Gary Jensen v Aircom Systems Pty Ltd

[2013] FWC 8538

[2013] FWC 8538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Jensen
v
Aircom Systems Pty Ltd
(U2013/5454)

DEPUTY PRESIDENT BOOTH SYDNEY, 11 NOVEMBER 2013

Termination of employment - alleged unfair dismissal.

[1] In this matter Mr Gary Jensen (the applicant) asks the Fair Work Commission (the Commission) to exercise its discretion under s.394 of the Fair Work Act2009 (the Act) to grant a remedy for unfair dismissal in relation to the termination of his employment from Aircom Systems Pty Ltd (Aircom) on 21 December 2012. The remedy sought in this matter is compensation. It is uncontroversial that the applicant is a person protected from unfair dismissal under s.382 of the Act.

[2] The application was lodged on 1 January 2013 and telephone conciliation was conducted on 5 February 2013. The matter was not resolved at conciliation and was listed for hearing for 8-10 May 2013, but these dates were later vacated at the request of Aircom. The matter came on before me on 5 June 2013 and again on 26 August 2013. Closing submissions were provided in writing for the applicant on 9 September 2013 and for Aircom on 2 October 2013, with the applicant’s submissions in reply provided on 17 October 2013.

[3] Mr Andrew Miller and Mr Bruce Miles of counsel were given permission to appear for the applicant and Aircom respectively.

[4] Submissions and witness statements were received pursuant to directions issued by the Commission and an Order Requiring Production of Documents was issued on the application of the applicant in relation to communications between Aircom and the South Eastern Sydney Local Health Network (SESLHN) and the Prince of Wales Hospital (Prince of Wales).

[5] Evidence was given by the applicant on his own behalf and by Mr Brett Gilbert, Manager/CEO, Aircom; Mr Robert Hill, Service Technician, Aircom and Ms Susan Constantin, Payroll and Administrative Officer, Aircom.

Background

[6] Aircom is a supplier of pneumatic tube systems to transport capsules containing items or substances from place to place through the ceiling cavities of premises such as hospitals. Aircom manufacture, install and maintain these systems under an exclusive licence in Australia. At the time of the dismissal Aircom had 30 staff comprising employees and contractors.

[7] The applicant is 40 years old. He left school in Year 9 and did not complete any post-school training. He worked for a bread manufacturer immediately after leaving school and then came to work for Aircom in around 1998 or 1999. During the period 1998-9 to 2012 his employment with Aircom was interrupted on two occasions. On the first, he left Aircom to work on his own account for around 2 years and then returned to Aircom. On the second, in or around 2010, he was retrenched due to lack of work and worked for around 18 months for a plant and equipment hiring company before returning to Aircom at the invitation of Mr Mark Sanderson. This third and most recent period of employment commenced on 21 February 2011.

[8] His role with Aircom was as a Service Technician who attended the premises of clients of Aircom when capsules became lodged in the pneumatic tube systems. His job was to dislodge the capsules often stuck at the point where diverters are situated or in bends in the plastic tubes. These containers in hospitals might contain hazardous substances such as blood or other pathology samples.

[9] His supervisors were Mr Sanderson, Operations Manager and Mr Paul Bott, now a consultant to Aircom.

[10] He did not receive any structured training for his role but learnt on the job from his co-workers.

[11] On 18 May 2011 he attended a general induction session for the SESLHN at Sydney Eye Hospital. Prince of Wales is one of the hospitals situated within the geographic boundary of the SESLHN. On this occasion he saw the Contractor Safety Handbook and signed “for and on behalf of the company” in the section of the SESLHN Contractor Induction Training Form that he had “received, read, understood and will implement the Contractor Safety Handbook.” The balance of the section in which he signed read as follows:

“All your employees and any other persons contracted by you, either directly or indirectly, are properly trained in all aspects of the work they are expected to carry out and have completed the SESLHN general induction

You will comply with all statutory requirements for health, safety, welfare and fire

You will co-operate with local management in maintaining a high standard of safety and hygiene to (sic)” 1

[12] It is apparent that the purpose of this handbook was to provide a framework for managers in the SESLHN and for the contract service providers to the SESLHN to follow.

[13] On 31 October 2011 the applicant sustained a lumbar spinal injury in the course of his employment. From November 2011 his suitable duties were performed in the factory.

[14] On 12 March 2012 he underwent a L5/S1 microdisectomy at Westmead Private Hospital. He returned to work on or about 25 May 2012.

[15] On 5 December 2012 the applicant travelled to Brisbane to carry out work at the Queensland Children’s Hospital. His flight to Brisbane was delayed and he missed his induction session and did not work on 5 December 2012. He was ill on 6 December 2012 and did not work on that day either. He returned to Sydney on 7 December 2012 after speaking on the phone to Ms Constantin to arrange his flight.

[16] On 17 December 2012 the applicant was directed to attend Prince of Wales by his supervisor, Mr Sanderson, to undertake a routine service call to locate and retrieve a capsule lodged in the pneumatic tube systems. It transpired that it was lodged in a section of the pneumatic tube system above the Children’s Cancer Intensive Care Unit (CICU). He attended the Prince of Wales and, in particular, the CICU to undertake the task of locating and dislodging the capsule. He was assisted part way through this process by his colleague, Mr Hill.

