[2017] FWC 2238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Taylor
v
Qube Ports Pty Ltd T/A Qube Ports
(U2016/11110)

COMMISSIONER CRIBB

MELBOURNE, 28 APRIL 2017

Application for relief from unfair dismissal.

[1] Mr John Taylor (the Applicant) has made an application, under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in relation to his dismissal by Qube Ports Pty Ltd t/a Qube Ports (Qube, the company, the Respondent) on 16 August 2016.

[2] The application was the subject of conciliation on 6 October 2016 but an agreement was not reached between the parties. The matter was heard on Monday 28 November 2016, Wednesday 1 February 2017, Thursday 2 February 2017 and Friday 3 February 2017. Mr Taylor was represented by Ms F Knowles of Counsel and the Respondent by Mr M Follett, of Counsel.

[3] Mr Taylor gave evidence and for the company Mr Travis Carlier, Operations Manager, Appleton Dock; Mr David Saul, General Manager Government Services; Ms Rita Antranik, Operations Superintendent, Appleton Dock; Mr David Ayres, Shift Manager, Appleton Dock; Mr Steven Knight, Shift Manager, Appleton Dock and Mr Richard Marron, Shift Manager, Appleton Dock.

Legislative requirements

[4] Section 387 of the Act sets out the criteria that the Commission must take into account in considering whether the dismissal was harsh, unjust or unreasonable. It provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

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

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[5] I will consider each of the criteria in turn.

Section 387(a) - valid reason for the dismissal?

[6] It was Qube’s submission that the company relied only on the incident on 1 July 2016 to provide a valid reason for the dismissal. The previous warnings were stated to be relevantly taken into account in consideration of section 387(h). 1 Therefore, in dealing with section 387(a), the Commission will consider what occurred on 1 July 2016 alone.

Witness evidence

Mr Taylor

[7] It was Mr Taylor’s evidence that:

He was a health and safety representative from 2012 until early 2015. 2

He agreed that he was quite vocal in relation to Qube’s compliance or otherwise with its work procedures. 3

He agreed that he knew how to do his job safely (17 years’ service) but disagreed that he had towed caravans onto a vessel 100 times. Rather, he said that he had towed caravans about three times as he thought that Qube had only been doing that work for a couple of years. 4

He had attended health and safety committee meetings and agreed that one of the standing items on the agenda was a review of any updates to policies and procedures and Safe Work Method Statements (SWMS). 5

“Near misses” were regularly reviewed at health and safety meetings. Employees’ responsibility was to report a near miss and Mr Taylor indicated that he had put hundreds of them in. 6

It was confirmed that reports of damaged cargo had been tabled at health and safety meetings. He did not recall having been made aware, as a health and safety representative, of two incidents involving K Line in mid 2014. He did not recall seeing the two reports about a couple of caravans bottoming out on the ramp when they were being towed onto the vessel or being informed about them. 7 Mr Taylor stated that possibly it had been said, but that he just did not remember it.8

It was confirmed that, most of the time, points or issues raised at toolbox meetings were written up on a whiteboard. 9

It was recalled that any SWMS that were relevant to the work being done were thrown on the table and employees were told to read them if they want or otherwise get out. Mr Taylor said that, if you stopped to read them, it took 10 - 15 minutes and you are then told you are refusing to work. 10

He had not seen the RORO SWMS prior to his dismissal. He had the requisite knowledge to do most of the various RORO operations which were said to all be different. 11

After the K Line incidents, he recalled that one of the things that started to be toolboxed was a requirement to have guides for all low vehicles and caravans in a RORO operation. Mr Taylor confirmed that this had been toolboxed on almost every shift involving RORO operations in the last couple of years. In terms of caravans, these were done about once a month (not as often as cars). 12

The requirement was that, if your vision was impaired, you asked for a guide. Mr Taylor said that he had done this in the past. The purpose of the guide was confirmed to be to ensure that the bottom or undercarriage of what was being towed was not damaged. 13

A guide was only needed if your vision was impaired. This was said to be in the SWMS on towable trailers which he saw after his dismissal. 14

You do a walk around before you commence towing to check whether there is anything under the caravan which would scrape on the ground. 15

It was agreed that, when towing using a forklift, the forklift is being reversed up the ramp and you are looking directly at what is being towed and over your shoulder when you are going up the ramp. Mr Taylor said that the flagman was up the top and they waved you up. 16

There were many ways to avoid damage to caravans and one of them was to have guides for the things that the forklift driver could not see. 17

The caravans he took up that day were high and so had no chance of touching the ramp. 18

On the day, he did not recall/could not remember being told to have guides for the caravans. Mr Taylor explained that he had had 9 toolboxes after that day and that he was asked on 14 July 2016 as to what was said on 1 July 2016. Mr Taylor said that he did not deny it but that he did not recall it. 19 Mr Knight may have given the direction to have guides but he could not remember.20

It was confirmed that, on 1 July 2016, he drove on and off the vessel several times without any guides. 21 Mr Taylor did not dispute that, by not having a guide, he had breached the procedure.22

He was not aware that the other forklift operator on the day was waiting for guides. This was because he wasn’t in the same area at the same time as him. Mr Taylor explained that he was told this during the investigation. 23

On 1 July 2016, he had decided, despite knowing of the requirement, to not follow it based on his own judgement call. 24 Mr Taylor explained that cars were tooting him and people were telling him to hurry up and there were no guides in place.25 Mr Taylor further said that he had wanted to keep the job going/didn’t want to hold the job up as he had been accused of slowing the job down.26

He had not deliberately decided not to follow the procedure. It was just that he was under a lot of pressure that day with cars tooting and people yelling. 27

He suggested that it was an early go for the cars and stated that he was trying to rush to get out of the way of the cars. 28

It was denied that the reason the cars were beeping him was because instead of letting the cars go first, he had sat in front of the cars and had gone up the ramp slowly. 29

At the time he made that decision not to use guides, he knew he already had two warnings but he did not consider them at the time. 30

He agreed that, on 1 July 2016, he decided which policy he would or would not follow based on his judgement. 31 It was denied that that was his usual approach.32 He did think about bottoming out one of the caravans if his judgement had been wrong.33

He said that this was the first time he had decided which direction/policy he would or would not follow. 34

His vision was not impaired on the day in question and the flagman at the top of the ramp was looking down the side of the caravan and was waving him up. 35

His vision was not impaired and so it was not okay without a guide. 36

In his experience, he only required a guide to reverse a caravan if his vision was impaired. This might occur if he could not see the back of a (low) caravan. 37

No guides had been allocated and the Shift Manager should have allocated someone. Mr Taylor agreed that anyone on that shift in the area could act as a guide – if they were there. 38 On 1 July 2016, there was no-one available to act as a guide for him.39

In hindsight, he agreed that he could have honked his horn and he would not have had to wait for very long for someone to come who could guide him up. 40

Mr Carlier had changed many times about how many guides were required (he had said two guides, then one and then a guide). 41

The flagman can be a guide in the absence of a guide. He would have to leave his post in order to be a guide and that was unsafe. 42

In hindsight, he should have waited for a guide. He was not disputing that he had breached the procedure. 43

Mr Carlier said that two guides were allocated for the ramp and that the flagman can be the guide. 44

He had used the flagman as a guide previously in relation to machinery. 45

He denied that he had told Mr Carlier that he normally used a flagman as a guide. 46

He agreed that the reason he had raised a number of false issues was to create a grey area or some doubt about his decision not to comply with the procedure that he knew about. 47

There was a near collision between his forklift and a car with the flagman standing right there. The flagman had ensured that the car did not hit the forklift. 48

He had not reported the near miss because, to do so, would be lagging and someone would have lost their job as a result, which he did not want. Mr Taylor agreed that employees were required to report near misses but were not supposed to lag and that there was a lot of peer pressure to not report them. 49

As far as he knew, the reason he lost his job was that someone had lagged on him. Mr Taylor said that people do what people have to do. 50

He denied that there was no near miss and said that it was on the footage. 51 Mr Taylor also denied that the near miss proposition was a continuation of his smoke and mirrors approach. Mr Taylor also disagreed that he was trying to put a benign spin on things, including the previous disciplinary incidents, so that he did not lose the case. He did not agree that he was being consciously dishonest in an attempt to save his job.52

He reported most of the near misses but not the one on 1 July 2016. He had previously said that he had reported hundreds of them where there were not a lot of people involved. This was because he did not want to get letters like the ones he saw before. 53

He denied that he had called Mr Knight a lagging cunt. Mr Taylor stated that he had called Mr Knight a lying cunt but that he had not called him a lagger. 54

This was because Mr Knight had come up to him smiling and he had just been terminated. 55

He now knew that Mr Watson was the lagger. 56

He wished that Mr Watson had come and told him. 57

Ms Antranik

[8] Ms Antranik gave evidence that:

She emailed Mr Carlier in relation to the phone call she had received from Leigh Watson complaining that Mr Taylor was constantly slowing down the job on every shift. 58

Slowing the job down did not necessarily prevent people from having an early go. It was agreed that if the job was going slower, that would perhaps impact the finishing time. However, it was said that it was only one person. 59

She understood from what Mr Watson was saying that he was complaining about Mr Taylor being too slow on the job. 60

This was not Mr Watson’s main complaint as the telephone conversation was about the loading of the caravans and not slowing down the job. 61

The order in which she had put it in the email and in her statement was about, firstly, Mr Taylor slowing the job down and then about loading the caravans but that may not have been the order in terms of the telephone conversation with Mr Watson. 62

In her email to Mr Carlier, she recorded that Mr Watson had also mentioned that he has observed Mr Taylor loading caravans without the use of guides on the ramp. Mr Watson had confirmed that Mr Knight had discussed the procedure/requirement regarding the use of guides in the toolbox. Mr Watson had also advised that the foreman was not present at the time. 63

She had interviewed Mr Watson with Mr Knight present, on 14 July 2016, in relation to Mr Taylor not using a guide to load caravans. In her email regarding the interview, Ms Antranik recorded that Mr Watson had said that he had observed that the other forklift operator had followed the correct procedure and had waited for the guide before proceeding up the ramp. 64

Mr Knight

[9] Mr Knight gave evidence that:

He was the Shift Manager on day shift on 1 July 2016. 65

He conducted the toolbox talk on 1 July 2016 and told the employees that it would be a two forklift operation with one on/one off so that it did not get congested. He had also said to make sure that you have guides for the caravans up the ramp and to wait for a guide before taking the caravan up the ramp. 66

