Glenn Rogers v Chevron Australia Pty Ltd T/A Chevron

[2015] FWC 897

[2015] FWC 897 [Note: Appeals pursuant to s.604 (C2015/1884 and C2015/2483) were lodged against this decision - refer to Full Bench decision dated 18 August 2015 [[2015] FWCFB 5354] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glenn Rogers
v
Chevron Australia Pty Ltd T/A Chevron
(U2014/7791)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Mr Glenn Rogers alleged that the termination of his employment by Chevron Australia Pty Ltd was unfair.

[2] Mr Rogers had worked on Barrow Island for Chevron or its predecessors or its contractors from 1987. His last engagement with Chevron commenced in May 2006 in a production role. Mr Rogers was promoted to the position of acting Permit Coordinator in September 2012 and it was this position he occupied when his employment was terminated.

[3] The safety incident leading to his termination is not in dispute and neither is his role in the incident.

[4] Chevron operates a permit to work system which ensures that, when maintenance or repair work is to be carried out, work does not commence until the necessary controls are in place to manage work safely. A person seeks a permit to work from the Permit Coordinator whose job it is to ensure that jobs do not conflict with other jobs and compromise safety. The Permit Coordinator also closes off permits at the conclusion of the work.

[5] In addition to the Permit Coordinator, there is a Permit Authority who is the Permit Coordinator’s supervisor. The Permit Coordinator countersigns some but not all permits.

[6] In January 2014, a compressor needed to be repaired, and thus needed to be shut down. Associated with the compressor is a fire and gas detection system. As the name suggests this system is a critical safety system. In the event of a fire or a gas leak an alarm is sounded which automatically causes the compressor to shut down and alerts the workers. If the fire and gas detection system is not operative no alarm will sound.

[7] While the fire and gas detection system is not required to be turned off to repair the compressor, a permit was sought to turn it off because the use of a crane during the repair work would cause false alarms.

[8] Mr Rogers, as the Permit Coordinator, had responsibility for issuing the initial permits for this work.

[9] On 21 January 2014, Mr Rogers issued an Electrical Isolation Certificate (5112).

[10] On the same date Mr Rogers issued a Chevron Isolation Certificate for the compressor (8041). The Chevron Isolation Certificate had a space to record any electrical isolations and safety device inhibits. On 21 January 2014, Mr Rogers also issued an Equipment Inhibit Certificate (3012) in relation to the fire and gas detection system. This Certificate was countersigned at the same time by Mr Mike Cullingford the Permit Authority.

[11] It is not disputed that Mr Rogers did not record on the Chevron Isolation Certificate the electrical isolations or the safety device inhibit. It was his evidence that he never included that information on the Isolation Certificate because he had not been shown to do that. 1 He did record them on the whiteboard.

[12] On the same day, Mr Rogers issued a Hot Work Permit (16227) which was also counter signed by Mr Cullingford. Mr Rogers recorded details of the Electrical Isolation Certificate and the Chevron Isolation Certificate in the box provided on the form but did not include in the list the Equipment Inhibit Certificate.

[13] It was not disputed by Mr Rogers that he was required to include this information on the Hot Work Permit. 2

[14] The work on the compressor commenced. It is not in dispute that Mr Rogers left the site on 22 January 2014 and returned on 5 February 2014.

[15] On 26 January 2014, Mr Stuart Hall, who was the Permit Coordinator, signed off on the Hot Work Permit that the work had been suspended. On 28 January 2014, Mr Clarke the Permit Authority signed that all work associated with the permit was complete and the permit was closed off. The Equipment Inhibit Certificate was not closed off at this time.

[16] On 30 January 2014, Mr Sean Kavanagh the Permit Coordinator authorised the de-isolation of the compressor and signed the clearance for the electrical isolation. The Electrical Isolation Certificate was cancelled. Mr Kavanagh did not cancel the Equipment Inhibit Certificate and it remained on the whiteboard.

