Construction Forestry Mining and Energy Union (FEDFA VIC. Branch) v Kodak (Australasia) Pty Ltd

[1994] IRCA 193

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - procedural fairness - requirements of proper investigation - requirements of opportunity to respond - whether termination harsh, unjust or unreasonable.

Industrial Relations Act 1988, s.170DC, s.170DE & s.170EA.

Nicolson -v- Heaven and Earth Gallery Pty Ltd (Industrial Relations Court of Australia, Wilcox CJ, 20 September 1994, unreported)

Byrne -v- Australian Airlines Limited (1994) 51 IR 10

Gregory -v- Philip Morris Ltd (1988) 80 ALR 455

Bostik (Australia) Pty Ltd -v- Gorgevski (No. 1) (1992) 36 FCR 20

Construction Forestry Mining & Energy Union (FEDFA Vic. Branch) -v- Kodak (Australasia) Pty Ltd

No. VI 830 of 1994

Before:     MURPHY JR

Place:      MELBOURNE

Date:       21 December 1994

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 830 of 1994

BETWEEN:

CONSTRUCTION FORESTRY MINING & ENERGY UNION
(FEDFA VIC BRANCH)
Applicant

AND

KODAK (AUSTRALASIA) PTY LTD
Respondent

MINUTES OF ORDER

21 December 1994  Judicial Registrar Murphy

THE COURT ORDERS THAT:

1. The Application is dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 830 of 1994

BETWEEN:

CONSTRUCTION FORESTRY MINING & ENERGY UNION
(FEDFA VIC BRANCH)
Applicant

AND

KODAK (AUSTRALASIA) PTY LTD
Respondent

REASONS FOR JUDGMENT

21 December 1994  Judicial Registrar Murphy

The Application

This is an application under s.170EA of the Industrial Relations Act 1988 (“the Act”) by the Applicant Union on behalf of three of its members, Messrs Roy Odgers (“Odgers”), Murray Oates (“Oates”) and William Rowe (“Rowe”) (“the Applicants”) who were employed as operator/maintainers at the Respondent’s powerhouse.

On 24 June 1994, as a result of an incident on 15 June 1994 their employment was terminated.  The incident which precipitated the termination was that the supervisor of the powerhouse arrived at 4.00am during the night shift and found the Applicants and another employee Kam Tsang (“Tsang”) apparently asleep.  Oates was lying on a lilo under a bench, Odgers and Rowe were on make-shift beds made of chairs within the powerhouse.  Following an investigation their employment was terminated.  The Applicant Union then brought these proceedings.  Oates and Odgers sought reinstatement while Rowe sought compensation.

The Issues

Although an attempt was made to narrow the issues on the first day of the proceedings, that attempt failed.  The Applicants’ case was that they were all not sleeping but resting and that they were entitled to do so under the terms of their award.  Further, resting, in the manner they were found, had been condoned by the Respondent.  In the event that the Court found that they were in fact sleeping the Applicants’ position was that sleeping had also been condoned by the Respondent.  The Applicants alleged that they had been denied a proper investigation and hearing process prior to their termination and further that the termination itself was, in the circumstances, harsh, unjust or unreasonable.  The Respondent’s position was that at no time did it condone either resting or sleeping and that it was justified in terminating their employment on the basis that they had been found asleep.

The Evidence

The Applicants called the following evidence:

(a)As to the circumstances of the incident - the Applicants;

(b)As to past and present practices within the powerhouse - former employees Graham Clarke (“Clarke”), Cliff Anderson (“Anderson”) and Michael Toft (“Toft”) and current employee William Craig (“Craig”).

The Respondent called the following witnesses:

(a)As to the incident and its aftermath - Douglas Howden (“Howden”) Powerhouse Supervisor, Matthew Donovan (“Donovan”) Acting Manager Utilities Department and Adrian Lalor (“Lalor”) Manager, Engineering Maintenance and Utilities;

(b)As to past and present practices in the powerhouse - Peter Norwood (“Norwood”) former Powerhouse Manager, Christopher Kremler (“Kremler”) former Powerhouse Manager, and present employees Victor Todorovic (“Todorovic”), Grant Sutherland (“Sutherland”) and Thomas Galea (“Galea”).

(c)As to the time that Rowe commenced work on 14 June - Adrian Wilson (“Wilson”).

Background

The background to this matter was a commendable effort on behalf of the Respondent to multi-skill its work force.  Until early 1993 the powerhouse staff consisted of a group of operators.  Maintenance was not performed by those operators and was performed either by fitters employed by the Respondent or by subcontract labour.

In early 1993 it was decided to move to a multi-skilled work force where the operators became operator/maintainers.  Some of the operators already held maintenance skills, while others were upgrading their skills.  As a result of this change maintenance in the powerhouse was carried out by the operators in association with their other duties of monitoring and operating the powerhouse.

One of the boilers required its annual major overhaul and, for the first time, it was decided that refitting of the boiler should be undertaken by the employees in the course of their normal shifts in the powerhouse.  Each shift consisted of three employees.  In the present case the “D” shift consisted of the three Applicants.  Oates was shift leader but both the other Applicants had previously held that position.  The usual hours of work were 7.00pm to 7.30am.  Because the work of reassembling the boiler required the three men to be engaged continuously on a single task, for safety reasons, an additional employee Tsang was assigned to that shift.

When the boiler was to be overhauled Howden produced a document which on his evidence listed a series of dates detailing when various elements of the reassembly or the overhaul process were to have occurred.  He said that the arrangement was that work on refitting the boiler was to be undertaken by each shift until the refitting was completed and the boiler was in a position to be recommissioned.

The powerhouse is a large enclosed building containing within it three large boilers.  One is inoperative, while another was working and the third was the subject of the overhaul.  There was thus no reserve boiler available and some urgency was involved in completing the overhaul.  The actual cut-out and cut-in of the boiler could only be done at weekends. Also in the powerhouse were a large number of large pumps, compressors, generators, fans and switchboards.  Within the powerhouse were a number of enclosed rooms.  These included a centrally located workshop, a canteen and amenities block, a control room and a boiler humpy which had formerly been used to control the boilers but which still contained some controls.  Critical events in these proceedings took place in the latter two rooms.

The control room is about five metres by four metres in dimension and within it are three VDU terminals which monitor the main boiler and other equipment.  Also within it are a number of alarms and switches which are linked to other parts of the powerhouse and particular items of equipment within it.  From within the control room the operators are able to monitor the functions of the various boilers and to make some adjustments to the boilers and the pumps.  When problems arise within the powerhouse such as malfunctioning pumps, some of these problems will give rise to an audible alarm which sounds within the powerhouse and within the control room.  There are also various flashing lights within the control room.

