Eric Pickering v Linfox Australia Pty Ltd T/A Linfox
[2020] FWC 6595
•11 DECEMBER 2020
| [2020] FWC 6595 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Eric Pickering
v
Linfox Australia Pty Ltd T/A Linfox
(U2020/5492)
COMMISSIONER MCKENNA | SYDNEY, 11 DECEMBER 2020 |
Application for an unfair dismissal remedy.
[1] Eric Pickering (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), in which he seeks an unfair dismissal remedy concerning his dismissal by Linfox Australia Pty Ltd T/A Linfox (“the respondent” or “Linfox”).
[2] As to preliminary matters, there were no issues, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business, and so consideration of the Small Business Fair Dismissal Code does not relevantly arise; and the dismissal did not involve a case of genuine redundancy.
Background
[3] The respondent is a well-known transport and distribution business. The applicant was employed by the respondent in the period 8 August 2002 until his dismissal, with a payment in lieu of notice, on 6 April 2020. The applicant worked as a linehaul truck driver for the respondent. He also held the role of a union delegate for the Transport Workers’ Union of Australia (NSW Branch) (“the union” or “the TWU”) at the workplace; in that role, he also had work health and safety representative responsibilities.
[4] The dismissal arose against the immediate background of allegations the applicant had engaged in unprotected industrial action albeit other, earlier matters were taken into consideration by the respondent.
The evidence
[5] Evidence was given in the proceedings by three witnesses – two in the applicant’s case and one in the respondent’s case. For reasons that will be addressed later in the decision, the overview that follows focuses principally on events related to a stoppage of work on 2 December 2019. The overview does not address in any detail matters related to the issuing of warnings to the applicant concerning matters earlier than the stoppage.
The applicant’s evidence
[6] The applicant formerly worked out of the respondent’s Intermodal division at Chullora, New South Wales. The applicant’s long-distance driving work involved driving trailers packed with goods to changeover points near the New South Wales and Victoria border and swapping trailers with other employees of the respondent who had driven from Melbourne. The Linfox and Transport Workers’ Union Road Transport and Distribution Centres Agreement 2018 (“the enterprise agreement”, which also incorporates certain modern awards) applied to the employment (and he was employed as a Transport Worker Grade 8).
[7] The applicant had been an elected union delegate for the respondent’s linehaul drivers employed for 15 years. As a delegate, the applicant was responsible for representing the industrial interests of approximately 30 drivers. The applicant had also been a health and safety representative (“HSR”) for his work group since about 2006 with responsibilities including representing workers and investigating and inquiring into complaints. The applicant was also responsible for monitoring measures the respondent took, as a person conducting a business or undertaking, in its business in respect to health and safety for employees in his work group.
[8] The applicant’s evidence referred to various safety and industrial issues in which he had representative-type involvement. According to the applicant, in the year leading up to 2 December 2019, a number of safety and industrial issues were raised with him by workers and/or he personally identified issues, which he raised with the respondent’s management. The applicant identified three key industrial issues that arose in such respects in the following way in his evidence-in-chief:
“a. the introduction of telematic technology in linehaul vehicles, which recorded drivers whilst driving. This was a matter of concern to a lot of drivers who feared that it involved an intrusion into their privacy;
b. the removal of payments to linehaul drivers for work time that exceeded work outside their “trip rate” payment, in circumstances where Linfox had made such payments for at least the previous twelve (12) years. This involved a custom and practice whereby Linfox would pay linehaul drivers an hourly rate for non-driving duties, such as waiting time, truck washing, pre and post trip inspections, restraining and unrestraining loads, re-setting trailer floors, weighing trailers and deviations. These payments had commenced in 2007 following an agreement struck between myself, [and several named TWU and Linfox representatives]. The payments for non-driving hours were to ensure that drivers were reimbursed for time spent working and to ensure against fatigue by putting a price on time spent working that did not involve driving. Linfox stopped payments for non-driving hours on 25 August 2019. This resulted in a significant dip in income for all linehaul drivers, which I detail below; and
c. the introduction of a new Driver Behaviour Policy, which I believed (and a number of employees who I represented reported to me that they believed) would be used as a tool to victimise workers and cause stress on them.”
[9] The applicant described these industrial disputes as involving “significant angst amongst workers at the Chullora site and put enormous pressure on myself as the delegate who was tasked with attempting to agitate these issues to a resolution.” In particular, the dispute concerning the removal of payments to linehaul drivers for work outside their “trip rate” resulted in significant financial hardship and stress on the applicant and other employees, with some employees immediately becoming almost $700.00 a week worse-off.
[10] In addition to these industrial disputes, the applicant catalogued a number of safety concerns that were raised with him by employees which he reported to the respondent with a view to attempting to resolve those concerns. The applicant recounted in considerable detail what he said had, or had not, occurred in relation to the various concerns that were raised in such respects. The applicant felt under a great deal of pressure from his co-employees to have these issues resolved or at the very least addressed by the respondent. Although co-employees would approach the applicant regularly for updates about their concerns and what he was doing about those concerns, the applicant found matters very stressful and difficult as it did not seem to the applicant that the respondent was “willing to engage” with him about the issues. On 12 December 2019, the applicant sought further assistance from ComCare in relation to the ongoing issues.
The applicant’s evidence - the events of 2 December 2019
[11] On or around 25 November 2019, a linehaul driver colleague at Chullora was stood-down and issued with a warning letter because he refused to perform work that would have required him to work three hours in addition to his normal trip without any additional remuneration, as a result of the respondent ceasing payments that related to such additional work. The applicant’s evidence was that:
“… Linfox’s decision to stop paying for non-driving hours was a significant issue for drivers from an industrial and safety perspective. The purposes of payments for non-driving time was to make sure that drivers were paid for all time spent working and to put a price on non-driving work to encourage Linfox to not make drivers drive unreasonable or unsafe hours.”
[12] As a result of all the (unresolved) existing industrial and safety issues and the recent warning letter given to the linehaul driver, the applicant was approached by a number of drivers to arrange a safety meeting as soon as possible so that the employees could discuss the ongoing issues and attempt to have the respondent resolve these issues.
[13] On or around 26 November 2019, the applicant approached Adam Turnbull (now National Manager Road, Linfox). The applicant advised Mr Turnbull that the employees wanted to have a safety meeting before commencing work on 2 December 2019 “as they were extremely stressed as a result of the inaction of [the respondent] on the ongoing issues in the yard and the recent issuing of a warning letter” to the linehaul driver. Mr Turnbull approved the meeting and advised that, as long as everyone was back at work by 5.15am, everyone could attend the meeting.
[14] Following the approval from Mr Turnbull, the applicant placed a notice on the notice board advising a meeting was going to take place. The meeting was scheduled to start at 4.30am on 2 December 2019, to allow plenty of time for employees to be back at work by 5.15am - being the time agreed between the applicant and Mr Turnbull.
[15] On or around that same day of 26 November 2019, a TWU official sought from the respondent to have the applicant released on delegate’s leave under provisions of the enterprise agreement so the applicant could have a meeting with another union official to discuss the dispute over the cessation of payments to linehaul drivers - being a matter which was going before the Fair Work Commission. The applicant’s understanding was that the delegate’s leave was approved as a result of communications between the union and the respondent; and advice thereto was also conveyed personally to the applicant that he was released for 2 December 2019. The applicant’s evidence was as follows:
“42. … I then realised that was the same day as the scheduled safety meeting. I told [Warrick Irvine, Branch Manager, Linfox] that this was the same day as the safety meeting and that as the HSR I should really be there. Mr Irvine advised me that I could attend the Safety Meeting as it was outside of work hours and go into the meeting with Mr Webb after the Safety meeting. He told me I could “make a day of it”.
43. I always understood that I was released for the entire day and was not required to work at any point during the day. At no point did anyone at Linfox advise that I was required to report for work at any point on 2 December 2019.”
[16] What occurred in relation to the meeting on 2 December 2019 is a focal point in relation to the dismissal that later ensued. The applicant’s description of matters was as follows.
• When the applicant arrived at the site at approximately 4.00am, some of the drivers were already at the site and he started talking with them about the ongoing issues prior to the commencement of the meeting.
• The meeting commenced at 4.30am in the lunchroom, led by the applicant and included discussion of the ongoing industrial and safety issues.
• The meeting was fairly conversational and some employees started raising the issues regarding victimisation and bullying, particularly the warning letter issued to the linehaul driver and unsafe driving by sub-contractors driving in the yard.
• At some point, the applicant asked the group “who was stressed as a result of the issues and the entire group raised their hands”. Given that the employees are long-distance drivers and fatigue management is paramount, the applicant had serious concerns about the health and safety of the drivers given the high levels of stress being reported by them.
• The applicant advised the employees that if they were facing serious levels of stress that affected their ability to do their work, they should not work if it was unsafe to do so.
• At this point, one of the employees moved a motion that the group not return to work until the respondent seriously addressed the safety concerns. The group then voted on this motion and unanimously agreed to not return to work as they felt it was unsafe to do so and wanted the safety concerns resolved.
[17] The applicant’s evidence was that “At no point did I encourage any worker to cease work. The matter was raised by other workers and the group decided as a collective to do so due to what were perceived as threats to health and safety.”