[17] Further problems with the compressor occurred and on 3 February 2014 a new Chevron Isolation Certificate (7704) was issued by Mr Kavanagh. That certificate did not record any electrical isolations or safety inhibit device. On 9 February 2014, Mr Rogers closed off that certificate. Just above the place for the Permit Coordinator’s signature is printed the following: “de-isolation cannot commence until all related permits are signed as complete by their permit holder ” and “where more than two permits are related to the isolation certificate signed permission can only be given by the permit co-ordinator.” Mr Rogers signed off on four related work permits and certificates but did not sign off the Equipment Inhibit Certificate.

[18] It is not in dispute that the fire and gas detection system remained off line until 26 February 2014. In the intervening period the isolation tags on the fire and gas detection system remained in place and the notice about the Equipment Inhibition Certificate remained on the whiteboard.

[19] In this period, operators inspected the system daily and did not report that the fire and gas detection system was inhibited despite the fact that the compressor was back in operation. Further the person who completed the “integrity critical maintenance work instruction” did not note until 16 February 2014 that the isolation key was in bypass and no action was taken by anyone in response to that report.

[20] On 23 February 2014, a gas leak was detected and it was found that the fire and gas detection system was turned off.

[21] Apart from Mr Rogers, no evidence was given by any person who was involved in this incident.

[22] It was Mr Rogers’ evidence that it was not his practice nor Mr Kavanagh’s to record the Equipment Inhibit Certificate on the Hot Work Permit or the Chevron Isolation Certificate. This much was confirmed by the investigation of the incident conducted by Chevron. Mr Rogers said that he had been trained by Mr Kavanagh and he had not told him that this was required.

[23] Mr Rogers had no explanation as to why, given he recorded the Equipment Inhibit Certificate on the whiteboard, he did not see that the Inhibit Certificate was still active when he signed off on the Isolation Certificate on 9 February 2014 and why that Inhibit Certificate remained in place until the gas leak was detected by an operator.

[24] Mr Rogers said that the Permit Authority is presented with the permit and every certificate that is associated with the permit and the Permit Authority goes through it and checks that it is correct and signs the permit so that work can commence. 3 Any mistake made by him should have been detected by the Permit Authority.

[25] There is no dispute that the failure to put the fire and gas detection system back into operation when the compressor was restarted created a serious health and safety risk to people as well as to the plant and equipment.

[26] There was an investigation of the incident conducted.

[27] That reports sets out the time line of events. The Hot Work Permit was suspended on 26 January 2014 because they were waiting for parts. Mr Hall, the Permit Coordinator at the time signed off the Hot Work Permit. The Hot Work permit was then closed out on 28 January 2014 by the Permit Authority. It is not clear from the report what happened between 28 January 2014 and 3 February 2014 when a new Isolation Certificate was approved.

[28] The investigation report noted that on 29 January 2014 spare parts arrived and were fitted to the compressor and mechanical de-isolation was completed. The next day process de-isolations and pre-start checks were completed and there was no evidence that the fire and gas system was checked. When the compressor was started, mechanical knocking was heard and the compressor was shut to investigate. Despite this, the original Chevron Isolation Certificate was closed out at 15.35pm. 4

[29] The investigation report notes that on 31 January 201 mechanical isolations were completed again and on 1 February 2014 additional work was performed. On 2 February 2014, an inspection of the fire and gas panel was completed and “no mention that the fire and gas system was disabled. Inlec inspection indicated that the fire and gas was in operating mode, placed back in service and informed back to Area Operator as work completed.” 5

[30] On 2 February 2014, noise in the compressor was investigated and the work group completed the permit. That did not note that the fire and gas system was isolated. On 3 February 2014 a new Isolation Certificate was issued (7704). There was no notation on that certificate that the fire and gas system was isolated despite the notation on the whiteboard. Work continued on the compressor until 9 February 2014 when the Isolation Certificate 7704 was closed off by Mr Rogers.