The work of the operators of the powerhouse consists of monitoring the terminals, adjusting equipment as required and responding to any alarms or irregularities raised on the monitors.  In addition, the operators are required to patrol the powerhouse at regular intervals to see that everything was in order, inspect water tanks located adjacent to the powerhouse and complete four-hourly logs.  Their tasks also required them to respond to any alarms or malfunctions which may occur and take appropriate action.  Overall their tasks could be said to be to monitor and react to occurrences.

On the night in question Tsang was brought in to perform the monitoring functions as the Applicants were to be engaged in the refitting of the boiler.

Shift Arrangements

The shift was for a twelve hour period.  During the shift there was no fixed time for a meal break.  Under the arrangements the men were entitled to take breaks when their duties allowed.  These breaks consisted of two 10 minutes drink breaks, two 30 minute meal breaks and one 10 minute wash up time.  Monitoring would continue while the men had their meals in the control room.

Within an ordinary shift activities consisted of change-over from the preceding shift, performing whatever maintenance tasks were on hand or had been specified by the powerhouse supervisor, monitoring, and then, towards the end of the shift, starting any machines which might be required for the incoming shift.

Background To Howden’s Visit On 15 June 1994

Howden gave evidence that with the implementation of the operator/maintainer arrangement he had been concerned as to the amount of work that was being done on nightshift.  He had reports in November 1993 that Rowe was discouraging people from doing maintenance work on nighshift.  In May 1994 he received reports from two employees Sutherland and Todorovic to the effect that the shift leader of “D” shift, Oates, was in the habit of sleeping whilst in duty.  Todorovic had also indicated that Oates and Rowe had discouraged people from doing maintenance work on nightshift and suggested that they should be sleeping instead.  Howden was unable to raise the matter with his superior Donovan because he was away but he did raise it with him on about 12 or 13 June 1994.  Donovan had only taken up his position as acting manager of the Utilities Department and Howden’s supervisor in April.  In previous positions within Kodak he had been in the habit of arriving on nightshift unannounced in order to investigate what was happening.  He suggested that Howden should do that in this case, and after consultation with Mr Peter Vosti (“Vosti”), the company industrial advisor, that is what occurred. 

The Events Of 14/15 June 1994

Each of the three Applicants gave evidence as to the events of the night and were extensively cross examined.  They all denied they were asleep when Howden arrived. The thrust of their evidence was that they commenced on the shift at around 7.00pm and commenced working in the boiler at 8.00pm.  The work reassembling the internal gear was hard, dusty and hot.  They worked solidly and had a 15 minute break somewhere between 10.30pm and midnight.  Subsequently they kept working and completed the work according to Odgers between 3.00am and 3.30am.  According to Oates they completed the work at about 2.00am and according to Rowe it was somewhere between 2.45am and 3.00am.  After that Oates claimed that he went for an inspection around the plant and subsequently he and Rowe had a shower.  Also around that time they returned to the control room and had one or more brews of tea.

Odgers claims that he stretched out on the chairs in the control room at about 3.45am.  He claims that he was monitoring the plant at that time.  Odgers said that Rowe left the control room at some time after 3.30am.  Oates claims that he had seen Rowe 20 minutes before Howden arrived and he had laid down at 3.40am.  Both Odgers and Oates in cross examination were vague as to the times in general but were precise as to the duration that they had been lying down.  Each denied that they were sleeping at the time Howden arrived.  Odgers said he may have had his eyes closed.  Oates said that he had responded to an alarm approximately 15 minutes before Howden arrived and that he had been monitoring the controls by lifting his head up from the lilo and looking out at the controls every couple of minutes. There was no firm testimony as to who may have turned the light out but Odgers said he may have done so.  Tsang was also in the control room lying down on chairs.  Oates was actually lying on a lilo and had a pillow.  Oates said that Tsang was known to turn the heater up in the control room.

Oates claimed that he sensed the presence of Howden before he opened the door of the control room and claimed he saw him through the window next to the door before it was opened.  Odgers denied seeing Howden before he arrived through the door although he was in a position, from photographs tendered, to have seen him through the windows had he had his eyes open.

When Howden entered the room he turned the light on and Oates claimed that he was the first to speak.  Odgers at first agreed with him and then conceded that Howden may have been the first to speak and then was unsure.  In cross examination Odgers claimed that Tsang was the first to speak when Howden entered the room.  Each agreed that Howden effectively asked them whether they had work to do and that Odgers disputed whether they had any further work to do given that they have been working for three quarters of the shift.

Rowe said that he went to the boiler humpy at about 3.30am to 3.45am and he read his book for approximately 10-15 minutes and found he was quite exhausted and had an extremely sore back.  He then said that what seemed like a few minutes later there was a loud bang on the door or the window and “then I sat straight up and I looked and I saw Doug Howden walking out of the boiler room”.  At the time the lights in the boiler humpy were not on and he claims that he later turned them on.  He resumed reading his book and Howden subsequently entered the humpy and slammed down two valves on the desk.

Following this there was a long conversation between Rowe, Howden and Oates during which time Howden allegedly said that Rowe would probably get a slap over the wrists for this. During cross examination Rowe was unable to explain why the lights weren’t turned on but he maintained that the position that he was sitting was facing an old set of controls within that boiler humpy and that he believed that he had only been resting for a short time when Howden knocked on the window.

Odgers gave evidence that resting on nightshift was always an extremely widespread occurrence but its length depended on the amount of work that had to be done.  He claimed that management knew that it went on.  He claimed that they worked hard to get the job finished and then decided to have a rest.  Oates also claimed it was acceptable for the men to have a rest in this way.  He also gave evidence that he believed that the Respondent knew that the men took such rests and accepted them as part of the position.  He said that the Respondent had never done a thing to stop them doing it.  He claimed that a month prior to this incident Donovan walked into the control room one morning at 5.00 am and kicked his lilo while he was on it. 

Rowe also claimed that management found it acceptable that the men took rests and referred to a number of comments by management about those rests.  Rowe gave evidence that he had previously been a leading hand and had been offered, in late 1993, a promotion to another position.  All the men gave evidence that they were earning $50,000 - $55,000 per annum in their positions.

All the men maintained that the rest that they undertook was after they had completed the bulk of the work for the shift and that they intended to complete normal duties associated with the shift before they ceased work at 7.00 am. 