[18] At around 5.15am, Mr Irvine and Tim Fugatt (Operations Manager, Linfox) entered the lunchroom. The applicant had a conversation with them about all the ongoing industrial and safety concerns and advised that the work group was extremely stressed. The applicant recalls saying “something along the lines of that the group would not return to work until Linfox advised that it was going to commit to resolving these serious safety concerns, as it was unsafe for the workers to continue to work.” However, other evidence suggested that it may have been Michael Collins (TWU official) who conveyed this. Either Mr Irvine and Mr Fugatt then told the group that this was illegal industrial action and that they must return to work and that if they did not their jobs were on the line. About 20 minutes later, Mr Irvine and Paul Doolan (Operations Manager, Linfox) entered the lunchroom and said that if the employees did not return to work they could lose their jobs. The applicant told Mr Irvine and Mr Doolan that all the employees wanted was for the respondent to address their serious safety concerns. Not long thereafter, the group was told to leave the lunchroom, so the group moved to the carpark.
[19] About an hour or so later, Mr Turnbull advised the entire group that what they were doing was illegal and he threatened that their jobs would be on the line if they did not return to work. Again, the group voted not to return to work as the employees were still waiting for someone from the respondent to address their safety concerns. The applicant described the following matters:
“55. From my own perspective, I did not believe I was partaking in any industrial action as I was not required to report for work that day. I was attending the meeting in my capacity as the HSR as I had been asked to call the meeting by the workers. I had already been released from work duties that day to attend a meeting at the TWU office.
56. Also, I genuinely believed that the ongoing safety and industrial issues had caused a significant amount of undue stress on the drivers and that it may have been unsafe for them to commence work, so I did not consider their cessation of work to be industrial action, but rather ceasing work due to a serious or imminent threat to their health of [sic] safety.
…
60. I had no concerns for myself at this point, as I did not believe that I was partaking in or organising any industrial action as I was not required to be at work to perform duties that morning, as I had been released.
61. At approximately 8.30am I spoke with [Laurie D’Apice, President of Human Resources, Linfox] by telephone. I explained to Mr D’Apice the issues we were having at the site and Mr D’Apice gave me a commitment that he would meet with myself and the TWU to try and resolve some of these issues.
62. Following me advising the workers of Mr D’Apice’s commitment, the group decided to return to work. Some other workers were not required to work (as they were not rostered on) and they left to go home after this point.
63. Not long after the meeting ended, I made my way to the TWU’s office for my scheduled meeting with [the TWU’s Gavin Webb, Chief Legal Officer].”
The applicant’s evidence - stand-down and dismissal
[20] The applicant was unwell in the period 3-8 December 2019. Upon returning to work on 9 December 2019, the applicant was stood-down with pay. The applicant was not provided with any formal indication as to why he was suspended. When the applicant asked why he was being stood down, the applicant was informed it was due to his “past performance”.
[21] The applicant was required to attend a meeting on 11 December 2019 about the suspension. The applicant attended with Mr Collins of the union. For the respondent, the meeting was led by Greg Selig (Workplace Relations Advisor, Linfox). As the applicant had been given no formal notification or indication as to what allegations were being put to him, he refused to answer questions being put to him by the respondent without notice. Mr Collins asked that formal allegations be notified to the applicant in writing, so that he had prior notification of what the meeting was about and what he was going to be questioned about. Mr Selig refused to do this and told the applicant he had to answer the questions. Not long after this, the meeting ended and the applicant was advised a further meeting would be scheduled.
[22] Following the meeting on 11 December 2019, the applicant felt “extremely anxious and stressed.” The applicant’s doctor issued a certificate of capacity noting the applicant had limited capacity to perform work. The applicant also made a workers’ compensation claim which was declined around March 2020 (by the respondent, which is a self-insurer).
[23] The applicant was directed to attend a meeting with the respondent on 20 March 2020, which was attended by the applicant and the TWU’s Mr Collins, and Linfox’s Mr Selig and Mr Turnbull. The meeting lasted about an hour (due to the time-limited availability of Mr Collins) and recommenced on 23 March 2020. The purpose of the meeting was to question the applicant about the events of 2 December 2019, when the stoppage occurred. The applicant agreed that a respondent-prepared record of interview of the 20/23 March 2020 meetings was accurate.
[24] The applicant was requested to attend another meeting on 6 April 2020. In that meeting:
• the applicant was informed that the respondent had made a preliminary decision to terminate his employment and he was asked to give reasons why that should not occur;
• the applicant maintained that he did not partake in industrial action and he was not refusing a direction to return to work as he was already released from work for the day on delegate’s leave; and
• the applicant was dismissed and provided with a letter in such respects.
[25] The letter concerning the dismissal first made brief reference to written warnings issued on 27 September 2018, 28 September 2018 and 24 September 2019 for (allegedly) failing to follow reasonable and lawful instructions of management. The dismissal letter then set out in greater detail matters related to the meeting on 2 December 2019 and what had occurred in the time period following that meeting. The dismissal letter relevantly read:
“The company has now reviewed all of the evidence and has found that your withdrawal of labour on 2 December 2019 did constitute the taking of UIA [unprotected industrial action] and that you repeatedly failed to comply with management’s reasonable and lawful instructions to cease the taking of UIA. This incident is a breach of your obligations in accordance with Clause 22 of the Linfox and Transport Workers’ Union Road Transport & Distribution Centres Agreement 2018 which states:
22. EMPLOYEE DUTIES
22.1 Every Employee must at all times:
(b) comply with reasonable and lawful instructions of management.
Today, Monday 6 April 2020, you were given an opportunity to respond to the company’s preliminary decision to terminate your employment for your continual refusal to comply with reasonable and lawful instructions of management. No mitigating circumstances were provided by you to alter the company's decision with respect to this matter.
As such, Linfox is terminating your employment effective immediately with notice and in accordance with the ‘Employee Termination Checklist’ you are to return all property belonging to Linfox. All outstanding entitlements will be forwarded to your nominated bank account once the termination process has been finalised.” (Bold and italics in original).
The evidence of Michael Collins
[26] Michael Collins is an employed TWU official, who has responsibilities for members employed by the respondent at the Chullora site. Mr Collins’ evidence addressed matters related to (a) the signing of attendance sheets for a telematics toolbox in September 2018, relevantly as that matter resulted in warning letters being issued to the applicant on two consecutive days, namely 27 and 28 September 2018; and (b) the warning issued to the applicant concerning leave in connection with attendance at proceedings before the Fair Work Commission on 13 September 2019.
[27] As to the events leading-up to the stoppage on 2 December 2019, Mr Collins’ evidence addressed matters about the expressions of concern in relation to a number of safety and industrial issues expressed to him by employees and delegates, and the steps he took in the resultant email communications and discussions with the respondent about such matters. Mr Collins spoke with the applicant several times in September 2019, particularly following the cessation of payments in the linehaul dispute and the issuing of a warning to the linehaul driver for refusing to perform additional work for which he would not be remunerated.
[28] Mr Collins also outlined the steps that had been taken to arrange a meeting between the applicant and the TWU’s Chief Legal Officer, Gavin Webb, which was scheduled for 2 December 2019. Mr Collins was in email communication with the respondent for the applicant’s release on 2 December 2019 so as to meet with Mr Webb.
[29] Mr Collins’ evidence then turned to the events on 2 December 2019. Mr Collins’ evidence indicated the following.
• Mr Collins received a call from the applicant at approximately 5.30am, who advised that a group of the members attending the safety meeting and who were scheduled to commence work at 5.00am had, along with the rest of the group, refused to commence work as a result of the risk posed by the safety and industrial issues that had been going on for quite some time.
• The applicant advised Mr Collins that “they were attempting to have Linfox management commit to working through the issues and that if that was received the group would return to work.”
• Mr Collins told the applicant that he would come immediately to the Chullora yard to support and advise the members. He arrived at around 6.15am and saw the group of members in the car park. Mr Collins spoke with the members and they repeated what they had told him earlier:
“… being that they were sick of Linfox not addressing their concerns and that they felt immense stress and anxiety regarding Linfox’s decision to not resolve safety complaints, the removal of payments causing significant financial and emotional stress for some members and the perceived bullying of members who refused to perform additional work with remuneration, specifically [name of linehaul driver] and the warning letter he had received. They told me that they were of the view that there was an imminent risk to their health and safety if they performed work without the issues being resolved.”
[30] At about 7.15am, Mr Collins returned a missed call from Darren Jones (General Manager, Workplace Relations, Linfox). Mr Jones told Mr Collins that the members were taking unprotected industrial action and that they should stop. Mr Collins advised Mr Jones that he understood the members held a genuine concern for their health and safety due to a number of issues that had been raised on numerous occasions with Linfox, with nothing being done about those issues. The conversation continued with Mr Collins listing the issues and advising Mr Jones “that all that needed to happen to get the guys to commence work was for Linfox to commit to addressing these issues so that they felt less stress and anxiety over these unresolved issues.” Mr Collins advised that the respondent would not talk about any of the issues until the members went back to work.
[31] Following this telephone call between Mr Collins and Mr Jones, Mr Collin approached the group of members and advised them what Mr Jones had said. Mr Collins’ evidence continued that he “… told the group that they should return to work and we could deal with these issues with Linfox, however the group advised me that they would not start work unless Linfox committed to resolving these issues.”
[32] At 8.00am, Mr Collins sent an email to Mr Irvine, which confirmed what the group had told him and listed the issues articulated to him by the group.
[33] At 8.03am, Mr Collins received an email from Mr Turnbull in which he alleged that Mr Collins was organising unprotected industrial action and asked that Richard Olsen, (TWU State Secretary), commit to ceasing the alleged unprotected action. The union’s Mr Webb responded on the union’s behalf to this email and further responses between the parties followed thereafter.