[31] Mr Michael Scott, Chevron’s Operation Manager, reviewed the investigation report and asked for the names of those involved. He then determined what he considered the order of culpability and made the recommendation to Mr William Bowers to terminate Mr Rogers’ employment.

[32] Mr Scott seems to accept that when the Hot Work Permit was closed out, the Inhibit Certificate should have been closed out but said that “the machine was not fully started because it had mechanical issues so the Inhibit Certificate remained live until they remedied the mechanical issues.” 6 He went on to say that “I’m not sure .. it was ever operating. They pressed the green button and it had a knock and they switched it off again.”7 It is clear from Mr Scott’s witness statement he was of the view that Mr Rogers was responsible for closing out the permit on or around 30 January 2014.8 However this was not correct, as he was not on site.

[33] It was Mr Scott’s view that on 9 February 2014 Mr Rogers should have known that the Inhibit Certificate was still in place and he should have said to the operators “that it cannot be started until this is closed.” 9

[34] He acknowledged that there were a number of people who could have stopped the breach but he focused on how the incident started. He identified the critical reason for recommending the termination of Mr Rogers’ employment was that Mr Rogers permitted the compressor to run after 9 February 2014 and he did not either tell the operators to turn it off or turn on the fire and gas detection system. 10 It was this that swayed Mr Scott to make the recommendation that Mr Rogers’ employment be terminated, not the error in recording the existence of the Inhibit Certificate on the Hot Work Permit or the Isolation Certificate.11

[35] Disciplinary action was taken against others who were involved in the incident. Two supervisors, another permit co-ordinator, five operators and two technicians were disciplined. 12 The all lost their incentive pay and had warning letters placed on their files. In addition, they received negative performance reviews which impacted on their salary and promotion.13

[36] Mr Bowers, who made the decision to terminate Mr Rogers’ employment, accepted that Mr Rogers’ actions were not intentional however it was his view that Mr Rogers made a conscious decision not to follow the procedure. 14

[37] Mr Bowers accepted that it was the role of the Permit Authority to check the Permit Coordinator’s work and if the Permit Coordinator knew the documentation was incomplete, he should not have signed off on the permit. 15

[38] Mr Bowers accepted that the operators, when doing their daily checks of the fire and gas detection system, should have noted and reported that the fire and gas detection system was tagged out. 16 He further accepted that the weekly inspection, which required the fire and gas detection system to be tested, should have noted that the fire and gas detection system was tagged out.17

Policies and procedures

[39] It was not contested that Chevron has in place safety policies and procedures. In its Tenets for Operational Excellence 18 Chevron notes that mistakes are inevitable but incidents are not.19 It advises that for an incident to occur there is a series of mistakes and that an incident can be prevented if the chain of events is interrupted. Mr Scott gave evidence that he presented this to all employees in January 2014 and Mr Rogers would most likely have attended one of the presentations.20 While Mr Scott did not know if Mr Rogers did in fact attend, Mr Rogers did not give evidence that he was unfamiliar with these principles. Further Chevron has Tenets of Operation which set out ten clear obligations on employees.21 It was Mr Scott’s evidence that at each prestart meeting which occurred daily, that Mr Rogers attended, one of the Tenets would be addressed. Mr Scott was not cross examined on this evidence.

[40] The Chevron Just Culture Procedure which applies to all employees, contractors and visitors “is a facilitation tool applied when behaviours or decisions are indentified during an incident investigation or other means in order to assist in the determination of a fair and just outcome.” 22 The Just Culture policy sets out a decision tree which guides decisions makers. It provides that if the conduct was intentional or there was a conscious decision to not follow procedures then severe sanctions would result.23 In the latter case it is possible that sanctions may be limited to warnings/negative performance appraisals. In other cases the sanctions may be warnings/negative performance appraisals or coaching or structural review.

[41] The disciplinary policy sets out the procedures to be followed if there is misconduct or serious misconduct. 24

[42] The Permit to Work system sets out the responsibilities for the Permit Coordinator and the competencies required of the job.