[17] On or around 19 December 2012 Mr Gilbert received an email from Ms Heather Sharman, Director of Pathology for Prince of Wales in relation to the applicant’s attendance at Prince of Wales on 17 December. In response he advised her that he would meet with her on 21 December. This meeting was scheduled for 11am on that day.

[18] Mr Gilbert sent a text message to the applicant asking him to meet with him at 2pm on 21 December 2012. He did not indicate a reason for the meeting.

[19] On 20 December 2012 Mr Gilbert arrived in Sydney from Perth where he had been working.

[20] On 21 December 2012 while driving to the meeting at Prince of Wales Mr Gilbert spoke to the applicant by phone and they discussed the incident on 17 December.

[21] Mr Gilbert attended the meeting at Prince of Wales and returned to Aircom to meet with the applicant at 2pm.

[22] The meeting between Mr Gilbert and the applicant was attended by Ms Constantin. Later that evening, after she had returned home, Ms Constantin made notes on what she recalled had transpired at the meeting. The items noted were as follows:

1. Phone conversation with Ms Constantin relating to travel from Brisbane following visit 5-7 December 2012
2. Alleged racial verbal abuse at the Wollongong Hospital directed towards Nguyen Tho
3. Altercation with Rob Hill in the factory

4. Complaint from Prince of Wales about the applicant’s attendance on 17 December 2012.

[23] The applicant was dismissed at this meeting.

Contentions

[24] The applicant contends that he has been unfairly dismissed when he was dismissed in the meeting on 21 December 2012 on the grounds of misconduct. He contends that he was not accorded procedural fairness such as the opportunity to prepare a response to non-specific allegations or have a support person present.

[25] Aircom contends that he was guilty of the conduct ascribed to him and he was dismissed because of the way in which he responded to the allegations in the meeting. Aircom submits that the applicant’s response destroyed the relationship of trust and confidence between the applicant and Aircom and meant that dismissal was the “only outcome.” 2

Statutory framework

[26] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 Unfair Dismissal of the Act. In this matter there is no contest that the applicant is a person who is protected from unfair dismissal pursuant to s.382 of the Act and I must apply ss.385 - 387 of the Act, which read as follows:

385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.

[27] I must apply my mind as to whether the applicant was unfairly dismissed. There is no dispute that he was dismissed so s.385(a) of the Act is satisfied. Aircom is not a small employer and, therefore, s.385(c) is not relevant. There is no contention that this is a case of genuine redundancy so s.385(d) does not apply. Therefore, in determining whether the applicant was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable.

[28] If I find that the applicant was unfairly dismissed I then must apply the provisions of Division 4 of the Act in order to determine the appropriate remedy as between reinstatement or the payment of compensation.

[29] Guidance as to the meaning of the expression “harsh, unjust and unreasonable” can be found in the Federal Court of Australia decision of Sheppard and Heery JJ in Bostik (Australia) Pty Ltd v Dimitrja Gorgevsi 3where their Honours at paragraph 37 said, in relation to the words “harsh, unjust or unreasonable” appearing in Clause 9 of the Manufacturing Grocers Award 1985:

“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.”

[30] The words “harsh, unjust or unreasonable” are not intended to be a composite, rather each word stands alone. In the High Court of Australia in Byrne (and Frew) v Australian Airlines Pty Ltd, McHugh and Gummow JJ 4 said at page 465:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

Valid reason

[31] In considering whether a dismissal was harsh, unjust or unreasonable, pursuant to s.387(a) of the Act I must take into account whether there was a valid reason for the dismissal related to the person’s capacity or conduct.

[32] Guidance as to the meaning of the term “valid reason” is provided by Selvachandran v Petron Plastics Pty Ltd 5. In that decision of the Industrial Relations Court of Australia Northrop J said:

“In its context in subsection 170DE(1), the adjective ‘valid’ should be given the meaning sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirements applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and the employee are treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, unreported, when considering the construction and application of section 170DC.”

[33] Section 170DE(1) of the Industrial Relations Act 1988 was in broadly similar terms to the corresponding provisions of the current Act.

[34] Aircom submits that there was a valid reason for the dismissal based on the applicant’s conduct in the meeting with Mr Gilbert on 21 December 2012. Aircom submits that in falsely accusing it of fraud the applicant destroyed the relationship of trust and confidence between the employer and employee.

[35] The applicant questions this reason being the basis of the dismissal because the reasons given for dismissal before the hearing of the matter all relate to the applicant’s conduct in conversations with two co-workers and his conduct at Prince of Wales on 17 December 2012. The applicant cites the reasons given in the meeting of 21 December 2012, in the Employment Separation Certificate, in paragraphs 2-3 of Aircom’s Form F3 response to the application and in Aircom’s Opening Submissions at paragraph 12 in support of this proposition. There is no doubt that these documents contain reasons other than the conduct of the applicant in the meeting of 21 December 2012. However, I observe that the Act requires an examination of whether there was a valid reason for dismissal, not whether the reasons given to the employee for the dismissal were valid.