[34] At around 8.45am Mr Collins had a telephone conversation with Mr D’Apice, Mr Collins explained to Mr D’Apice the concerns raised by the members and told him that if there was a commitment from the respondent to address these, he believed the members who were due to commence work would do so. Mr D’Apice told Mr Collins that he, on behalf of Linfox, was committed to having discussions and a meeting with himself and the applicant to address these ongoing issues with the workers on the basis they returned to work.
[35] Mr Collins then told the group about Mr D’Apice’s commitment and they all agreed collectively to return to work.
[36] As to outcomes following the events on 2 December 2019, Mr Collins described the following:
• all of the members who were part of the group that attended the meeting in person and who were rostered to start work between 5.00am to 9.00am received warning letters for (allegedly) taking part in unprotected industrial action;
• a number of members who attended the meeting on 2 December 2019, who stayed with the group for the duration of the meeting but who were not required to report for work during that time, were not subject to any disciplinary measures;
• a group of local drivers who are based at the respondent’s Erskine Park site also ceased work for the duration of the meeting and attended the meeting by telephone, and none was subject to any disciplinary measures;
• the applicant, who was not required to report for work at all during the length of the meeting, was the only employee who was dismissed as a result of the meeting.
The evidence of Adam Turnbull
[37] The evidence for the respondent comprised that of Adam Turnbull.
[38] As noted earlier, Mr Turnbull is employed as the National Manager Road with Linfox. He has held this position since 1 June 2020, but previously has been employed in different roles in the time since he commenced employment with the respondent in July 2016. One of Mr Turnbull’s direct reports is Mr Irvine (Branch Manager, Linfox) for the Chullora site. Mr Turnbull referred to the applicant’s employment history and also to aspects of his training and negotiating role as a union delegate. In Mr Turnbull’s view, the applicant was an experienced union delegate and HSR who understood the requirements of an employee with respect to the duties and obligations under the enterprise agreement and relevant legislation to a higher level than other employees at the Chullora site.
[39] Mr Turnbull described, in his history of relevant events, matters related to the respondent’s safety culture; consultation on the introduction of MTData (Telematics) across the Linfox business and matters associated with that introduction; consultation around the introduction of revised Linfox Driver Behaviour Policy and matters associated with that introduction; and cessation of certain agreement payments to long distance drivers. Mr Turnbull also addressed in detail matters including the respondent’s actions under groupings described as “Alleged non-action of safety issues”; “27 and 28 September 2018 - Written Warning’s [sic] – Failing to follow a reasonable and lawful instruction of management”; “24 September 2019 - Written Warning – Failing to Follow a Reasonable and Lawful Instruction”; “2 December 2019 – 7 Employees including Mr Pickering take Unprotected Industrial Action (UIA)”; “Investigation into alleged failure to comply with reasonable and lawful instructions of management; failure to comply with Linfox policies, procedures and rules in operation at the time and engaging in unprotected industrial action”; and “Meeting and termination of employment – 6 April 2020”.
[40] Relevantly as to matters concerning the events of 2 December 2019, Mr Turnbull recounted the following, albeit much of it is hearsay as to what unfolded that morning.
• On 26 November 2019, the applicant sought and obtained approval from Mr Turnbull to hold a meeting on 2 December 2019 commencing at 4.30am and concluding at 5.15am so that the workers could commence their required duties to satisfy customer service obligations.
• The applicant advised Mr Turnbull it was “a Safety/TWU meeting” but did not provide him with any agenda or details with respect to the purpose of the meeting. The applicant placed a notice on the union notice board advising employees of the meeting.
• On 26 November 2019, Mr Collins sought permission for the applicant to be released to attend TWU delegate training on 2 December 2019 in accordance with the Agreement. This release was requested and then approved by email. The applicant was to be paid his average earnings in accordance with the enterprise agreement for the day’s release; he was not allocated any driving duties for 2 December 2019 on the basis that he was performing his role as a delegate away from the workplace and being paid his average earnings.
• The applicant advised Mr Irvine he would still conduct the Safety/TWU meeting between 4.30am and 5.15am, then leave the site for his training.
• On 2 December 2019 at approximately 5.15am Mr Irvine and Mr Fugatt entered the lunchroom where the meeting was being conducted. Mr Irvine asked the applicant when the meeting was going to end. The applicant informed Mr Irvine that the employees, including himself, had, “withdrawn their labour due to ongoing safety issues caused by bullying and harassment by senior management, making our stress levels unsafe to be on the road”. Mr Turnbull said that at no point between 4.30am and 5.15am did the applicant or any other worker bring to the attention of Mr Irvine or himself any issues that were raised during this Safety/TWU meeting that would prevent the workers commencing their duties at the agreed time. All hearsay, and Mr Turnbull did not become involved until after 5.15am.
• Mr Irvine telephoned Mr Turnbull at approximately 5.25am and advised that seven or eight employees, including the applicant, had commenced industrial action. Mr Turnbull advised Mr Irvine to give the employees a lawful instruction to stop the industrial action and to go back to work immediately.
[41] Mr Turnbull gave evidence as to what had occurred in relation to the “First refusal to comply” at 5.35am, albeit he was not personally present. According to Mr Turnbull’s hearsay evidence:
• Mr Irvine re-entered the lunchroom with Mr Doolan and instructed all employees, including the applicant, to immediately commence work as the withdrawal of their labour was illegal and that personal penalties would be applied against employees for participating in an illegal stoppage;
• all employees, including the applicant, refused to comply with this instruction and continued to take what Mr Turnbull characterised as unprotected industrial action.
[42] Mr Irvine telephoned Mr Turnbull at approximately 5.45am to advise that the employees, including the applicant, had failed to comply with his instruction. Mr Turnbull advised Mr Irvine to give the employees a further instruction to commence their duties for the day and if they refused, they were to leave the site.
[43] Mr Turnbull next gave evidence as to what had occurred in relation to the “Second refusal to comply” at 6.00am, albeit he was not personally present. According to Mr Turnbull’s hearsay evidence:
• Mr Irvine and Mr Doolan re-entered the lunchroom. Mr Irvine again directed all employees, including the applicant, to return to work. All employees, including the applicant, refused to comply with this instruction.
• Mr Irvine subsequently asked all employees that were participating in the unprotected industrial action to leave the lunchroom. All employees, including the applicant, regrouped in the car park and continued to take unprotected industrial action.
[44] Mr Irvine called Mr Turnbull to advise that the employees, including the applicant, had failed to comply with the instruction to return to work. Mr Turnbull advised Mr Irvine he was on his way to site and to start working on contingencies to minimise the disruption to customer deliveries as the stoppage was going to impact upon service that day.
[45] Mr Turnbull next gave evidence as to what had occurred in relation to exchanges at approximately 6.45am, albeit he was not personally present. According to Mr Turnbull’s hearsay evidence, at approximately 6.45am, the applicant, another (delegate) transport worker and Mr Collins returned to the lunchroom, met with Mr Irvine and Mr Doolan, and tabled a list of issues.
[46] Mr Irvine telephoned Mr Turnbull to advise that the applicant, Mr Collins and the other employee had outlined a list of issues to be addressed and the applicant indicated that if no progress was made in relation to the issues raised it was unlikely that any employee would return to work. Mr Turnbull advised Mr Irvine that none of the safety issues raised was an imminent or immediate threat to the health and safety of the employees or these issues had already been dealt with. Mr Turnbull asked Mr Irvine to instruct the employees again, including the applicant, to stop taking unprotected industrial action and to go back to work. Mr Turnbull advised Mr Irvine that he would be on site at around 7.30am.
[47] Mr Turnbull next gave evidence as to what had occurred in relation at approximately 7.20am in relation to the “Third refusal to comply”, albeit he was not personally present. According to Mr Turnbull’s hearsay evidence, at approximately 7.20am:
• Mr Irvine addressed all employees, including the applicant, in the carpark;
• Mr Irvine instructed the employees to cease the unprotected industrial action as it was illegal and failure to do so would result in disciplinary action up to and including termination of employment; and
• all employees, including the applicant, refused to comply with the instruction.
[48] Mr Turnbull arrived at the site at approximately 7.45am and addressed all transport employees, including the applicant. As to the “Fourth refusal to comply”, Mr Turnbull instructed them that if the unprotected industrial action did not cease immediately and if they did not return to work, disciplinary action would be taken up to and including termination of employment. All employees, including the applicant, refused to comply with this instruction. Mr Turnbull said he “reiterated” that any issues or concerns could and should be dealt with through the Health and Safety Committee and/or the relevant dispute procedure in the enterprise agreement.
[49] After the employees failed to comply with Mr Turnbull’s instruction, Mr Turnbull sent an email at 8.03am to Mr Collins and Mr Olsen outlining the current situation and Mr Collins’ view with respect to Mr Collins’ involvement in the unprotected industrial action. At 8.28am, Mr Turnbull received a response from Mr Webb outlining the union’s position with respect to his email.
[50] Mr Turnbull said that at no time was any evidence presented to him that there was an imminent risk to the health and safety of the workers at the site that made the stoppage lawful.
[51] At approximately 8.20am, the unprotected industrial action ceased following a telephone call from Mr D’Apice to the applicant offering to meet with him in an attempt to resolve his issues.
Mr Turnbull’s evidence – events after 2 December 2019
[52] Mr Turnbull said that “Following the cessation of the UIA [unprotected industrial action] I commenced an investigation with the assistance of the Workplace Relations Team from Head Office into the events that occurred on 2 December 2019 whereby seven (7) employees including Mr Pickering took UIA”. He outlined the following matters.
