Colin MacQuarrie v Alcoa of Australia Limited T/A Alcoa World Alumina Australia
[2014] FWCFB 33
•8 JANUARY 2014
[2014] FWCFB 33
The attached document replaces the document previously issued with the code [2013] FWCFB 33 on 8 January 2014.
The document contained an incorrect reference code.
Bronwyn Brown
Associate to DEPUTY PRESIDENT LAWRENCE
Dated 8 January 2014
[2014] FWCFB 33 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Alcoa of Australia Limited T/A Alcoa World Alumina Australia
(C2013/6188)
DEPUTY PRESIDENT LAWRENCE | SYDNEY, 8 JANUARY 2014 |
Appeal against decision [2013] FWC 6813 of Deputy President McCarthy at Perth on 10 September 2013 in matter number U2013/858.
Introduction
[1] This is an appeal for which permission under s.604(1) of the Fair Work Act 2009 (the Act) is required. The appeal by Mr Colin MacQuarrie (the Appellant) is against a decision of Deputy President McCarthy [(2013) FWC 6813] (PR541597) in relation to what the Applicant alleges was his unfair dismissal by Alcoa of Australia Limited T/A Alcoa World Alumina Australia (the Respondent). The Deputy President determined that the dismissal was not unfair pursuant to s.387 of the Act. Accordingly he dismissed the application.
[2] The Appellant had been dismissed on 26 February 2013 after over 30 years service with the Respondent in his first job.
[3] The incident which led to the dismissal and subsequent events, which were essentially not in dispute, are set out at [2] of the Deputy President’s decision as follows:
“At approximately 10.30am on 12 February 2013, being the first day of a block of rostered shifts for the Applicant spoke (over the two way radio frequency utilised by the Respondent and its employees for communications at the Huntly minesite) to Mr Stuart Glass, Senior Equipment Operator concerning an incident at his mother’s home (the Incident) on 10 February 2013 and sought advice on contacting Mr Baron Kelly (an indigenous elder in the Pinjarra Region) to speak to some indigenous youths said to have been involved in the incident.
During the course of that discussion:
(a) the Applicant repeated the description of the incident as explained to him by his mother. The description included repeating the words attributed to the indigenous youths including ‘f..k’ and spelling of ‘c..t’.
(b) the Applicant referred to a historical event where a poster, some fifty years earlier, was placed in the Pinjarra Post Office which stated ‘Shoot a C..n Day’ and stated words to the effect that ‘on that day, you wouldn’t see any in town’.
In the course of the conversation Mr Clint Reynolds, Senior Equipment Operator, offered assistance to locate Mr Baron Kelly.
None of the employees on duty who could hear the conversation called on the Applicant to stop the conversation.”
The Applicant was counselled by Mr Lee Tregenza, Group Leader, about the incident at about 12.30pm on 12 February 2013 as a result of him being contacted about the Applicant making an inappropriate comment over the two way radio system.
On 13 February 2013, Mr Scott Wotherspoon, Production Supervisor, was made aware of the Incident and directed that an investigation be conducted.
On 15 February 2013, the Applicant was asked to provide a written statement. The Applicant provided a written statement.”
[4] It appears that Mr Wotherspoon contacted Mr Benjamin Robinson, the Operations Manager of the Mine, who authorised the investigation. Mr Robinson received the Appellant’s written statement on 18 February. He then contacted Ms Patricia Schraven, Human Resources Manager for advice. A meeting took place with Mr Robinson, Ms Schraven, Mr Price, the union delegate and the Appellant on 26 February which led to the decision to summarily dismiss the Appellant.
[5] The letter of termination sent on 27 February 2013, signed by Mr Robinson said, inter alia:
“We write further to our meeting yesterday and Alcoa’s recent investigation into allegations that you made highly inappropriate (i.e. derogatory and racist) comments over Alcoa’s two-way radio system on 12 February 2013.
Having investigated the alleged behaviour, Alcoa concluded that:
● On 12 February 2013, whilst using the two-way radio at the Huntly McCoy operations, you made comments of a highly derogative and racist nature;
● Your conduct:
- Was entirely inconsistent with your obligations as an employee of Alcoa; and
- can be characterised as serious misconduct; and
- is considered to have been wilful and/or deliberate behaviour that was inconsistent with the continuation of your contract of employment.
Having considered all of the information available to it, including but not limited to the accounts you provided regarding the incident, Alcoa formed a view that the termination of your employment was justified in all of the circumstances.”