[36] In Aperio Group (Australia) Pty Ltd T/A Aperio Finewrap v Sulemanovski a Full Bench of Fair Work Australia (FWA) (FWA was renamed the Fair Work Commission from 1 January 2013) said at paragraph 21: 6

“It is apparent that in applying s.387(a) of the Act, Commissioner Ryan limited his consideration to whether the reason that Mr Sulemanovski refused to sign the undertaking was a valid reason for the termination of the employment. The Commissioner was obliged to consider more broadly whether there was a valid reason for the dismissal related to Mr Sulemanovski’s capacity or conduct, as required by s.387(a) of the Act. In restricting his consideration to whether the refusal to sign the undertaking was a valid reason for the termination the Commissioner erred, acting upon a wrong principle and misapplying the statutory requirements.”

[37] This decision is consistent with the decision of the Full Bench of the Australian Industrial Relations Commission (AIRC) as it then was, in MM Cables (A Division of Metal Manufacturers) v Victor Zammit 7 where they say at paragraph 42:

“We think that there are two difficulties in the approach adopted by the Commissioner to the question of whether there was a valid reason for Mr Zammit's termination of employment. First, the Commissioner seems to have confined himself to determining whether the reason given for Mr Zammit's termination was a valid reason. The question in s.170CG(3)(a) is not so limited. Rather the Commission is obliged to consider whether there was a valid reason for the termination - that inquiry is not limited to the reason given by the employer for the termination.”

[38] Furthermore, I note that at the outset of the hearing on 5 June 2013 Mr Miles said:

“More fundamentally, however, is that he told his employer at the time, in December of last year, not only that he did not attend this induction but that the card obtained as a result of that attendance was obtained by the company as a result of fraud. This allegation was maintained in his evidence in April. We say that of itself is a valid reason for the dismissal. It completely destroys the relationship of trust and confidence between the employer and the employee at the time that statement was made. There was no alternative at that point, having destroyed the nature of trust and confidence by not merely saying, ‘I don’t recall,’ but by accusing the company of fraud, because the evidence of Mr Gilbert is not that he was dismissed because of the incidents involved but that he changed his mind as a result of the response of the applicant to those incidents. We say that the response of the applicant in that meeting was what destroyed the relationship of trust and confidence and meant that dismissal was the only outcome.” 8

[39] Further, in Closing Submissions Aircom says:

“....2. It would be unusual for an employee to be dismissed for a breach of policy and procedures where the employee had not been previously warned and given the opportunity to correct that behaviour. Even a conscious breach of a safety procedure does not automatically call for dismissal.

3. But that is not what the Respondent asserts is the valid reason for the dismissal. The Respondent’s case is and remains that it was the Applicant’s conduct in the meeting on 21 December 2012 that resulted in his dismissal.” 9

[40] I think that I must consider all the relevant circumstances surrounding the dismissal as they are disclosed in the case in order to form a view as to whether there was a valid reason for the dismissal of the applicant. Where there is a different version of significant events my task is to draw conclusions, on the balance of probabilities, about which account is more likely than not to be the accurate account. That is, I must determine whether the conduct occurred. 10 I then must consider whether the conduct, not confined to the reasons given by the employer, constituted a valid reason for dismissal.

Conduct in conversation with Ms Constantin on the phone in relation to transport from Brisbane on 7 December 2012

[41] The applicant contacted Ms Constantin on a number of occasions to urge her to make arrangements for him to travel home from Brisbane.

[42] Ms Constantin gave evidence as follows:

“When he was in Brisbane and wanted to come back home he rang on a number of occasions before we could make the necessary arrangements, and kept saying to get him ‘fucking out of there’ and - you know, and he needed to get back home and then roughly five to 10 minutes later there’d be another phone call, what was happening and again, sort of ---

And how did you perceive that? ---I sort of said, ‘Well if you give us a chance to check - to organise things we can then give you a call back and let you know’. But before you had any chances the phone calls just kept coming to - saying, ‘Get me out of here’ and basically, ‘Hurry up and get it organised’.

How did you perceive the use of the language that he was using? - I mean, I don’t like that language but once it’s said, it’s said. You sort of can say, ‘Okay calm down and I can help you’ or quite often you try to let it override but sometimes it gets a bit beyond the point of overriding, I think.” 11

[43] I accept Ms Constantin’s evidence. The applicant did not give evidence about this occasion. Whilst the swear word used and the applicant’s aggressive manner were not appreciated by Ms Constantin it appeared to me from her evidence that she took it in her stride. It is not how co-workers should converse with one another and was consistent with a characterisation of the applicant as a combative person. It is the kind of behaviour that ought to be addressed in a counselling conversation designed to cause the perpetrator to consider the impact of his behaviour on other people. There was no evidence of any informal or formal warning about the applicant’s language and I conclude that in the context of this work environment, it is not the kind of behaviour that would provide a valid reason for dismissal.