[53] Mr Turnbull reviewed all seven personnel files to determine the disciplinary history of each employee. Despite what Mr Turnbull considered to be serious misconduct, justifying summary dismissal, in the taking of unprotected industrial action he decided to take a more lenient approach with six of the seven employees.
[54] Mr Turnbull reached this conclusion based on the low level and/or absence of any disciplinary history that each of the six employees had pertaining to refusal to comply with reasonable and lawful instructions of management and with Linfox policies, procedures and rules in operation at the time.
[55] On 3 December 2019, five employees across two sites were given a written warning titled “Unprotected Industrial Action – Serious Misconduct”. (One employee subsequently provided a statement to the respondent, but he was not called to give evidence).
[56] With respect to the applicant, he had three prior warnings in his personnel file dating back to 2018 which fell within the scope of “refusal to comply with reasonable and lawful instructions of management.” On the information provided to Mr Turnbull, he advised Mr Irvine to suspend the applicant with full pay pending further investigation.
[57] On the afternoon of 3 December 2019, the applicant called to advise he would not be attending work for the rest of the week due to personal illness. Upon the applicant’s return to work on 9 December 2019, Mr Irvine, with the assistance of Mr Selig, informed the applicant that he would be suspended with pay so the respondent could complete its investigation into the unprotected industrial action that occurred on 2 December 2019. The applicant was asked to attend a record of interview at the respondent’s Erskine Park head office.
[58] That meeting on 11 December 2019 was attended by the applicant and Mr Collins; and, for the respondent, Mr Turnbull and Mr Selig. At the commencement of the meeting, the applicant was again advised of the reason for the investigation. The applicant refused to participate in the record of interview. Mr Selig provided the applicant with a copy of the questions and was afforded the opportunity to read through the list of questions before continuing with the record of interview. The applicant refused to continue with the meeting and left the head office.
[59] On 13 December 2019, the applicant emailed a certificate of capacity to the respondent and commenced a workers’ compensation claim. The respondent subsequently suspended the investigation process until the applicant was deemed fit to continue with the investigation.
[60] On 20 March 2020, the respondent resumed the investigation into the applicant’s conduct on 2 December 2019 at a meeting attended by the applicant and Mr Collins; and, for the respondent, Mr Turnbull, Mr Selig and (by telephone) a workplace relations officer. The meeting was adjourned around halfway through as Mr Collins was unable to continue as he had to go, stating: “We have turned up in good faith, I didn’t know you’d ask 70 fucking questions it’s bullshit. I have meetings about this corona virus shit. We’ll come in at 4.00am Monday if you want.” According to Mr Turnbull, the applicant did not want to continue without representation and became quite agitated. He stated: “You’re going to sack me so just fucking do it” and “Don’t waste my time do what you want to do it will only strengthen my unfair dismissal so go, do it.”
[61] The meeting reconvened on 23 March 2020 to complete the investigation into the applicant’s conduct on 2 December 2019.
Mr Turnbull’s evidence - Meeting and termination of employment – 6 April 2020
[62] Mr Turnbull considered the applicant’s ongoing employment and was aware that he had three prior written warnings since 2018 within the scope of a refusal to comply with reasonable and lawful instructions of management. Mr Turnbull formed a preliminary view, based on the events of 2 December 2019 and the record of interview documents, that the applicant organised and participated in unprotected industrial action and failed to comply with the lawful instructions of Mr Irvine and himself. Mr Turnbull also considered that the applicant had “consistently” failed to comply with other reasonable and lawful instructions over the previous two years, and, as such, unless the applicant could provide a mitigating reason as to why Mr Turnbull should not terminate his employment, his employment would be terminated.
[63] A meeting was arranged on 6 April 2020 attended by the applicant and Mr Collins; and, for the respondent, Mr Turnbull and Mr Selig. Mr Turnbull advised the applicant he had formed a preliminary view to terminate his employment following his conduct on 2 December 2019 and his previous disciplinary history. The applicant was afforded the ability to provide him with any mitigating circumstances as to why his employment should not be terminated.
[64] Mr Turnbull adjourned the meeting to consider the mitigating reasons and discussed them with Mr Selig. They agreed that the applicant provided no mitigating circumstances that altered Mr Turnbull’s preliminary view to terminate his employment. As such, Mr Turnbull returned to the meeting and provided the applicant with a termination letter which was read aloud to him, verbatim. The applicant subsequently left the site.
The applicant’s evidence in reply concerning 2 December 2019, and the processes that followed
[65] In reply to the evidence of Mr Turnbull, the applicant largely repeated and relied on the evidence in his first statement in disputing certain matters raised by Mr Turnbull. Among other matters, the applicant also raised the following matters in reply.
• The applicant decided the attend the meeting on 2 December 2019, of his own accord while he was on leave for the day, as he felt this was appropriate given his role as an HSR and union delegate.
• The applicant disagreed with aspects of the timing of events that occurred on 2 December 2019. The applicant also disagreed with various contentions in Mr Turnbull’s evidence. Included among those matters of disagreement were that the safety concerns did not pose an imminent or immediate risk to the health and safety of transport workers, including psychological health. The applicant also reiterated a range of work health and safety issues and indicated that, in his view, this was not a case of unprotected industrial action. The applicant’s reply evidence was that Mr Turnbull never approached the group to ask about the safety concerns, and/or to discuss the safety issues.
• As to various matters concerning directions to him to return to work, the applicant said he was never directed to return to work at any point as he was not rostered to work on 2 December 2019. The applicant also rejected that part of Mr Turnbull’s statement to the effect he did not return to work at approximately 8.20am due to unprotected industrial action - on the basis he was not directed to, or expected to, return to work as he was on delegate’s leave on 2 December 2019 and not rostered to work for the respondent.
• To the best of the applicant’s recollection, it was Mr Collins (rather than himself) who told Mr Irvine it was unlikely employees would return to work if safety issues were not addressed. The applicant raised the health and safety concerns held by workers over the telephone to Mr D’Apice, who made a commitment to meet with drivers. The concerns were wholly about health and safety and the workers simply wanted the issues to be investigated and for steps to be taken by the respondent to try to resolve the issues.
• In response to Mr Turnbull’s evidence concerning the examination of the personnel files of seven employees and the disciplinary outcomes following the events on 2 December 2019, the applicant’s reply evidence included: there were more than seven employees involved - more likely approximately 20 drivers present at Chullora. Many drivers who were in attendance were not rostered on for the day, including approximately ten named individuals who did not receive formal warnings. It was the applicant’s understanding, based on their telephone participation on 2 December 2019, that about five named employees also withdrew their labour at the Erskine Park site.
• The applicant disputed Mr Turnbull’s evidence that he was told he was stood down so the respondent could complete its investigation into the (alleged) unprotected industrial action. Rather, the applicant reiterated that he was stood down with pay due to “past performance” and was not told he was being “investigated”.
• The applicant’s evidence was he valued his job with the respondent and took a great deal of pride in it. The applicant added that he is committed to complying with all the respondent’s policies, procedures and rules, and lawful and reasonable directions.
Submissions
[66] The submissions for the applicant, relevant to the events on 2 December 2019 and the dismissal, included the following matters.
[67] The opening submissions for the applicant encapsulated the matters advanced in the following way – namely that on 6 April 2020, the respondent dismissed the applicant, a long-term employee, union delegate and health and safety representative for taking unprotected industrial action on 2 December 2019. However, 2 December 2019 was a day when the applicant was not rostered to work and was, in fact, on leave. The submissions described the dismissal as “a flawed and opportunistic act by the Respondent to remove an effective, proactive and vigorous employee representative from its business.” The applicant submitted the reasons relied on by the respondent to dismiss were not sound, well-founded or defensible. Indeed, the submissions continued, it appears the true reason for dismissal was because of the applicant’s status as an elected union delegate and his exercise of workplace rights as a health and safety representative. Further, and in addition, the dismissal was harsh given matters including the severity of the sanction of dismissal for the alleged misconduct and the differential treatment accorded to other employees involved in the events of 2 December 2019.
[68] As outlined by way of examples drawn from the evidence, the applicant submitted that, from early 2019, a number of industrial and health and safety issues arose at the respondent’s Chullora site. In late-November 2019, drivers requested that the applicant arrange a safety meeting to discuss ongoing issues with a view to these issues being resolved by the respondent. A safety meeting as approved by the respondent was to occur on 2 December 2019, on the premise that it would conclude before employees were to start work at 5.15am.
[69] On 26 November 2019, the union requested that the applicant be released on delegate’s leave under clause 84 of the enterprise agreement. This leave was granted, and the applicant was not rostered or otherwise scheduled to work on 2 December 2019. The submissions put matters this way: “He was, in other words, on leave that day.”
[70] The applicant, in his capacity as an HSR, attended the safety meeting on 2 December 2019 at the Chullora site, notwithstanding he was on leave. His attendance exemplified the importance with which he viewed his role as an HSR and his perceptions of the seriousness of the health and safety issues at the site. In summary, the submissions outlined matters in this way:
• a significant number of safety issues were raised by employees during the meeting;
• an employee proposed that employees not perform work until health and safety issues were addressed by the respondent;
• employees voted in support of this resolution;
• in relaying concerns to management, the applicant did not perceive that workers were engaged in unprotected industrial action, as he was of the view that they were taking action based on a reasonable concern about an imminent risk to their health or safety – and this was so notwithstanding what managerial employees stated over the course of the morning;
• employees who were rostered to work did not attend to perform work until about 8.30am around which time the applicant spoke with Mr D’Apice, who committed to working to resolve the health and safety issues.
