Dean Harrison v Redpath Australia Proprietary Limited

[2014] FWC 8422

[2014] FWC 8422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dean Harrison
v
Redpath Australia Proprietary Limited
(U2014/1182)

DEPUTY PRESIDENT MCCARTHY PERTH, 27 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] This matter concerns an application by Mr Dean Harrison (the Applicant) claiming that he was unfairly dismissed on 19 March 2014 from his employment with Redpath Australia Pty Ltd (the Respondent). The Respondent is involved in the mining industry and the Applicant was employed at the Golden Grove Project which is an underground gold mining operation in Western Australia. When the application was lodged it stated that the Applicant’s representative was Mr Amnon Keleman.

[2] The application states that the reasons given by the Respondent for dismissal was “Poor performance and conduct”. The application also states that the reason why the dismissal was unfair was “The Applicant submits that there was no valid reason for the dismissal and that it was procedurally and substantively unfair”.

[3] On 23 April 2014, the application was listed for a Conciliation Conference to be held on 27 May 2014.

[4] A Notice of Representative Commencing to Act for the Respondent was lodged by Clayton Utz on 1 May 2014.

[5] On 21 May 2014 the Respondent’s representative lodged an Employer Response to the Unfair Dismissal Application (the Employer Response). The Employer Response consisted of 26 paragraphs and attachments. The attachments comprised of (i) a show cause letter issued on 17 March 2014; (ii) a termination of employment letter of 19 March 2014; (iii) the offer of employment and its terms and conditions signed by the Applicant on 22 February 2013; (iv) three written warnings issued to the Applicant during his employment; and (v) an incident report of an incident involving the Applicant on 13 March 2014 to which a photo of vehicle damage was attached.

[6] The reasons for dismissal were outlined comprehensively giving an account of the concerns the Respondent had during the Applicant’s employment history including: (a) smoking in non designated areas, including underground; (b) repeated tardiness; (c) breach of safety procedures; and (d) poor work performance. Each of those elements of the Respondent’s concern were expanded upon in the Respondent’s reasons for dismissal and evidenced by the attachments to the Employer Response.

[7] On 26 May 2014, Mr Keleman emailed the Fair Work Commission (FWC) and stated that the Applicant declined to participate in the conference and requested that it be referred to the arbitration roster. The Conciliation Conference was cancelled.

[8] On 4 June 2014, the Respondent’s representative wrote to FWC and requested that the application be dealt with in Brisbane and gave what appeared to me to be sound reasons why that should be the case. The file discloses that there were three telephone conversations between the Respondent’s representative and someone from FWC regarding the location of any proceedings but the notes do not disclose anything else other than conversations took place. There is nothing on the file that indicates that there was any response to the Respondent’s request. The file was allocated to me on 5 June 2014.

[9] On 5 June 2014, Mr Keleman lodged a Notice of Ceasing to Act for the Applicant.

[10] I listed the application for a Directions Conference by telephone on 4 July 2014.

[11] On 3 July 2014, the Respondent’s representative wrote to my Chambers outlining concerns that the application lodged was bereft of detail and a request that the particularisation of the Applicant’s grounds be canvassed at the Conference. The Respondent’s representative indicated that this concern had been raised before with the Applicant’s representative.

[12] At the Conference I conducted on 4 July 2014 I indicated to both parties that the Applicant would be directed to provide some specificity to his claim and what the grounds were for assertion that his dismissal was unfair. I also indicated that the Respondent would not be required to provide anything further and that I would consider whether anything further was required once the Applicant had provided his material. I issued Directions to that effect on 11 July 2014.

[13] The Applicant sent an email on 25 July 2014. The email consisted of two pages and gave accounts of various incidents throughout the Applicant’s employment. He claims that he had received one verbal warning throughout the period of his employment. He also stated that he never been disciplined for “waling under the boom, sleeping underground, or smoking underground”.

[14] Notably his email does not assert that he had never engaged in that conduct but merely that he had never been warned. Furthermore, an attachment to the Employer Response is a written record of a warning for smoking in the workshop on 5 June 2014.