Howden’s version of events of the night was different.  He claimed that he opened the door of the control room, walked in, turned on the light and then said words to the effect “good morning chaps”.  He said that Tsang was the first to respond, then Oates’ head appeared from under the bench.  He asked Oates to get the men back to work and Odgers responded “what at this time”. The three men in the control room showed all the symptoms of being roused from sleep.  Howden claimed that they were disoriented and rubbing their eyes.  He said “they didn’t seem to hide being asleep”.  He then went to the boiler humpy, observed that Rowe was asleep with coats over him, he turned on the light and then had to bang on the window with his fist before Rowe showed any sign of waking.  He then went to check where the men had been working and found there was no activity. When he came down from this gantry he observed that Rowe had commenced reading a book.  He then went to the workshop in the powerhouse and obtained some valves and then took them into Rowe.  At that time he admitted that he was angry with what he saw as defiance by Rowe in reading.  A long conversation then ensued between Rowe, Oates and Howden.  In the course of that conversation he maintained that neither of the men denied that they had been sleeping and that they appreciated the seriousness of the position that they were in having been found sleeping.  He said that Oates had said that “they had worked till 3.00am, that they had come down, had a shower and put their head down for a bit of a camp”.   He claimed that “a bit of camp was Oates’ euphemism for sleep”.  He denied that he had told Rowe they would get a slap on the wrist.

Howden maintained that there was still work for them to do as the task of recommissioning the boiler had not been divided into shifts but was a continuous task.  It was to be performed until it had been completed so that the boiler could be recommissioned as soon as possible.

The Investigation

After Howden found the three Applicants and Tsang asleep he prepared a report for his superior Donovan.  That report briefly detailed his observations of the Applicants and referred to his discussions with them in the course of the morning of 15 June.

The report included the following:

“Acting on your instructions and in response to claims from other employees, I visited “D” shift at approximately 4.00 am on Wednesday 15 June 1994 to verify claims that people were sleeping whilst on duty.”

It then detailed his observations of the men and then went on:

“As I headed back down the steps (from the gantry) I saw Murray talking to Bill Rowe and assumed he was getting Bill back to work.  However, to my surprise Bill subsequently picked up a novel and sat down and began to read it.  I went to the workshop and picked up two blow-down valves which had been overhauled and were ready to be refitted to the boiler and went back to Bill and instructed him to fit the valves.

Bill became very aggressive and asked what I had against “D” shift and why I had not thanked everyone after the Boiler Inspector had been.  A lengthy discussion ensued during which I detailed the problems with the operation of “D” shift and the fact that they were held in very poor regard by the rest of the powerhouse personnel.  Bill and Murray both agreed that they had a problem relating to the other people in the powerhouse.

At one stage into the discussion with Murray he indicated that he felt that the shift had worked hard, had decided to have a shower and go to sleep about an hour or so ago.  This would put the time of going to bed at about 3.00am”.

Upon receipt of that report Donovan made a decision to suspend the men on pay and conduct an investigation.  He proceeded to write to the men seeking their explanation for what had happened.  The letter was in a similar form to each of the men.  The only differences were slight variations for each of them relating to their location when observed asleep.  As much was made of the letter by counsel for the Applicants it is appropriate to set out in full the letter to Oates:-

“I have received a very disturbing report from Doug Howden, Powerhouse Supervisor, which outlines the situation he discovered when he visited the Powerhouse at 4.00am yesterday morning.

It is important that you know that I instructed Doug to check information to the effect that a person or persons on your shift were in the habit of sleeping whilst on duty.

The report submitted by Doug (copy attached for information) indicates that you had to be roused from sleep at approximately 4.00am on 15 June 1994.  It is clear that this was not a case of falling asleep at your work station but rather a deliberate and organised pre-determined arrangement involving pre-determined beds of various make-shift kinds.

In view of the seriousness of your behaviour I have decided that you should be suspended with pay effective from Monday 20 June, 1994, your next shift until further notice.

I have decided to conduct an immediate investigation into the matters raised by Doug.  As part of this process I will interview each of the employees on your shift.  In this respect you are directed to attend the Building 12A Ground Floor Conference Room at 1.00pm on Friday 17 June, 1994.  I have arranged for Mr Malcolm McDonald, CMFEU official, to be present at the interviews.  I have also asked Peter Vosti to attend and I will be accompanied by Doug Howden.

At the interview, I will expect you to explain:

-why you were asleep on duty

-why you expressly made a prior arrangement to facilitate sleeping on duty by bringing in an air mattress and pillow

-why as shift leader you also condoned arrangements for the rest of your shift to be asleep on duty

-why you failed to continue reassembly work on Boiler No 1

-why you abandoned your statutory obligations and responsibilities in respect to observance, monitoring and control of the Powerhouse boilers, which are registered as fully attended boilers, steam turbines and other equipment as required by your Engine Driver’s Certificate.”

The letter to Odgers made reference to his response to Howden when they were roused:

I am also concerned at your response of querying why you should work at 4.00am in the morning when you were scheduled to work until 7.30am.

The letter to Odgers and Rowe did not make reference to them being shift leader.

The letter to Rowe asked him, in addition, to explain the following:

“Why you ignored instructions to continue reassembly work on Boiler No 1 and chose to read a book”

The Interviews

Donovan gave evidence that he then convened the interviews with each of the men.  He conducted the interviews himself and Howden provided information when required. Vosti was also present as was Malcolm McDonald (“McDonald”), an official of the Applicant Union.

In his evidence Donovan said that each of the interviews was basically the same format with him outlining at the commencement of them the seriousness of the situation as it faced each of the Applicants and Tsang.  He said in evidence that he believed that he made it clear to them that termination was an option as far as the Respondent was concerned.  He then says that he put each of the allegations listed in the letter to them and sought their response.  At the end the interviews he asked them whether they had anything to say and for each of them McDonald responded.

The Applicants in their cross examination did not really challenge the evidence of Donovan in relation to those interviews.  McDonald was not called to challenge or contradict the evidence of Donovan.  On the following day, the Saturday, Donovan prepared records of interview of each of the four interviews which he apparently conveyed to Vosti.

The Oates Interview

In the interview Oates claimed that he had spoken first on the night.  He claimed that he is still able to monitor the controls by bobbing up and down and checking the screens every 2-3 minutes but agreed that it probably wasn’t an acceptable way.  He denied sleeping on that night and said he never slept on shift.  He said that they had finished work reassembling the internals of the boiler some time after 2.00am and had been laying down for about half an hour.  He denied that it would have been the hour that he had mentioned to Howden on the night.  He claimed that he had not used the lilo and pillow previously and said that it was only his intention to lie down and not to sleep.  He believed that Rowe was reading a book in the boiler humpy and admitted that he was not performing his shift leader function properly.  He maintained that they had done the work that they had been assigned on that night.  The interview refers to the fact that Oates’ version did not match Howden’s report and that “the fact that someone is lying could affect this decision.”  McDonald had stated that “there were extenuating circumstances in the fact that this occurred on the night shift when it was quite easy to doze off, they had got stuck into the work which was hard and dirty and they needed a rest.  He then asked Murray if it would happen again.  He replied that it would not”.

The Odgers Interview

Odgers also denied sleeping on the shift and said he had only been lying down for 10-15 minutes and had not had a shower.  Previous counselling sessions with Odgers were discussed but he was unsure of them.  He said that he was not happy with a previous counselling session in relation to a final warning for a clock card incident.  Finally, questioned by McDonald, he said that he would not do it again.