[71] The applicant later attended the union’s offices for his pre-arranged meeting.
[72] The applicant was stood down with pay on and from 9 December 2019. His workers’ compensation claim was declined by the respondent. On 20 and 23 March 2020, the applicant participated in interviews in relation to the events of 2 December 2019. On 6 April 2020, the applicant was asked to attend a further meeting where the respondent announced that it had made a preliminary decision to dismiss him.
[73] When asked why his employment should not be terminated, the applicant said he had not engaged in industrial action on 2 December 2019 and had not failed to comply with a reasonable and lawful direction to attend work on that day as he had been released for delegate’s leave. The applicant was then issued a notice of termination.
[74] As to the factors in s.387 of the Act, the applicant submitted that sub-ss.387(d)-(h) are not relevant in the circumstances of the present matter. As to the other factors, the applicant submitted (including by reference to relevant authorities):
• whether a reason for dismissal is a valid one within the meaning of s.387(a) of the Act requires the Commission to determine, first,whether the conduct occurred and, second, whether it was sufficiently grave or serious to ground a sound, defensible or well-founded reason for dismissal;
• the primary conduct relied on by the respondent to justify dismissal was detailed in the letter of termination issued on 6 April 2020 as follows:
“The company… has found that your withdrawal of labour on 2 December 2019 did constitute the taking of UIA [unprotected industrial action] and that you repeatedly failed to comply with management’s reasonable and lawful instruction to cease the taking of UIA.”
• the alleged unprotected industrial action was said to constitute a breach by the applicant to comply with a reasonable and lawful instruction.
[75] The applicant noted the definition of “industrial action” in s.19 of the Act. The applicant submitted that neither s.19(a) nor s.19(b) can be relevant in the context of the present matter because the applicant was not rostered to work on 2 December 2019; he was on leave. An employee who is on leave and not rostered to work cannot be said to have failed or refused to perform work. Consequently, the submissions continued, the applicant did not take industrial action that was unprotected on 2 December 2019. It follows that he did not engage in the conduct alleged by the respondent and that there was no valid reason for dismissal based on this reason. (The applicant raised other matters about an unlawful dismissal, which were not pressed).
[76] The applicant also made submissions about the respondent’s reliance on warnings issued to the applicant on 27 and 28 September 2018 (that were premised on the applicant failing to follow instructions to sign a toolbox attendance sheet) and a warning dated 24 September 2019 (which referred to an incident on 12 September 2019 when the applicant did not attend work).
[77] As to the provisions of s.387(b) and s.387(c) of the Act, the applicant submitted that the requirement to notify an employee of the reason(s) for dismissal focuses on whether the employer made clear to the employee before the dismissal was effected what the reason(s) proposed to be relied upon were to terminate the employee’s employment. Notification is imperative to give effect to the procedural fairness requirement that an employee has an opportunity to respond to the proposed termination before termination occurs. This is, the submissions continued, for the basic reason that providing an opportunity for an employee to change the employer’s mind must be a real and not an illusory one. Here, the applicant was notified of the reason for dismissal on 6 April 2020, being the day he was sacked; and, the submissions continued, “it is plain” that a decision to dismiss the applicant had been made at that time and the procedural fairness provided to the applicant was, in the circumstances, “a charade and illusory”.
[78] The applicant’s submissions referred to various matters in support of the contention the dismissal was harsh:
• none of the employees whom the respondent asserts took industrial action on 2 December 2019 was dismissed, apart from the applicant;
• the dismissal was harsh on account of the differential treatment accorded to the applicant compared to the other employees; and
• as none of the other employees was dismissed, that underscores the true reason for dismissal, namely, that the applicant was the union delegate.
[79] The applicant also made alternative submissions concerning the characterisation of industrial action and the applicant’s perceptions thereto, and submissions about other matters, in contending the sanction of dismissal was too harsh a consequence. The submissions noted that the remedy sought by the applicant is reinstatement and the submission outlined various reasons why that would be the appropriate remedy.
The respondent’s submissions
[80] The respondent’s submissions relevantly opened with reference to the provisions of the enterprise agreement at clause 22 (Employee’s Duties) and clause 71 (Counselling and Discipline) as to employees’ duties and management’s right to discipline an employee “who falls foul of such duties”.
[81] The respondent noted it dismissed the applicant with (a payment in lieu of) notice and submitted this was “due to his failure on a number of occasions to comply with reasonable and lawful instructions of management and with Linfox policies, procedures and rules in operation at the time, culminating in the final act of failing to comply with reasonable and lawful instructions of management that occurred on 2 December 2019, which led to the termination of his employment.” In particular, the submissions continued, the applicant failed to comply with directions and policies/procedures/rules of the respondent by failing to comply with reasonable and lawful instructions of management on 27 and 28 September 2018, 24 September 2019 and 2 December 2019. The respondent submitted that:
• the cumulative effect of the actions of the applicant constituted a valid reason for the termination of his employment;
• the termination of employment was not harsh, unjust or unreasonable in all the circumstances; and
• the application should be dismissed.
[82] The respondent outlined a relevant factual background in support of the preceding contentions as to the warnings of 27 and 28 September 2018, and 24 September 2019. The respondent outlined matters in support of the (alleged) failure to comply with a reasonable and lawful instruction of management on 2 December 2019, including by reference to a chronological overview which highlighted the following matters.
• On 26 November 2019, the applicant requested approval to hold a yard Safety/TWU meeting at the Chullora site on 2 December 2019. That approval was given subject to the proviso the meeting would conclude at 5.15am, so that there would be minimal disruption to the operation and not affect the respondent’s contractual obligations with its customers. The applicant then placed a notice on the union notice board advising employees of the meeting.
• On 26 November 2019, the applicant was approved to attend TWU delegate’s training in accordance with clause 84 of the enterprise agreement to take place on 2 December 2019 at the union offices, with payment entitlements arising from the enterprise agreement.
• The applicant advised management he would be present for the approved meeting between 4.30am and 5.15am and then leave the Chullora site to go to the union offices.
• On 2 December 2019, the applicant failed on four occasions to comply with reasonable and lawful instructions of management by refusing to stop taking unprotected industrial action.
• Management commenced an investigation with the assistance of the respondent’s Workplace Relations Team into the events that occurred on 2 December 2019 whereby seven employees took unprotected industrial action.
• Following leave due to personal illness between 3 to 6 December 2019, the applicant was suspended with pay on 9 December 2019, so the respondent could complete its investigation into the unprotected industrial action that occurred on 2 December 2019.
• The applicant was informed of the purpose of the meeting.
[83] As to the investigation, the respondent’s submissions outlined matters as to the evidence in the following way:
• On 11 December 2019, the applicant and Mr Collins attended a meeting with representatives of the respondent. The applicant initially refused to participate in the record of interview. After being provided with a copy of the questions to read through before continuing with the record of interview, the applicant refused again to participate in the interview and left the meeting.
• The applicant provided a certificate of capacity and commenced a worker’s compensation claim with the respondent. The respondent suspended the investigation process until the applicant was deemed fit to continue with the investigation.
• On 20 March 2020, the respondent resumed the investigation into the applicant’s conduct in a meeting on 2 December 2019 attended by the applicant, Mr Collins and company representatives. The meeting was adjourned as Mr Collins was unable to continue that day and reconvened on 23 March 2020. The applicant signed the record of interview.
[84] As to the final meeting and the termination of employment on 6 April 2020:
• the applicant and Mr Collins attended the meeting with Mr Turnbull and Mr Selig. Mr Turnbull “outlined the numerous events and warnings that had been provided to Mr Pickering for his failure to comply with reasonable and lawful instructions of management”;
• Mr Turnbull then provided the applicant with an opportunity to provide his view as to why his employment should not be terminated. However, the applicant “did not provide any compelling reasons as to why his employment should not be terminated” - in circumstances where, prior to the meeting, Mr Turnbull had formed the view that, unless the applicant was able to provide any reasonable explanation for his behaviour, his employment could not continue based on the fact that, overall, the applicant’s conduct to date had not been in keeping with the standard required of all employees;
• the applicant did not demonstrate any contrition for his behaviour or show any indication that he was prepared to change his behaviour or his uncooperative attitude.
[85] Mr Turnbull considered the applicant’s responses and discussed the matter with Mr Selig. They formed the view that the applicant had not provided any compelling reasons as to why his employment should not be terminated. As such, when the meeting reconvened, the applicant was provided with a letter terminating his employment with notice.
[86] As to the criteria in s.387 of the Act (and by reference to various cases) and the valid reason criterion, the respondent submitted it had a valid reason for terminating the applicant’s employment due to his persistent failure to comply with reasonable and lawful instructions of management. Relevant in such respects was the overall or aggregate employment history, which the respondent was entitled to take into account in its decision about the continuation of his employment. The respondent referred particularly to Loata Petrunic v Q Catering Limited T/A Q Catering (“Petrunic”) 1 where Hamberger SDP found as follows:
“[53] I am satisfied that the respondent had a valid reason to dismiss the applicant because of her conduct on 15 June 2018. The applicant was an active participant in the blockade of Q Catering’s premises. While she was not actually at work that day, she supported and encouraged her colleagues to engage in the stoppage. The stoppage and the associated blockade was intended to, and did, have the effect of significantly impeding the respondent’s operations that day, in support of certain (albeit poorly formulated) employee demands. The action was not ‘protected’ by the FW Act. The applicant’s conduct in this regard was fundamentally inconsistent with the obligations she owed to her employer.”