He did not believe that the document headed “Load Gang”, dated 1 July 2016, was the worksheet for the shift in question. This was because there were not enough people on this list compared with the number who signed the toolbox. He thought it might have been a draft. There were 32 people on the sign-on and there were only 28 employees on the labour sheet. He was not sure if extra employees had signed on for the toolbox who were not on the worksheet. 67

In terms of the Load Gang worksheet, it was explained that Mr Taylor was one of two people allocated as forklift drivers. 68

One of the forklift drivers takes cargo onto the ship and the other is coming off the ship. 69

He could not remember back that far as to who were working as the traffic controllers on the day in question. 70

In terms of the PCC gang, there were people who were driving cargo onto the vessel and people coming off the vessel (in a taxi) - as with the forklifts - one on/one off. 71

It was controlled traffic management with one lot of people waiting to go onto the ship and one lot who have gone on and who will come off in a taxi. The others would not go on until the taxi has come off. 72

The flagman is the traffic controller who controls this traffic on and off the ship. 73

Controlled traffic management ensures that the vessel can be completed in time and within the time set by K Line and the company’s planning. 74

The company plans to the client’s timeframe needs with the aim of meeting the timeframe set by the client. 75

The expectation is that the client’s deadline will be met. 76

At the toolbox meeting, he had said that the employees were to make sure that they had guides for the caravans up the ramp and to wait for a guide before they took caravans up the ramp. This meant that they were to wait at the bottom of the ramp and to the side until they were guided up the ramp by a guide from the RORO team who were on deck. 77

His expectation was that somebody from the RORO team would help with the guide as would the flagman who also controlled the traffic. 78

The role of the traffic controller was to control the traffic and were stationed at the top of the ramp as it was usually the best place to control the traffic. This was because the person could see what was coming out of the ship and what was at the bottom of the ramp. 79

If the flagman left the top of the ramp and walked down to the bottom of the ramp, the flagman would be unable to see if there was traffic coming out. 80

The flagman can determine whether the cars are on/the taxi is on and how long it takes them to come back off. If the taxi had just gone on, they know the timeframe before they get to come off. 81

What usually happened was that the cars will go on and then the forklift will then follow them up. There was then a timeframe before they came off and the caravan should be safely guided up the ramp in that timeframe. 82

If there was not enough time, the forklift would wait for another guide to come on and would not start going up the ramp. This was because the forklift driver has to wait for a guide, whether it be the flagman or someone off the deck (in the RORO team). 83

It would be someone on the deck (in the RORO team) who could see that the flag person was busy and, knowing that there was a forklift at the bottom waiting to come up, would therefore go down. 84

It was not the usual process for a forklift driver at the bottom of the ramp to signal that they needed a guide by honking their horn. 85

In terms of the people who were working on the shift in question, it was indicated that there was a Grade 6 and a Grade 5 employee on the shift. He agreed that, if either of those employees had observed a serious safety breach, he expected that they would report it to him during the shift. 86

There was ventilation on the vessel due to exhaust fumes from the cars. On certain vessels, the ventilation could be noisy. As a result, some people wore protective headgear. 87

On 16 August 2016 (after Mr Taylor had been dismissed), he had seen Mr Taylor outside the fence line talking to employees who were on his shift that day (Mr Caracella and Ms Devereux). As he approached, he heard Mr Taylor say to Mr Caracella “Here comes the fucking lagging cunt now”. He disagreed that Mr Taylor had referred to him as a ‘lying cunt’. 88

Mr Carlier

[10] It was Mr Carlier’s evidence that:

A flagman can act as a guide for forklift drivers when ascending a ramp. It was his view that there were no safety issues with that. 89

A lasher can and does act as a guide. He also said that effectively anyone can be a guide. 90

Qube has been doing RORO work with caravans for at least as long as 5 and half years (since he was employed) but a lot longer prior to then. 91 Every second week, Qube has loaded around 40 - 50 caravans.92

He suggested that Mr Taylor had done that work a lot more than Mr Taylor had indicated (3 times). 93

He denied that there had been a near collision on 1 July 2016 as alleged by Mr Taylor. This was on the basis of having viewed the same CCTV footage as Mr Taylor. 94

In relation to the SWMS RORO operations, it was agreed that there was nothing in the SWMS which said that two guides were required alongside towable cargo if vision was impaired and for long towables. 95

It was acknowledged that it was not written in the SWMS that two guides were required for long towables as set out in his statement. 96

The SWMS provided for a guide when breaking out off-stow on the deck, not going up and down the stern and so was not relevant. 97

He acknowledged that his statement admitted that he had sent out to Mr Taylor a performance management meeting invite on 12 July 2016. Mr Carlier agreed that Mr Smith, in his email on 13 July 2016, had said that the company could not jump to a performance management meeting without a workplace investigation being conducted. 98

He agreed that the meeting was described as an investigation meeting because Mr Smith had said that it could not be a performance management meeting. Mr Carlier explained that every investigation meeting for the past five years had been called a performance management meeting. Mr Carlier also said that Mr Smith had corrected their behaviour in this regard. 99

He agreed that, from 14 July 2016, after he had spoken to Mr Knight that he had toolboxed the requirement to have one guide. Mr Carlier said that it was he who had said “guides”. 100

He confirmed that, in his email to Mr Wingate, dated 12 July 2016, he had said that K Line had very clear instructions that all towables must have two guides when transiting ramps and that this had been toolboxed by the Shift Manager. 101

He confirmed that he had subsequently become aware that it wasn’t toolboxed to have two guides. 102 Rather, it was to have a guide.103 Later in his evidence, Mr Carlier said that the requirement to have guides was toolboxed.104 Mr Carlier explained that he had spoken to others as part of the investigation and they had said that guides had been mentioned. This was despite what he had written in his statement which referred to “a guide”.105 Mr Carlier could not recall whether Mr Watson had said guide or guides despite his statement saying that the requirement to have a guide had been toolboxed.106

In his notes of the meeting with Mr Taylor on 14 July 2016, it was acknowledged that there was nothing about Mr Knight saying that guides must be used. This was because he did not ask Mr Taylor whether Mr Knight had toolboxed it and Mr Taylor did not say that Mr Knight had told him that he had to do it. Mr Carlier recalled that Mr Taylor had acknowledged that he did not follow the procedure of having guides. 107

There was two-way traffic up and down the ramp to the vessel. This included forklifts taking cargo up that then were lashed and cars being driven up with the drivers coming off the ship in a taxi. The space inside the vessel was probably about 150m long by 20m wide. 108

a caravan load, the only car coming off the ship would be a full car of drivers in a taxi who have just dropped off their cars. Two forklift operators were on shift and, if one of the forklifts was at the bottom of the ramp, there would be two vehicles wanting to come off plus maybe a supervisor’s car. 109

The fans that draw out the air can be quite noisy. Protective headgear is available to the lashers for that reason. If a lasher was standing towards the back of the vessel, it was possible that they would not hear a vehicle tooting at the bottom of the ramp. This was also possibly the situation if they were wearing protective headgear. Mr Carlier agreed that the lashers could not come out on hearing someone tooting if they did not hear it. 110

If one of the lashers was not already on the stern ramp ready to commence guiding, the process was for the forklift driver to blow the horn and wait for an employee(s) to come out and guide them up the ramp. Mr Carlier said that what he meant was that the flag person would hear the beep and then turn around and signal to the guys to come down and provide guidance. 111

The flag person can assist at any time. It could be that, when a second guide was required, a lasher or a number of other people, could act as a guide. If the flag person and the forklift driver identified the need for a second guide, they needed to get them from somewhere. Mr Carlier said that the point was that the forklift driver did not move until the second guide was there. 112

The SWMS for RORO operations was not specifically about caravans and it did not contain a procedure for taking caravans off. Mr Carlier said that that was in Corrective Actions in the K Line damage report in 2014 which had been toolboxed subsequently. Mr Carlier stated that there was no formal training about the use of two guides and no individual SWMS for caravans and there was no formal training with the change in the procedure to two guides. 113

He made a file note on 26 July 2016 following talking to Mr Mathieson which stated that there was not a specific instruction to have two guides. 114 Mr Carlier confirmed that, as at 9 August 2016, he knew that the requirement to have two guides was not toolboxed.115

He agreed that, in the lead-up to the dismissal decision, he had not corrected the assumption that the requirement to have two guides was toolboxed at the meeting. 116

Mr Carlier denied being partisan against Mr Taylor. 117

Submissions

Applicant

[11] The Applicant stated that there were two issues in relation to this matter. The first concerned what happened on 1 July 2016 and the second related to Mr Taylor’s “previous misconduct”. 118 It was agreed that Mr Taylor’s past conduct was not relevant in relation to the valid reason issue. Rather, it was stated that it was relevant in regard to other matters.119

[12] With respect to the findings set out in Mr Taylor’s letter of dismissal, it was argued that, in relation to the first finding that Mr Knight had, at the toolbox, directed the employees to use a guide(s) when loading a caravan onto the vessel, it was recalled to be Mr Taylor’s evidence that he did not remember that requirement being toolboxed. Further, it was argued that Mr Knight’s evidence that he had said to wait for a guide before you take caravans up the ramp did not amount to a direction by Mr Knight. 120

[13] The second and third findings, that Mr Taylor had admitted during the meetings on 14 July 2016 and 29 July 2016 that he was aware of the direction by Mr Knight for the requirement to have a guide and also that he did not follow Mr Knight’s direction, were said to have also not been made out by the company. This was because, during Mr Carlier’s evidence, Mr Carlier had resiled from the first of these propositions. The Applicant’s evidence was recalled to be that he did not admit during these meetings that the Shift Manager had directed that there be a guide. Further, it was stated that there was nothing in Mr Ayres’ statement to say that Mr Taylor had made such an admission during the meeting on 29 July 2016. 121

[14] With respect to the third finding, it was argued that the evidence did not suggest that a direction was given and that Mr Taylor did not follow it. The third finding was said to be tied up with the fourth finding which was that Mr Taylor failed to follow the direction of the Shift Manager. 122

[15] In terms of whether this amounted to misconduct and therefore a valid reason for the dismissal, it was submitted that the fact that Mr Taylor had said that he could not recall the direction being given, had to be relevant because it was one thing to remember the direction and then consciously disobey it. Mr Taylor was said to not have resiled from the fact that he had an awareness in respect of K Line and that there was an expectation to have a guide and that he did not. However, the Applicant argued that it was a different matter altogether if it was being put as a matter of misconduct, that he got a specific direction, that he understood, from Mr Knight and that he disobeyed it. 123