[6] The Deputy President decided, inter alia, that:
● There was a valid reason for termination for the reason set out at [9]:
“I find therefore that there was a valid reason for the termination of the Applicant's employment. In isolation and not taking into account at this juncture other matters which I will address below, termination of employment was not in my view a disproportionate penalty. The comments made were not some mere slip of the tongue but rather deliberate, overt and highly offensive. Moreover the Applicant had been educated in Pinjarra and was aware of racial tensions and history and would clearly have known the offense the comments would cause. The comments were made over a public two-way radio and not in some private conversation between two people where a careless lapse in expression occurred.”
● Other factors, especially the Applicant’s long and apparently good record of service, were not sufficient to override the Respondent’s right to ensure compliance with its policies which have been designed to promote cultural awareness amongst its employees and community harmony.
[7] The original application was heard in Perth on 2 September 2013 and the Deputy President delivered his decision on 10 September 2013. The Applicant was represented by Mr K. Trainer and the Respondent by Mr M. Vallence.
Grounds of Appeal
[8] The Appellant’s Grounds of Appeal can be summarised as follows:
1. The Deputy President made significant errors of fact as to the purpose and intent of the applicant in making the two-way radio call including that it was made to “vent anger” and that the applicant’s actions were deliberate.
2. The Deputy President failed to apply the principles set out by the Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post [(2013) FWCFB 6191] (PR540818) (Australia Post).
3. The Deputy President’s reasons are inadequate and did not adequately address some flaws in the Respondent’s investigation and decision making process including:
• its alleged bias
• different treatment of the applicant compared to at least one other employee
4. The Deputy President did not give adequate weight to the applicant’s contrition or openness in the investigation or to the mitigating circumstances.
5. The Deputy President “wrongly directed himself in determining the role of the Commission”.
[9] At the commencement of the appeal proceedings in Perth, the Full Bench granted permission for the Appellant to be represented by Mr K. Trainer and the Respondent by Mr A Power of Counsel.
Appeal principles
[10] An appeal under s.604 of the Fair Work Act 2009 (the Act) involves a proceeding by way of rehearing with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. The majority of the High Court in that case explained in the following passage how error may be identified where a discretionary decision is involved:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process (See Norbis v Norbis (1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so (55 CLR 499 at 505).”
[11] Although s.604(2) requires the Fair Work Commission (the Commission) to grant permission to appeal if it is satisfied that it is in the public interest to do so, there is a note following the subsection to the effect that this does not apply in relation to an application for an appeal from an unfair dismissal decision (see s.400). The effect of s.400 of the Act is that the general approach to dealing with appeals is varied in two significant ways in relation to appeals from unfair dismissal decisions. Firstly, in regard to the granting of permission to appeal, this may only be granted where the Commission considers it is in the public interest to do so (s.400(1)). Secondly, where an appeal is based on error of fact, the appeal can only be made on the ground that the decision involved a significant error of fact (s.400(2)).
[12] In GlaxoSmithKline Australia Pty Ltd v Makin [(2010) FWAFB 5343] a Full Bench of the Commission considered when it would be in the ‘public interest’ to grant permission to appeal in accordance with s.400:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [sic] [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues 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, it seems to us that none of those elements is present in this case.”
[13] We also note the often quoted approach that a finding at first instance which depends significantly on the credibility of a witness should not be set aside on appeal unless it can be shown that the trial judge: “. . . has failed to use or has palpably misused his (or her) advantage” or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence “or which was “glaringly improbable. [Devries v Australian National Railways Commission (1993) 177 CLR 472]
[14] We now turn to consider each of the Grounds of Appeal as contained in the Notice of Appeal and summarised in paragraph 8 above. We note that the Outline of Submissions filed by Mr Trainer on behalf of the Appellant re-words and re-orders the Appeal Grounds but not to any material effect, in our view.
Ground 1
[15] The Appellant submits that the Deputy President decided that the comments made by the Appellant were “overt and deliberate” and this was a significant error. The Appellant accepts “that it was open to find that there was a valid reason for the termination of the employment but does not accept the label of “deliberate or wilful” aligns with the circumstances, [see Transcript PN142 and PN241 - 267].
[16] The Appellant submits that the Deputy President’s conclusion that the use of the two-way radio was in part to “vent his anger and displeasure at the incident involving his mother”, was contrary to the evidence.
[17] The Appellant further submits that there was no evidence that the Appellant specifically chose to use the two-way radio to the exclusion of other possible means of obtaining the information that he sought.
[18] The Respondent points to the fact that the Deputy President’s decision as to whether or not a valid reason existed is contained at [9] of the decision to which we have already referred at [6] above.
[19] The Respondent argues that the question of whether the conduct was deliberate requires an objective assessment, and the evidence supported such an assessment. The seriousness of the nature of what the Appellant said is conceded by him (see the notes of a meeting on 26 February 2012 taken by Simon Price, the union delegate Appeal Book 146 - 147) and confirmed by his supervisor Mr Tregenza in his statement (Appeal Book 181 - 182)
[20] There is no doubt that the Appellant’s remarks, as set out above, were highly offensive, and were contrary to the Respondent’s policies and to the training that the Respondent’s workforce, including the Appellant, had undertaken.