The Rowe Interview

Rowe also denied sleeping on the shift and said that he had gone to the humpy at 3.30am and that the men in the control room were awake and monitoring operations at that time.  He said that his back was hurting him.  He claimed he could monitor the boilers from the humpy.  He denied refusing to continue reassembly work and said that he had not been instructed to.  He claimed that Oates had not assigned them any tasks.  He denied that he had ever slept on shift before and had never arranged chairs like this before.  In response to questioning by McDonald he replied that it would not happen again.

The Tsang Interview

Although Tsang was not called as a witness, his interview record went into evidence and in that he denied sleeping on shift and claimed that he was lying down with his head propped up and could still see the monitors.  He had not had a shower because he had been monitoring the operation while the others had worked hard for five hours to finish the reinstallation.  He could not explain why the lights were off and could not say if he had heard of any sleeping on this shift.  He also said he had not had any problems with Oates.  He stated that he was responsible, did not do this before and would not do it again and was described by Donovan as “very concerned about his job”.

The Decision To Terminate

After the interviews with the four men, Donovan, Vosti and Howden had a short discussion during which they concluded that the facts described by Howden in his report were correct.  It was then decided that Donovan and Vosti would see Lalor, who was Donovan’s superior, with the outcomes of the interviews.

Late on the day of the interviews a meeting was held between Donovan, Vosti, Lalor and John Mitcham, the General Manager, Manufacturing.  Lalor gave evidence that at that stage he had formed the view that Howden’s version was correct but before any final decision was made industrial ramifications had to be considered.  “We needed industrial ramifications plus we also needed to make sure that we had all the facts down and everything being considered that (sic) we hadn’t overlooked anything.  That’s why we asked Peter (Vosti) to put it all together as a report”.

Vosti was instructed to put together a report for the manufacturing management team (MMT) which met on the Tuesday of the following week.

Vosti’s Report

Vosti’s report canvasses the interviews and circumstances of the Applicants being found asleep.  It says -

“There seemed little doubt that the employees had agreed to concoct the story given the claim that they were all awake but clearly asleep as evidenced by Doug’s discovery and the contradictory statements when they were caught out”.

It noted a “general level of defiance”, but that “Tsang seemed genuinely remorseful and worried”.  It noted the union position being that “dismissal would be too harsh” and that “sleeping on night shift is not as bad as it might seem”.  The report concluded in relation to the investigation that the “anecdotal evidence suggested that Doug would more than likely discover the shift asleep: the physical evidence, not refuted by the employees seems to confirm, despite the denials, that the shift was, in fact, asleep”.

The report then indicates given the nature of the powerhouse operation that it was very serious misconduct and that “attempts to cover up the fact only compound the misconduct”.

The report then canvasses options available in relation to the four employees involved ranging from termination of all four, to termination of some, and to discipline of all four or a reference to the Industrial Relations Commission. The report also refers to the provisions of the Industrial Relations Act relating to dismissals and reviews each of the options available for each of the individuals. It notes their length of service and their prior records. It refers to their defiant attitudes, Odgers “worst documented record in terms of misconduct”. He notes that “Oates has clearly encouraged the shift to sleep on duty”, and “shown considerable contempt for his position”. It notes that he was the youngest with the shortest length of service. The report recommended that three employees be terminated but that Tsang be reprimanded. Tsang was to be reprimanded on the basis of his long service, his age, the fact that he was not normally on “D” shift and there was evidence that he may have been coerced under duress to participate in the arrangements. The report concluded by canvassing the industrial relations implications of the recommendations.

The Meeting Of The MMT

Vosti’s report was considered at the meeting of the MMT.  This committee consisted of Mitcham, Lalor and five other senior managers within the Respondent.  Vosti was present at the meeting.  Lalor gave evidence that the discussion lasted approximately 30 minutes and that he and Vosti provided further information to the meeting as to the circumstances, as they knew them, of  the incident and factors relating to the Applicants.

The MMT decided to accept Vosti’s recommendation.  Lalor’s evidence was as follows in relation to this -

“In the face of the conflicting claims the MMT chose to accept Mr Howden’s view as to what actually happened.  Given that all employees admitted to lying down in make-shift beds of varying degrees and their fellow employees claimed to the powerhouse supervisor of the practice of “D” shift sleeping on shift, I and my senior management colleagues at the MMT concluded that the members of the shift were in fact asleep”.

His evidence then went on to refer to the vital nature of the powerhouse facilities in the operating processes of the Respondent and he claimed that the MMT decided that the misconduct was “extremely serious”.  Lalor then gave a number of reasons why in his view and in the view of the MMT the decision was not harsh, unjust or unreasonable.  He referred to Odgers documented record of insubordination.  He referred to the fact that “the employees were not regarded as employees of long service” because they had not obtained an entitlement to long service leave “and the fact that the act on the night was deliberate and premeditated rather than a soporific state as a result of fatigue.  Arrangements expressly designed to facilitate and induce sleep were made”.

Tsang was not terminated on the basis of his unblemished record and the fact that he was one year away from retirement and had some problems with the English language.  He was demoted.  The MMT also had advice that “Tsang was an unwilling participant in the arrangement regarding sleeping on duty”.  This advice came from Donovan.

Lalor was strongly pressed in relation to the reasons for the termination and failing to take proper account of the various personal attributes of the Applicants.  He was questioned about the fact that Odgers would be harshly affected by termination because of his incompleted apprenticeship.  His response to this was that:

“We were looking at the background of each of the people to look at whether the severity of the termination should be reduced as we did with Tsang and that is where it came up in context with that.”

He said that the Company took a very serious view of the matter and said that the significance of “the four of them being asleep ... was paramount to people walking out the front gate and leaving the boilers fully unattended.”  He said he had never known a situation of a whole shift being found asleep in a critical operation like this. 

He claimed that termination would not fall harshly on Odgers because he would be able to get other employment in his primary occupation as a boiler operator rather than based on the incomplete apprenticeship. 

Advice To Applicants Of Termination

After the decision of the MMT Donovan wrote to each of the Applicants advising them that their employment had been terminated.  The letter advised that he himself had taken the decision to terminate although evidence of Lalor was that it was the decision of the MMT.  The operative paragraph of the letter was in similar form for each of the Applicants and conveyed this as the reason for the termination:

The letter to Oates is typical:

“I note your admission to lying down on chairs arranged as a make-shift bed but that you claim you were not asleep but merely resting.  On the other hand, Doug Howden is convinced that you were well and truly asleep when he entered the Control Room and turned on the lights.

I believe Doug’s version as to what he encountered.  The fact that  you were in a situation clearly designed to facilitate an arrangement for sleeping with the lights out and with the rest of the shift in similar situations seems to bear this out.  When this point is taken into account with information that suggested that people were in the habit of sleeping on ‘D’ shift and that other people when on that shift had been encouraged to do the same, I must only conclude that Doug’s account is the correct one.