[16] The Applicant contended that the Commission should take into account that he felt that he was under pressure as people had complained about him slowing the job down. It was said to have been Mr Knight’s and Ms Antranik’s evidence that Mr Watson had called up and complained about Mr Taylor slowing the job down. There was said to be evidence that the shift was on an early go and that Mr Taylor felt pressure from others who were honking behind him for him to hurry up. It was recalled that Mr Taylor’s evidence was that it was not deliberate and that he was under a lot of pressure that day. 124

[17] It was submitted that the Commission should also take into account the evidence that there was no one actually there to act as a guide. Mr Taylor’s evidence was recalled to be that there was no one else around at the time to act as a guide. It was stated that the video footage supported this contention. In addition, it was indicated that no one was specifically allocated that shift to be a guide and that there were people who were acting as the traffic controller. Mr Taylor’s evidence was recalled to be that it was unsafe for the traffic controller to leave their post and come down the ramp and be a guide. The evidence of Mr Carlier was said to have been that the usual practice was for people to wait at the bottom of the ramp and honk and then wait for one of the lashers to come out. It was argued that this evidence was not sustainable in light of Mr Knight’s evidence which was that this was not the usual practice. 125

[18] In addition, the Applicant submitted that:

The requirement to have a guide(s) was not dealt with in any written specific policy and there was some latitude as to whether there were one or two guides. No clear process appeared evident. 126

From a safety point of view, the incident was not of a level of seriousness to warrant dismissal. No damage was done and the Grade 5 on shift did not raise it as a serious safety breach during the shift. 127

He had not been trained in relation to the SWMS or any other document that deals with towable cargo. 128

There wasn’t any specific written policy relating to caravans. 129

It was an isolated incident concerning what happened on one day. 130

[19] It was stated that there appeared to be a clear interchanging of words by the Respondent such as direction, procedure and policy by the Respondent. If the issue was failure to follow a direction, this was said to mean that there had been a deliberate failure to follow a direction. It was argued that Mr Taylor did not remember being given the specific direction by Mr Knight and it was said that there was certainly no deliberate or wilful failure to follow Mr Knight's direction. It was acknowledged that Mr Taylor did concede that he had breached the procedure. However, the Applicant argued that it was not deliberate and that he was under a lot of pressure that day. Mr Knight’s evidence that there were timelines and expectations from the client was referred to. 131

[20] In relation to the flag person issue, the Applicant argued that, if one looked at the video footage, the flag person was not doing all of the things that Mr Knight suggested might be possible. It was stated that, from the video footage, Mr Taylor could clearly see what was happening and that that was the environment in which Mr Taylor drove up the ramp. 132

Respondent

[21] In relation to the question of valid reason, Qube contended that:

The Applicant’s submissions in relation to the nature or quality of the breach are irrelevant to the question of valid reason. They were said to be relevant to, and more properly dealt with, under section 387(h). 133

The incident on 1 July 2016 was described as the straw that broke the camel’s back. 134

The first question the Commission needed to decide was whether what happened on 1 July 2016 was a valid reason and then, if so, did the company’s response fit the crime, having regard to the circumstances including the history. 135

The issue, in respect to the incident on 1 July 2016, was not a safety issue and was said to have never been one. Rather, the issue was a failure to follow a direction or company procedure. The direction or procedure was not a safety direction/procedure as it was directed at looking after the client’s goods. It was explained that it was a work practice that could have led again to the type of incidents which had occurred in July 2014. 136

The Commission was not required to go through the four bullet points in the termination letter and make findings about those matters. Rather, the Commission’s task was said to be to find whether there was a valid reason. It was argued that what the employer may or may not have done was irrelevant and the after acquired knowledge cases were referred to. The Commission was taken to two authorities in this regard - Livingstones Australia v ICF (Aust) Pty Ltd T/A IC Frith & Associates 137 and Australia Meat Holdings Pty Ltd v McLauchlan.138

[22] It was submitted that it is relatively well established that the Commission needs to find whether there was a valid reason by reference to the evidence and material provided during the hearing. The Respondent stated that, therefore whether or not the company made good one or more of the factual propositions set out in the termination letter, was neither here nor there. 139 It was pointed out that the first bullet point was that Mr Knight gave a direction. This was said to be hardly a valid reason to dismiss Mr Taylor because Mr Knight gave a direction. This was despite Mr Taylor accepting and conceding in two meetings that he was aware of the direction.140

[23] The Respondent contended that Mr Taylor was clear in his evidence that he was aware of the requirement to have a guard or guards. It was stated that Mr Taylor decided, consciously and wilfully, not to have guards for the reasons he gave. The company contended that these reasons did not affect the fact that Mr Taylor knew what he was supposed to do and that there was a requirement in place as to how he was to perform his job. It was stated that Mr Taylor did not do it. This was described as an undeniable breach of a lawful and reasonable direction given by an employer. The company argued that it was a clear long-standing direction which Mr Taylor had accepted that he had heard plenty of times over the years. Mr Taylor was said to have indicated that it had been toolboxed all the time and that he had not denied that he had breached the procedure. Mr Follett described this as “game, set and match” in terms of valid reason. 141

[24] In support of its contention that a conscious breach of the policy or procedure constitutes a valid reason, the Commission was taken through two decisions - Selak v Woolworths Ltd 142 and Woolworths Ltd (t/as Safeway) v Brown.143 Whilst these decisions related to policies, the Respondent contended that the way the policy rationale is justified is by reference to the capacity of a master to give lawful and reasonable directions to his servant. It was stated that, in this case, there was a lawful and reasonable direction to use one or two guides when taking these types of caravans up a ramp. The company argued that Mr Taylor knew that and was aware that he was not supposed to do it but did not use a guide.144

[25] Finally, Qube contended that the Applicant had raised a range of false issues in relation to the incident on 1 July 2016. These were said to include whether it was one or two guides and the flagman issue. In relation to the former, the Respondent argued that this was irrelevant as Mr Taylor knew he was supposed to have at least one guide and he did not have at least one. 145

[26] In terms of the flagman practice, the company stated that this constituted a side argument about whether the company’s practice was safe or unsafe. As Mr Taylor did not use a flagman as a guide, this issue was also described as irrelevant. 146

[27] Further, the Respondent argued that Mr Taylor had been asked as to whether he had raised the false issues to create a grey area or doubt about what was a clear decision by him not to comply with the procedure that he knew about. Mr Follett’s recollection of Mr Taylor’s answer was that he had said “Yes”. 147

Considerations and conclusions

[28] The company relied solely on the events of 1 July 2016 to provide a valid reason for the dismissal of Mr Taylor. This was on the basis that Mr Taylor had failed to follow a direction or company procedure which was to use a guide when towing caravans. This had been toolboxed that morning at the beginning of the shift and Mr Taylor was aware of the requirement to use a guide(s).

[29] On the other hand, the Applicant submitted that what happened on 1 July 2016 did not amount to a valid reason for Mr Taylor’s dismissal. This was because Mr Taylor could not remember the requirement being toolboxed. However, Mr Taylor had indicated that he was aware of the expectation that he use a guide when towing caravans but had not consciously disobeyed it. Mr Taylors’s evidence was that he was under pressure at the time with cars tooting and people yelling. Further, it was also argued that Mr Knight’s evidence on this point did not amount to him giving a direction to Mr Taylor to wait for a guide before taking caravans up the ramp.

[30] I have carefully considered all of the material before me.

[31] It was Mr Taylor’s evidence that:

On 1 July 2016, he had driven on and off the vessel several times without guides.

By not having a guide, he had breached the procedure.

The requirement to have guides for caravans had been toolboxed on almost every shift involving RORO operations over the past two years.

He could not remember whether or not Mr Knight had toolboxed that requirement at the beginning of the shift on 1 July 2016.

He had decided, on 1 July 2016, despite knowing of the requirement, to not follow the policy based on his own judgement call. He had denied that this was his usual approach.

He had not deliberately decided not to follow the procedure but he was under a lot of pressure that day with cars tooting and people yelling.

No guides had been allocated by the Shift Manager.

His vision was not impaired that day and so it was ok without a guide.

[32] On the basis of Mr Taylor’s evidence, I find that, on 1 July 2016, Mr Taylor did not use a guide when he towed caravans up the ramp onto the ship on several occasions. It was also Mr Taylor’s evidence that he knew of the requirement to use guides but had made a judgement call not to use a guide. This was because he was under pressure that day from cars tooting and people yelling. Whatever the reason, the fact remains that Mr Taylor made a conscious decision not to follow the company’s requirement to use a guide(s) when towing caravans - of which he was aware.

[33] With respect to whether or not the requirement to use guides/wait for a guide before taking a caravan up the ramp, was toolboxed by Mr Knight at the beginning of the shift on 1 July 2016, I find it is most probable that Mr Knight did state that requirement at that time. It was Mr Taylor’s evidence that he could not remember whether or not Mr Knight had toolboxed this requirement. However, there was nothing in the evidence of Mr Knight to suggest other than that he had toolboxed the requirement for guides.

[34] Therefore, I find that Mr Taylor made a conscious decision not to follow a company requirement which had been stated at the beginning of the shift by the Shift Manager.

[35] The next question then is whether Mr Taylor’s conduct on 1 July 2016 constituted a valid reason for his dismissal. On balance, I find that there was not a valid reason for Mr Taylor’s dismissal. In and of itself, although serious and not in any way condoned, Mr Taylor’s decision to breach the company’s requirements in relation to use of a guide(s) when towing caravans, does not, in my view constitute a valid reason for his dismissal. It was a breach of a company procedure which Mr Taylor was familiar with but, as an isolated event, it does not, in my view, on balance, constitute a valid reason for Mr Taylor’s dismissal.

[36] In its submissions, the company made it clear that they were relying solely on the 1 July 2016 incident as the valid reason for Mr Taylor’s dismissal. Had the prior warnings been considered also in relation to valid reason, the Commission’s finding may have been different.

Section 387(b) - notified of the reason

[37] It was common ground that Mr Taylor was notified of the reason for his dismissal. 148

Section 387(c) - opportunity to respond

[38] There was no dispute between the parties that Mr Taylor was provided with an opportunity to respond. 149

Section 387(d) - unreasonable refusal to have a support person

[39] Mr Taylor had a support person throughout the process. 150

Section 387(e) - previous warnings for unsatisfactory performance

[40] Mr Taylor was given a number of warnings prior to his dismissal. These related to Mr Taylor’s conduct and failure to follow policies and procedures rather than unsatisfactory performance.

Section 387(f) and (g) - size of the employer/human resources expertise

[41] Qube is a large employer and has human resource management specialists. 151

Section 387(h) - any other matters

[42] As the company only relied on the incident that occurred on 1 July 2016 as constituting a valid reason for the dismissal, the other disciplinary issues concerning Mr Taylor are therefore considered under this criterion.

