Glenn Rogers v Chevron Australia Pty Ltd T/A Chevron

[2014] FWC 8359

[2014] FWC 8359

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, 24 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] Mr Glenn Rogers has filed an application for an unfair dismissal remedy. He alleges that the termination of his employment by Chevron Australia Pty Ltd was unfair.

[2] A directions conference was conducted by Deputy President McCarthy on 18 August 2014, and directions were issued to the parties requiring them to file material in support of and in opposition to the application.

[3] Chevron filed its material on 31 October 2014. On 6 November 2014, the parties were advised that the application was listed for hearing on 27 November 2014.

[4] On 12 November 2014, Mr Heathcote, Mr Rogers’ solicitor, wrote to Mr Kelly, Chevron’s solicitor seeking certain documents. On 14 November 2014, Mr Kelly advised Mr Heathcote that Chevron would not produce the documents given the volume of documents sought and the short time before the matter was to be heard. Mr Kelly also questioned the relevance of the documents.

[5] On 17 November 2014, Mr Heathcote sought an order for production of the documents and that application was heard on 19 November 2014.

[6] Mr Rogers was dismissed by Chevron because:

1. he failed to place the inhibit certificate on the initial permit on 21 January 2014.

2. he failed to remove the inhibit at the end of the job on 9 February 2014.

3. his failure to adequately undertaken the duties of Permit Coordinator in this instance had the potential to cause serious harm to people and property in the event of an incident.

[7] Mr Rogers sought the production of the following documents:

1. The ABU Investigation Report (Incident Reference 49861), and all attachments and schedules to it, into an event on 23 February 2014, and into which an investigation commenced on 5 March 2014.

[8] Mr Heathcote submitted that the document is relevant to the issues in dispute between the parties, namely whether Mr Rogers’ conduct was as serious as suggested by Chevron. The report includes Chevron’s assessment of what happened, who did it, what caused it and what could have prevented it. Mr Heathcote submitted that he had expected that the report would have been exhibited to Chevron’s evidence.

[9] Mr Heathcote submitted that as a result of the investigation, Mr Geoff Rosich, who was the investigation leader, provided Mr Michael Scott, the Operations Manager, with a list of names of all those involved and Mr Scott ranked them in order of culpability based on the report and on that basis Mr Scott recommended that Mr Rogers be dismissed.

[10] Mr Heathcote submitted that Chevron relied on this report in reaching its decision to terminate Mr Rogers’ employment.

2. Any written presentations, reports or summaries of the investigation report to which paragraph 1 refers including any presentation slides or speaker’s notes of any presentations given about the investigation report.

[11] Mr Heathcote submitted, that these documents were relevant, as they summarise Chevron’s response to the incident. It was submitted that Mr Scott had provided a briefing to others about the incident after Mr Rogers’ employment was terminated. It was submitted that Chevron’s assessment of the incident is relevant to matters in dispute. If Chevron had concerns about the fairness, then that may be relevant. It was said that Mr Scott’s summaries go to the lessons to be learnt from the incident, and this may highlight deficiencies in procedures which may go to Mr Rogers’ culpability.

3. The Integrity Critical Maintenance Work Instructions for the Compressor Station Fire and Gas System.

4. The Compressor Station Standard Operating Procedures Manual.

[12] It was submitted that these documents were relevant to whether Mr Rogers complied with procedures.

5. Any written or email communications between any two or more of the follow persons:

(a) William Bowers;

(b) Geoff Rosich;

(c) Michael Scott; or

(d) James Finn;

that discusses or refers to:

(i) the event on 23 February 2014 that is the subject of the investigation report to which paragraph 1 refers;

(ii) the investigation report to which paragraph 1 refers;

(iii) disciplinary action against the Applicant;

(iv) disciplinary action against any other of the Respondent’s employees, if that disciplinary action is a consequence of the event on 23 February 2014 that is the subject of the investigation report to which paragraph 1 refers.

[13] Mr Heathcote submitted that these people were involved in the preparation of the report and the decision to terminate Mr Rogers’ employment. It was submitted that there was a considerable delay between the completion of the report and the decision to terminate Mr Rogers’ employment. Mr Heathcote stated that the delay suggests that there may have had some concern about the remedial steps the report recommended.

[14] Mr Heathcote stated that there may have been emails between these people about who was to be dismissed. He said there was likely to be communications between these people and that communication may be relevant to the issue of fairness. It was said that there were seven people considered for disciplinary action and it might be helpful to know how they were culpable, what disciplinary action was taken against them and why the standard that was applied to them was different to the standard applied to Mr Rogers. The emails may also disclose how Chevron applied its “just culture decision tree.”