Conduct in conversation with Mr Tho Nguyen on 18 December 2012

[44] In the meeting Mr Gilbert gave the applicant a formal warning based on racial verbal abuse towards Mr Nguyen by the applicant. The applicant was not on notice that this would be raised and no particulars were given.

[45] The applicant denied any conversation that could be construed as racially offensive and indicated that he and Mr Nguyen worked together on 19 December 2012 and Mr Nguyen did not raise anything with him. MrNguyen was not called to give evidence and no particulars about the words used were given in evidence. Therefore, I cannot draw any conclusions about the nature of this conduct nor whether it occurred and so I cannot conclude that it constituted a valid reason for dismissal.

Conduct in conversation with Mr Hill on 19 December 2012

[46] In the meeting Mr Gilbert gave the applicant a formal warning based on a formal complaint by Mr Hill concerning his conduct. The applicant was not on notice that this would be raised and no particulars were given. The evidence reveals that on 19 December 2012 the applicant and Mr Hill spoke forcefully to each other in the factory. It was Mr Hill’s evidence that he complained to Mr Sanderson about the applicant’s conduct towards him, however, there was no written complaint. Mr Hill says the applicant spoke to him as follows:

“On the 19th December I walked into the factory and was immediately approached by Gary. He said, ‘Rob you are going to Wollongong Hospital today’. I replied, ‘OK I will speak to Paul about it’. (My Service Manager) He then said, ‘Well I’m telling you, you are going to Wollongong this morning’. His tone was very aggressive and he seemed agitated. I walked away from him. 5 minutes later he approached me again and said, ‘You will need to take a diverter card, some.....’ I stopped his conversation and asked, ‘What is actually wrong at Wollongong.’ Gary leant forward, put his face a few centimetres from mine and started swearing and shouting in my face. ‘IT’S THE FUCKING DIVERTER CARD THAT NEEDS REPLACING!!!’ I told him not to speak to me in that tone and walked away.” 12

[47] The applicant gives a slightly different account in his statement as follows:

“On Tuesday, 18 December 2012 I had been installing an upgrade to the system in Wollongong Hospital in conjunction with Toe. We did not finish the upgrade so it required another Aircom employee to return on the Wednesday. At the briefing meeting on the Wednesday morning, I was talking to Robert, who is another Service Technician, as he was travelling to Wollongong to finalise the upgrade. There appeared to be a misunderstanding between the two of us as to what Robert was required to do. Looking back on it, I think we were talking at cross purposes. We both raised our voices, perhaps more out of frustration, from my point of view because there was a misunderstanding Robert was of the view we were remedying or upgrading a previous installation of his when that was not the case.” 13

[48] On either account the exchange could reasonably be described as combative and I accept that the applicant was probably the more forceful in the exchange. The applicant’s demeanour as a witness was such that I conclude that he is a person who does not take a step back. If flight or fight are the alternative human responses to stress, I expect that the applicant will usually fight. However, in the context of this work environment, it is not the kind of behaviour that would provide a valid reason for dismissal.

Conduct on 17 December 2012 at Prince of Wales

[49] Whilst there are conflicting versions of some of the details of the applicant’s conduct on 17 December 2012 at Prince of Wales the substance is agreed. The applicant was directed to attend Prince of Wales by his supervisor, Mr Sanderson. He signed in, 14 he then went to the pathology section of Prince of Wales, called SEALS, to find out what the problem was and then went to the location that he judged the blockage to be. He knew this was a children’s Intensive Care Unit and discovered that it was for cancer patients while he was working. His evidence is that he spoke to a nurse before commencing work but did not ask her permission to erect a ladder.

[50] Aircom refutes the evidence that he spoke to a nurse before commencing work. It says that it was first put by the applicant in the Commission having never been stated to Aircom or written in his witness statement, despite its significance in relation to the allegation that he did not conduct himself with common courtesy in Prince of Wales on that occasion. The contents of the email sent by Prince of Wales to Aircom also assert that he failed to speak to a nurse before starting work. Aircom says that it is reasonable to draw the inference that he did not speak to a nurse upon entering the CICU. However, his evidence was resolute and there is no other evidence to contradict his assertion. I do not think it is open for me to draw the inferences suggested by Aircom on the strength of an email in the absence of evidence from others present on the occasion. I do, however, conclude that it was a cursory and probably inadequate greeting and may not have even been registered by the nurse.

[51] The ladder was erected in the vicinity of beds occupied by patients. After he commenced work, he was four tiles in, a Nurse Unit Manager (NUM) approached him and asked him to stop. In an email from the NUM to Prince of Wales’s Work, Health, Safety and Injury Management Unit the NUM indicated that the applicant required some persuading to stop work. Mr Gilbert put to the applicant in their meeting on 21 December 2012 that the applicant argued with the NUM. In the absence of any evidence from the others present on the occasion I cannot draw the conclusion that requiring persuasion is the same as arguing. I conclude that the applicant was attending to his task in a single-minded manner, however, the evidence is clear that he did stop work and wait for the NUM to give him the all clear to proceed. After the NUM had made some phone calls to others in Prince of Wales, bed sheets were used to tuck into the ceiling tiles to catch any falling material.