[43] There was no dispute that the Permit Coordinator was required to be aware of all the works being conducted or proposed to be conducted so that any potential conflict could be avoided. 25

[44] Mr Rogers accepted that it was his job to ensure the proper permits were in place and if he was unsure he could refer to the Permit to Work manual or check with the Permit Authority. Mr Scott described the position of permit Coordinator as a senior and supervisory role.

[45] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[46] Chevron dismissed Mr Rogers for misconduct. There is no dispute that Mr Rogers did not comply with the requirement to include the details of the Inhibition Certificate on the Hot Work Permit. It is not disputed that the Permit Authority countersigned the Hot Work Permit. It is also not disputed that it is the role of the Permit Authority to check that the documents he or she is signing are accurate. In this case the Permit Authority was aware of the Equipment Inhibit Certificate because he had signed it on the same day. Further Mr Rogers gave evidence that the certificates relevant to the permit were attached to the permit when the Permit Authority signed the permit. The Permit Authority did not notice that the Inhibit Certificate was not noted on the permit.

[47] I accept that the Permit Authority had the ultimate responsibility for ensuring that all documentation is completed in accordance with the process outlined in the manual. 26 Signing the permits is not simply a formality. The Permit Authority’s role is one of the checks and balances to ensure a safe system of work. In this case the Permit Authority along with Mr Rogers failed to ensure that the forms were correctly completed.

[48] Mr Rogers did comply with the requirement to place the information about the certificate on the whiteboard. Mr Rogers did not close off on that Hot Work Permit, Mr Hall did as the Permit Coordinator on 26 January 2014 and the Permit Authority closed the permit on 28 January 2014. Neither Mr Hall nor the Permit Authority addressed the outstanding inhibit certificate.

[49] While I do not accept that the failure to include the reference to the permits on the appropriate forms was a relatively trivial clerical error, I do not consider that Mr Rogers’ failure to record the information on the Hot Work Permit or the Isolation Certificate was a valid reason for the termination of Mr Rogers’ employment. The failure to record the information on the Hot Work Permit was a mistake but it was one that the Permit Coordinator made as well. I accept Mr Rogers’ uncontested evidence that he had not been trained to record the Inhibit Certificate on the Isolation Certificate.

[50] Mr Scott stressed that it was Mr Rogers’ conduct in permitting the compressor to be turned on and to operate when there was an Inhibit Certificate in place that resulted in his dismissal.

[51] It is worth noting that Mr Hall signed off on the Hot Work Permit on 26 January 2014 and Mr Clarke the Permit Authority closed of the permit. There is no evidence on which I could conclude that they were aware of the Isolation Certificate. There was no evidence that Mr Hall used the whiteboard system to record these permits. Given there was no record of the Inhibit Certificate on the Hot Work Permit Mr Hall could be excused from not ensuring that permit was closed off.

[52] On 30 January 2014, Mr Kavanagh another Permit Coordinator signed off the Electrical Isolation Certificate and the Chevron Isolation Certificate. In signing off Mr Kavanagh was agreeing that all related permits had been signed off as completed by the permit holder. Mr Kavanagh like Mr Rogers placed information about the existing permits on the whiteboard. Contrary to the safety requirements Mr Kavanagh did not at this time ensure that all permits were signed off. It also appears that contrary to policy, work continued on the compressor between 30 January 2014 and 3 February 2014 without a permit.

[53] Mr Kavanagh did not include on the Chevron Isolation Certificate issued on 3 February 2014 information about the equipment inhibit despite that information being recorded on the whiteboard.

[54] Mr Scott gave evidence that he understood that work continued on the compressor. However he did not explain under what permit the work performed on the compressor was done between 30 January and 3 February. He also gave no evidence about why the Inhibit Certificate was not closed out by Mr Kavanagh.