[21] In recent years, the Appellant had undertaken, inter alia, the following training:
● “Describe Acceptable Workplace Behaviour”
● Two-Way Radio Etiquette
● EEO in Alcoa and Preventing Discrimination and Harassment in the Workplace
● Human Performance
● Alcoa Ethics and Compliance
[22] The Deputy President considered all of the evidence that surrounded the two-way radio call and came to the conclusion that it was not done simply to contact a person who could have helped in relation to his mother. His finding that this was not the sole purpose was based on the context of the call and its content. We agree that this finding was reasonably open to the Deputy President. There is no doubt that the Appellant was expressing his anger and displeasure at the incident involving his mother. This was a factor in assessing the nature and gravity of the remarks and the means of their communication.
[23] Similarly, we agree that the Deputy President was entitled to draw an inference from the fact that the Appellant used an open two-way radio to communicate, as opposed to other options, when considering the purpose of the call.
[24] Moreover, the Deputy President’s finding on valid reason is clear, was reasonably open to him on the evidence, and did not involve any error of fact.
[25] Accordingly, we do not discern any appellable error in the reasoning or conclusions of the Deputy President in respect of Ground 1.
Ground 2
[26] Under this ground, it is submitted that the Deputy President, having found there was a valid reason, was obligated to apply the Australia Post case. The Commission is required to exercise its own judgment, but the Deputy President at [15] of the decision did not do so. He should have found that the mitigating factors outweighed the gravity of the conduct. The Deputy President did not give any consideration to the fact that the Appellant’s conduct was a one-off event.
[27] Paragraph [15] of the decision is as follows:
“[15] I consider my role to be to ensure that the Respondent has given the Applicant notification of the complaint they have against him, given him proper opportunity to respond and explain or dispute circumstances surrounding the conduct and given proper consideration to all elements that it should reasonably be expected to consider in arriving at a decision. It is not my role to replace the Respondent’s decision with my own, rather it is my role to assess on an objective basis whether the Respondent’s decision was harsh unjust or unreasonable.”
[28] The Appellant’s submission, it appears, is that the Deputy President, by using the phrase: “It is not my role to replace the Respondent’s decision with my own” in [15], was mistaking the statutory obligation of the Commission.
[29] The Full Bench in Australia Post endorsed the following statement of the Full Bench in Queensland Rail v Wade (2006) 156 IR 393 at [23]:
“[23] Although in this case we have decided not to interfere with the application of that policy, it ought not be assumed that the Commission would uphold the employer’s right to apply the sanction of termination in all cases of deliberate breach regardless of the circumstances. As s.652 of the Act makes clear, in determining whether a termination of employment is harsh, unjust or unreasonable the Commission is required to take a range of matters into account. In addition the statutory provisions are intended to ensure a “fair go all round”: s.635(2). In the proper exercise of its functions the Commission must exercise its own judgment. Whatever sanctions the employer’s policy prescribes, the Commission must decide whether the termination is harsh, unjust or unreasonable.”
[30] The Full Bench in Australia Post also concluded at [31]:
“[31] This is properly to be seen as a reassertion of the basic principle that in each case, whether a termination is “harsh, unjust or unreasonable”, must be decided on the facts and circumstances of the particular case. The Full Bench expressly contemplated that, in a different case, the particular circumstances might render a termination for a pornography related breach of policy harsh, unjust or unreasonable notwithstanding the policy stating that any deliberate breach will result in termination. The decision in Queensland Rail is inconsistent with the proposition that there is any automaticity in concluding a termination based on pornography-related misconduct will not be harsh, unjust or unreasonable.”
[31] Also at [34], [35] and [36]:
“[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (e.g. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).
[35]Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.
[36]A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
and at [41] and [42]:
“[41]Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condemnation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]”
[32] When the Deputy President’s decision is read as a whole, it is apparent that he did exactly what Australia Post and other decisions say he should have done. He analysed the evidence, including the employer’s policies and the employer’s reason for dismissal and decided that there was a valid reason. He then undertook an analysis of the factors he considered relevant to decide whether the decision to dismiss was harsh, unjust or unreasonable.
[33] We do not consider that the Deputy President defaulted from generally accepted principles as enunciated in Australia Post and other cases. Accordingly, we do not discern any appellable error in respect of Ground 2.
Ground 3
[34] The Appellant submits that the Deputy President’s reasons for decision are inadequate and fail to deal with all relevant considerations. The brevity of the decision is contrary to an important public policy that a decision maker has a duty to publish reasons that allows parties to clearly understand the reasoning of the member of the Commission and is a basis for appeal.