[43] It was Qube’s view that the following incidents were relevant and should be taken account of in determining whether the dismissal was harsh, unjust or unreasonable:

19 June 2014 - warning for threatening behaviour towards a Manager (Mr Marron) who had instructed Mr Taylor to wear the correct PPE on 3 June 2014. 152

27 June 2014 - counselling letter for not wearing the correct PPE in accordance with the Respondent’s requirements on 3 June 2014. 153

26 February 2015 - final warning for breaching the company’s Code of Conduct following aggressive behaviour towards the Charge Foreman on 10 December 2014. 154

22 April 2016 - final warning for leaving the site without proper approval on 31 March 2016 (breach of contract and the enterprise agreement). 155

Witness evidence

(a) Events of 3 June 2014 - counselling letter dated 27 June 2014 and warning dated 19 June 2014

Mr Taylor

[44] Mr Taylor gave evidence that:

He received a counselling letter (dated 27 June 2014) for failure to wear the correct PPE. 156

He received a warning letter (dated 19 June 2014) for threatening Mr Marron in relation to Mr Marron’s request to put the correct PPE on, on 3 June 2014. The warning letter was also for a further threat of discrimination to Mr Marron regarding an incident the previous day (2 June 2014). 157

On 2 June 2014, he was one of five workers who could not extend their shift and who were then told by Mr Marron to perform lashing duties. When Mr Taylor had said that he could not extend, Mr Marron had sworn at him. 158

On 3 June 2014, he had raised a safety issue with the Shift Manager (Mr Marron) in his role as a Health and Safety Representative. 159

He was not aware of the requirement to wear a specific coloured PPE so he had the yellow overalls in his car. Mr Marron had asked him where his overalls were and to go and get them and that, as a Health and Safety Representative, he should know better. He rang Mr Marron from his car and told him that he had his yellow overalls. Mr Marron told him that he was not allowed to wear them and to go home and get the yellow and blue ones, which he did. He did not realise he did not have the right overalls. He was in tracksuit pants and the company shirt and riding the forklift. 160

He did not agree that he had not given that excuse or account previously 161 He could not be sure about what he had said because it was two years ago. He agreed that it was more likely that he remembered what the situation was with his overalls in June 2014 than today.162

He clearly remembered what happened that day. 163

He had his yellow overalls with him but not his yellow and blue overalls. 164

It was possible that what he was saying was that he understood that he was supposed to have the overalls that he did not have with him, on him, and that he had forgotten them and so he gave an explanation as to why he had forgotten them. 165

He had appreciated that he was supposed to have them after Mr Marron had told him. Mr Taylor denied that this was a lie and stated that he was confused. 166

He was told to accept the warning and had not complained about it because it was the only trouble he had been in. He had let it live out its course over the 12 months and had thought that that would be it – and now this. 167

He had spoken to WorkSafe about the warning. He had had to accept the warning because that was the agreement between the union and Mr Saul to save him from being terminated. 168

He agreed that after he had lost his job and 2 ½ years after the incident, he was now saying that it did not happen and that he should not have got a warning in the first place. It was denied that he had made this up for the purpose of these proceedings so that his conduct did not look as serious as it might otherwise. 169

Mr Marron has sworn at him on both 2 June 2014 and 3 June 2014 - in the toolbox and on the phone. 170

He denied that he had engaged in threatening behaviour. 171 He believed that he was discriminated against.172

He denied that he had threatened to have Mr Marron up on allegations of discrimination in relation to the lashing incident on 2 June 2014 and the PPE incident on 3 June 2014. 173 He had said to Mr Marron that he had discriminated against four people - five people yesterday and that today it was verging on harassment - not discrimination. Mr Taylor said that his threatening behaviour was to threaten to go to the union and to WorkSafe.174

He definitely did not say to Mr Carlier that, in the heat of the moment, he might have threatened Mr Marron with discrimination because he had singled him out at the toolbox talk. 175

Mr Marron

[45] Mr Marron’s oral and written evidence was that:

On 2 June 2014, during the toolbox talk, there were five people who were not extending (their shift) and so he told them that they were to work as lashers. Mr Taylor said to him that that was discrimination because they were not extending. Mr Marron recalled explaining the reason and Mr Taylor had then repeated that that was discrimination and carried on a bit. 176

He definitely did not swear at Mr Taylor. 177

During the morning toolbox talk, on 3 June 2014, he talked through the key safety messages that had come from the Director of Ports. 178

Mr Taylor was a Health and Safety representative at this time. 179

He did not recollect that Mr Taylor had asked any questions about safety during the toolbox talk because, if Mr Taylor had asked a question, he would have directed it at him (Mr Marron). 180

He noticed that Mr Taylor was not wearing the correct PPE for a break bulk vessel. 181

He spoke to Mr Taylor and told him that he would need to get on the correct PPE before he started work. Mr Taylor was recalled to have said that his overalls were in his car and he would have to get them. 182 He had then told Mr Taylor that he should know better as he was on the Safety Committee and should be setting an example to other employees. Mr Taylor was said to have replied that there was another employee who did not have the correct PPE on either. Mr Marron had responded by telling Mr Taylor to worry about himself and to make sure that he was following company procedures and he (Mr Marron) will worry about the other employee.183

Mr Taylor had then gone to his car and had rung Mr Marron and told him that, if the other employee was not wearing the correct PPE when he got back, he would have Mr Marron up for discrimination. He also said that he did not have the correct overalls in his car. Mr Marron recalled telling Mr Taylor that he could go home and get a pair and then come back to work. Mr Taylor’s response was said to have been that he will have Mr Marron up for discrimination if the other employee wasn’t in the correct PPE and that he would have Mr Marron up for discrimination for what happened at Webb Dock yesterday. 184

He had separately addressed the issue of the other employee not wearing the correct PPE 185

He had sent an email to Mr Carlier in relation to the issue that he had had with Mr Taylor at the safety meeting. 186

He confirmed that, in the email, he had said that he had told Mr Taylor that Mr Taylor knew better than that and that he should be setting an example to other employees as he was on the Safety Committee. 187

He denied that he was treating Mr Taylor differently because he was on the Safety Committee. He said that he was just highlighting the fact that Mr Taylor was on the Safety Committee and therefore that he should come to work prepared in the correct PPE so as to set an example for the rest of the employees. This was because Mr Taylor was on the Safety Committee and so should know better. 188

In relation to the allegation that he swore at Mr Taylor, Mr Marron denied doing this. He acknowledged that he was rough and ready and that he did swear in the workplace. He agreed that he was a bit irritated with Mr Taylor during the exchange between them but denied that he swore at Mr Taylor. He stated that Mr Taylor was not someone who he ever swore around because his perception was that Mr Taylor would use it against him. 189

Mr Carlier

[46] It was Mr Carlier’s evidence that:

He met with Mr Taylor to discuss the company’s expectation that employees were to present at work with the correct PPE. Mr Taylor was recalled as saying that he did not have his new issue as he had just come off workers comp. Mr Taylor had then said that he had forgotten the blue overalls which were washed but he had forgotten to put them back in his car. He only had yellow overalls in his car. 190

Mr Taylor had then raised an issue that Mr Marron had discriminated against him the day before plus the PPE issue. Mr Carlier had responded that Mr Taylor’s discrimination claims would be dealt with separately. 191

The warning letter was issued by Mr Saul on 19 June 2014. 192

He agreed that employees have a right to complain that they are being discriminated against in the workplace. 193

During the meeting with Mr Taylor, on 30 June 2014, he had discussed with Mr Taylor his allegations of discrimination by Mr Marron. 194

He confirmed that he had then called a break in the meeting and had consulted with Mr Saul about the warning. Mr Saul had indicated to him that the warning would be issued. 195

The reason given to Mr Taylor for the warning was confirmed - that there was no doubt that Mr Taylor had twice raised the possibility of a discrimination claim against Mr Marron with no basis for his claim. 196

When Mr Taylor was asked about the grounds for his claims, nothing came forward. The purpose of the meeting was said to be to give Mr Taylor another opportunity to set out the case for his discrimination allegations. As nothing was presented, the decision stood to issue Mr Taylor with a warning for threatening to lodge a discrimination claim against a Manager which was unfounded. 197

Prior to the meeting with Mr Taylor on 30 June 2014, there was an email exchange between himself and Mr Saul on 19 June 2014. Mr Carlier confirmed that Mr Saul had emailed and said that he had seen the record of conversation with Mr Taylor and that he agreed with issuing a counselling letter regarding the PPE. 198

He agreed that Mr Saul had attached to his email of 19 June 2014 a warning. Mr Carlier confirmed that Mr Saul had already prepared and signed the warning on 19 June 2014 and had told him that it was going to be issued the following week. 199

He agreed that there was no doubt in Mr Saul’s mind. 200

He denied that, prior to the meeting on 30 June 2014, he had already decided that Mr Taylor would be issued with a warning. 201

The purpose of the meeting was twofold - to issue a counselling letter and to reconfirm the facts as put by Mr Marron around the discrimination claim. Mr Saul was said to have wanted confirmation about the basis of Mr Taylor’s claims. 202

He understood the facts to be as put by Mr Marron but the meeting was to give Mr Taylor an opportunity to respond before there was an outcome/decision. If Mr Taylor had produced something different to what he had advised earlier, Mr Saul may well have decided not to issue the warning. However, it was stated that Mr Taylor did not provide any more facts. 203

Mr Taylor said during the meeting that he might have threatened Mr Marron with discrimination in the heat of the moment as he had been singled out at the toolbox for not being correctly attired. 204

He confirmed that he had sent an email to Mr Marron on Friday 27 June 2014 (ahead of the meeting with Mr Taylor on Monday 30 June 2014). He agreed that he had said in the email that Mr Taylor would be running for cover on Monday when he issued the formal warning from Mr Saul. 205

He disagreed that he was already planning on issuing the warning. The comment was said to be on the basis that nothing changed. 206

He had broken the meeting for a reason. The break was after the allegations were put back to Mr Taylor and Mr Taylor was asked to provide grounds and reasons why he had made those statements but nothing had changed. So, the reason for the break and for ringing Mr Saul was to provide any more information that had come to the table (which there wasn’t) as Mr Saul wanted the warning to stick. 207

The reason for requesting Mr Marron to provide additional comments (“some additional comments may help”) was that Mr Marron was not as good as some of the other Shift Managers in recording events in writing. He therefore had to ensure that Mr Marron was very clear in what he was saying. 208