[52] The NUM described the events in an email to Prince of Wales’s Work, Health, Safety and Injury Management Unit’s Tracey Clay, Manager of Pathology, on 18 December 2012 as follows:

“Hi Tracey,

As per our conversation, here is a brief summary of the incident which occurred in CICU yesterday, 17th December.

Dolly Dickinson, CICU ward clerk alerted me that a gentleman had appeared on the ward and had accessed the ceiling and removed one of the tiles opposite bed space 18.

He did not present himself to anyone, nor did he ask permission.

There were 3 patients in close proximity, located in bays 18, 17 and 16.

I approached this gentleman and asked him to stop what he was doing as he was not using any screening or enclosed himself in any plastic.

Initially he was reluctant to stop, but after some persuading he did. He informed me that there was an issue with the “Scud” system which had been down since 08:30 and that the work he was undertaking was urgent.

I then spoke to various members of staff seeking advice.

• Terri Cripps, CNC infection control, agreed that protection should be used.



• Tim Scott, who advised me that nothing to do with maintenance as the company “Air-con” were sub-contractors for SEALS and he advised me to ring Heather Storeman, SEALS manager.



• Heather Storeman was unavailable, I left a voice message.



• David Loy, advised me to speak to Roger Wilson, Executive Director of SEALS



• Roger Wilson, was unavailable, I left a voice message.



• Sue Atkinson, Manager in SEALS, who was unavailable, I left a voice message



• Frank Manilla (maintenance) who also said it was nothing to do with maintenance and he was unable to help me.



• Terri Cripps (again) who agreed that the contractor could use sheets to offer some protection.




After talking to the contractor who I think was called Gary, we moved the patients who were in close proximity to another area within CICU.

Sue Atkinson, returned my call and apologised that the contractor had not introduced himself or used appropriate protection, she advised me that all staff are required to use protection and that this is provided by maintenance.

I informed her that maintenance were extremely unhelpful and advised me that it was SEALs responsibility.

The contractor proceeded to go into the roof with sheets for protection, and retrieved the missing scud and blood samples. Fortunately, none of the samples had leaked, and it was only after he had left that I realised the samples belonged to a patient who was receiving chemotherapy and therefore the blood samples are considered cytotoxic.

The contractor wore no PPE.

If you require any further information, please do not hesitate to contact me.

Kind regards

Diane Martin

Acting Nurse Manager CICU

Sydney Children’s Hospital” 15

[53] It is apparent from this email that even if the applicant had asked maintenance for protective sheeting they would not have provided it.

[54] Sometime after 3pm in the afternoon, Mr Hill arrived to assist the applicant. Initially Mr Hill said in his witness statement and evidence that this occurred in September 2012, however, once time sheets were accessed he conceded he worked with the applicant on December 17 and this was the only occasion he had done so at Prince of Wales. Initially he said in his witness statement and evidence that the materials used as protective sheeting were towels not sheets, however, the email from Prince of Wales referred to sheets not towels and Mr Hill conceded in answering my questions that they could have been sheets. He was however adamant that they were not 30–40 cm from the ground as the applicant contended. His evidence was that he knew the right thing to do but because the applicant was senior to him her deferred to him.

[55] Much turns on whether the applicant wilfully ignored the standard operating procedure for Prince of Wales.

[56] Mr Gilbert contended that the applicant had been trained in and was aware of the standard operating procedure for Prince of Wales. Mr Hill could recite a version of an operating procedure that accorded with Mr Gilbert’s version but his evidence was clear that it was not written down. Mr Gilbert said the training the applicant received on 18 May 2012 was the relevant training and the standard operating procedures were contained in safe work method statements that were signed off periodically. However, the training that the applicant attended on 18 May 2012 was generic training for the SESLHN not Prince of Wales itself and the SESLHN Contractor Safety Handbook that was signed as having been received was designed for employers not employees. The safe work method statements contained therein were blank samples to be completed. The applicant gave evidence that he was not provided with a SESLHN Contractor Safety Handbook to retain and I accept that evidence. The booklet would have been of no utility in a circumstance such as the one the applicant was in on 17 December 2012 as it was generic, not specific to Prince of Wales and contained no specific procedures to be followed. No safe work method statements were provided in evidence, in spite of Mr Gilbert’s evidence that they existed. No evidence was given in relation to any training other than the induction session on 18 May 2012.

[57] There was no evidence given that either Aircom or Prince of Wales had implemented the requirements of the framework outlined in the handbook. According to the handbook, Prince of Wales is responsible, among other things, for the delivering of local site orientation and monitoring contractors risk controls. There was no evidence that the applicant had attended such an orientation.

[58] Section 5.1 of the handbook says:

“5.1 General

1. Principal Contractor management must provide relevant OHS details as per Point 4 above to facilitate assessment for placement on approved contractor date base.

2. Contractors are required to attend SESIH generic induction training.

3. Contractors must attend localised orientation in which SESIH managers controlling local environments provide site specific training.