[87] The respondent submitted that the circumstances with respect to the applicant’s conduct on 2 December 2019 go to the heart of the findings by Hamberger SDP with respect to what constitutes industrial action. Furthermore, the applicant was being paid his average earnings for 2 December 2019 and was not on paid leave through accrued entitlements. The respondent submitted that, additionally, the evidence shows that the applicant coordinated the industrial action on 2 December 2019 as well as being an active participant throughout. The respondent submitted that, arguably, if viewed in isolation, the taking of unprotected industrial action by the applicant on 2 December 2019 would have constituted a valid reason for the termination of his employment. In such respects, the respondent referred to Australasian Meat Industry Employees Union v Australian Meat Holdings Pty Ltd 2, where an employee took unprotected industrial action and Dowsett J considered that the seriousness of the misconduct must be assessed having regard to the fact that the respondent had indicated that it would treat unprotected action seriously.
[88] The respondent submitted that Mr Turnbull determined to take a more lenient approach in dealing with the six employees who engaged in the taking of unprotected industrial action, subject to a review of their individual disciplinary history. In the case of the applicant, he had demonstrated a persistent failure to comply with the reasonable and lawful directions of the respondent and, on all occasions, was well-aware of the reasonable expectations placed upon him.
[89] The respondent submitted that the cumulative effect of the applicant’s conduct was such that it had lost trust and confidence in him as an employee and in his preparedness to follow the lawful directions. The applicant’s attitude towards the respondent in relation to the incidents described was combative and he had shown very little regret or remorse for his conduct. Rather, he had displayed a complete disregard for the directions of his managers, despite numerous warnings that further behaviour of a similar nature might attract disciplinary action. Based on the authorities to which reference was made in the submissions, the respondent submitted that the aggregate effect of the applicant’s conduct was to damage the employment relationship with the extent that it could not continue. The misconduct on 2 December 2019 was serious and not protected by the Act.
[90] As to the other statutory criteria in s.387 of the Act, the respondent submitted the applicant was notified of the reason for his proposed termination at the meeting held on 6 April 2020 and he was given the opportunity to respond to the reason for termination during that meeting which the applicant attended with his chosen support person, Mr Collins.
[91] In relation to each of the relevant incidents, the applicant was well-aware of the respondent’s expectations of him and, in relation to the applicant’s breach of the enterprise agreement, he was a seasoned union delegate and had been provided with training. The respondent submitted the dismissal was a proportionate response to the applicant’s behaviour, given the history of his conduct and his persistent refusal to follow the lawful and reasonable directions.
[92] The respondent submitted that, in the event that the Commission considers that the termination of the applicant’s employment was harsh, unjust or unreasonable, reinstatement would not be an appropriate remedy because his managers have lost confidence in his readiness to follow their directions and conduct himself in accordance with policies and procedures. Moreover, the applicant has not, at any stage, offered an explanation for his conduct that provides any confidence that no such conflict will reoccur in the future or that he is willing to adhere to the respondent’s policies, procedures and rules, or comply with managerial instructions.
[93] In conclusion, the respondent submitted that the applicant’s conduct was unacceptable and constituted a valid reason for his dismissal; that he was afforded procedural fairness, including clear prior notification of the reason for termination, with his support person present to assist him; and he was also given the opportunity to respond prior to the termination taking effect. The respondent submitted the application should be dismissed.
Final reply submissions for the applicant
[94] Other than matters which had been addressed in the initial outline of submissions, the applicant’s final submissions referred to matters including the following.
[95] As to the question of valid reason, the applicant noted that three matters are relied on by the respondent to justify the dismissal: (a) the applicant took unprotected industrial action on 2 December 2019; (b) the applicant did not attend work on 13 September 2019 prior to a conciliation conference before the Commission relating to non-payment by the respondent for non-driving duties; and (c) the applicant did not immediately sign a toolbox attendance form in September 2018. In such respects, the applicant referred to Rabbi Pinchas Ash v Chabad Institutions of Victoria Limited 3 where this was said:
“[30] … A valid reason under s 387(a) is one that provides a sound, defensible and well-founded rationale for dismissal. In order for conduct which has found to have occurred to constitute a valid reason, it must involve something more than a minor failing or trivial misdemeanour, and must be of sufficient gravity or seriousness to justify dismissal. Factually-established conduct which might, for example, justify the issue of a reprimand or a warning may not necessarily justify dismissal. …”. (Italics in original)
[96] As to the 2 December 2019 unlawful industrial action allegation, the applicant submitted that the only species of industrial action able to be relied on by the respondent is that detailed in s 19(1)(c) of the Act, being a failure or refusal by the applicant to perform work. As to this, the submissions reiterated that the applicant was not rostered to perform any work for the respondent on 2 December 2019; he had been granted delegate’s leave.
[97] The applicant submitted there can be no failure or refusal to attend work or perform work by an employee where there is no legal obligation on the employee to attend or perform work: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“The North Queensland Stadium Case”) 4 at [129]; Australian Building and Construction Commissioner v Ingham5 at [110]-[112]. An employee will not take industrial action if they refuse to attend work or perform work during periods of leave. This is so even if employees on leave engage with other employees in refusing to work: North Queensland Stadium at [129].
[98] The submissions continued that the applicant was under no legal obligation to perform work for the respondent on 2 December 2019 as he was on delegate’s leave under clause 84 of the enterprise agreement – and “leave is leave”: Chambers v Toll Transport Pty Ltd 6 at [75](a). The applicant did not take unlawful industrial action and this aspect of the respondent’s case is based on a false premise and must be rejected.
[99] The submissions referred also to matters concerning the warning issued to the applicant in connection with release to attend Commission proceedings on 13 September 2019, which I do not summarise, contending that the direction to attend work before attending the Commission was unlawful and unreasonable and the applicant’s non-adherence to it cannot ground a valid reason for dismissal.
[100] As to the applicant’s failure to immediately sign the toolbox attendance forms in 2018, the applicant outlined reasons why it was impermissible for the respondent to issue the warnings of 27-28 September 2018 while a dispute was on foot. In any event, the circumstances of the applicant (and other drivers) not signing were of no practical consequence as the purpose of the sheets was for employees to acknowledge attendance only, albeit the concern was that in signing would mean acceptance of the impugned technology which was in dispute at the time.
[101] As to procedural fairness-related matters, the applicant referred to Stanley Sully v CBMG North Pty Ltd 7 at [61]-[62], citing the well-known Crozier v Palazzo Corporation Pty Ltd8 at [73]. The closing submissions in relation to procedural fairness were that the applicant was notified of the reasons for termination only in the letter of termination. The submissions continued that while the applicant was “generally aware that the respondent was concerned about the 2 December 2019 protest”, he was not notified of the conclusions that had been drawn about his conduct on that day, nor that it was going to rely on the 13 September 2019 and 27-28 September 2018 incidents. The applicant was not, appositely in consideration of s.387(b) and s.387(c) of the Act, notified of the reasons for dismissal prior to dismissal - but simply asked why he should not be dismissed.
[102] As to other matters, the applicant adverted to matters including differential treatment as between the applicant and employees who were rostered to perform work from 5.00am and 7.00am on 2 December 2019 and not rostered to perform work until after the end of the protest on 2 December 2019. The applicant referred to other matters also in contending that dismissal was disproportionate to the gravity of any misconduct.
[103] As to the remedy of reinstatement, referred to recent authority reaffirming it as the primary remedy: Scott Tracey v BP Refinery (Kwinana) Pty Ltd 9 at [36]. Here, the applicant submitted, there was no evidence that the respondent had lost trust and confidence in the applicant. Moreover, the unexplained failure of the respondent to call Mr Irvine who was the applicant’s direct report can and should result in the Commission drawing a Jones v Dunkel10 inference that Mr Irvine’s evidence would not have assisted the respondent in this matter: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union11 at [47].
Respondent’s closing submissions
[104] The respondent submitted that, contrary to the submissions for the applicant, the decision to dismiss the applicant was a decision that was sound, defensible and well founded. The applicant “failed in the simplest of his obligations he had as an employee which was to comply with the instructions of his managers with respect to the performance of his duties while being paid.” The respondent noted the three prior written warnings (two concerning the signing of an attendance sheet, and one concerning the release to attend Commission proceedings) and the circumstances surrounding the issuing of those warnings. The respondent submitted these incidents demonstrated the applicant’s “pattern of behaviour in disregarding his obligations to comply with management’s reasonable and lawful instruction which was an express term” of the enterprise agreement. The respondent noted that no formal steps eventuated in relation to disputing these warnings through Commission processes, and these warning letters remained on the applicant’s file. Given this, the respondent submitted it can only be fair to conclude that the applicant accepted the warning letters because the respondent did not withdraw or expunge these from his personnel file.
[105] As to the events of 2 December 2019, the respondent submitted the applicant (and the other employees) took unprotected industrial action notwithstanding attempted justification on the basis of an imminent risk to health and safety and noting also that, when the employees returned to work around 8.20am, nothing had in fact changed concerning the working conditions said in the applicant’s case to have involved an imminent risk.