The conversation he had with Mr Saul was that the warning would be issued subject to the meeting. This was not consistent with Mr Saul’s email where he said that he was going to advise the union that the warning would be issued. However, there were conversations between Mr Saul and others internally (he was not involved) between Mr Saul’s email to Mr Carlier and the email Mr Saul sent to the union. 209

His meeting with Mr Taylor on 30 June 2014 was the only time he had talked to Mr Taylor about the incident and then the warning was issued. 210

If it was true that Mr Marron did discriminate against Mr Taylor for being a Health and Safety Representative that would be the basis of a legitimate complaint. 211

Mr Saul

[47] It was Mr Saul’s evidence that:

He had emailed Mr Carlier, on 19 June 2014, in relation to the incident between Mr Marron and Mr Taylor. The record of conversation referred to in the email was the one that Mr Carlier had received from Mr Marron. In his email, he had agreed with a counselling letter regarding the PPE incident. 212

In the email to Mr Carlier, he had also said that what he had found far more concerning was the threat by Mr Taylor to Mr Marron about formalising a discrimination charge against him. 213

It was acknowledged that at the time he had made that statement to Mr Carlier in the email, he had not spoken to Mr Taylor about it. He had based his comment on Mr Marron’s version of events and stated that he did not have Mr Taylor’s version of events. 214

He was aware that Mr Taylor was a Health and Safety Representative at that point in time. 215

He agreed that an employee has a right not to extend their shift. 216

It was his view that, in the context of the environment, Mr Taylor was in effect threatening the Shift Manager who was only trying to enforce what he saw as a legitimate concern. 217

He agreed that, if Mr Taylor was being discriminated against because he had refused to extend a shift, that would be the basis for a legitimate complaint. 218

He believed the Shift Manager (Mr Marron) over Mr Taylor. 219

He confirmed that, on 19 June 2014, he had made the decision to issue a warning to Mr Taylor. He agreed that, at the time he had issued the warning, he had not spoken to Mr Taylor. 220

(b) Incident on 10 December 2014/final warning dated 26 February 2015

Mr Taylor

[48] It was Mr Taylor’s evidence that:

The incident was about him trying to defend himself as Mr Syzmski was swearing at him and being aggressive towards him. He had a witness but the witness did not want to come forward now. 221

Mr Syzmski had come over towards him and he had raised his arm in self defence. Mr Taylor had then said to Mr Syzmski to go up on the next deck and we’ll sort this out. This was because the fans on the deck were so loud that you cannot hear. 222

He denied that that was an invitation to have a fight and said it was an invitation for a chat. 223

He had his fist to the side of Mr Syzmski’s face as a natural reaction to the possibility of being hit. Mr Syzmski was standing right in front of him. 224

He denied that he had approached Mr Syzmski twice in short succession. Mr Taylor recalled that he had walked over to Mr Syzmski in relation to a safety issue, and asked what he was doing; that that girl wasn’t a parker and that if she damaged a car, she and Mr Syzmski would be sacked. Mr Taylor had also said that Mr Syzmski had created a second point of work on the deck and to knock it off. Mr Syzmski had then gone off his head and said that he could do whatever he wanted. 225

He denied that, when he approached Mr Syzmski, he was aggressive and had sworn at him. 226

The second time he had approached Mr Syzmski, he was working unsafely and Mr Taylor had told him that, if he didn’t stop it, he would call the union and WorkSafe. 227

He agreed that Mr Syzmski had then ordered him off the ship. Mr Taylor denied that he had pretended to throw a punch at Mr Syzmski and had held his fist in his face. Mr Taylor also denied that he had said to Mr Syzmski that if they were outside, he would have hit him and that he was lucky. 228

He recalled that the incident was investigated and that he was asked, in a show cause letter, to provide a response to the allegations. Mr Taylor also recalled that he had prepared a written response. 229

He denied that, in his response, he had accepted that he had approached Mr Syzmski twice but Mr Taylor then accepted that he had, later on in his evidence. 230

He disagreed that, in his statement, “my actions/procedures” referred to Mr Taylor having said that he would have Mr Syzmski before the union and WorkSafe. 231

Before he went back to work, he had been ordered off the ship. Mr Taylor said that he had been off the ship for 5 minutes and not 15 minutes as he had done a changeover from lashing to driving cars. 232

He disagreed that, in saying that it was noisy and so people had to use loud voices and hand gestures, this might help explain why it might be thought that he had threatened Mr Syzmski and held a fist up to his face. 233

He denied that his statement was false in that it denied that he had threatened Mr Syzmski physically or verbally. Mr Taylor said that it was a heated discussion and that he had not denied holding his fist up. 234

He denied that he had raised his fist in anger and aggressively as a threat to Mr Syzmski. 235

He agreed that his statement of 11 February 2015 did not include the allegation that Mr Syzmski was aggressive towards him or that he was feeling threatened or that he had raised his arm in self defence. Mr Taylor explained that this was because he and Mr Syzmski had worked out a story between them. 236 The stories were changed by the union so that both of them would not be terminated. He did not write the statement.237

He agreed that it was not in the statement that he and Mr Syzmski had discussed Mr Taylor’s son. 238 Mr Taylor stated that Mr Syzmski had said that he had got rid of Mr Taylor’s son.239

Mr Syzmski had said to him that he was a dead man walking. 240

He denied that he was making this new account up. 241

He agreed that he was already on a warning at this time and that he was worried about losing his job. 242

The union has spoken to Qube on his behalf and had offered that Mr Taylor give up his HSR role as a goodwill gesture. This had been offered because he knew that he had done the wrong thing and so was in trouble and he wanted to keep his job. 243

Mr Saul

[49] Mr Saul gave evidence that:

He had never spoken to Mr Syzmski about getting rid of Mr Taylor and his son. 244

In terms of the email exchange between Mr Carlier and himself, he considered the issues raised by Mr Syzmski to be serious issues. 245

At that stage, he and Mr Carlier did not know what they had. He deliberately did not talk to Mr Syzmski because he wanted to keep his distance. They had a statement from Mr Syzmski but were unsure if Mr Syzmski was prepared to sign it. If Mr Syzmski was not going to sign something, there was no basis for proceeding. 246

He agreed that, in Mr Carlier’s account of what Mr Syzmski had told him, it included Mr Syzmski telling Mr Taylor to fuck off and get back to his lashing. 247

Mr Saul also agreed that, in Mr Syzmski’s signed statement, there was no mention of Mr Syzmski telling Mr Taylor to fuck off and get back to his lashing. 248

As part of the process, if an employee is being investigated, they are told the reason for the meeting which is relevant to their understanding of the meeting. 249

In relation to the letter sent to Mr Taylor, on 18 December 2014, headed “Resolution Meeting”, Mr Saul explained that the purpose of the meeting was to see if there was a matter at all. Mr Saul stated that it was an opportunity to find out the validity of the statement that had been provided by Mr Syzmski. The company had one side of the story but did not know if there was any validity to it. 250

It was confirmed that, at the meeting on 22 December 2014, Mr Taylor was asked for his account of the facts which were then weighed up with Mr Syzmski’s statement. 251

On the balance of probabilities, he made a factual finding that Mr Syzmski’s version of events was most likely accurate. 252

In hindsight, maybe he would have used a different heading to that of “Resolution Meeting”. He had an alleged altercation with an employee and therefore something had to come out of it one way or another. He could understand that there might be a difference between an investigation and a resolution - which was something they might need to do better. It was said that, by 2016, the company had. 253

The notes of the meeting on 22 December 2014 recorded Mr Taylor saying that Mr Syzmski had exploded but with no details. Mr Saul did not concede that being told to fuck off was an explosion because being told to fuck off was not unusual on the waterfront. 254

He agreed that, during the meeting, Mr Syzmski did not say that Mr Taylor screamed at him. In Mr Syzmski’s signed statement, he had said that Mr Taylor was pretty aggressive and had sworn. 255

It was confirmed that his notes of the meeting with Mr Taylor on 22 December 2014 recorded Mr Taylor saying “just bullshit” in response to the allegation that he had physically threatened Mr Syzmski. 256

There were a couple of reasonably sizable inconsistencies which led him to question the validity of Mr Syzmski’s statement. He did not speak to Mr Syzmski to resolve those inconsistencies. 257

The sizable inconsistencies were said to be that Mr Taylor had said that he had gone up to the Charge Foreman once but it seemed certain that he had gone up twice. Also, Mr Taylor had said he had not left the vessel when he had been told to leave the vessel. 258

He was not present in the room when Mr Syzmski signed the statement. He recalled having formulated the statement. He was unaware of what happened on the day when Mr Syzmski was in the office and had signed the statement. 259

Mr Taylor was informed that he would be given a final warning at a meeting on 26 February 2015. 260

It was a case-by-case situation in relation to whether Qube relied on disciplinary warnings of more than 12 months old. He recalled having seen warnings relied on in those circumstances. 261

Ms Antranik

[50] It was Ms Antranik’s evidence that:

She was not present in a meeting with Mr Syzmski about this incident. 262 She had no involvement in this matter.263

She was employed by Qube at the time. It was just before she left (January 2015). 264

Mr Szymski

[51] Mr Szymski did not give evidence or provide a written statement. The Statement he gave to Mr Carlier on 18 December 2014 was provided by the company. 265

[52] In his Statement, Mr Szymski said that:

As the hatch was closing off and Mr Watson (director) was running out of space, he directed a couple of cars clear for Mr Watson and parked them off. Mr Taylor approached him and said that he should not be directing cars. Mr Taylor was pretty aggressive and swore. He (Mr Szymski) had responded by saying that the whole operation was his job and that if he needed to give Mr Watson a hand, he would. 266

Mr Taylor went back to his job but then returned and told him that if he (Mr Szymski) did not stop doing what he was doing, he would call the union and Work Safe. 267

Mr Szymski had then ordered Mr Taylor off the ship and told Mr Taylor to see the Supervisor and to inform the Supervisor that Mr Szymski had ordered him off the ship. 268

Mr Taylor pretended to throw a punch at my face and held his fist at my face. Mr Taylor said that if he (Mr Szymski) was outside, he would have hit him and that he was lucky this time. 269

Mr Ayres

[53] Mr Ayres stated that Mr Carlier had approached him on 18 December 2014 and had asked if he knew of any of the issues as set out in his statement. He had said No. 270 To the best of his recollection, Mr Ayres said that no one had raised any issues with him on the day.271

Mr Carlier

[54] Mr Carlier gave the following evidence:

He had spoken to Mr Syzmski about one and a half hours after the incident. Mr Syzmski had said that one person had played up and if it wasn’t reported to Mr Ayres it wasn’t worth talking about. 272

