the applicant misled the investigation. The evidence is in terms of general propositions that the applicant changed his explanation or backtracked, without specific evidence as to competing accounts given by the applicant. There is no specific evidence that the applicant at some point of the investigation denied having altered the rigging. The most specific evidence of the respondent is that of Mr Ibrahim that the applicant admitted on 24 October 2012, to having rigged the valve, 81 having previously stated, at an unspecified time or times and in unspecified terms, that Mr Grunberg had done the rigging.

[90] There is considerable evidence against the proposition that the applicant misled the investigation in respect of whether or not he altered the rigging after the accident or his role in the rigging of the lift.

[91] In response to Mr Mawson’s evidence, the applicant generally denied having ever changed his explanation in his evidence. 82

[92] The applicant’s evidence was that:

● when he spoke to Mr Ibrahim in the shed on 20 October 2012, he said to Mr Ibrahim that he had “made the area safe and come downstairs”; 83

● during an interview on 22 October 2012, he advised Mr Ibrahim that he and Mr Grunberg “had rigged up the valve” and that he had “made the area safe by moving the valve”; 84

● during an interview on 24 October 2012, he advised Mr Ibrahim that “the first sling was on the valve from when the first crane was on site” and Mr Grunberg “had taken the second sling and adjusted it to how he wanted it”; 85

● during an interview on either 25 or 26 October 2012, he responded to a question from Mr Ibrahim as to why he had moved the valve by stating the valve was caught on a pipe on an angle and he had moved it to “make it safe”; 86 and

● during the meeting of 27 October 2012, Mr Mawson has put to him words to the effect that he had “misled the investigation”. 87

[93] The applicant’s evidence was that he told Mr Credaro, the first supervisor to arrive on the platform after the valve fell, that he “had moved the valve to make it safe”. 88

[94] Mr Boicovitis gave evidence that when he advised the applicant to leave the slings and move away, the applicant stated “he was making the area safe”. 89

[95] Mr Ibrahim’s evidence that, during the 27 October 2012 meeting, the applicant continually stated that “the valve was left unsafe”. 90

[96] The respondent’s investigation report records that “[w]hen confronted to why the rigging had been modified he [the applicant] stated the valve was unsafe”   . 91

[97] Mr Brodie’s evidence was that during the 27 October 2012 meeting the applicant responded to Mr Mawson’s proposition that he had altered the slings by stating that “he had moved the valve to make the area safe” 92 and had denied the proposition, broadly stated by Mr Mawson, that he “had misled the investigation”.93

[98] Both Mr Brodie and Mr Duggan gave evidence that during their 27 October 2012 meeting with Mr Mawson and others (but in the absence of the applicant), Mr Mawson had said words to the effect that the applicant “had misled the investigation”. 94

[99] The evidence establishes that the applicant consistently conceded that he had adjusted the rigging immediately after the incident and had done so in order to make the area safe. On the evidence, this information was conveyed consistently to the respondent’s managers by the applicant both prior to and during the course of the respondent’s investigation. There is no evidence at all of any occasion on which the applicant denied having altered the rigging immediately after the incident.

[100] Similarly the evidence supports a finding that the applicant did not mislead the investigation as to his involvement in the rigging of the lift on 20 October 2012. Mr Ibrahim’s proposition that the applicant admitted on 24 October 2012 95 to having rigged the valve but having previously stated that Mr Grunberg had done the rigging is not supported by the evidence. No specific evidence was brought by the respondent of a denial by the applicant of his involvement in the rigging prior to 24 October 2012. The applicant’s evidence was that during an interview on 22 October 2012, he advised Mr Ibrahim that he and Mr Grunberg “had rigged up the valve”.96

[101] I find that the applicant did not mislead the respondent during the course of its investigation. The applicant’s conduct during the investigation does not constitute a valid reason for the termination of his employment.

