David Keenan v Weir Minerals Australia Ltd

[2010] FWA 6593

[2010] FWA 6593

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Keenan
v
Weir Minerals Australia Ltd
(U2010/619)

COMMISSIONER HARRISON SYDNEY, 31 AUGUST 2010

Termination of employment - unfair dismissal - arbitration.

[1] This decision arises from an application by Mr David Keenan (the Applicant) alleging that he was unfairly dismissed by his former employer, Weir Minerals Australia Ltd (the Respondent).

[2] The definition of an unfair dismissal is set out in s.385 of the Fair Work Act 2009 (the Act). It provides:

“What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

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

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

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

[3] The matter did not settle at conciliation and the application was set down for Arbitration Conference and Hearing on 4 and 5 August 2010. At the outset of proceedings I conferred with both parties jointly and separately in an attempt to reach an agreed settlement however the negotiations were unsuccessful.

[4] The Applicant was self-represented and the Respondent was represented by Ms P Salewicz of the Australian Industry Group. The Applicant presented evidence on his own behalf and was cross-examined on the evidence. Mr A Morasco, Foundry Manager, Mr A Davies, Human Resources Manager and Mr G Caddy, Occupational Health and Safety Manager presented evidence for the Respondent.

Background

[5] The Applicant was employed as a Team Leader in the Foundry Department of the Respondent’s manufacturing operations at Artarmon, NSW. His employment was terminated on 31 March 2010 for allegedly failing to comply with a lawful and reasonable direction.

[6] The Applicant suffered a serious workplace injury in November 2008 when he was run over by a forklift. He returned to work on 11 March 2009 under a graduated return to work plan agreed between his treating doctor, a rehabilitation specialist and the Respondent’s occupational nurse. His initial work was over three days a week in the Finance Department.

[7] In June 2009 the Applicant was moved back to the factory for four hours a day on the day shift. By October 2009 he had recovered to the extent that he worked six hour days and he no longer required the aid of a walking stick.

[8] On 20 November 2009 the Applicant was cleared by his treating doctor to return to his pre-injury duties and hours of work. From 30 November until 17 December the Applicant worked in the role of Melting and Pouring Supervisor. On 18 December the Applicant underwent final surgery in respect to his injury.

[9] The rehabilitation specialist developed a return to work plan on 5 March 2010 which proposed “suitable duties” for a period of two weeks.

[10] The Respondent was cautious about the Applicant returning to his former position on afternoon shift prior to him obtaining a Pre-Injury Duties Certificate (PID). Mr Marasco’s evidence was that it was company practice to have injured employees returning on suitable duties work the day shift when all administrative, occupational, health and safety and human resources staff are available.

[11] On 26 March 2010 the Applicant’s treating doctor issued a PID. It was the Applicant’s submission and evidence that:

“As a result of obtaining that P.I.D. Certificate, I was no longer eligible to make a request for suitable duties under section 49 of the [Workplace Injury Management & Workers Compensation Act 1998]. Accordingly, I was automatically back to my usual role, notwithstanding that any other mutual agreement between the Respondent and I to the contrary could have been, or could be, made. Thus, I had not simply, or only, a right, but also a responsibility to team-lead the Afternoon shift, as was my usual role.” 1

[12] The Applicant then served a written notice upon his Manager and the Occupational Health Nurse that he would”...team lead the Melting & Pouring afternoon shift from Monday, 29 March 2010...” 2

[13] The events that flowed from the serving of the notice ultimately gave rise to the termination of the Applicant’s employment. The letter of termination is set out below:

“Dear David,

Re: Employment with Weir Minerals Australia

I refer to discussions on Monday 29th March and Tuesday 30th March concerning the directions that the Company gave you in relation to the performance of your duties and attendance time.

You did not report for work at the required times on the two days referred to above. Further you contravened the Company’s direction that you not enter its premises on Tuesday 30th March. This direction was given to you repeatedly on that day. You were advised that such entry would be misconduct. Additionally, you have continued to refuse to perform duties as directed by your employer. On Wednesday 31st March you again failed to report for duty in accordance with our instructions. These actions have constituted serious and repeated failure to comply with lawful directions from your employer.

In these circumstances I must advise you that the Company is of the view that it cannot continue your employment and will terminate it with one weeks notice.

Yours sincerely

Tony Davies

Human Resources Manager” 3

[14] It was the Applicant’s evidence that on 29 March he arrived for work at 2pm for “my usual shift, made my way to the foundry office and there was a note taped to my computer screen. I read the note and ended up in a meeting at that time with myself, Mr Davies, Mr Morasco and Mr Compton.” 4

[15] The Applicant complains he did not have an opportunity to arrange a support person for the meeting, which concluded at 3pm, when he was given a direction to leave the site.

[16] On the following two days the Applicant describes his version of events in the following extract of transcript:

“On Tuesday the 30th, kind of a similar scenario I guess. Another note taped to my screen, I went over to the main office and I made an appointment to see the managing director. Once again I received a request to attend a further meeting and that was once again without notice and I didn’t have a chance to have a support person present. I didn’t attend that meeting in question, but there was a later meeting.

After I had made the appointment to see the managing director I met with the human resources manager, Mr Davies, and human resources officer, Graham Catty, outside the main building. At that time both of those persons threatened me with trespass if I went back on site, from where I’d come. In other words the respondent was preventing me from working to my contract of employment.

I raised clause 21 of the enterprise agreement with these persons, and clause 21 talks about dispute resolution and both Mr Davies and Mr Catty at that time did not seem to be interested in clause 21. I had earlier expected that I would actually be allowed to work on that day but it was clear to me, if not earlier, from the proceedings on 29 March and that day, 30 March, that there was a genuine dispute between the parties.