He had then gone and asked Mr Ayres if he knew of any issues and Mr Ayres had said No. 273

In his email to Mr Saul on 18 December 2014, he had summarised Mr Syzmski’s statement. 274

The information from Mr Carlier’s summary in his email was copied over into Mr Syzmski’s statement. This was because he had typed up the file notes which were taken during a phone conversation between himself and Mr Syzmski who was at home. Because of the severity of the incident, he asked Mr Syzmski to come in and if he was prepared to put it in writing. 275

Mr Syzmski came into the office but he was not sure whether it was himself or Ms Antranik who had written/typed up the statement. Mr Syzmski had signed the statement in his presence because they were his words. Mr Syzmski definitely did not type it. 276

He was pretty sure that Ms Antranik was in the office when Mr Syzmski came in. 277

He confirmed that Mr Syzmski had told him that he had said to Mr Taylor to fuck off and get back to his lashing. He agreed that it did not appear in Mr Syzmski’s statement. 278

Neither he nor Ms Antranik deleted that line. The written statement was what Mr Syzmski was prepared to put into his statement. 279

He agreed that Mr Syzmski telling Mr Taylor to fuck off was relevant information in terms of what happened. 280 There was a lot of information in the summary that was not in the statement.281

He agreed that the version that Mr Syzmski signed appear to have been sanitised as it removed information about Mr Syzmski swearing at Mr Taylor. 282

He did not know that that piece of information had been removed. He did not consciously take it out. He did not know anything other than the fact that, when he has spoken to Mr Syzmski over the phone, Mr Syzmski had become quite emotional and had had a lot to say. His immediate thought was to get Mr Syzmski in and put down in writing exactly what Mr Syzmski had just told him. When Mr Syzmski came in, they had gone back over what he had said. Whether he had a copy of the email in front of them at the time, he could not recall. He had said to Mr Syzmski that this was what he had just told him and that if it was true and factual, he needed to write it down and sign it. Mr Syzmski could not type and so either he or Ms Antranik read through each line and asked if that was correct/ was he going to put his name to it now as it was what Mr Syzmski had told him half an hour ago. He had also told Mr Syzmski that all he wanted were the facts. 283

He did not believe Mr Syzmski’s first statement because one had to do an investigation. He did not believe anything until everyone had had an opportunity to respond. 284 It was acknowledged that the written statement would form part of the investigation.285

He agreed that, in the second email to Mr Saul, he had made some corrections to the first summary with the result that the two versions were not exactly the same. He agreed that he had had added into the second version “But next time he saw me outside” and that it was different to what Mr Syzmski had said the first time. 286

The third (signed version) appeared not to have everything in it that the first version had and it had new information. 287

The investigation that was undertaken comprised of him speaking to Mr Syzmski on the telephone; the email exchange between himself and Mr Syzmski on 18 December 2014 and Mr Syzmski signing the written statement. He believed that Mr Saul may also have spoken to Mr Syzmski and agreed that he (Mr Carlier) was part of the investigation. 288

Mr Taylor

[55] Mr Taylor gave evidence that:

He accepted that he had left early on 31 March 2016 and said that he had the approval of the Charge Foreman (Team Leader). 289

It was common practice for years for approval to leave early to be given by the Charge Foreman. The Charge Foreman will then tell the Supervisor that you have left early. Mr Taylor said that, unfortunately, Mr Caracella did not tell the Supervisor that he had gone. 290

He was not aware of anyone being disciplined for getting permission from the Charge Foreman to leave early. 291

It was in the enterprise agreement that one can get permission to leave early from the Charge Foreman. Mr Taylor said that the Supervisor was not there at the relevant time. 292

He was aware that Mr Caracella had been given a warning for having given him approval to leave early on that day. 293

At the meeting with Mr Carlier, he disagreed that no one asks the Charge Foreman for approval. 294

He had received a call regarding some financial issues when he was in the amenities block and so he had to leave. 295

He had looked for Mr Ayres in the amenities block and down the corridor to the ship but could not find him. He then went outside the amenities block and saw Mr Caracella. 296

He agreed that he had gone into the amenities block by himself and that Mr Caracella was outside. He disagreed that he had a bag when he had walked out of the amenities block. 297 Mr Taylor said that it was his helmet and jacket.298

He agreed that he had then paused in front of Mr Caracella and a couple of other persons for no more than five seconds and had then walked off. 299

He had paused because he had said to Mr Caracella that he had to go and Mr Caracella had said that, if you have to go, go. 300

He denied that he was leaving having grabbed his stuff because he said that he was walking out towards the ship. Mr Taylor said that, if he had been leaving, he would have gone the opposite way. 301 This would have meant that he would have turned around and gone out the other way, about 50 - 60 metres to the walkway to the turnstiles and then out.302

He had lodged a personal grievance in relation to the warning he had received. 303

Mr Ayers

[56] It was Mr Ayres’ evidence that:

Mr Taylor said that he was unable to extend at the toolbox on 31 March 2016. 304

It became apparent that the vessel would not finish within the allocated time (4.00 p.m.) and so he opted to extend the shift. 305

He had already granted people who said they could extend, an extension on the shift. As it eventuated, those people were then likely to receive bonus pay for doing a little extra work. 306

When it looked like the work might finish within 10 hours, Mr Taylor had approached him and asked him if he was going to give him an extension. He had replied that Mr Taylor had said he could not extend at the beginning of the shift and so it would not be fair if he gave it to him now. 307

The meal break ended at around 3.10 p.m. and there were 4 - 5 employees sitting around outside the wharf side entry to the amenities block. They included Mr Caracella. One of the employees alluded to the fact that Mr Taylor had cracked the shits and had left (without mentioning Mr Taylor’s name). Mr Caracella did not say anything at that point in time about Mr Taylor’s absence. 308

One of the employees (Mr Mathieson) asked if he could go and he had said yes because he did not need him anymore. 309

If Mr Taylor had asked if he could go, he would have let him go as well. 310

He had then advised Ms Antranik that the guys had just told him that Mr Taylor had left early. He asked Ms Antranik to check with security about this. 311

He subsequently sent an email to Ms Antranik saying that Mr Taylor had left site without permission about an hour before the end of his allocated shift. The email stated that Mr Taylor had not spoken to him about leaving and that it did not appear that Mr Taylor was released by his Team Leader. 312

He was requested by Ms Antranik to call Mr Taylor which he did. He recalled Mr Taylor saying that he had had to go and that he had asked the Team Leader who said it was okay for him to go. He was not aware that he needed to ask the Shift Manager for permission to leave the site. 313

He had then telephoned Mr Caracella who told him that he had given Mr Taylor permission to leave the site. Mr Caracella also said that he was not aware that he should have come to him (Mr Ayres). Mr Caracella had said that it happened all the time. 314

Under the enterprise agreement, the Shift Manager is the only person who can authorise someone to leave site. 315

He can nominate someone to take over from him if he is unable to perform his function. This possibility included nominating someone else to approve absences. 316

There are no circumstances, and it has had never happened on his shift, where the Team Leader was authorised to give permission to leave site. 317

[57] Mr Knight gave evidence that he was not aware of a practice whereby employees obtained the approval of a Team Leader, instead of a Shift Manager, to leave site early. 318

Mr Carlier

[58] It was Mr Carlier’s evidence that:

There was an incident some years ago when an employee was counselled/performance managed for allowing another employee to go without the person in charge or the Shift Manager’s approval. A memo had been sent out about it. 319

In an email on 8 April 2016, he had recorded a conversation he had had with Mr Caracella. It was confirmed that Mr Caracella had told him that, when Mr Mathieson had asked if he could go home, he had told him to ask Mr Ayres who was nearby. Mr Ayres had said that they could both go home. Mr Caracella had never thought of telling Mr Ayres that Mr Taylor had gone home after Mr Ayres had said that both of them could go. 320

Mr Ayres had denied that he had said that they can both go home. 321

He acknowledged that the file note summarising his conversation with Mr Caracella was different to what he said in his email to Mr Smith dated 8 April 2016. 322

He agreed that the summary in the email to Mr Smith was not a summary of the facts but his conclusion after he had spoken to Mr Ayres. 323

He understood that Mr Taylor had left not long after the smoko break commenced (before 3.12 p.m.). 324

At the time Qube made the formal decision in relation to what had happened, it was Mr Carlier’s view that Mr Caracella’s suggestion that Mr Ayres had authorised, in advance, that Mr Taylor could leave was false. This was because Mr Ayres would not have checked the CCTV otherwise. 325

He agreed that, if it was true that Mr Ayres had said to Mr Caracella that they can both go home, Mr Taylor would have been authorised to have left early. 326

Submissions

Applicant

[59] The Applicant submitted that the past misconduct was relevant in relation to other matters. This was on the basis that the dismissal may be unreasonable because it was decided on inferences which could not have been reasonably drawn from the material before the employer. 327

[60] It was contended that the Respondent wanted to have it both ways in relation to the past warnings. The Applicant recalled that the Respondent had indicated that the issue was whether the events had actually occurred or not and then, the Respondent had said, that it was relevant that Mr Taylor had had two final warnings. Therefore, the extent to which the final warnings were legitimate and warranted was relevant. It was indicated that, as the Respondent relied heavily on the fact that Mr Taylor had been given these warnings, the process by which they came about was something that the Commission should take into account. 328

[61] In terms of the Respondent’s allegations about Mr Taylor’s credit, it was stated that it was only Mr Marron who gave evidence that was directly contrary to Mr Taylor’s account. It was recalled that Mr Taylor gave very frank evidence and that he made a number of concessions, some of which were probably not helpful to his case. It was stated that Mr Taylor gave honest answers and that he was a straight shooter. 329

[62] The Applicant submitted that it was the Respondent who has put a spin on things. With respect to Mr Marron’s evidence, it was argued that, even though he described himself as rough and ready and agreed that he does swear in the workplace, Mr Marron was not prepared to accept that he had used the word ‘fuck’ during his exchanges with Mr Taylor. Further, it was contended that there was the removal of a key issue in dispute (the request for an extension) from Mr Marron’s witness statement and that it was characterised as “for what happened yesterday” - which could have been anything. 330

[63] In addition, it was argued by the Applicant that the difference between Mr Taylor’s “That’s discrimination” and Mr Marron’s “I’ll have you up for discrimination” was simply Mr Marron’s perception that what Mr Taylor had said was a threat and this had spiralled into Mr Taylor getting warned for raising the issue as a result of Mr Taylor feeling that he had been discriminated against because he had refused to extend the previous day. Mr Marron recording the way he took it was said to not take away from what Mr Taylor said as people are allowed to say that they are going to bring a claim of discrimination. 331