3. Conclusion as to valid reason

[102] I find that there was no valid reason for the termination of the applicant’s employment. Neither the applicant’s conduct in altering the rigging and moving the valve, motivated by his concerns about the safety of the valve and/or his conduct during the investigation constitutes a valid reason for the termination of his employment.

Section 387(b) whether the applicant was notified of the reason for the termination of his employment

[103] There was no valid reason for the termination for the dismissal related to the applicant’s capacity or conduct. To the extent that the respondent based its decision to terminate the applicant’s employment on the propositions that the applicant had tampered with the rigging following the incident on 20 October 2012, prior to an occupational health and safety investigation “in order to protect himself from implication [as] to the cause of the accident” 97 and “misled the investigation team”,98 I am satisfied that the respondent put the allegation that he had tampered with the rigging to the applicant. It also indicated that it did not accept that the applicant had done so in order to make the valve safe and put the very broad allegation to the applicant that he had misled the investigation team and did so towards the conclusion of the investigation process. However, there is no evidence that the respondent put to the applicant the specific allegation that he had tampered with the rigging in order to protect himself from implication as to the cause of the accident or put to him specific allegations as to how he had misled the investigation team.

Section 387(c) whether the applicant was given an opportunity to respond to any reason related to his capacity or conduct

[104] There was no valid reason for the termination for the dismissal related to the applicant’s capacity or conduct. The reason for termination relied on by the respondent went only to his conduct, both on 20 October 2012 and during the subsequent investigation. I am satisfied that the applicant was afforded an opportunity to respond to the allegations, save that the general basis upon which the allegation that the applicant had misled the investigation limited his ability to respond effectively and the alleged motivation for adjusting the rigging - to avoid responsibility for the mishap with the lift on 20 October 2012 - was not put to the applicant to provide a response. I accept, however, that the applicant was afforded an opportunity to respond to the allegation that he had tampered with the rigging and the respondent’s rejection of the applicant’s explanation for his actions.

Section 387(d) did the respondent unreasonably refuse to allow the applicant to have a support person present to assist at any discussions relating to dismissal

[105] I am satisfied that applicant was offered a support person to assist in relation to all discussions relating to the dismissal, including the 27 October 2012 meeting at which the decision to terminate his employment was taken. The evidence of Mr Ibrahim, that the respondent offered the applicant a support person at all times and arranged the attendance of the nominated person when the applicant wanted one present, 99 was not disputed. Mr Brodie and Mr Duggan attended the 27 October 2012 meeting at the applicant’s request.

Section 387(e) if the dismissal related to unsatisfactory performance by the person—whether the applicant had been warned about that unsatisfactory performance before the dismissal

[106] The dismissal did not relate to the unsatisfactory performance by the applicant.

Section 387(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

[107] The respondent is a large employer. There is no evidence to suggest that the respondent’s size impacted materially on the procedures followed in effecting the dismissal.

Section 387(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

[108] The respondent is a large employer with experienced and dedicated resource management specialists and was not impeded by the lack of such expertise in the procedures it followed in effecting the dismissal.

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

[109] I am not aware of any other relevant matters not considered in relation to s.387(a) to (g) of the Act, above.

Conclusion as to valid reason

[110] Weighing up each of the considerations within s.387(a) of the Act, I find that the termination of the applicant’s employment was harsh, unjust and unreasonable. There was no valid reason for the termination. The processes applied by the respondent, although not perfect, allowed the applicant to understand and respond to the allegations against him, albeit with little specification of the allegations in respect of the matters identified above in relation to ss.387(b) and (c) of the Act. The applicant was afforded representation when requested. The other matters in s.387 of the Act bear little weight in the circumstances of the current matter. Weighing up each of the considerations within s.387 of the Act, I find that the termination of the applicant’s employment was harsh, unjust and unreasonable.

[111] Given this finding, and my conclusions above as to the other matters within s.385 of the Act, I find that the applicant was unfairly dismissed.

Remedy

[112] The applicant was protected from unfair dismissal and was unfairly dismissed. The applicant has brought an application under s.394 of the Act. In those circumstances, the Commission may order remedy for unfair dismissal. 100

[113] Section 391(1) of the Act provides for:

“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.”