[106] With respect to the applicant’s involvement, the applicant agreed that he was released from his driving duties on 2 December 2019 to attend a meeting at the union office only. The applicant had approval to hold a TWU/Safety Meeting the morning of 2 December 2019; he attended the meeting and led the meeting as an HSR and union delegate. After the employees refused to commence work, the applicant stayed at the Chullora site and continued to act as the employees’ representative and led the conversation between the employees and management. The applicant agreed that there were five instructions issued to the group to stop what the respondent considered to be unprotected industrial action. Further, the applicant confirmed that Mr Collins had advised the group to go back to work and what the consequences could be if they did not. The reasons relied upon by the employees, including the applicant, to trigger the events of 2 December 2019 did not justify the taking of industrial action. All the issues raised could have been dealt with by using the various dispute settlement avenues. Reference was made again to Petrunic, submitting that the circumstances go one step further than those in Petrunic in that the applicant was not on personal or annual leave, this was not outside of work hours and the applicant was present at the workplace. The applicant was on site at Chullora and he was being paid wages; he was at the workplace and therefore had an obligation to comply with the instructions of management. The applicant was authorised to hold a meeting until its conclusion at 5.15am and then leave the site to begin his delegate’s leave to attend his meeting with the union. However, the applicant chose not to commence his delegate’s leave and decided to stay on site and be an active “agitator” and participant in the unprotected industrial action, where he refused to comply with reasonable and lawful instructions of management on five separate occasions. The signing of warning letters by other employees, and the absence of disputation or escalation in the Commission about them, is indicative of acceptance that unprotected industrial action was involved.
[107] In relation to process, the respondent submitted the applicant at all times was shown procedural fairness with respect to his conduct on 2 December 2019, including through support by Mr Collins. Including by reference to the transcript, the respondent submitted that neither the applicant nor his representative asked for more time to consider the preliminary view of the respondent on 6 April 2020 when the matters being considered were put to him. The applicant put forward matters for the respondent to consider and it was only after this point that the final dismissal decision was made, being an approach consistent with the approach in Royal Melbourne Institute of Technology v Geoffrey Asher 12.
[108] The respondent drew attention to the previous warnings and the events on 2 December 2019. Citing Woolworths Limited t/as Safeway v Cameron Brown 13, the respondent submitted that given the history of not complying with reasonable and lawful instructions of management, the respondent had a valid reason to dismiss the applicant and the decision was not harsh, unjust or unreasonable. In the event that the Commission considers that the termination of the applicant’s employment was harsh, unjust or unreasonable, the respondent reiterated that reinstatement would not be an appropriate or a viable remedy on the basis of loss of confidence in the applicant’s readiness to follow management’s directions and conduct himself in accordance with policies and procedures - and the potential for reoccurrence. The respondent referred also to evidence matters of a medical nature related to the (contested) workers’ compensation claim.
[109] As to the applicant’s reliance on Australian Building and Construction Commissioner v Ingham 14, the respondent drew attention to what was said in the judgment by Rangiah J:
“[9] The basis of this argument is that it was raining on 17 and 18 and part of 19 October 2017 and, under the provisions of the Building and Construction General On-site Award 2010 (the Award) and the custom and practice at the site, the workers were entitled to not work during inclement weather.” (Italics in original)
[110] The respondent submitted the employees had a “statutory right” under the relevant award to not commence their duties or continue with their duties with respect to inclement weather. This is in “stark contrast” to what occurred on 2 December 2019, as the employees refused to commence work in an environment where they perceived there was an imminent risk to their health and safety and then returned to work at 8.20am to the same work environment that existed at 5.15am when they initially refused to commence duties. Here, “the employees did not have a statutory right in these circumstances to cease and not commence for work”. Moreover, there was no disputation before the Commission to withdraw the written warnings issued or pay the four hours’ wages which was deducted from the employees who participated in the unprotected industrial action.
[111] With respect to the applicant, he was not on leave arising from the National Employment Standards on 2 December 2019. The applicant attended the Chullora site prior to his leave commencing, to lead a meeting that was approved to take place in paid time. This meeting was approved to conclude at 5.15am at which point the applicant was authorised to leave the site and commence his delegate’s leave, but he did not leave the site at 5.15am. Rather, the applicant deliberately and wilfully chose to remain at his place of work. By these actions, the applicant was both physically and emotionally invested; he chose not to commence his delegate’s leave and encouraged and participated in the taking of unprotected industrial action. The applicant’s actions were not protected; he was not on leave; he was on site, being paid by the respondent and, as such, was obligated to comply with management’s reasonable and lawful instructions. Having regard to the matters outlined, the respondent submitted the application should be dismissed.
Consideration
[112] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account certain criteria specified in s.387 of the Act. Section 387 reads:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[113] Before turning to a consideration of those matters in s.387 of the Act, it is apposite to first make some comments. The dismissal of the applicant was said in the respondent’s case to be the result of a cumulative number of incidents. Most relevantly, these matters were the two immediately successive September 2018 warnings in relation to signing the record/s of attendance at a meeting; the September 2019 warning in relation to the period of time the applicant took off work in connection with attendance at Commission proceedings; and, most significantly, what unfolded on 2 December 2019 concerning the stoppage of work or the failure of certain employees to commence rostered work in the time period between about 5.15am and 8.20am, or thereabouts. What unfolded on 2 December 2019 was the salient matter that resulted in the eventual dismissal on 6 April 2020, with the warnings of September 2018 and 2019 forming part of the fabric in reasons for the decision-making. That is, the matters surrounding the warnings of September 2018 and 2019 were not considered by the respondent, around those relevant dates in 2018 and 2019, to be such as to proceed at that time to the disciplinary outcome of dismissal. Obviously, the applicant was not dismissed in September 2018 or September 2019; but he was dismissed in the wake of the stoppage on 2 December 2019. In the circumstances, it is relevant to examine matters concerning the events on 2 December 2019 - for it is the case that, but for what occurred in relation to that day and the respondent’s consideration of matters, the applicant’s employment would have (absent any other exigencies) continued indefinitely with the previous warnings lying dormant on the applicant’s personnel file.
[114] I am bound to note that much of the evidence in this case seemed to me really to involve the airing of the underlying issues of disagreement about matters concerning: (a) industrial rights and obligations as between the employees generally and the respondent; (b) workplace health and safety; and (c) whether the stoppage of work on 2 December 2019 constituted unprotected industrial action. Some matters in dispute have been the subject of dispute proceedings before the Commission (and, it appeared at the time of the hearing, were still the subject of proceedings before the Commission) and other matters were in dispute, but were not escalated to the point of formal lodgement of a dispute notification with the Commission. It is not the role of the Commission in relation to an unfair dismissal application under s.394 of the Act to determine the disputed question of whether the stoppage on 2 December 2019 constituted unprotected industrial action by various employees, who were not party to these proceedings. What is known is that the respondent contends it was, whereas the applicant contends it was not. For the reasons that follow, I find that even if the stoppage did involve unprotected industrial action by various employees on 2 December 2019 the applicant was not himself personally engaged in any such alleged unprotected industrial action for the reason he was on approved leave and had no relevant duties that day that he refused to perform.
Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
[115] Section 19 of the Act deals with the meaning of “industrial action” in the following terms:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) …
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) …”.
[116] I find, and this really is an uncomplicated conclusion derived from evidence that is common ground, that the applicant did not personally engage in industrial action of any of the kinds described in s.19(1)(a), (b) or (c) of the Act. It is immaterial to this unfair dismissal application whether the stoppage by certain other employees was unprotected industrial action or otherwise. The fact of the matter is that on 2 December 2019 the applicant had a day of respondent-approved leave and he was not rostered to perform any work at all. In consequence, it follows that the applicant could not, thereby, properly be considered to have failed or refused to perform work, return to work, or similar, in the manner contended for in the respondent’s evidence and submissions, and in the dismissal letter. The applicant attended the workplace given the meeting had been arranged by him in his representative roles as union delegate and HSR (and some other employees attended who were not rostered for work relevantly scheduled to commence at or after approximately 5.15am that day), but given the pre-approved leave and consequential absence of rostered work there could have been none of the alleged failures by him personally to comply with what were described as reasonable and lawful management instructions for him to perform work. This is so notwithstanding (a) the various references in the recount provided in Mr Turnbull’s evidence as to all employees, including the applicant, failing to comply with reasonable and lawful instructions to return to work; and similarly (b) the various references in the dismissal letter dated 6 April 2020 as to all employees, including the applicant, failing to comply with reasonable and lawful instructions to return to work.
[117] For completeness, I should add that the evidence indicated the applicant did not organise the stoppage. True it is that the applicant organised the meeting itself, but matters then took their own course, being a collective member-driven course rather than a course driven by the applicant. The evidence in such respects was uncontested, as Mr Turnbull, the only witness in the respondent’s case, was not present during the meeting when matters were being propositioned (by another employee or employees) and put to a vote, and the like. If anything, the evidence indicated the applicant was effectively trying to defuse the situation in acting as a go-between in relaying the members’ concerns to management. Moreover, it was the applicant’s role which brought the fractious circumstances of that particular morning to a conclusion involving an end to the stoppage - because it was the applicant’s discussions with Mr D’Apice, and the assurances the applicant then relayed to the members, which in fact appeared to have brought about the end of the stoppage involving certain employees.
[118] I find a valid reason for the dismissal related to the applicant’s conduct did not exist in relation to the events on 2 December 2019. Given the complete falling-away of the respondent’s reliance on the applicant’s conduct on 2 December 2019 (i.e. as addressed in the penultimate paragraph of the dismissal letter, being the alleged withdrawal of labour constituting unlawful industrial action by the applicant and repeated failure by the applicant to comply with management’s reasonable and lawful instructions to cease the taking of unprotected industrial action in breach of the provisions of clause 22 of the enterprise agreement) it is unnecessary to consider whether the circumstances concerning the earlier warnings of September 2018 and 2019 constituted a valid reason for dismissal. That is, the respondent cannot reasonably rely on these matters as stand-alone valid bases for the dismissal. As I noted earlier, the warning letters concerning these (historical) matters would have lain dormant on the applicant’s personnel file but for the circumstances that unfolded on 2 December 2019 and the respondent’s reliance on them in the dismissal that ensued.