4. Principal contractor management must ensure contractor employees and sub contractors are aware of specific site requirements and act within the established systems and procedures developed by SESIH and principal contractor management.

5. The Principal contractor will ensure it maintains current workers compensation and general liability insurance. The principal contractor will ensure sub contractors also maintain current insurance.

6. Contractors will be required to provide details to be used for a Criminal Record Check.” 16

[59] Section 5.2 of the handbook says:

“5.2 Risk assessment and hazard management

1. Contractors must undertake a risk assessment of the work to be undertaken and supply documented evidence of such risk assessments. The risk assessments must identify hazards to SESIH staff, patients, clients, general public and contractor staff.

2. Contractors must ensure hazard control measures are regularly monitored and reviewed. Contractors must be able to provide documented evidence of risk monitoring (i.e. site checklists, toolbox meeting minutes, etc) at appropriate forums and as requested by SESIH managers.” 17

[60] Section 5.3 of the handbook says:

“5.3 Work method statements

1. Where a Risk Assessment has identified any hazards, the measures that will be taken to eliminate the risks or, if not reasonably practical to eliminate, to control the risks, must be specified on Safe Work Method Statements

2. Contractors must complete a Work Method Statement for all works conducted on SESIH sites.

3. A Work Method Statement is a document which describes the job to be completed, outlines the steps involved, the hazards associated with the work and the controls to be implemented to ensure that the work is completed safely. Work Method Statements are completed by the contractor is expected to be experienced in the work and the hazards associated with it.

4. If the work to be completed is routine work, one Safe Work Method Statement is sufficient for all occasions where the work is conducted as long as the conditions do not change and all relevant staff are trained in the practice and understand the controls to be implemented. Generic work method statements can be used at a number of sites as long as the task and conditions do not change.” 18

[61] Section 5.5 of the handbook says:

“5.5 Training

1. Principal contractors must ensure their staff and sub contractors have appropriate training for the works being undertaken. Information relating to contractors training must be recorded on Safe Work Method Statements.

2. If construction or building maintenance is being undertaken all contractors must hold a certificate in OHS General Construction Induction Training as per NSW WorkCover requirements.” 19

[62] Aircom may well have completed all these requirements but it chose not to lead evidence about this.

[63] The NUM’s email disclosed confusion as to accountability within Prince of Wales for the provision of protective sheeting and this was confirmed by Mr Gilbert in his evidence when he said that he had agreed with Prince of Wales that in future Aircom would provide the protective sheeting. The only procedure that seemed clear was the requirement to sign in at maintenance, which the applicant did and sign out, which he failed to do.

[64] The applicant had around 11 years of experience performing the tasks of the kind he performed on 17 December 2012. I conclude that he was narrowly focussed on the task at hand and displayed a lack of sensitivity to his surroundings. However, I am also satisfied that the applicant adopted the approach he always used. It appears to me from the evidence that he knew no better.

[65] Under cross examination Mr Gilbert introduced new evidence about a past occasion at a hospital where the applicant had been criticised for his work method, however, this evidence was quite unconvincing and I am satisfied that the applicant had never been warned about using an inappropriate work method at a hospital.

[66] I conclude that the applicant did not wilfully ignore standard operating procedures. The appropriate reaction to the complaint from Prince of Wales was to undertake a thorough step by step investigation, to identify gaps with the agreed preferred approach, to document this in a safe work method statement and standard operating procedures for attendance at this hospital, train all service technicians in this approach and audit compliance on a regular basis. This did not occur in this case. The applicant should have been warned rather than dismissed for his conduct on 17 December 2012. In these circumstances I conclude that his conduct was not such as to provide a valid reason for dismissal.

Conduct in the meeting with Mr Gilbert

[67] The sequence of events in the conduct of the meeting on 21 December 2012 is significant. Both Mr Gilbert and Ms Constantin provide a similar, although not identical, sequence. This is largely endorsed by the applicant. In any event all agree that the incident at Prince of Wales on 17 December 2012 was raised after the other three matters. Both Mr Gilbert and the applicant’s evidence point to the fact that once the incident at Prince of Wales had been raised, the conversation shifted to the induction session and the induction card. It is at this moment that the demeanour of the applicant turned from passive to aggressive defensive. Mr Gilbert told the applicant, in effect, that the applicant should have known the standard operating procedure because he attended an induction and had an induction card. The applicant became angry. He denied attending an induction and denied having an induction card. He then accused the company of fraud.

[68] It is significant that both Mr Gilbert and the applicant make clear in their evidence that the applicant had been told he was dismissed before the applicant made his heated and inappropriate comments. The applicant had in fact attended a generic induction at the Sydney Eye Hospital and he conceded this during the case and apologised for his mistake. I note it was not an induction to Prince of Wales in particular, nor did it cover standard operating procedures for this hospital. The applicant had never received an induction card before 21 December 2012, as the first time Ms Constantin had received the cards for distribution to the workforce was that occasion. It was intemperate of the applicant to accuse the company of fraud. However, taking into account the context, the surprise accusations that had been put to him about Mr Hill and Mr Nguyen, his dismissal and the fact that he had never received an induction card, the worst of his behaviour can be explained. A warning was warranted, however, I conclude that in the circumstances this conduct did not provide a valid reason for dismissal.