[114] Sections 391(2), (3) and (4) of the Act permit the making of orders to maintain continuity and/or restore lost pay if an order for reinstatement is made.

[115] The Commission must not order the payment of compensation to the person unless (in addition to the matters dealt with immediately above) it is satisfied that reinstatement is inappropriate and “considers an order for payment of compensation is appropriate in all the circumstances of the case”. 101

[116] Section 392 of the Act which otherwise deals with the making of orders for compensation instead of reinstatement provides:

“392 REMEDY – COMPENSATION

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) 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 compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. Disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

393 MONETARY ORDERS MAY BE IN INSTALMENTS

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

Submissions

[117] The applicant sought an order to be reinstated pursuant to either ss.391(1)(a) or (b) of the Act as a full-time employee working at the Qenos site or alternatively as a full-time employee. The applicant also sought an order for continuity of employment from the date of termination and an order for lost wages from the date of termination to the date of reinstatement. He submitted that reinstatement is the appropriate remedy in this case. The applicant submitted that the only matters put against the applicant are the two allegations of misconduct and if these allegations are not proven, there is nothing to stop the applicant being reinstated to his employment. The applicant also submitted that there is no evidence in relation to his work performance which would suggest that his employment would have ended, nor any evidence showing that there was a breakdown in the employment relationship.

[118] The applicant submitted that, if the Commission is against the applicant on reinstatement, compensation in lieu of reinstatement be ordered, calculated according to the principles in Sprigg v Paul’s Licensed Festival Supermarket. 102 He submitted that the “appropriate starting point for the calculation of compensation would be one year of further employment”103 at the level of remuneration derived from his payslips and taxation documentation, from which a deduction for earnings from alternate employment should be made, and a discount for contingencies applied. The applicant submitted that this would result in compensation in excess of the statutory cap in 392(5)(a) of the Act, in which case compensation should be ordered at the level of the statutory cap - an amount of $61,650, subject to taxation.

[119] The respondent submitted that the applicant was not likely to have had a career with the respondent because he was “specifically employed as a casual on the Shut project” 104 as a Rigger/TA on two separate projects at Qenos Altona:

● “the Qenos Revamp project which commenced in February 2012 until completion at the end of September 2012”; and

● “[t]he applicant was then re-engaged as a casual from 1st October on the Qenos Shut project with this project winding down from early November until 15th November 2012 with all employees being made redundant as a result”.

[120] The respondent submitted that, on this basis, the applicant had a casual position on the Shut project from 1 October 2012 until the conclusion of the Shut project on 15 November 2012 at the latest. It submitted that the short-term tenure of the applicant’s position should be given due consideration in determining any remedy.

[121] The respondent submitted that the applicant worked variable ordinary hours during his engagement on the Shut project, at an hourly rate of $46.93750, including 25% casual loading. It submitted that the applicant’s calculations include “over time and other variable components that should not be included in remuneration calculations”, 105 particularly so when calculating future earnings.

[122] The respondent submitted that any calculation of remuneration should be based on the applicant’s hourly rate of $46.93750, including casual loading and because the applicant would only have been employed until 15 November 2012 at the latest, for a period of up to three weeks.

[123] The applicant responded that there was no evidence before the Commission that the applicant was employed specifically as a casual on the Shut project. The applicant’s evidence was that he was “head hunted” to work for the respondent and he was told there would be future promotional opportunities. 106 The proposition that the applicant was recruited specifically for the Shut project was not put to the applicant in cross-examination.

[124] The applicant also responded that the assertion that all employees on the Shut project were made redundant on 15 November 2012 is not supported by any evidence before the Commission and was not put to the applicant in cross-examination. It submitted that the evidence of Mr Brodie was that he was still employed by Transfield at the Qenos site at the time of the hearing. 107 If this material had been put to the applicant and/or evidence called from the respondent’s witnesses in relation to these assertions, the applicant would have called evidence from himself, Mr Brodie and Mr Duggan regarding the agreement between the respondent, the Union and the employees as to the conditions of employment of the respondent’s workers on the Revamp and Shut projects and the agreement as to the employees’ future employment. Both Mr Brodie and Mr Duggan attended meetings with the respondent’s management in relation to these matters.