[119] I find there was no valid reason for the dismissal of the applicant.
Whether the person was notified of that reason and Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[120] Having dealt with the criterion concerning valid reason, I turn now to the other criteria in s.387 of the Act. Before doing so, I note the applicant’s reference to Crozier v Palazzo Corporation Pty Ltd 15 which has been again affirmed in the recent decision of the Full Bench in Mark Bartlett v Ingleburn Bus Services Pty Ltd t/a Interline Bus Services16which conveniently describes the established operationof s.387(b) and s.387(c) of the Act (reference not reproduced):
“[19] The relevant principles as to the meaning and application of s 387(b) and (c) are well-established. They may be summarised as follows:
(1) Each of the matters specified in s 387, including those in paragraphs (b) and (c), must be taken into account as matters of significance, to the extent that they are relevant to the particular case at hand, and given due weight.
(2) Proper consideration of s 387(b) requires a finding to be made as to whether the applicant has been notified of “that reason” – that is, the reason for dismissal relating to the capacity or conduct of the applicant found to be valid under s 387(a) – prior to the decision to dismiss being made.
(3) Proper consideration of s 387(c) requires a finding to be made as to whether the applicant has been given a real opportunity to respond to the reason for dismissal. As a matter of logic, unless the applicant has been notified of the reason, it is difficult to envisage that it could be found that the applicant has been afforded an opportunity to respond to that reason.
(4) Once findings are made in relation to s 387(b) and (c), they may then be weighed together with the other matters required to be taken into account in order to form a conclusion as to whether the applicant’s dismissal was harsh, unjust or unreasonable. Where it is found that the applicant was not notified of the reasons for dismissal and/or was not given an opportunity to respond, a relevant consideration as to the weight to be assigned to this is whether this meant that the applicant was deprived of the possibility of a different outcome in terms of avoiding his or her dismissal.” (Italics in original)
[121] As to s.387(b) of the Act, I find the applicant was on effective notice about the reasons related to matters concerning 2 December 2019, but there was a denial of procedural fairness concerning notification of the reasons concerning the earlier September 2018 and 2019 warnings.
[122] As to s.387(c) of the Act, I find the applicant was given an opportunity to respond to reasons related to matters concerning 2 December 2019 (and did respond), but there was a denial of procedural fairness concerning an opportunity to respond to the reasons concerning the earlier September 2018 and 2019 warnings.
[123] Although the applicant was not notified of the reasons for dismissal and/or was not given an opportunity to respond in relation to the older warnings, I consider that notice and discussions around those matters would not have resulted in the possibility of a different outcome in terms of avoiding the dismissal – for the reason that the respondent appeared to have entrenched views about the events on 2 December 2019 and those views were the motivators for the dismissal rather than the older matters. I incline to the view that the outcome of dismissal was effectively preordained, regardless of matters that may have been raised by or on behalf of the applicant.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[124] There was no unreasonable refusal by the respondent to allow the applicant to have a support person present to assist with discussions relating to the dismissal. Mr Collins of the union was present for such discussions.
If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[125] This dismissal did not relate to unsatisfactory performance and so warning/s about unsatisfactory performance before the dismissal do not relevantly arise.
The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[126] The respondent is a sizeable employer with in-house human resource management specialists or expertise. It was common ground that matters around the s.387(f)-(g) were effectively neutral considerations.
Any other matters that the Commission considers relevant
[127] It seems to me that the matter of most significance in relation to other matters of relevance was the markedly differential treatment of the applicant in terms of his dismissal. The applicant’s evidence and submissions indicated, in sharp relief, that no disciplinary action was taken concerning certain employees (such as the Erskine Park employees); the Chullora employees who were rostered to work received written warnings; and the Chullora employees who were not rostered to work received no warnings. The applicant, alone among all his colleagues, was dismissed – and this was in circumstances where on 2 December 2019 he had pre-approved leave and was not rostered to perform any duties. I have considered the matters advanced in the respondent’s case concerning the more lenient approach to employees other than the applicant, but I am not persuaded by those matters in relation to the differential approach. I infer the applicant was not afforded the leniency of the type afforded to the other employees for reasons which, on the balance of probabilities and as the submissions for the applicant contended, were more likely attributable to the applicant’s role as a union delegate and/or HSR.
Conclusion
[128] I am satisfied the applicant has been unfairly dismissed as the dismissal was, as the applicant submitted, harsh; I am also satisfied that the dismissal was unjust and unreasonable. The decision to dismiss had elements both of substantive and procedural unfairness, and the differential treatment of the applicant was quite pronounced. I am also satisfied the applicant should have an unfair dismissal remedy. Reinstatement is the remedy that has been sought by the applicant and that is the primary remedy under the Act. I am satisfied that reinstatement is the appropriate remedy in all the circumstances of this case having regard to my consideration of all the matters advanced by the applicant together with an order to maintain continuity and, subject to the comments that follow, an order concerning lost pay. I am not persuaded (indeed there was a dearth of evidence thereto) that matters of loss of trust and confidence, or other matters relied upon by the respondent, would militate against ordering the primary legislative remedy.
[129] In view of the foregoing, the disposition of the application as to remedy is as follows.
Reinstatement
[130] The respondent shall reappoint the applicant to the position in which he was employed immediately before the dismissal (that is, at the same grade and at the same location the applicant formerly was based at Chullora) by no later than 21 days after the date of this decision.
[131] Given that, at the time of the hearing, steps were being taken in relation to a contested workers’ compensation claim involving past incapacity and the like, it seems to me that the following is appropriate. The order as to reappointment should take effect regardless of the status of the contested workers’ compensation claim. If it is the case that the applicant is now fit to resume ordinary, pre-dismissal duties, any issues concerning the return-to-work under the order self-resolve regardless of the outcome of any disputed workers’ compensation-related matters. If the matter of the contested workers’ compensation claim results in (however described) acceptance of the workers’ compensation claim and the applicant is unable to return to work within the time frame specified in the order, the physical return to work will then need to be dealt with in accordance with usual workers’ compensation processes involving, for instance, a return-to-work plan with the involvement of an accredited rehabilitation provider. The Commission’s order will require the reappointment; I wish to emphasise that any workers’ compensation-specific arrangements or exigencies will have their own processes, and the Commission will not be involved in any of them, or dispute about them, as that would be jurisdictionally-inapt.
Order to maintain continuity
[132] In connection with the reappointment, I consider it is appropriate that the reappointment should be effected with continuity of the applicant’s employment.
Order to restore lost pay
[133] In connection with the reappointment, I consider it is appropriate to make an order causing the respondent to pay to the applicant an amount of remuneration lost, or likely to have been lost, by the applicant because of the dismissal. That matter is complicated here because of the contested workers’ compensation claim. For instance, if it transpires that the applicant is found to have been unfit due to a workers’ compensation-related injury in the period following the dismissal, it cannot be contended that he would have been earning wages over the same period – and hence an order to restore lost pay could not relevantly arise for the particular period or periods in question. Moreover, there was no evidence before the Commission concerning:
(a) the amount of any remuneration earned by the applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the applicant during the period between the making of the order for reinstatement and the actual reinstatement.
[134] I direct the parties to confer on the matter of an order for lost wages and superannuation, more specifically in the context of the outcome of the contested workers’ compensation claim (being an outcome which was not known at the time of the hearing). The payment in lieu of notice will also need to be taken into account, together with any payments on termination of accrued but untaken leave. If the parties are unable to reach agreement on the amount in question concerning lost pay, the matter will be relisted in 2021 to give the parties the opportunity to be heard. I will then determine the discrete matter of the amount, if any, to restore lost pay.
[135] The parties are to confer on the settlement of draft minutes of an order to give effect to these conclusions, and lodge the draft order by no later than 5.00pm on Monday 21 December 2020.
COMMISSIONER
Appearances:
P Boncardo of counsel for the applicant.
B Byrne of Linfox Australia Pty Ltd.
Hearing details:
2020.
Sydney:
November 13, 20.
Final written submissions:
25 November 2020.
Printed by authority of the Commonwealth Government Printer
<PR725238>
1 Loata Petrunic v Q Catering Limited T/A Q Catering[2019] FWC 3981.
2 Australasian Meat Industry Employees Union v Australian Meat Holdings Pty Ltd [1999] FCA 696.
3 Rabbi Pinchas Ash v Chabad Institutions of Victoria Limited[2020] FWCFB 4448.
4 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“The North Queensland Stadium Case”) [2020] FCA 947; 297 IR 151.
5 Australian Building and Construction Commissioner v Ingham [2020] FCA 1632.
6 Chambers v Toll Transport Pty Ltd[2020] FWC 5819.
7 Stanley Sully v CBMG North Pty Ltd [2020] FWC 3509; 298 IR 1.
8 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137.
9 Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820.
10 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
11 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2010] FCA 784; 187 FCR 293.
12 Royal Melbourne Institute of Technology v Geoffrey Asher[2010] FWAFB 1200.
13 Woolworths Limited t/as Safeway v Cameron Brown (PR963023).
14 Australian Building and Construction Commissioner v Ingham [2020] FCA 1632.
15 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137.
16 Mark Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429.
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