[55] Mr Rogers signed off on the second Isolation Certificate on 9 February 2014 and he did not ensure that all permits associated with the work had been signed off. Just like Mr Kavanagh he should have checked the whiteboard for other permits and he did not. He had no explanation for this oversight. I do not accept the submissions of Mr Rogers that no risk arose until the operator turned on the compressor. By closing the Isolation Certificate Mr Rogers was representing to the operators that the compressor could be de-isolated. This was not a clerical error. It was a breach of the procedures. I do not accept the failure to cancel the inhibit notice resulted from a system failure. Mr Rogers knew that Inhibit Certificates were recorded on the whiteboard. It was therefore incumbent on him to check the whiteboard on each occasion he closed off a permit to ensure that all relevant permits associated with a job were closed off.

[56] Mr Rogers’ conduct in authorising the de-isolation of the compressor without ensuring that the Inhibit Certificate was closed off and his continued failure to notice that the Inhibit Certificate was not closed off was a breach of a significant safety procedure. There was a valid reason for the termination of his employment.

[57] To the extent that Chevron relied upon the running of the compressor without the fire and gas system being operational to justify his termination, I do not accept this submission. While I accept that Mr Rogers should have been alert to the existence of the outstanding permit, Chevron’s safety systems did not work. There were a string of employees who did not comply with the tenets. That the fire and gas system was tagged out was obvious. That no operator noticed this is to say the least surprising. On 16 February 2014, an apprentice recorded the fact that it was tagged out and nothing was done about it by anyone.

s387(b) whether Mr Rogers was notified of that reason;

[58] In his written submissions Mr Rogers submitted that he was notified of the reasons for his dismissal.

[59] In oral submissions it was put that Mr Rogers was only notified of part of the reasons. It was submitted that Mr Rogers was not advised that his failure to record the Inhibit Certificate on the Isolation Certificate or that he had the responsibility for allowing the compressor to continue to run were relevant to his termination.

[60] On 6 May 2014, Chevron advised Mr Rogers that the investigation had determined that he had failed to place the Inhibit Certificate on the initial permit on 21 January 2014 and he did not remove the inhibit on 9 February. Mr Rogers was told that Chevron was considering the status of his employment and he was given an opportunity to respond by 9 May 2014. Mr Rogers responded and a further meeting was held on 20 May 2014. At that meeting Mr Scott read the letter of termination to Mr Rogers. That letter reiterated the findings of the investigation. Mr Scott gave evidence that he told Mr Rogers at that meeting that “you failed to fill the permit in and you allowed the machine to run on defeat. This is a serious breach.” Mr Scott was not cross examined on this evidence. Mr Rogers says he was given the letter of termination at the conclusion of the meeting.

[61] I find that Mr Rogers was given notice of the reasons for the termination of his employment before the decision to terminate his employment was made.

s387(c) whether Mr Rogers was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[62] Mr Rogers was given an opportunity to respond to the reasons.

s387(d) any unreasonable refusal by the employer to allow Mr Rogers to have a support person present to assist at any discussions relating to dismissal;

[63] Mr Rogers was given the opportunity to have a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Rogers had been warned about that unsatisfactory performance before the dismissal;

[64] The termination was not related to unsatisfactory performance hence this criterion is neutral.

s387(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;

[65] Chevron is a large corporation. Mr Rogers submitted that Chevron had failed to follow its own discipline guidelines - ASBU -Just Culture Procedure. It was clear that the relevant decision makers did not accept that these procedures applied. Given that procedure is said to apply to all employees it is difficult to understand the evidence of the decision makers. However as I have not found that Mr Rogers was denied procedural fairness, it cannot be said that the size of the business impacted on the procedures followed. This criterion is neutral.

s387(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;

[66] Given that Chevron is a well resourced multinational employer this criterion is neutral.

s387(h) any other matters that the Fair Work Commission considers relevant.

[67] Mr Rogers was filling the position of Permit Coordinator in an acting capacity. It was not disputed that the specific training he received for this position had been on the job training by the other permit Coordinator. It was also not disputed that Mr Rogers had not been trained properly to complete the isolation certificates. It is also clear that this defect in his training was not detected in the 18 months he had filled the position.