Decision

[125] The applicant seeks an order for reinstatement, continuity of employment and payment restoring lost pay from end of notice period until reinstatement.

[126] In determining remedy I am required to have regard to the statutory matters within s.393 of the Act.

[127] In regard to those matters, I am satisfied on the evidence that:

● Since being dismissed, and despite looking for work for that entire period between the termination of his employment by the respondent and the hearing on 6 March 2013, 108 the applicant had but only found a small amount of work. The applicant’s difficulty in obtaining alternative employment is affected by the termination of his employment by the respondent and, in particular, the reasons relied on by it for the termination.109 I am satisfied that the applicant made reasonable efforts to mitigate the loss suffered because of the dismissal.

● The alternative employment, and the income earned by the applicant from it since the termination, consisted of:

• Work for UGL on the Geelong Shell site as a casual employee, for the period 16 to 22 February 2013, receiving pay of $3011.88 gross, with taxation of $928; 110 and



• Work for John Beever Pty Ltd at the Qenos site, at a rate of pay of around $100 an hour, shortly before the hearing, 111 resulting in a gross payment of around $1,200, from a 12 hour shift.

● There is no reason, subject to the continuing availability of work with the respondent, why reinstatement would be inappropriate or why an order for reinstatement should not be attended by an order in respect of lost pay and continuity of service. No evidence was brought to suggest otherwise. The continuing availability of work with the respondent is, however, a significant issue which is considered later in this decision

● In terms of compensation as a remedy:

• There is no submission or evidence to suggest that an order for compensation would affect the viability of the respondent’s enterprise;



• The applicant’s recent employment with the respondent was for a relatively short period of time;



• I am not satisfied that there are any other relevant matters;



• There is no suggestion of misconduct by the applicant other than the reasons relied on by the respondent for the termination which I have found not to be substantiated;



• No claim has been made for compensation for shock, distress or humiliation; and



• No suggestion has been made that any compensation ordered should be subject to payment in instalments.

[128] There exists a significant difference of view as to how long the applicant would have remained in employment with the respondent, but for his termination, which is relevant to the appropriateness of reinstatement as a remedy and to the remuneration that the applicant would have received, or would have been likely to receive, if he had not been dismissed. There also exists a dispute as to the level of likely remuneration which should be considered. I will deal with each of these issues in turn.

[129] In its final written submissions, the respondent submitted that the applicant was not likely to have had a career with the respondent because he was “specifically employed as a casual on the Shut project” as a Rigger/TA on two separate projects at Qenos Altona as stated earlier in this decision.

[130] During the hearing the respondent submitted that the intention was that all the Shut project “employees would be terminated at the end of that shut project and some would be re-engaged for the current project which is the revamp project. That project concludes at the end of April this year”. 112

[131] The applicant submitted that when the Shut project was completed, the applicant would have returned to the Revamp project. 113

[132] The respondent’s work on the Qenos site involved two projects - the Revamp project and the Shut project. The applicant was employed with the respondent as part of the original Revamp project from February 2012 until September 2012. He was then re-engaged on a casual basis for the Shut project which he was employed from 1 October 2012 and this project ended in mid-November 2012, with all employees being made redundant, with some being re-engaged back onto the Qenos Revamp project from late November 2012. 114 The respondent’s submissions indicate that the Revamp project “concludes at the end of April this year”.115

[133] The respondent brought very limited evidence in relation to the likely duration of the applicant’s continuing employment. Against the objection of the applicant’s representative, it tendered the applicant’s employment contract for the shutdown work. 116 The contract was for casual employment in the position of Rigger/TA, commencing on 1 October 2012, with the employment location being the Qenos Altona Shutdown. No contract in respect of the Revamp project was produced in the proceedings. No questions were put to the applicant by the respondent about the contract or more generally in relation to continuity of his employment in respect of either the Revamp project or the Shut project. The applicant asserted, in the final written submissions that the arrangements for employment on the project were subject to an agreement between the respondent, the CFMEU and the employees as to the conditions of employment of the respondent’s employees on the Revamp and Shut projects and the agreement as to the employees’ future employment.