In my view, your failure to discharge properly, your Shift Leader and  statutory responsibilities in the circumstances that occurred, namely that you were asleep whilst on duty, constitutes misconduct of a most serious nature.  This opinion is also shared by senior management.”

The Applicants Attack On The Termination Decision

The Applicants through their counsel attacked the decision to terminate on a number of bases.  The central one was the reasoning process of the MMT, Lalor and Donovan in relation to whether or not the Applicants were in fact asleep.  The basis of this attack was Lalor’s evidence referred to above and also the operative paragraph of the termination letter as listed above which makes reference to the fact that “people were in habit of sleeping on “D” shift and that other people who went on that shift had been encouraged to do the same”.  It was argued by counsel for the Applicants that the Applicants had no opportunity to respond to the allegations that there had been past occurrences where “D” shift had been sleeping and that this vitiated the reasoning process which led to the termination.

The attack arose out of the evidence of Howden recorded earlier that he was advised in mid-May by Sutherland and Todorovic that Oates was sleeping on shift.  In mid-May 1994 when confronted with the information from Sutherland and Todorovic Howden made enquiries of all members of all shifts except for the Applicants in relation to the progress of the implementation of the operator/maintainer concept.  He did not directly ask these employees whether there was sleeping or resting on night shift but chose to do it in this indirect manner.  In mid-May he did not bring this matter to the attention of Donovan who was away overseas but he did on 12 or 13 June when he returned.  He conveyed the information to Donovan that he suspected that people on “D” shift were sleeping but Donovan referred him to Vosti “to make sure that we got our procedures correct to catch them out when they were sleeping”.  It was on the basis of his previous enquiries that Howden believed that when he attended at the powerhouse on 15 June that the men would be asleep.  Howden’s explanation as to why he did not investigate the earlier allegations of sleeping was that he chose, after discussion with Donovan, to conduct an investigation by visiting the powerhouse during the night shift for 15 June.  He denied that he, Vosti and Donovan had tried to set up these Applicants in order to get rid of them or to reduce manning levels in the powerhouse.

Previous Practices In The Powerhouse

The Applicant’s alternative position in relation to the events on 15 June was that if they were sleeping then this was condoned by the Respondent.  As a result of this alternative position the Applicants’ called a great deal of evidence in relation to practices on the night shift of the Respondent over many years.  The evidence can be divided into two periods namely evidence of practices before the implementation of the operator/maintainer, and after implementation of that concept.  The evidence of Toft was that resting not sleeping had occurred in the past.  He finished at the powerhouse earlier this year and gave evidence that it was a practice for employees on a shift to rest for up to 3 hours when on night shift.  He said that on occasions he would actually fall asleep.  He said that many members had sleeping gear and that the practice had also be indulged in by leading hands.  He maintained however that during this resting somebody would be always watching the screens at all times.  He claimed that management would not have seen it.  He claimed that at one stage Kremler gave him the impression that if nothing went wrong there wouldn’t be any problem with resting as far as management was concerned and he also maintained that Howden would joke about people not working on night shift.

Clarke had worked in the powerhouse up until 1991 and claimed that resting was a common practice on night shift and was at the discretion of the leading operator.  He maintained that at least one member of the crew would always be aware of what was going on.  He also claimed that his managers such as Norwood, Kremler and Howden were aware of it.  He said that he himself had seen Oates resting.  He personally had never been to sleep but may have drifted off for a minute.  He claimed that Norwood had found two employees including himself and Oates resting on one occasion but they had denied sleeping.  Nothing further had ensued.  He did say that Howden’s comments about resting were of a biting nature and that the Respondent categorically would not have approved of resting or sleeping on the job.

Craig, a current employee, said that the practice of resting did occur but that he personally would never have actually fallen asleep. He gave a “cock and bull” story that at one stage he had been asleep on a stretcher in the office and Kremler, then an engineer, and another engineer had entered the office, tripped over the stretcher, searched for papers in the office and made no reference to him even though he was standing there.

Anderson was at the powerhouse until May 1991 and he claimed that it was common practice for operators to take rest periods whilst on night shift but that one person would have responsibility to stay alert.  He admitted that he occasionally fell off to sleep and claimed he had a make-shift rubber mattress.  He said that each of the Applicants had rest periods when he was working with them.

Needless to say the Respondent’s evidence in relation to practices at the powerhouse differed radically from that of the Applicants.  Sutherland gave evidence that he worked with Oates after the introduction of the operator/maintainer concept.  He said that when the work was finished Oates would lie down from about 1.00am to 4.00am or 5.00am.  Both the Applicants’ Odgers and Oates would sleep and he complained about this five or six times to Howden in 1993.  He felt that it was dishonest and it annoyed him and he said “I just said I was sick of standing out in the cold workshop while the operators slept in the control room with the lights out”.  He admitted in cross-examination that he did not know what was going on in the control room but maintained that they were sleeping in there.  His evidence in relation to the Applicants Oates and Odgers was not really challenged except on the basis that it was put that he did not know what went on in the control room.  He maintained however that “I am pretty sure that they weren’t out doing things” (“in the powerhouse”).

Galea gave evidence that he was a current employee who commenced his apprenticeship in 1989 but he worked with Oates on a shift and said that both Oates and Rowe would lay down in the course of the shift.  He said that they would do this maybe at 2.00 am but was unable to say when they got up.  On a couple of occasions Oates had said to him “do you want to rest?”.  He said he believed that sleeping on the job was a sackable offence.

Another employee Todorovic said that Oates would lie down from 1.00am until 4.00am or 5.00am when he was on shift with him.  He said that when he first started Oates showed him where he was going to lie down and denied having a doona.  The Court gained the impression that both Galea and Todorovic were reticent witnesses on sleeping practices prior to June 1994.  Todorovic gave some evidence as to how long the work which the Applicants were performing would take which cast some doubt that they would still be working, as claimed, until 3:00am.

The Respondent called Norwood and Kremler who gave evidence denying the suggestions that management knew of any resting or sleeping or condoned it as such.  Howden in his evidence also denied that he condoned resting or sleeping.  Howden said that sleeping was known within the Respondents as a sackable offence and that he had mentioned this to Oates in 1993.  Donovan denied that he had ever condoned sleeping and denied Oates’ evidence that he had kicked his lilo in April this year.

Credibility Of The Witnesses

Before making my findings in relation to the matters the subject of these proceedings it is necessary to comment on the credibility of the witnesses.  I have earlier referred to variations between the Applicants as to the events on the night.  They faced a difficulty in the way they sought to adopt an inherently contradictory position throughout by claiming that they were not sleeping, but if they were, it was condoned.