[68] There was no evidence of any issues with Mr Rogers’ performance in this time and his most recent performance review had rated him highly. Mr Rogers had been employed by Chevron at Barrow Island or for Chevron and its predecessors for 27 years. There was no evidence produced that he had ever been involved in a breach of a safety procedure or that there were any other disciplinary or performance issues.

[69] I have also had regard to Mr Rogers’ response to the investigation. It is concerning that when asked to respond to the findings that he described his error as a “clerical error” and a “relatively minor one.”

[70] This overlooked the fact that when Mr Rogers signed off on the Isolation Certificate on 9 February 2014 he was representing to the other employees that all related permits had been completed. This was not a mere clerical error. So much was accepted by Mr Rogers in cross examination. 27 However Mr Rogers took the view that as his work was checked by the Permit Authority he should not “cop the full blame.”28

[71] There was no suggestion that this error was a malevolent act or that there was a conscious decision to not follow procedure.

[72] Mr Rogers gave evidence that he had not been able to find ongoing work since his dismissal.

[73] Mr Rogers submitted that given his age and personal circumstances a dismissal in these circumstances imposed a very heavy punishment on him. I accept that submission. The consequences for Mr Rogers are serious. He has lost his job and given the reasons for that loss he will have difficulty finding work in his field.

Consideration

[74] It is uncontroversial that a dismissal may be harsh, unjust or unreasonable notwithstanding there was a valid reason for the termination of employment. 29

[75] Further a breach of safety procedures does not automatically lead to a finding that the termination was not harsh, unjust or unreasonable.

[76] As the majority said in Lawrence v Coal & Allied Mining Services Pty Ltd 30:

“[38] We regard the unqualified dismissal of an exemplary employee with 28 years of service, an impeccable disciplinary record and an otherwise impeccable safety record for a policy breach the sort that occurred in this case - particularly when the policy itself contemplates that breaches will not necessarily lead to disciplinary action let alone dismissal and having regard to the personal consequences for the employee and his family - as manifestly harsh. We accept that the misconduct reasonably called for a disciplinary sanction and that a period - even an extended period - of suspension without pay may still have been within the acceptable range. But in all the circumstances, unqualified dismissal was, in our view, manifestly harsh. On the rehearing we find that Mr Lawrence was unfairly dismissed within the meaning of s.385.” 31

[77] This approach was endorsed by Vice President Hatcher in Zhou v Weir Minerals Australia Ltd 32 thought in that case the Vice President did not find that the decision to dismiss was harsh.

[78] As the Full Bench said in Parmalat Food Products Pty Ltd v Wililo 33:

“[24] We do not consider that the decision discloses a clear line of reasoning leading to the decision reached. The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. We do not believe that any of the circumstances involved in this matter amount to such factors.”

[79] In this case I consider that there are significant mitigating factors.

[80] There is no evidence that Mr Rogers had at any time in his 27 year work history any performance or conduct issues. His most recent performance appraisal was positive.

[81] I have had regard to the importance of employees complying with safety procedures.

[82] I accept that there was a failure in Chevron’s safety systems. Given the fly in fly out nature of the work, a system which ensures that all relevant information is recorded on the permits is vital. Chevron’s checks and balances did not pick up that Mr Rogers and other employees were not completing permit applications in accordance with those procedures. Had this been done earlier this incident may have been prevented. This was a serious failure. I have already commented on the failure of the operators to notice the tags on fire and gas inhibitor. That Chevron received a report that the fire and gas detection system was off, and did nothing about it, is of concern.

[83] I don’t accept that Mr Rogers was a scapegoat for the systems failure as I accept that it was his conduct that started this litany of errors. I accept that his breach was serious. I accept that other employees who were involved in this incident were not dismissed because they were assessed as less culpable. It is not clear to me why the persons who signed off on the first Hot Work Permit were treated differently. Mr Scott gave evidence that at that time the Inhibit Certificate should have been closed off at this time. That another Permit Coordinator who was not dismissed equally failed to have regard to the existence of the Inhibit Certificate on the whiteboard, supports a finding that Mr Rogers’ dismissal was harsh.