[134] Against that evidence, which was not put to the applicant or his other witnesses:

● The evidence of Mr Brodie was that he was still employed by the respondent on the Revamp project at the Qenos site at the time of the hearing. 117

● The applicant’s unchallenged evidence was that:

• he had worked on shuts at petro-chemical sites such as Shell Geelong, Orica and Qenos over a number of years, engaged by contractors such as the respondent; 118



• immediately prior to commencing work on the Qenos site for the respondent, he was working for John Beaver Pty Ltd at Qenos Altona as part of the Qenos Rescue Team. Mr DeMatteis, a Manager for the respondent telephoned him several times asking him to work for the respondent of the Qenos Shut, saying that the respondent would look after him and move him up the ranks and that other employees of the respondent - Mr Puncheon, Mr Lockwood and Mr Richert all encouraged him to come and work for the respondent; 119



• In working for the respondent, the applicant was “often the first onto a job and the last off” and had “been promised work on a lot of further jobs” with the respondent. 120

[135] Assessing the evidence as a whole, the casual basis of employment indicated by the Shutdown contract is insufficient in light of the respondent’s submissions as to the continuing employment of some Shut project employees on the Revamp project following the completion of the shut down, 121 Mr Brodie’s continuing employment and unchallenged evidence of the applicant as to his recruitment for the Qenos work undertaken by the applicant and his past experience in relation to working for the respondent, I find that the applicant would have continued his employment at the Qenos site beyond the completion of the Shut project. Subject to some uncertainty, which will be considered when applying a discount for contingencies in respect of how long the applicant would have remained in employment with the respondent, I find that the applicant would have continued in his employment until the completion of the Revamp project in late April 2013.

[136] The uncertainty about the applicant’s continuing employment beyond the completion of the Revamp project at the Qenos site is such that I am satisfied that reinstatement is not appropriate and there is an insufficient basis to find that the employment would have continued beyond the completion of the Qenos work.

[137] In relation to the level of remuneration lost, the applicant submitted that his gross weekly remuneration was $2,694.50 per week, inclusive of superannuation and Incolink ($69.00 per week). 122 This figure was derived from tax documentation and payslips tendered.123

[138] The respondent submitted that the applicant worked variable ordinary hours during his engagement on the Shut project, at an hourly rate of $46.93750, including 25% casual loading. It submitted that the applicant’s calculations include overtime and other variable components that should not be included in remuneration calculations, particularly so when calculating future earnings. 124

[139] I am satisfied that, save for one matter, the remuneration lost should be calculated by reference to the past earnings of the applicant when engaged by the respondent on work at the Qenos site as reflected in the calculations in the applicant’s final written submission. Absent any evidence that any likely overtime would have altered or other payments, which are generally in the nature of project allowances, would have altered beyond the date of termination of the applicant’s employment, I am satisfied that it is appropriate to rely on the past remuneration when working for the respondent at the Qenos site to estimate lost remuneration beyond that time.

[140] The one exception relates to the inclusion of Incolink payments of $69.00 per week in the applicant’s calculations. Such payments were required to be made to the Incolink fund on behalf of the applicant under clause 13 of the Transfield Services (Altona Area) Enterprise Agreement 2011-2014 125 in respect of redundancy, consistent with the industry specific redundancy scheme. It is a payment instead of the accrual of a contingent liability in respect of redundancy and does not constitute remuneration for the purposes of compensation under s.392 of the Act.

[141] I find that remuneration should be calculated on the basis of a gross payment, inclusive of superannuation, of $2,625.50 per week.