Each of the Applicants were unimpressive as witnesses.  Each faced the difficulty of admitting that they had not told the truth to Donovan in the interviews about not resting previously.  Whilst in their witness statements, as read, there was a degree of precision about the timing of the various events on the night of 15 June, under cross-examination they each became vague.  Odgers when pressed, had difficulty really recalling any detail.

Odgers also faced a credibility problem by reason of his denial of the use of a spare locker, beside his normal locker, with his initials on it, which contained bedding.

Oates was faced with a prior inconsistent statement which was recorded in Howden’s original report, a contemporaneous document.

Rowe’s credibility was attacked with cogent evidence from Wilson that, contrary to his assertions, he had arrived at work late that night.  Further Rowe’s evidence in relation to the time at which various events occurred was impaired by reason of the fact that he admitted that he did not carry a watch.

Rowe also faced sustained cross-examination on his allegation that he was facing a set of dials in the humpy when seen by Howden.  His evidence strained credibility given that the dials were replicated in the control room and no-one suggested that the humpy was still used to monitor the boiler.  The demeanour of the Applicants, Odgers and Oates, was unimpressive.

The evidence called by the Applicants in relation to the practice of sleeping and/or resting only served to undermine the denials of the Applicants that they were sleeping on that night.  The witnesses called by the Applicant were remote in time because generally they dealt with the position before the change to the operator/maintainer concept.

The evidence from former employees, while implicitly admitting resting and/or sleeping, was always hedged with the claim that before such activities one person took responsibility to monitor the controls.  No witness called said that sleeping on the job was acceptable or that they would like to be caught at it.

In contrast to the Applicants the principal witnesses of the Respondent, Howden, Donovan and Lalor were impressive.

Howden was cross-examined extensively but I have no hesitation in accepting his evidence.  Donovan’s evidence was not really challenged.  I am in a position to accept his version as to the interviews.  Significantly it was not asserted by any of the Applicants that they raised the issue that resting or sleeping was condoned by the Respondent either on the night or in the interviews.  This makes their evidence that there was, in fact, condonation smack of recent invention.  The same goes for the suggestion, repeatedly made by counsel for the Applicants in cross-examination, that the Applicants were on the break when Howden arrived.  Sutherland, who provided direct evidence in relation to past practices by the Applicants Oates and Odgers, was forthright and credible in his denunciations of their past practices.

I have no hesitation in accepting the evidence of Lalor who made it clear that this was not a rushed decision by MMT.  It was a considered decision by senior management which must be accorded weight by the Court.

Findings On Events Of 15 June 1994

I have no hesitation in finding that Howden found each of the Applicants asleep on that night.  His evidence that there was an implicit if not explicit admission to that effect on the night was not really challenged.  The surrounding physical circumstances including the fact that they had worked hard that night, would lead to the conclusion that they were asleep.  When combined with the other evidence as to previous occasions the conclusion is irresistible.  The failure to call Tsang also entitles the Court to more confidently draw the inference that the men were in fact asleep.

The Court also finds that the evidence of Howden in relation to tasks performed that evening is to be accepted.  Howden gave evidence that the boiler was to be reassembled and that particular shifts were not assigned particular tasks.  It follows from this that contrary to Oates’ assertion, there was still work to be done on the boiler on an evening.  Indeed the Applicants did not really contest this but maintained that they had done their fair share that shift.

I find that the Applicants ceased work on the boiler somewhere between 2.00am and 3.00am, Oates and Rowe had a shower, and some time around 3.00am all the Applicants proceeded to rest.  Prior to them doing that no arrangement was made with Tsang that he was to monitor operations of the powerhouse and he joined them.  When Howden arrived at 4.00am he had to rouse each of them from sleep.  I reject the suggestion that they were on a meal break which entitled them to do what they did.

Was Sleeping Condoned By The Respondent

The Applicants alternative submission was that if they were asleep then this practice had been condoned by the Respondent.  I find that the practice had not been condoned by the Respondent.  Howden gave evidence that he indicated to Oates in 1993 that sleeping was a sackable office.  Galea gave evidence that it was a sackable offence.  Each of the witnesses called by the Applicants gave the impression that they would not want to be caught sleeping.  The Applicants did not really assert that being found asleep was other than a very serious disciplinary matter.  The evidence sought to be led of alleged condonation consisted of incidents well prior to the implementation of the operator/maintainer concept and the whole thrust of that concept was that productive work was to be carried out throughout the night shifts.  It was not contested that that was what Howden was attempting to implement throughout the period 1993 to June 1994.  It follows from this, that there is nothing in the suggestion that he condoned resting or sleeping on the job.  While Sutherland may have told Howden of sleeping this does not mean that he condoned it.  I find that none of the preceding powerhouse managers Kremler or Norwood did either.  I reject as false the evidence by Oates that Donovan tripped over his lilo a month prior to these events.

Did The Respondent Comply With S.170 DC

This Court has held that S.170 DC of the Act imports into the termination of employment process, the rules of procedural fairness. The requirement that an employee be entitled to defend himself or herself against allegations relating to performance “does not require any particular formality” but this does not mean that it is “unimportant or capable of perfunctory satisfaction” (Nicolson v Heaven and Earth Gallery Pty Ltd (Industrial Relations Court of Australia, Wilcox CJ, 20 September 1994, unreported p.23)).

The contents of procedural fairness were discussed in Byrne v Australian Airlines Limited (1994) 51 IR 10 and at 64 Gray J said:

“In the circumstances of this case, that obligation (to accord substantial and procedural fairness) translated into a number of specific steps which the Respondent was obliged to take.  First, it was obliged to conduct a reasonable investigation, to ascertain what view it should take of any circumstance which it might take into account in deciding to dismiss the appellants.  Second, it was required to formulate what it is alleged the appellants had done or failed to do.  Third, it was obliged to put the allegations of commission and omission to the appellants, and to give them a fair opportunity to be head as to those allegations.  Finally, it was obliged to give to the appellants a fair opportunity to be heard on whether they should be dismissed if they were to be regarded as guilty.  The respondent was obliged to take into account matters not directly connected with the alleged offence which might mitigate the penalty.  At each of these stages, the respondent failed.”

The majority decision in that case was of Beaumont and Heerey JJ, with whom Keely J “agreed generally”.  At 39 Beaumont and Heerey JJ found that the actions of the employer were unsatisfactory in the way the employer’s concerns were raised with the employees.  What an employer was required to do was set out as follows:

“This is not, of course, to suggest that the respondent could be expected to express in lawyer’s language something akin to a charge of an offence.  But a reasonable employer could, and should, be expected to indicate to the employee, in ordinary yet clear language, the particular matter which was of concern so as to provide the employee with an adequate opportunity to pursuade the employer that the concern so raised was not justified or that the conduct should be excused.”

Here it is important to note that the investigation process started with Howden’s report to Donovan on his observations.  That report was then conveyed to each of the Applicants together with the letter which specified the matters that Donovan required them to answer.  In my opinion, there can be no doubt when the two documents are considered what view the Respondent took of the observations of Howden.