[15] Chevron opposed the orders on the basis that the application should have been made earlier particularly in circumstances where Mr Rogers was aware of the existence of the documents. At the latest, the application for production should have been made after Mr Rogers prepared his material.

[16] Mr Kelly submitted that the documents could potentially impact on the conduct of the hearing, particularly if Mr Rogers raised new matters as a result. Chevron may need to then call further evidence. It will need to review the documents and consider its case in light of those documents. It has the potential to disrupt the hearing.

[17] Further Mr Kelly submitted that the order is oppressive, particularly in relation to category 5, as Chevron will be have to conduct the search at a time it is preparing for the hearing. Mr Kelly said that this may be time consuming and burdensome. It was submitted that as a result of the late call for the production of documents the matter is not ready to proceed next week.

[18] Mr Kelly further submitted that because Chevron’s email records were kept in the United States, it takes considerable effort to access the records.

[19] Mr Heathcote submitted in reply, that he only became aware that documents in categories 1-4 were not going to be before the Commission when Chevron filed its material, and he reasonably expected that the material would have been put before the Commission by Chevron. He further submitted that apart from category 5 only four documents needed to be produced. He submitted that the documents would not change Mr Rogers’ evidence and should not have an impact on the hearing.

The Commission’s approach to the granting of orders

[20] Commissioner Jones 1 set out the principles to be followed by the Commission in deciding whether to issue a notice to produce and I adopt the approach outlined in that decision.

Findings

[21] There was no submission that the documents sought were not capable of being relevant to matters in dispute.

[22] I do not accept the submissions of Chevron that Mr Rogers should have applied for orders 1-4 earlier. It was not unreasonable for him to wait until he saw how Chevron put its case before deciding to seek orders. Further these documents should be of no surprise to Chevron. The report is referred to in Mr Scott’s evidence. Category 2 is narrow in compass, and categories 3 and 4 are evidence of the procedure that Mr Rogers was presumably required to follow.

[23] I do not accept the submission that the production of category 1-4 will disrupt the hearing next week. Chevron’s witnesses are presumably familiar with the documents. Further, it is not unusual in the Commission for documents to be produced at a hearing.

[24] However, order 5 is not in the same category as the other orders sought. Order 5 is of a much wider compass. It seeks any written and email communications between the named persons. Again there was no submission by Chevron that these documents are not relevant. However, they are not documents that Mr Rogers could reasonably have expected Chevron to have put into evidence.

[25] Mr Heathcote’s submissions about the relevance of the documents went to his theory about why there was a delay between the completion of the investigation and the decision to terminate. He said that this might suggest that Chevron had some concerns about the remedial action the report recommended.

[26] Discussions between employees about their preliminary views about what should happen in these circumstances are not relevant. In the end the report was issued and a decision made and while there may have been discussions between the named employees about what should happen in the end, those opinions are not relevant to any finding that the Commission must make. I have therefore determined not to issue order 5.

[27] Order 2 is limited to Mr Scott’s presentations etc and I have determined to restrict the period to 31 July 2014.

Adjournment request

[28] On 12 November 2014, the solicitors for Chevron requested an adjournment. They advised that at the directions conference held in August 2014 it was indicated that the matter would not be listed until the first quarter of 2015 and they had prepared their case on that basis. Further it was said that as two of its witnesses were on Barrow Island there were practical difficulties in arranging coverage to enable those witnesses to attend. I advised that this request was denied and advised that if Chevron wished to press its application it would be considered at a telephone hearing/conference.

[29] At the telephone hearing it was further submitted that one of the witnesses would be on leave at the time of the hearing and therefore would not be able to give evidence. After reviewing his witness statement, Mr Heathcote advised that he did not require this witness for cross examination.

[30] I declined to grant the adjournment. In circumstances where all the evidence and submissions of the parties had been filed the matter was ready for hearing. In those circumstances the parties should be ready to run their case at a time listed by the Commission. Given the fly in fly out nature of the work it was inevitable that some witnesses would be at work during the hearing and some would be on leave. The parties had three weeks’ notice of the hearing. I do not accept that suitable arrangements to enable witness to give evidence were not possible.

[31] Mr Rogers’ employment was terminated in May 2014. One of the objects 2 of the Act provides that the procedures adopted by the Commission to deal with unfair dismissal applications are required to be quick, flexible and informal. Any further delay would be inconsistent with this objective.

DEPUTY PRESIDENT

 1   Australian Nursing Federation v Victorian Hospitals' Industrial Association [2011] FWA 8756

 2   S.381

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