[142] Given my earlier finding that the employment of the applicant would have continued until the end of April 2013, I find that the remuneration lost by the applicant from 27 October 2012, was 2,625.50 per week over 26 weeks, a gross amount of $68,263.

[143] This amount will be reduced on account of the earnings of the applicant from other employment over that period, a total gross amount of $4,211.88, plus superannuation or $4,590.95.

[144] The difference between the two amounts is $63,672.05.

[145] Having regard to the uncertainty as to the future employment of the applicant by the respondent at the Qenos site, under s.392(2)(g), which is significant in the context of changed employment levels over the course of maintenance projects, with there being no certainty that the applicant would have been one of those who remained in employment until the completion of the project, I will apply contingency discount of 40% to the net amount of $63,672.05, resulting in an amount of $38,203.23. This amount is less than the statutory cap in 392(5)(a).

[146] I find that the respondent should pay an amount of $38,203.23, subject to the deduction of taxation required by law, to the applicant as compensation in lieu of reinstatement. Such payment will be required by no later than 29 May 2013.

[147] An order has been issued in PR536052, giving effect to my decision.

SENIOR DEPUTY PRESIDENT

Appearances:

N Campbell for the applicant.

D Hope for the respondent.

Hearing details:

2013.

Melbourne:

March 6 and 7.

Final written submissions:

Applicant’s written submissions filed 19 March 2013.

Respondent’s written submissions filed 28 March 2013.

 1   Exhibit Transfield 1, Attachment C.

 2   Exhibit CFMEU 3, Attachment A.

 3   Transcript, at paras 366 and 643.

 4   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371.

 5   Jobson v Gerrard Strapping Systems, Print P6151.

 6   Briginshaw v Briginshaw and Another (1938) 60 CLR 336.

 7 (1959) 101 CLR 298.

 8   McLauchlan v Australia Meat Holdings Pty Ltd Print Q1625 at page 12 and King v Freshmore (Vic) Pty Ltd Print S4213 at para 28.

 9 (2000) 98 IR 137.

 10   Applicant’s written submissions.

 11   Fischer v Telstra Corporation Limited Print R2558 at para 33.

 12 Section 382 of the Fair Work Act 2009.

 13 (1999) 169 ALR 89 at p.92 per Moore J.

 14   Print S4213.

 15   See Yew v ACI Glass Packaging Pty Limited (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) 88 IR 408 and Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