It was quite clear that the Respondent took a very serious view of the allegations.  That was made clear to the Applicants by Howden on the night and by Donovan in the interviews.  That evidence was not contested by the Applicants.  Further, at the time of the interviews, the Applicants had been suspended with pay.

The Applicants thus knew what the allegations were that they faced and they had an opportunity to respond.  Further the evidence of Donovan was that at the end of the interview each of the Applicants were asked if they had anything to say.  Each of the interview records show that at that point, in effect, McDonald made a plea on their behalf by asking each if they would do it again and each gave a negative reply.

The investigation and interview process here was a combination of a fact finding exercise in relation to their guilt and also the issue of whether they should be dismissed.  That the question of dismissal was considered in the interview is confirmed in Donovan’s evidence and also in Vosti’s observation in his report to the MMT that “McDonald’s position is that dismissal is too harsh.”  It follows that I regard the case of  Byrne (above) as completely different and distinguishable because there the appellants were not told what conclusions were to be drawn from their behaviour and did not have an opportunity to respond.  Further there was no proper investigation.

In that case what the Respondent did “fell short of the standards that are reasonably to be expected of a reasonable employer” (Byrne (above) at 39 per Beaumont and Heerey, JJ).  That is not the case here.

I have referred above to the attack by the Applicants on the reasoning process of the MMT because of the failure to investigate the earlier allegations of sleeping on shift.  I reject the argument that procedural fairness required that there be an investigation of the earlier allegations.  The nature of the allegation of sleeping on the job is that it is very difficult to prove retrospectively.  Howden, and the Respondent, acted reasonably in doing what they did and there is no basis for the suggestion that the investigation was too narrow.  This leads me to reject a further argument made by the Applicants namely that the MMT wrongly took account of the past allegations of sleeping to find that the Applicants were in fact asleep on 15 June 1994.

This is pure sophistry and flies in the face of human experience.  The MMT, in the extract of Lalor’s evidence quoted at page 12 above, used the fact of previous allegations to make a decision about the events on 15 June.

There was nothing wrong with the reasoning process.  It was perfectly logical for the MMT, Donovan, Howden and Vosti when faced with denials by the Applicants, to consider the previous allegations as being relevant and probative as to the events which required decision.

In terms of mitigating factors the Applicants had the opportunity to present those factors to Donovan at the interviews.  It appears, from the evidence, that no significant discussion occurred at the interviews in relation to mitigatory factors.  However, I find that the opportunity was still there. 

Much was made by counsel for the Applicants as to the presence of Howden at the interviews with Donovan and it was suggested that this vitiated the interview process.  In my opinion, it did not because clearly Donovan, who was only new to the position, was entitled to have the assistance of Howden who observed the Applicants in order to report on matters which arose in the course of the interviews.  This was Donovan’s evidence as to what he did. 

The Respondent also challenged the presence of Howden at a meeting between Donovan and Vosti immediately after the interviews in which the three came to the view that Howden’s version was correct.  This version was conveyed to Lalor.  I reject this argument because the ultimate decision was made by the MMT. The MMT had the presence of Vosti and Lalor at its meeting and in addition to that it had Vosti’s report to it.

That report, although only briefly convassing the particular circumstances arising out of the interviews, expressed the view that the team should accept Howden’s version.  Lalor gave evidence that both he and Vosti provided further information based on their knowledge of the incident to the MMT.  I therefore reject the view that the process that led to the decision to terminate was procedurally flawed.

The Applicants also found certain comments in Vosti’s report to the MMT objectionable.  They included an observation that it appeared that the Applicants had “concocted a story” and were defiant.  It was also stated that there is evidence that “Tsang may have been coerced under duress to participate in the arrangement.”  It was said that none of these matters was put to the Applicants.

It is important to put the Vosti report in context.  The report canvasses the options available to the MMT and makes a recommendation.  The recommendation is in these terms:

“I am of the view that option (b) is the most appropriate management response (termination of the Applicants and reprimanding Tsang).”

“A decision to terminate the employment of a person must not be taken lightly.  However, the misconduct of deliberately sleeping on duty must, in the normal approach to such matters, be regarded as serious.  Given the circumstances and the situation regarding the Powerhouse, it is not unreasonable to regard it as grave.”

In my view, given that it was open to the Respondent through Donovan and Vosti to form the view that the Applicants had indeed concocted a story by their denials in the interviews, it was not necessary for that to be put to them prior to the decision of the MMT.

The comments by Vosti in his report were in my view comments relating to matters of credit and cannot be seen as allegations which the Applicant’s should have been given the opportunity to respond to for the purposes of s.170DC. It is also to be noted that the original report by Howden (at p.7 above) made reference to the relations between Rowe and Oates and the others in the powerhouse.

Lalor’s evidence, which I have no hesitation in accepting, was that it was the grave situation of finding the entire shift asleep which prompted the terminations.  I do not accept that the process of investigation and the decision to terminate required the Respondent to go back to the Applicants with matters relating to the version of events which the Applicants sought to propound in response to the matters raised in the interviews with Donovan.  The same applies in relation to the other matters and comments by Vosti objected to by the Applicants.

The requirements of s.170DC and s.170DE must be applied in a practical way “in an industrial and commercial environment” (Gregory -v- Philip Morris Ltd (1988) 80 ALR 455 per Wilcox and Ryan JJ at 470). Regardless of which test for giving an employee an opportunity to respond outlined in Byrne (above) is preferred, I conclude that the Respondent has not breached s.170DC of the Act in relation to the Applicants.

Was The Termination In Breach Of S.170DE

Principles To Be Applied

The meaning of the words “harsh, unjust or unreasonable” was considered in Bostik (Australia) Pty Ltd v Gorgevski (No1) (1992) 36 FCR 20 where at 29 Sheppard and Heerey JJ said:

“these are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated.  We do not think any re-definition or paraphrase of the expression is desirable.  We agreed with the learned trial Judge’s view that a Court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable.

In Byrne (above) Black CJ considered the meaning of the words and indicated at 11 that:

“I would observe however that the issues in such cases are not confined to whether the employer has acted unreasonably;  the issues will include whether the termination was harsh or unjust.  Although there is an obvious overlap between the words “harsh”, “unjust” and “unreasonable”, they describe different concepts and it may well be said that to dismiss an employee who is in fact not guilty of any misconduct is objectively “unjust”, notwithstanding that in a procedural sense the employer’s conduct was not unreasonable and the decision to dismiss was one the employer might properly have arrived at”.

At 63 Gray J outlined the test as:

“the Court is required to determine whether, as a matter of fact, the cause which the employer advised as the grounds for dismissal existed.  The Court will determine that issue on the evidence before the Court, not merely on the evidence available to the employer.  In determining that issue, the Court must inevitably take into account the credit of the various witnesses called.  As Gregory illustrated, the Court may even take into account facts which have occurred since the dismissal, in determining what possible developments ought to have been taken into account by the employer”.