[84] I have also considered whether the termination of his employment was harsh given his long service with Chevron and his work history. The loss of employment for a long standing employee will always have a severe impact on the employee. However I accept that long service does not make an employee immune from dismissal.

[85] Mr Rogers made a mistake. While it was a serious mistake it was not deliberate. As the Tenets note, mistakes happen and incidents result from a series of mistakes.

[86] I accept that Mr Rogers’ conduct warranted disciplinary action. As he was only acting in the role he could have been returned to his substantive position. He could have been given a first and final warning. In addition he could have been given the same sanctions as the other employees.

[87] On balance I consider that the termination of Mr Rogers’ employment was harsh.

Remedy

[88] Mr Rogers is seeking reinstatement of his employment. 34 This was opposed by Chevron. It was submitted by Chevron that Mr Rogers had fundamentally misunderstood his role as Permit Coordinator.35 It relied on Mr Scott’s evidence to support this submission.36 It was submitted that Chevron did not have confidence in him and his colleagues would not trust him.37

[89] When employment is terminated, particularly for misconduct, it is inevitable that some damage to the relationship of employment will occur. However there is nothing to suggest that this relationship cannot be restored.

[90] I do not consider that Chevron’s evidence is sufficient to support a finding that reinstatement is inappropriate. I accept that Mr Rogers’ characterisation of his mistakes was a matter of concern. However in his evidence to the Commission he clearly accepted that this was not a minor mistake.

[91] Further Mr Rogers is not required to be returned to a position that he occupied on a temporary basis. His substantive position was not that of a Permit Coordinator. Further, if he is reinstated Chevron is still entitled to take disciplinary action against Mr Rogers for his conduct.

[92] I will therefore order that Mr Rogers be reinstated to the position in which Mr Rogers was employed immediately before the dismissal. This order will come into effect 21 days from the date of this decision.

[93] The parties did not address me on any consequential orders that should be made in relation to sections 391(3) and (4) of the Fair Work Act 2009. I will provide the parties with an opportunity to provide written submissions about any consequential orders that should be made. The parties are required to file and serve any submissions in relation to any consequential orders within 10 days of the date of this decision. The matter will then be listed for a short hearing if required.

DEPUTY PRESIDENT

Appearances:

S. Heathcote for the Applicant.

J. Ley for the Respondent.

Hearing details:

2014.

Perth:

27 and 28 November.

 1   Transcript PN 277

 2   Ibid PN 264

 3   Ibid PN 505

 4   Exhibit R1, tab13 at page 15

 5   Ibid

 6   Transcript PN 864

 7   Ibid PN 933

 8   Exhibit R6 at [38]

 9   Transcript PN 879

 10   Ibid PN 843

 11   Ibid PN 838

 12   Ibid PN 566

 13   Ibid PN 571

 14   Ibid PN 592-604

 15   Ibid PN 636-640

 16   Ibid PN 689

 17   Ibid PN 694-697

 18   Exhibit R6 at MTS1

 19   Ibid page 9

 20   Exhibit R6 at [16]

 21   MTS1 op cit at page 11

 22   Exhibit R1, tab 18 at page 3

 23   Exhibit R7 at JYL6 at page 5

 24   Ibid at JYL7 at page 5

 25   Exhibit R6 at [24]

 26   Exhibit R1, tab 21 at page 29

 27   Transcript PN 422

 28   Ibid PN 427

 29   B, C and D v Australian Postal Corporation [2013] FWCFB 6191 at [41]

 30   [2010] FWAFB 10089

 31   Ibid at [38]

 32   [2014] FWC 1531 at [40]-[41]

 33   [2011] FWAFB 1166

 34   Transcript PN 495

 35   Ibid PN 1378

 36   Ibid PN 1381-1385

 37   Ibid

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