 16   Respondent’s written submissions of 28 March 2013, at paras 31 and 33.

 17   Exhibit Transfield 1, Attachment C.

 18   Transcript, at para 370.

 19   Transcript, at para 276.

 20   Transcript, at para 383.

 21   Transcript, at para 252.

 22   Transcript, at paras 451and 452.

 23   Exhibit CFMEU 4, at para 4.

24 Transcript, at para 370.

 25   Transcript, at para 373.

 26   Transcript, at para 374.

 27   Exhibit CFMEU 3, at para 22.

 28   Transcript, at paras 1012 and 1139.

 29   Transcript, at paras 768, 1009 and 1137.

 30   Transcript, at para 1217.

 31   Transcript, at para 1221.

 32   Transcript, at paras 1222-1223.

 33   Transcript, at para 1238.

 34   Exhibit CFMEU 4 at para 3.

 35   Transcript, at para 417.

 36   Transcript, at para 989.

 37   Transcript, at para 656.

 38   Transcript at paras 680-683.

 39   Exhibit CFMEU 4, at para 5.

 40   Exhibit CFMEU 4, at para 5.

 41   Transcript, at para 654-655.

 42   Exhibit Transfield 3.

 43   Transcript, at para 580.

 44   Exhibit Transfield 3.

 45   Transcript, at para 588.

 46   Transcript, at para 702.

 47   Transcript, at para 707.

 48   Transcript, at para 708.

 49   Transcript, at para 710.

 50   Transcript, at para 709.

 51   Transcript, at paras 662 and 683.

 52   Transcript, at para 677.

 53   Exhibit CFMEU 3, at para 48.

 54   Exhibit CFMEU 3, at para 49.

 55   Exhibits CFMEU 2 and Transfield 5.

 56   Transcript, at para 869.

 57   Transcript, at para 1135.

 58   Respondent’s written submissions of 28 March 2013, at para 22.

 59   Exhibit Transfield 4 at paras 20-27.

 60   Transcript, at paras 37-40.

 61   Transcript, at paras 988 and 992

 62   Exhibit CFMEU 4, at para 7.

 63   Transcript, at para 1251-1255.

64 Transcript, at para 370.

 65   Exhibit Transfield 5.

 66   Transcript, at para 373.

 67   As reflected in the Respondent’s written submissions and the evidence of Mr Ibrahim in Transcript, at para 1081.

 68   Exhibit Transfield 4, at para 25.

 69   Transcript, at paras 1222-1223.

 70   Transcript, at para 1238.

 71   Exhibit Transfield 4, at para 27.

 72   Exhibit Transfield 3.

 73   Transcript, at para 707.

 74   Transcript, at para 677.

 75   Exhibit Transfield 3.

 76   Exhibit Transfield 1, Attachment C.

 77   Exhibit Transfield 4, at para 23.

 78   Exhibit Transfield 4, at para 29.

 79   Exhibit Transfield 4, at para 28.

 80   Exhibit Transfield 6, at para 8.

 81   Exhibit Transfield 4, at paras 28-29.

 82   Exhibit CFMEU 4, at para 17.

 83   Exhibit CFMEU 4, at para 6.

 84   Exhibit CFMEU 4, at para 7.

 85   Exhibit CFMEU 4, at para 8.

 86   Exhibit CFMEU 4, at para 9.

 87   Exhibit CFMEU 4, at para 11.

 88   Exhibit CFMEU 4, at para 5.

 89   Exhibit Transfield 3.

 90   Exhibit Transfield 4, at para 36.

 91   Exhibit Transfield 1, Attachment C.

 92   Exhibit CFMEU 7, at para 3.

 93   Exhibit CFMEU 7, at para 5.

 94   Exhibit CFMEU 7, at para 9 and Exhibit CFMEU 6, at para 5.

 95   Exhibit Transfield 4, at para 28-29.

 96   Exhibit CFMEU 4, at para 7.

 97   Respondent’s written submissions of 28 March 2013, at para 24.

 98   Respondent’s written submissions of 28 March 2013, at para 25.

 99   Transcript, at para 868

 100 Section 390 of the Fair Work Act 2009.

 101 Section 390(3) of the Fair Work Act 2009.

 102 (1998) 88 IR 21.

 103   Applicant’s written submissions of 28 March 2013, at para 53.

 104   Respondent’s written submissions of 28 March 2013, at para 34.

 105   Respondent’s written submission of 28 March 2013, at para 38.

 106   Exhibit CFMEU 3, at paras 18 and 19.

 107   Transcript, at para 505.

 108   Transcript, at paras 324-326 and 348.

 109   Exhibits CFMEU 3, at para 14 and CFMEU 4, at para 14.

 110   Exhibit CFMEU 5.

 111   Transcript, at paras 343-346.

 112   Transcript, at para 532.

 113   Transcript, at para 74.

 114   Exhibit Transfield 1, at para 2.

 115   Transcript, at para 532.

 116   Exhibit Transfield 2.

 117   Transcript, at para 505.

 118   Exhibits CFMEU 3, at paras 11-12.

 119   Exhibit CFMEU 3, at paras 18-20.

 120   Exhibit CFMEU 4, at para13.

 121   Transcript, at para 532.

 122   Respondent’s written submissions of 28 March 2013, at para 54 and Attachment A of Applicant written submissions.

 123   Exhibit CFMEU 4, at attachments CMc-1 and CMc-2.

 124   Final written submissions, at paras 37-38.

 125   AE888976 PR515912.

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