A short time later, after discussing or at least raising with those two persons, clause 21, I requested Mr Catty come up with some sort of alternative solution if the dispute resolution process was not going to be followed. I was allowed to collect my personal belongs [sic] from the foundry office and I was invited to and met with the respondent’s operations director, Mr McCann, also Mr Catty and Mr Compton in Mr McCann’s office.

I thought that at that meeting the respondent would suggest a solution to the dispute and I asked whether the respondent planned to terminate my employment contract in the event that it continued not to allow me to work, however I did not receive a direct response to that question and I was again threatened with trespass in the event that I tried to work. After the meeting I was required to leave the site and I went home. The termination then, I arrived one [sic] again on Wednesday, 31 March.

I didn’t clock on because I was met by Mr Peter Compton, near the gatehouse, and he actually asked me to accompany him back to the main office and what transpired then was that Mr Davies handed me a letter of termination of my contract of employment.” 5

[17] The Respondent submitted that in the context of the afternoon shift being longer than day shift hours, they were unsure of the Applicant’s physical capabilities given his absence from his former role for over 16 months. They advised the Applicant he first needed to be monitored for a trial period of increased hours on day shift. He was to be paid afternoon shift penalties and a change of shift notice would be issued to the Supervisor on afternoon shift during the period in anticipation of the Applicant’s return to afternoon shift.

[18] In summary the Respondent submitted:

• the Applicant admitted he was directed to attend for work on day shift on 29, 30 and 31 March 2010 but instead attended for afternoon shift;



• the directions were given in accordance with the Respondent’s obligations to the Applicant under workers compensation and occupational health and safety legislation;



• at the time the Applicant was cleared for pre-injury duties, the respondent was not satisfied that the Applicant was capable of performing the full range of hours on the afternoon shift in a potential high risk factory environment, so directed him to stay on the day shift so that his hours could be gradually increased and his progress could be monitored;



• until such time as the Respondent was satisfied that he was capable of performing the full range of duties and hours on the afternoon shift, it had no option but to direct the Applicant to remain on the day shift;



• the directions were directions as to the Respondent’s chosen shift for the Applicant, which the Respondent was entitled to issue under the Contract, which states:




SHIFT WORK

A condition of your employment is your acceptance that you agree to alter, under management instructions, your work shift pattern to suit the workload in the factory.;

• the Respondent was further entitled to issue directions as to the Applicant’s shift under the Agreement, which states at clause 9.6:




In this Agreement “Rostered Shift” means any shift of which the Employee concerned has had at least 48 hours notice. A Rostered Shift may be an Afternoon Shift or a Night Shift.

The Employer will aim to provide Employees with 10 working days (which can include weekend days) written notice of any changes to Rostered Shifts, but will not provide less than 2 working days (i.e. 48 hours) notice (which can include weekend days). If less than 2 working days (i.e. 48 hours) notice is provided, any changes to the Rostered Shift times will be in accordance with the applicable provisions of the Metal, Engineering and Associated Industries Award 1998 - Part I that are taken to be incorporated into this Agreement pursuant to Clause 7.;

• neither the Contract nor the Agreement, nor any other Company practice or procedure, allowed the Applicant to change his shifts of his own initiative;



• the Applicant failed to comply with numerous directions issued to him over a period of time by his direct supervisor, his Foundry supervisor, employees assisting him with his return to work and members of the Respondent’s executive team and its Human Resources department. The Applicant also expressly told the Respondent that he would not comply with future directions as to which shift he was to perform work on.”

Determination

[19] In this matter the Applicant disagreed with the Respondent’s decision to employ him on day shift as part of a graduated return to work plan. He insisted on being returned to afternoon shift and unilaterally decided to report for this shift contrary to several management instructions.

[20] In my opinion it was more than reasonable for the Respondent to be cautious about returning the Applicant to his former role after a long absence.

[21] The evidence of Mr Compton, OH&S Manager, was that the afternoon shift role was demanding and required mental and physical dexterity in pouring molten metal for up to 12 hours without management supervision and assistance for most of the shift. The maximum time he had worked prior was 7.6 hours.

[22] Neither the Foundry Manager, Mr Marasco, nor Mr Crompton were confident the Applicant’s capabilities were up to the required level. In these circumstances it was entirely the Foundry Manager’s discretion to decide when the Applicant could resume afternoon shift.

[23] I am satisfied that in ignoring reasonable instructions on three occasions over three days and instead, attempting to work as he decided, the Applicant placed himself in a situation where the Respondent was left with no other choice than to terminate the employment relationship.

[24] I am satisfied the directions of the Respondent were lawful and reasonable and consistent with its obligations under occupational health and safety law and general duty of care.

[25] In all of the circumstances I find there was a valid reason for the termination.

[26] The Applicant was advised that the likely result of his continued refusal to work as directed was disciplinary action including dismissal. He was given the opportunity to respond, which he did, by proposing alternatives such as utilising the disputes procedure contained in the Enterprise Agreement. Several meetings between the parties took place at the gatehouse and the administration building. Attempts to convene a formal meeting in the human resources office were refused by the Applicant. In these circumstances the involvement of a support person was not a practical option.

[27] In all of the circumstances of this matter, I do not consider the termination of the Applicant’s employment was harsh, unjust or unreasonable. The application for unfair dismissal remedy is therefore dismissed.

COMMISSIONER

Appearances:

D Keenan, self-represented

P Salewicz, The Australian Industry Group, with A Davies for Weir Minerals Australia Ltd

Hearing details:

2010.

Sydney:

4 & 5 August.

 1   Exhibit K1, PN 35 - Witness Statement of David Keenan.

 2   Ibid., Annexure M.

 3   Ibid., Annexure U.

 4   Transcript PN84.

 5   Ibid., PN89-94.

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