[15] I conducted a hearing on 7 November 2014. The Applicant gave evidence that he had received a “show cause” letter (which as I understand it is a letter requiring an employee to show cause why he or she should not be dismissed). The Applicant says that he responded when he received the letter by stating “Where’s the evidence?”.

[16] The Applicant also stated that:

“I was given a verbal - when over 14 months I was onsite for I received one verbal and one written in that time for being - turning up late for work and both times were within a matter of like 10 or 15 minutes so I just missed my lift and I was on the next bus”.

[17] Finally, the Applicant stated that:

“I just find the actual even on the written warnings and verbal warnings I received they’re marked down as minor or moderate. There are no serious offences being, like have happened. And then for the third reason, competence to complete a simple task safely. Warehouse incident. Like for that to make a, on the show cause letter, I moved over 100 pods onsite, sir and accidents do happen. Even the response in the incident report, the response back from Brisbane and it’s dated which I have here somewhere, which I have here, very good incident reporting and response work. I did everything I could, followed all procedures and once again, yes, just for the collective group of the things I’ve been terminated for I feel harshly treated.”

[18] The above two paragraphs were in essence the totality of the Applicant’s evidence and reasons he put forward as to why he viewed the dismissal as unfair.

[19] The Respondent produced documentation which showed that they will be able to establish that the Applicant’s performance was in need of improvement.

[20] A performance review dated 24 June 2013 was produced which showed the Applicant was assessed as needing improvement. It showed that the Applicant was late a couple of times, was forgetful a couple of times, was misunderstood a couple of times.

[21] Importantly the documentation shows that the Applicant was advised to reduce or quit smoking and reminded that the site has a restricted smoking policy. It also shows that he was reminded that he may place his job at risk by his habitual smoking if he smokes in non-smoking areas.

[22] The documentation provided by the Respondent also shows that the Applicant was given formal warnings on 23 May 2013 and on 5 June 2013. The formal warning on 23 May 2013 states that smoking in non-smoking areas could lead to dismissal.

[23] A warning was also given on 21 December 2013 with the Applicant being warned about tardiness. It is asserted that this warning followed an earlier verbal warning.

[24] The Respondent also asserted they would be able to establish that the on 30 January 2014 discussions were held with the Applicant where he was smoking, sleeping underground and for being tardy again.

[25] The Applicant took annual leave in February 2014. Shortly after his return the Respondent asserts that they would be able to establish that there were three further incidents which caused the Respondent to have fundamental trust concerns about whether the Applicant would comply with policies and procedures. The Respondent concluded, after reviewing the Applicant’s record that they could not have that confidence and decided to dismiss the Applicant.

[26] The Applicant responded to the Respondent by stating that he had never seen any copies or anything regarding his safety review and that the “safety review was all good” and “there was nothing there about tardiness”. However he appeared to be referring only to the performance review of 24 June 2013. The Respondent had provided material relating to these issues quite separate from the performance review.

[27] The Applicant stated finally that:

“We got back to our site and Bruce and the other sprayer went and had something to do. They didn’t even tell me where they were going. They just took off. So I knew I needed two loads of cement down the hole so I pre-started three vehicles, batched two vehicles, batched two loads of concrete, set up for test cylinders and when they got back onsite I was basically abused and asked why I wasn’t down underground yet. And that’s when I explained I have not stopped once and once again I stated the pre-start and everyone is trying to get the jobs done in an efficient and quick manner. The pod incident, as I say that was just a one-off. I did everything I could.”

[28] The Applicant’s evidence is unconvincing and does not address some of the conduct that lead to the dismissal, notwithstanding that the Respondent addressed in detail and provided documentary material supporting its contentions.

[29] I have concluded that the Applicant has no reasonable prospect of succeeding in his application. I therefore find that the Applicant has no reasonable prospect of success and dismiss the application pursuant to s.587(1)(c) of the Fair Work Act 2009.

DEPUTY PRESIDENT

Appearances:

D Harrison in person.

H Cray of Clayton Utz for the Respondent.

Hearing details:

2014.

Perth:

7 November.

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