Taking into account the five circumstances above and the surrounding circumstances I cannot conclude that there was a valid reason for dismissal.

Procedural fairness

[69] I will now consider whether the applicant was afforded procedural fairness in the way Aircom carried out the termination of employment and, in so doing, address the matters contained in s.387(b)-(g).

[70] Whilst it could not be said that the applicant was completely ambushed in the way in which he was dismissed, he was certainly not treated fairly. He was summonsed to a meeting by text with no indication of the reason. He was obliged to make a call himself to ascertain the reason. Only then was he asked to explain the circumstances surrounding the situation that was the ostensible purpose of the meeting. The meeting he was required to attend was at short notice and did not provide him with the opportunity to arrange a support person to attend. He was not on notice that the meeting was disciplinary in nature and indeed, Mr Gilbert’s evidence was that it was not intended as such. Mr Gilbert’s evidence was that “[t]ermination at that point wasn’t even on my mind”. 20

[71] During the meeting allegations were put to him about his conduct in relation to Mr Nguyen and Mr Hill and he was not on notice that these matters were to be raised.

[72] Aircom’s Form F3 response to the application said that three warning letters were presented to the applicant, however, there was no evidence of warning letters provided physically. Rather the warnings were given verbally, in sequence, first for Mr Hill, second for Mr Nguyen and a third and final warning for the Prince of Wales incident, resulting in dismissal. This formulaic pattern of warnings considered along with the email from an officer of Prince of Wales dated 20 December 2012 at 9.48am stating that “ the staff member from this company has since been terminated from employment” casts doubt on Mr Gilbert’s claim that he had not considered termination of the applicant prior to the meeting.

[73] The applicant was advised of the reason for his termination, however, the nature of the notice and the conduct of the meeting meant that he was not given a reasonable opportunity to respond to the reasons given. While strictly speaking he was not refused the presence of a support person the nature of the notice meant he had no reasonable opportunity to obtain one. Consequently, I consider that this constituted an “unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal” in the terms of s.387 (d) of the Act.

[74] The reason why procedural fairness in employment termination is important is not just to give the parties the best chance of establishing the truth upon which to base decisions but to avoid spectacular escalation in conflict as occurred in this case.

[75] Giving people time to consider allegations made against them so they can bring any information to the fore that is not known to the person making the allegations is a good reason for employees being provided with detailed allegations before any meeting takes place.

[76] Ensuring that the employee who is alleged to have committed wrong doing has a support person with them means there is a person who is usually more objective and detached. Such a person can be a buffer between the person being dismissed and the person carrying out the dismissal such that conflict does not get out of hand.

[77] The applicant had never been formally warned about his conduct or performance before the dismissal and I consider this weighs strongly in favour of his dismissal being considered unfair. In his evidence Mr Gilbert said he had spoken to the applicant about documentation, however, the applicant’s evidence was that he had never been warned and the documents being referred to – safe work method statements - were never produced.

[78] Aircom has 30 employees. It is not a large business. It does not have dedicated human resource management capability. Mr Gilbert is responsible for recruitment and termination. However, I do not consider that the size of the enterprise or the absence of dedicated human resource management specialists or expertise in the enterprise mitigates Mr Gilbert’s responsibility as an employer to provide basic procedural fairness to an employee before dismissing them.

Any other matters that the Commission considers relevant

[79] Section 387(h) of the Act provides that I consider any other matters that I consider relevant.

[80] I consider that the applicant’s years of accumulated service with Aircom and that he returned to Aircom at the invitation of the supervisor to be relevant. The applicant’s limited education and his narrow practical skills base meant that Aircom was the best opportunity he had to lead a fulfilling working life. That opportunity has been lost. The impact on him of his dismissal is harsh as a consequence. This alone would not result in a finding that his dismissal was unfair, as all employees who lose their jobs suffer to a greater or lesser extent. However, it does weigh in favour of my overall conclusion.

Conclusion

[81] I have concluded that there was no valid reason for the dismissal of the applicant. Taking this and the procedural flaws of the dismissal into account I conclude that his dismissal was harsh, unjust and unreasonable and thus unfair.

Remedy

[82] The parties are agreed that reinstatement is not the appropriate remedy in this case. I agree with that assessment. It is clear that Aircom has lost trust and confidence in the applicant and this is frequently cited in decisions of the Commission as the reason for not awarding reinstatement. 21

[83] However, I have concluded that the applicant was unfairly dismissed and I believe compensation is appropriate.

[84] Section 392 of the Act sets out the matters I must consider in determining the amount of compensation. It reads as follows:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. Disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $64,650 from 1 July 2013

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[85] I will address the amount of compensation by considering the matters I am required to take into account in the order they appear in s.392(2) of the Act as follows:

(a) the effect of the order on the viability of the employer’s enterprise

[86] There is no evidence to suggest that Aircom is not in a position to sustain the compensation awarded. Aircom is a going concern with current contracts to supply, install and maintain pneumatic tube transport systems and I do not consider that the viability of the enterprise will be compromised by the decision I have made.