In Gregory (above) at 457 in considering the meaning of the word “unreasonable”, Jenkinson J said it should be understood in the sense:

“which it has come to bear in many legal contexts when applied in characterisation of human conduct, that is, failing to conform to a course of conduct which a reasonable person would, in the judgment of the tribunal of fact have adopted in all the circumstances”

He went on to say that the question is ultimately one of fact and:

“This question requires a determination, by a reference to moral values and prudential considerations current in the community, of what the tribunal of fact thinks a reasonable employer in the circumstances would have decided to do at the time when the respondent terminated the appellant’s employment”.

When making a judgment as to whether a termination is harsh etc., the Court is required to look at the situation from the viewpoint of the reasonable employer in the circumstances.  What the employer has in fact done is a matter which cannot be ignored and may, in my opinion, be given appropriate weight.

For example it could be said that a rushed, capricious or unorthodox decision may be more likely to be seen as harsh etc., than one taken after due investigation and deliberation at a suitably senior level within the employer.  Again it is not inappropriate, in my opinion, to have regard to the employers “corporate culture”.  Each employer will have a different approach to actions taken by its employees.  Some may be more lenient than others.  Some may demand of their employees higher standards and may be less inclined to excuse breaches of those standards than others.  Provided that those standards themselves not unreasonable it is not for the Court to ignore them.  There was evidence that the Respondent aspired to high standards.

The Applicant sought, in the context of this case, to argue that sleeping and/or resting was condoned by the Respondent and had continued until recent times.  They referred to evidence that resting occurred at another company and that Howden had taken no action in response to allegations about sleeping some 12 months prior to this incident.

Clearly condonation of sleeping or the behaviour complained of could be a relevant factor in determining whether or not termination was harsh, etc.  In my opinion however on the evidence it cannot be said that the Respondent did condone sleeping.  On the contrary the unchallenged evidence of reliable witnesses was that it was regarded, effectively, as a sackable offence.

Was The Termination Harsh, Unjust Or Unreasonable?

Having made the above findings it is now necessary to apply the evidence and the findings to the claim made by the Applicants that the termination of their employment was in breach of s.170DE of the Act. The Applicants alleged that the process of termination was vitiated by reason of the failure to investigate the previous allegations of sleeping and also by the reasoning process of the Respondent.

The decision-making process which led to the termination was in my view not inappropriate and could not be characterised as either unreasonable or unfair.  Faced with the allegations made in April or May, Howden, Donovan and Vosti, on behalf of the Respondent, had little choice but to investigate them as they did.

The investigation commenced with Howden’s visit on 15 June and concluded on 22 June with the MMC deciding to terminate the employment.  An enquiry was conducted, legal and industrial advice sought and a decision taken.  Appropriately, the Applicant Union was invited to and did attend the interviews conducted by Donovan.

The actual decision was taken after deliberation by senior management, not all of them from that particular part of the plant.  Lalor gave evidence that a termination like this had not occurred before but this fact, in itself, does not make it harsh or unreasonable.  He indicated that while he expected one of the employees to be found asleep on duty the whole shift being asleep made a difference.

Much was made of the fact that Tsang was “saved”, and thus it could be argued that the decision in relation to the Applicants was unreasonable.  It was contended that because Tsang was not terminated the decision in relation to the Applicants was a marginal one.  I reject this analysis.  As in the law of sentencing the mere fact that the outcomes are different when both individuals are involved in the same crime does not necessarily create an appealable error.  It all depends on the circumstances.

The different outcomes here can be reasonably explained simply on the basis of the different lengths of service of the men.  The man nearest to retirement age is Tsang.  Further each of the Applicants had been or were leading hands and thus were aware of the additional responsibility for safety and diligence associated with that position.

The Court cannot ignore Lalor’s unchallenged evidence as to how the Respondent sees its responsibility to the community in the operation of the powerhouse.  The powerhouse is a crucial part of the operations of the Respondent’s enterprise and has a potential for a catastrophic incident which would effect both persons within the powerhouse and in the neighbourhood.  The fact that as a result of this incident nothing untoward occurred is not the point.  The Respondent is put in a position where what it saw as an appropriate system for monitoring this operation and discharging its statutory duties and its duties to the surrounding neighbourhood was compromised by the actions of the Applicants.  The Court agrees with the serious view which the Respondent took of the actions of the Applicants.

Much was made of the fact that Odgers lost the opportunity to complete his apprenticeship as a result of his termination and thus the outcome was harsh.  The termination was no doubt a blow to his employment prospects but given the gravity of his conduct and the fact of a prior disciplinary warning I accept the evidence of Lalor that he had been given one opportunity and did not deserve another.  I also accept his evidence that he also had a skill as a boiler attendant, and that he may be able to obtain other employment and complete the apprenticeship.

Similar principles apply in relation to Oates who had lost the sight of one eye.  While the impact of a termination on the employee is a relevant consideration it does not necessarily override other matters relating to the conduct itself.  I find that the employer took into account factors such as length of service and record which Lalor brought to the attention of the MMT.

It was also suggested that the decision was harsh because no warnings had been given about sleeping.  I reject this.  It stands to reason that there is no need for an employer to warn employees who have duties to carry out that they are not asleep while on duty.  The evidence revealed two Enterprise Agreements designed to improve workplace productivity.  Sleeping is the antithesis of productivity.

I therefore reject the argument that these Applicants had been singled out as part of a hardening of the process of implementation of the operator/maintainer concept.  On the contrary the evidence leads to the conclusion that the Respondent was investing in its workforce to achieve productivity improvements.  It was placing a trust in these Applicants and they chose to breach that trust.  Their actions were such that in the circumstances it was open to the Respondent to take a serious view of them.  I agree with the Respondent’s argument that the action taken in the circumstances was not unreasonable.  It was also not harsh or unjust.

Conclusion

In relation to each of the Applicants I find it was open to the employer to conclude that they were asleep on 15 June 1994. It follows that the Respondent has discharged its onus under S.170 DE (1) of the Act to have a valid reason for the termination. I accept the argument that the misconduct as found was grave and thus constituted a valid reason.

The Court is further of the view that each of the Applicants has failed to discharge their onus that the termination was harsh, unjust or unreasonable.  I propose to dismiss the Application.

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The Application is dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding twenty-five (25) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:

Dated:            21 December 1994

Solicitors for the Applicant: Counsel for the Applicant:	Slater & Gordon Mr P. Bingham
Solicitor for the Respondent: Counsel for the Respondent.	John Lunny & Associates Mr B. Lacey
Dates of hearing:	28, 31 October 1994 & 11, 14 - 18 November 1994
Date of Judgment:	21 December 1994