[64] Further, in relation to the issue of credit, it was contended that Mr Carlier’s evidence in relation to the Mr Marron event beggared belief. It was stated that Mr Carlier’s evidence was that he had an open mind before he met with Mr Taylor. When confronted with his email which said that Mr Taylor will be running for cover when he issued him with a warning on Monday, Mr Carlier was described as not being able to concede that it was disingenuous to say that what Mr Taylor said during the meeting would be genuinely considered. 332

3 June 2014 incident

[65] It was recalled that Mr Taylor’s evidence was that he was not aware that he had to have the blue and yellow overalls on. It was stated that Mr Taylor had acknowledged that he was supposed to have overalls on as opposed to track suit pants. Mr Taylor was said to have acknowledged that he wasn’t in the right gear and he had to go and get the overalls he had in his car. The Applicant submitted that this issue was not serious or significant or something that was relevant for the Commission to take into account more than two years after it occurred. 333

[66] In terms of the allegation that Mr Taylor threatened to bring a discrimination claim against Mr Marron, it was recalled that Mr Taylor’s evidence was that he raised an issue in respect of his function as a Health and Safety Representative and that Mr Marron subsequently became angry and swore at him. This had made him feel that the way that Mr Marron was treating him was discrimination both for that and the fact he would not extend his shift the day before and that Mr Marron was bordering on harassing him. It was submitted that Mr Taylor should be believed on these matters and that he was entitled to complain that he felt that he was being discriminated against for raising health and safety issues and for not extending a shift the previous day. These were said to constitute valid grounds for a complaint. 334

[67] The Respondent was said to have taken these complaints and turned them into a disciplinary issue with the justification being that Mr Carlier and Mr Saul believed that the complaints were groundless. However, it was contended that that conclusion was reached without talking to Mr Taylor. It was said to have been acknowledged by Mr Saul that he had written the warning before Mr Taylor was spoken to about the matter. 335

[107] Mr Taylor’s evidence during the hearing differed markedly from the statement he provided the company in response to the Show Cause letter of 11 February 2015. The explanation that was given by Mr Taylor for the disparity was that he and Mr Syzmski had put their heads together and come up with their stories. It was also Mr Taylor’s evidence that a union official had written his response to the company and he had simply signed it.

[108] It may well be, as Ms Knowles has suggested, that there was a deal done. However, on the basis of Mr Taylor’s evidence, I find that:

Mr Taylor had invited Mr Syzmski to go up to the next deck to sort it out.

Mr Taylor had raised his arm in front of Mr Syzmski’s face (about 10cm away) with a clenched fist.

He had approached Mr Syzmski twice.

[109] It is noted that Mr Syzmski is a Charge Foreman. It is also noted that Mr Syzmski’s conduct may not have been above reproach during this incident.

Incident on 31 March 2016 - leaving early

[110] It was Mr Taylor’s evidence that he had left early on 31 March 2016 having got permission from Mr Caracella, the Charge Foreman. Mr Taylor contended that it had been common practice for years for approval to leave early to be given by the Charge Foreman. It appears that there was a brief discussion between Mr Caracella and Mr Taylor, during which Mr Taylor told Mr Caracella that he had to leave and Mr Caracella had said words to the effect that, if Mr Taylor had to go, then go.

[111] I have not been persuaded that the Charge Foreman (unless specifically authorised by the Shift Manager) has the authority to give permission to employees to leave early. Neither Mr Caracella nor the witnesses for the Respondent who gave evidence agreed that Charge Foremen had this authority. Their evidence was that it was the Shift Manager who was authorised to give permission for employees to leave early. Relevantly, the enterprise agreement provides, at clause 8.3 of Part A:

“Each employee is expected and required to attend work in accordance with their notified commencement time and remain at work until the identified conclusion of the notified shift, or as advised by the shift manager/supervisor. Absence during the course of the shift can only be approved by the shift manager, or in the shift manager's absence, the person nominated by the shift manager/supervisor.”

[112] There is no evidence before the Commission that, on 31 March 2016 at the relevant time, Mr Ayers had delegated this authority to Mr Caracella.

[113] Therefore, I find that, Mr Taylor left work early on 31 March 2016 without obtaining the requisite permission.

[114] In summary, in relation to Mr Taylor’s prior warnings, it has been found that:

Mr Taylor did say to Mr Marron, on 3 June 2014, that he would have Mr Marron up for discrimination in relation to the PPE issue.

Mr Taylor had approached Mr Syzmski twice during the shift on 10 December 2014. Mr Taylor raised his arm in front of Mr Syzmski’s face with a clenched fist then invited Mr Syzmski to go up to the next deck to sort it out.

On 31 March 2016, Mr Taylor left work early without obtaining the requisite permission.

[115] Account will be taken of these findings.

[116] On behalf of the Applicant, it was submitted that the dubious processes which had accompanied the warnings was a relevant matter under s.387(h) of the Act. The Respondent disagreed and argued that the Commission should only make findings about whether the incidents had occurred. The Commission is content to deal simply with the factual question of whether or not the incidents occurred as alleged by the Respondent.

[117] In addition, the Applicant contended that relevant other matters included Mr Taylor’s age; his length of service and the financial and emotional circumstances that have been the result of his dismissal. Mr Taylor’s age and length of service will be taken account of together with the financial impact of the dismissal.

Conclusions - was the dismissal harsh, unjust or unreasonable

[118] In all of the circumstances of this matter, and having taken account of each of the factors set out in section 387 of the Act, I have determined, on balance, that Mr Taylor’s dismissal was harsh, unjust or unreasonable.

[119] On the one hand, it has been found that there was not a valid reason for Mr Taylor’s dismissal. As well, Mr Taylor’s age and length of service have made it more difficult for Mr Taylor to find alternative employment. In addition, the financial impact of the dismissal has been severe given that Mr Taylor had taken out a reasonable sized mortgage not long before he was dismissed.

[120] On the other hand, prior to the incident on 1 July 2016, Mr Taylor had been given three warnings (two of them final warnings). These were for threatening behaviour towards a superior and for not following company procedure.

[121] Accordingly, it follows that, pursuant to section 385 of the Act, Mr Taylor was unfairly dismissed.

Remedy

[122] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[123] With respect to the requirements of section 390, I am satisfied that Mr Taylor was protected from unfair dismissal at the time of his dismissal (section 390(1)(a)) and that he has been unfairly dismissed (section 390(1)(b)). Further, Mr Taylor has made an application under section 394 of the Act (section 390(2)).

[124] Section 390(3) states that the Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).

[125] In this matter, reinstatement was sought by Mr Taylor together with an order to maintain the continuity of his employment and for payment of remuneration lost. It was submitted that there was no basis for the Commission to make a finding that there has been a breakdown of trust and confidence. There was nothing that had been alleged against Mr Taylor subsequently that would make a reinstatement inappropriate. The Applicant contended that there was no evidence about any inability on Mr Taylor’s part to work with his colleagues. 381

[126] Further, Mr Taylor’s statement was highlighted in relation to his commitment to study and learn each process in every SWMS as he did not ever want to be in this position again. 382

[127] In relation to the respondent’s contention that it would be a safety risk if Mr Taylor was reinstated, the Applicant argued that this was a real stretch. It was stated that there had been no prior safety issues with Mr Taylor. With respect to the comments made by Mr Taylor to Mr Knight after Mr Taylor’s dismissal, it was accepted that it was an inappropriate thing for Mr Taylor to have said. However, it was argued that it needed to be seen in the light that Mr Taylor was very upset at the time. 383

[128] For its part, the Respondent submitted that reinstatement was fundamentally inappropriate. 384 This was on the basis that:

The relationship between the Respondent and the Applicant has been irreparably destroyed. 385

There is a lack of trust between the parties as Mr Taylor does not trust the company and the company does not trust Mr Taylor. It was said to be unlikely that those who were involved with Mr Taylor in the prior incidents were going to trust him. Equally, it was contended that Mr Taylor’s view was that the company was out to get him. 386

Mr Taylor is a liar and has been dishonest about a range of matters. 387

There was no utility in reinstating a person who would effectively be on a third final warning. 388

Mr Taylor’s disturbing attitude of (non) compliance with company procedures or directions. 389

Mr Taylor’s behaviour, after his dismissal, to a Shift Manager was completely unacceptable. It was contended that Mr Taylor had previously threatened two Managers. Mr Taylor’s comments to Mr Knight were said to reflect the culture of antagonism towards laggers. 390 It was recalled to have been Mr Taylor’s evidence that there was a lot of peer pressure not to lag and it was said that Mr Taylor had an obvious antipathy to lagging. The Respondent argued that it would therefore not be okay to put Mr Taylor back.391

[129] I have carefully considered the submissions and evidence before me. I have not been persuaded that reinstatement is appropriate. Given the evident culture on the waterfront, it is my view, that it would be unworkable for Mr Taylor to be reinstated. Through the past incidents that gave rise to the previous warnings, there would seem to be too much “history” associated with Mr Taylor to allow any of the parties to simply forget the past and to move forward. Therefore, I am satisfied that reinstatement of Mr Taylor is inappropriate.

Compensation

[130] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to order compensation. It was contended by the Respondent that an order for compensation was inappropriate. This was on the basis that it would be rewarding a person who has lied to his employer and to the Commission. It was also argued that something that may have been harsh at the time, the circumstances can change and what might have been the case then may not be the case now. The Applicant disagreed with this proposition.

[131] Taking into account all of the circumstances of this matter, including the finding that there was not a valid reason for Mr Taylor’s dismissal, an order for payment of compensation is considered appropriate.

[132] Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

“(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.”

[133] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd 392 (Haigh). In Haigh, the Full Bench also referred393 to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket394 (Sprigg). I respectfully adopt the approach taken in Haigh.

Section 392(2)(a) - effect on the viability of the employer’s enterprise

[134] Neither party made submissions in relation to this subsection of the Act. There is no evidentiary basis before me on which to conclude that an award of compensation would affect the viability of the employer’s enterprise.

Section 392(2)(b) - Applicant’s length of service

[135] Mr Taylor’s length of service with the Respondent was 17 years.

Section 392(2)(c) - remuneration would have received

[136] It was submitted on behalf of the Applicant that, as Mr Taylor wanted to work until the age of 65, Mr Taylor would have remained in employment for some time to come. 395

[137] The Respondent contended that Mr Taylor’s continued employment would not have been longer than 3 months. 396

[138] In all of the circumstances of this case, I have formed the view that, had Mr Taylor not been dismissed, it is likely that Mr Taylor’s employment would have continued for four months. This is on the basis that, despite Mr Taylor’s long service, in the two years prior to his dismissal, there had been multiple disciplinary events relating to either Mr Taylor’s conduct towards supervisors or his non-compliance with company requirements or procedures.