(b) the length of the person’s service with the employer

[87] Although the applicant’s most recent employment with Aircom comprised approximately 22 months he was employed on three occasions and his cumulative service is approximately 11 years. His most recent employment with Aircom came about because he was invited to apply for a position when Aircom required an experienced employee and I consider this factor weighs in favour of the decision I have made.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[88] Aircom asserts that in the light of his conduct before and after his dismissal the Commission ought to conclude that the applicant would not have remained in employment for more than a matter of weeks. I have concluded that the conduct complained of is conduct either not established on the balance of probabilities or is mitigated by the circumstances and would have appropriately resulted in counselling and a warning. I estimate that if the applicant had not been dismissed on 21 December 2012 he would have been employed for a further 6 months. He is a combative person and his relationship with Mr Gilbert was strained. Had he been warned and not dismissed I conclude that his time at Aircom would have been limited. But I do not agree that it would have been a matter of weeks. At the time of his dismissal his gross pay was $1,297 per week.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[89] The applicant sought to mitigate his losses from losing his job at Aircom. He was unemployed from 21 December 2012 to 17 February 2013. He commenced a new job on 18 February 2013.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[90] The applicant’s gross pay in his new job is $800 per week. There is no evidence of any other remuneration earned during the period between his dismissal and this decision.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[91] In the absence of any submissions or evidence to the contrary it can be assumed that the applicant will continue to earn $800 per week until the date he receives his compensation.

(g) any other matter that the FWC considers relevant

[92] The applicant suffered a work related injury and as a result of returning to work on suitable duties his average weekly gross income dropped from an average of $1,448 per week for the financial year ending 30 June 2012 to $1,297 per week for the period 1 July to 21 December 2012. As a result of his dismissal his workers’ compensation payments have ceased.

[93] The approach to determining compensation pursuant to s.392 of the Act was set out in Sprigg v Paul’s Licensed Festival Supermarket 22 (the Spriggs formula) and refined in Ellawala v Australian Postal Corporation23 and it may be summarised as follows:

1. Estimate the remuneration the employee would have received if they had not been dismissed. Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment i.e. the anticipated period of employment.

2. Deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment.

3. Deduct an amount for contingencies. This is a calculation of future economic loss.

4. Consider the impact of taxation and adjust the figure accordingly.

5. Assess the figure against the compensation cap. If the amount is more than the compensation cap it should be reduced to the compensation cap.

[94] For the purpose of this calculation I estimate that the applicant would have received a further 26 weeks pay at the gross rate of $1,297, a total of $33,722. For the 8 weeks following the applicant’s dismissal he earned no income. For the following 18 weeks he earned a total of $14,400 gross. Deducting the latter from the former gives $19,322.

[95] Both favourable and unfavourable contingencies are to be considered and are intended to take into account any increase or decrease that may be able to be anticipated during the period of anticipated employment. I see no such contingencies arising in this case and so the amount will not be adjusted for this reason.

[96] Although I have concluded that the applicant was unfairly dismissed this does not mean that I conclude that the applicant did not contribute to his circumstances. Indeed I found that he should have been warned about his approach to his task on 17 December 2012 and his manner on 21 December 2012 and counselled about his demeanour, especially the way he spoke to Ms Constantin. I do see a case for reducing the amount due to the conduct of the applicant by 50 percent resulting in a deduction of $9,661.

[97] The amount of compensation awarded is $9,661 to be taxed at the appropriate rate. The compensation awarded is below the compensation cap (currently $64,650) and is not required to be adjusted for this reason.

[98] An order reflecting this decision will issue.

DEPUTY PRESIDENT

Appearances:

A Miller, of Counsel, for Gary Jensen

B Miles, of Counsel, for Aircom Systems Pty Ltd

Hearing details:

2013.

Sydney:

5 June, 26 August.

Final written submissions:

17 October 2013

 1   Exhibit R4 - Affidavit of Brett Gilbert - Attachment C

 2   Transcript PN58

 3   1992 FCA 209

 4 (1995) 185 CLR 410

 5 1995 62 IR 371 at 373

 6   [2011] FWAFB 1436

 7   Print S8106

 8   Transcript PN58

 9   Respondent’s Closing Submissions PN2-3

 10   Edwards v Giudice and Others 169 ALR 89

 11   Transcript PN1935-1937

 12   Statement of Robert Anthony Hill, 15 May 2013, p.2

 13   Exhibit A1 - Statement of Gary Jensen PN27

 14   Exhibit R5 - Affidavit of Sue Constantin - Attachment 2

 15   Ibid.

 16   Exhibit R4 - Affidavit of Brett Gilbert - Attachment D - Contractor Safety Handbook

 17   Ibid.

 18   Ibid.

 19   Ibid.

 20   Transcript PN1677

 21   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 at [40]

 22 (1988) 88 IR 21

 23   Print S5109 at [31]

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