[35] It is submitted that the Deputy President gave insufficient attention to the inadequacies raised by the Appellant concerning the procedures adopted by the Respondent in making the decision to terminate.
[36] Specifically, it is argued that the Respondent’s decision maker, Mr Robinson, had made up his mind to recommend termination before any investigation was made. Further, the Appellant was not given the opportunity to argue for an alternative penalty contrary to the opportunity given to another employee.
[37] It is true that the Deputy President’s decision, at three pages, is relatively brief. In our view, it is preferable for such decisions of the Commission to deal in detail with the legislative provisions. However, the question is whether the Deputy President considered all matters that he was required to take into account pursuant to s.387.
[38] In our view, the Deputy President did undertake the weighing exercise that was required of him.
[39] Specifically:
● At [10], the Deputy President decides that the Appellant was notified of the reason for his dismissal (as required by subsection (b)), that the Appellant was given more than one opportunity to respond (as required by subsection (c)) and that the Appellant was not unreasonably refused permission to have a support person present in discussions relating to the dismissal (as required by subsection (d)); and
● At [11], the Deputy President deals with the issues relating to the size of the employer and dedicated human resource management as required by subsections (f) and (g) respectively.
None of these matters were contested by the Appellant.
[40] We agree with the Respondent that the argument that the Deputy President ignored the allegation that the Respondent’s representative, Mr Robinson was biased has no basis. The allegation appears to be contrary to the evidence. Mr Robinson’s evidence [Transcript PN1205 - 1207 before McCarthy DP] was that, although he made the recommendation to dismiss, the decision was taken by Mr Briggs, the Manager of Mines. This evidence was not challenged.
[41] The allegation that the Appellant was treated differently to another employee appears to us not to be supported by the evidence. The other employee, Mr De La Pair, was involved in an incident and subject to disciplinary action in circumstances which appear to bear little relevance to the facts of this case [see Appeal Book pages 162 - 164 and Transcript PN417 - 456].
[42] There was some dispute as to whether the Appellant asked the Respondent’s representatives to consider alternative punishments short of dismissal. In any event, the evidence supports the Appellant being given an opportunity to respond to the Respondent’s decision to dismiss as required by the Act.
[43] Accordingly, we are satisfied that the Deputy President considered and addressed all of the matters required by s.387. We therefore find that there is no appellable error of fact or law in relation to this ground.
Ground 4
[44] The Appellant submits that although the Deputy President accepted specifically, in paragraph 5 of his decision, that there were “mitigating circumstances” with respect to the Appellant’s conduct, he does not deal adequately with them. He refers to the Appellant’s length of service and the impact of the termination only whilst giving disproportionate emphasis to the Respondent’s policies, the training of its staff and its community image. It is further submitted that no weight was given by the Deputy President to the Appellant’s honesty, co-operation with the Respondent’s investigation and contrition.
[45] The Appellant criticised the Deputy President’s decision as not giving proper weight to the additional matters raised pursuant to s.387(h) by the Appellant. However, we do not agree that the terms of the decision support this criticism.
[46] The Deputy President clearly had regard to the Appellant’s length of service. He refers to it in the first paragraph and also in paragraph 4. At [12] and [13] the Deputy President specifically says that the Appellant’s length of service and the impact the dismissal will have on him are matters to be taken into account. He notes that the Appellant has been employed by the Respondent, “if not all, almost all of his working life”.
[47] Given the nature of the Appellant’s remarks and the circumstances in which he made them, the Deputy President considered, however, this did not outweigh his decision that there was a valid reason. He also had regard to the importance of the social policy aspects of the case. He concluded that ensuring compliance with the Respondent’s community relations policies and the workforce training that accompanied them was important. This was a conclusion reasonably open to the Deputy President.
[48] Moreover, we cannot agree with the Appellant’s submission that the Deputy President gave no weight to the Appellant’s honesty, co-operation with the investigation, or his contrition. It is clear from [13] of the decision that he did.
[49] Therefore, we do not find any appellable error in the Deputy President’s decision on this ground.
Ground 5
[50] The Appellant submits that the Deputy President’s description of the role of the Commission in an unfair dismissal case is contrary to the objects of the Act set out in s.381 and a “fair go all round”.
[51] This Ground of Appeal repeats the criticism of the Deputy President for his statement at [15] of his decision, which we dealt with in respect of Ground 2 above.
[52] Accordingly, we do not find any appealable error in respect of this ground.
Conclusion
[53] We have not identified any significant error of fact or any other appellable error in the reasoning or conclusion of the Deputy President, nor do we believe that the public interest is attracted.
[54] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
K. Trainer for the Appellant.
A. Power of Counsel for the Respondent.
Hearing details:
2013
Perth:
October, 31.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR546415>
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