[139] For the purposes of the calculations, in accordance with the Sprigg principles, it is determined that the remuneration that Mr Taylor would have received was four months’ pay.

[140] At the time of his dismissal, Mr Taylor’s annual base pay was $96,054.87. 397 Therefore, the amount Mr Taylor would have received for the four month period of anticipated employment is $32,018.29 (gross).

Section 392(2)(d) - efforts to mitigate loss

[141] Mr Taylor gave evidence about his efforts to obtain alternative employment and the fact that he had found casual work. 398 It was not disputed by the Respondent that Mr Taylor had taken reasonable steps to mitigate his loss.

[142] On the basis of the material before me, I am satisfied that Mr Taylor made reasonable attempts to find alternative employment and did find alternative employment.

Section 392(2)(e) and (f) - remuneration earned and income reasonably likely to be earned

[143] It appears that Mr Taylor was paid 5 weeks’ pay in lieu of notice ($9236.04) at the time he was dismissed. 399 This will be counted in determining the remuneration earned.

[144] Mr Taylor’s evidence, together with his payslip, was that he commenced being paid in his new job in the fortnight starting 16 January 2017. Mr Taylor was dismissed on 16 August 2016 so therefore, the period of anticipated employment ended on 16 December 2016. As Mr Taylor did not receive any remuneration until the fortnight commencing 16 January 2017, account is not required to be taken of this remuneration as it commenced after the period of anticipated employment ended.

[145] Therefore, $9236.04 will be deducted from the provisional amount. This results in a provisional compensation amount of $22,782.25.

Section 392(2)(g) - other matters

[146] The Respondent submitted that Mr Taylor’s dishonesty during the investigation and in the Commission should be taken into account by the Commission. 400

Section 392(3) - misconduct

[147] Section 392(3) of the Act requires that, if the Commission is satisfied that the person’s misconduct contributed to the employer’s reason to dismiss the person, the Commission must reduce the amount it would otherwise order.

[148] It was submitted by the Respondent that Mr Taylor’s misconduct contributed to the employer’s decision to dismiss him. This was said to bring in all of the previous incidents of misconduct and not just the last one. The Respondent stated that this should result in an almost total reduction in any compensation payable to Mr Taylor. 401

[149] On the other hand, the Applicant argued that the Respondent could not rely on any previous misconduct as it was only the incident on 1 July 2016 which was relied upon by the company for a valid reason. It was stated that the misconduct, on 1 July 2016, was not sufficient to warrant a discount for it. 402

[150] Mr Taylor was dismissed for failing to follow a company requirement or procedure when he was towing caravans up the ramp on 1 July 2016. The Respondent relied on this incident only to form the basis for a valid reason for Mr Taylor’s dismissal. Therefore, it is not consistent for the Commission to take into account Mr Taylor’s prior misconduct. Accordingly, as Mr Taylor’s conduct in relation to the 1 July 2016 incident was the reason for his dismissal, it is proposed to reduce the amount the Commission would otherwise order by 20%.

[151] This results in a provisional compensation amount of $18,225.80.

Contingencies

[152] As the period of anticipated employment has passed, it is not proposed to make a deduction for contingencies.

Section 392(4) - shock or distress

[153] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Taylor.

[154] With respect to section 393 of the Act, there were no submissions that any amount of compensation should be subject to payment by instalments.

Section 392(5) - compensation cap

[155] As the provisional amount of compensation ($18,225.80) is less than the amount provided for in section 392(5), I make no further deduction for that reason.

Conclusion

[156] Therefore, it is considered appropriate to make an order that Qube Ports Pty Ltd T/A Qube Ports pay $18,225.80 (gross), less taxation as required by law, in compensation to Mr Taylor in lieu of reinstatement, within 21 days of the date of this decision.

[157] An order 403 to this effect will be issued separately.

Appearances:

F Knowles of Counsel for the Applicant

M Follett of Counsel for the Respondent

Hearing details:

2016.

Melbourne:

November 28.

2017.

Melbourne:

February 1, 2, 3.

1 Transcript PN 2472 - 2475

2 Ibid PN 377 - 385

3 Ibid PN 393

4 Ibid PN 394 - 404

5 Ibid PN 409 - 413

6 Ibid PN 414 - 417

7 Ibid PN 418 - 425

8 Ibid PN 426

9 Ibid PN 427 - 429

10 Ibid PN 432 - 433 and 904 - 906

11 Ibid PN 434 - 438, 559 and 562 and Exhibit A2 at paragraph 54

12 Ibid PN 440 - 443

13 Ibid PN 445 - 447

14 Ibid PN 502 - 507 and Exhibit A2 at paragraph 39

15 Ibid PN 449 - 450

16 Ibid PN 451 - 452

17 Ibid PN 454 - 458

18 Ibid PN 460 and 482

19 Ibid PN 461 - 463

20 Ibid PN 477 - 479

21 Ibid PN 471 and 557

22 Ibid PN 558

23 Ibid PN 472 - 476

24 Ibid PN 481

25 Ibid PN 480

26 Ibid PN 483 and 493

27 Ibid PN 567

28 Ibid PN 484 - 486 and 907 - 908

29 Ibid PN 487 - 488

30 Ibid PN 489 - 490

31 Ibid PN 492

32 Ibid PN 491

33 Ibid PN 495

34 Ibid PN 498

35 Ibid PN 508 - 510

36 Ibid PN 512

37 Ibid PN 909 - 915 and Exhibit A2 at paragraph 39

38 Ibid PN 514 - 515

39 Ibid PN 916

40 Ibid PN 516

41 Ibid PN 520 - 521, 532 and 556

42 Ibid PN 523 - 524, 537 and 545 - 547 and Exhibit A2 at paragraphs 44 and 48

43 Ibid PN 533 - 536

44 Ibid PN 532 and 540

45 Ibid PN 548

46 Ibid PN 549 - 551

47 Ibid PN 564 - 565

48 Ibid PN 568 - 572 and Exhibit A3 paragraph 9

49 Ibid PN 573 - 580, 611 - 612 and 889

50 Ibid PN 581 - 582

51 Ibid PN 583 - 584 and 569

52 Ibid PN 586 - 591

53 Ibid PN 613 - 619

54 Ibid PN 888 - 892

55 Ibid PN 893

56 Ibid PN 894

57 Ibid PN 897

58 Ibid PN 1972 - 1975, Exhibit R5 at paragraphs 21 - 23 and Attachment RA3 and RA5 and Exhibit A8

59 Ibid PN 1979 - 1981

60 Ibid PN 1986

61 Ibid PN 1988

62 Ibid PN 1989 - 1990

63 Exhibit R5 at Attachment RA5

64 Ibid at paragraphs 27 - 29 and Attachment RA5 and Exhibit A8

65 Exhibit R7 at paragraph 9

66 Ibid at paragraphs 14 and 18

67 Transcript PN 2154 - 2160

68 Ibid PN 2171 - 2173

69 Ibid PN 2175

70 Ibid PN 2176 - 2181

71 Ibid PN 2182 - 2185

72 Ibid PN 2186 - 2188

73 Ibid PN 2192 and Exhibit R7 at paragraph 15

74 Ibid PN 2192 - 2195 and ibid at paragraph 15

75 Ibid PN 2196 - 2197

76 Ibid PN 2203

77 Ibid PN 2204 - 2205 and Exhibit R7 at paragraph 18

78 Ibid PN 2206 - 2208

79 Ibid PN 2210 - 2211 and 2223

80 Ibid PN 2212 - 2215

81 Ibid PN 2216 - 2218

82 Ibid PN 2219 - 2233

83 Ibid PN 2234 - 2235

84 Ibid PN 2237 - 2243

85 Ibid PN 2256 - 2258

86 Ibid PN 2260 - 2265

87 Ibid PN 2251 - 2255

88 Ibid PN 2266 - 2271 and Exhibit R7 at paragraphs 30 - 33

89 Ibid PN 1008 - 1010

90 Ibid PN 1011 - 1012

91 Ibid PN 1015 - 1017

92 Ibid PN 1018 - 1019

93 Ibid PN 1020

94 Ibid PN 1034 - 1036

95 Ibid PN 1388 - 1390

96 Ibid PN 1391 - 1394 and 1386 - 1394 and Exhibit R2 at paragraphs 70 - 71

97 Ibid PN 1372 - 1374 and 1724 and ibid at Attachment TC10

98 Ibid PN 1413 - 1416 and 1421 - 1423, Exhibit R2 at paragraphs 75 and 77 and Exhibit A8

99 Ibid PN 1425 - 1429 and Exhibit R2 at paragraph 77

100 Ibid PN 1434

101 Ibid PN1430 - 1432 and Exhibit R2 at Attachment TC24

102 Ibid PN 1435

103 Ibid PN 1555

104 Ibid PN 1545 -1548

105 Ibid PN 1555 - 1577 and Exhibit R2 at paragraphs 71 and 73

106 Ibid PN 1571 - 1572 and ibid at paragraph 73

107 Ibid PN 1442 - 1455 and ibid at Attachment TC25

108 Ibid PN 1484 - 1493 and 1747

109 Ibid PN1749 - 1752

110 Ibid PN 1494 - 1507

111 Ibid PN 1508 - 1509

112 Ibid PN 1510 - 1516

113 Ibid PN 1525 - 1532

114 Ibid PN 1578 - 1584, 1600 - 1603 and 1730 - 1741

115 Ibid PN 1598 - 1603

116 Ibid PN 1618 - 1621

117 Ibid PN 1622

118 Ibid PN 2401

119 Ibid PN 2653 - 2654

120 Ibid PN 2405 - 2406

121 Ibid PN 2407 and 2408

122 Ibid PN 2409

123 Ibid PN 2410 - 2411

124 Ibid PN 2412 - 2413

125 Ibid PN 2415 - 2416

126 Ibid PN 2417

127 Ibid PN 2418 - 2420

128 Ibid PN 2420 and 2662

129 Ibid PN 2421

130 Ibid PN 2422

131 Ibid PN 2660

132 Ibid PN 2661

133 Ibid PN 2471

134 Ibid PN 2473

135 Ibid PN 2475

136 Ibid PN 2476 - 2478

137 [2014] FWCFB 1276

138 (1998) 84 IR 1 and Transcript PN 2481 - 2505

139 Transcript PN 2506

140 Ibid

141 Ibid PN 2507 - 2509

142 [2008] AIRCFB 81

143 (2005) 145 IR 285

144 Transcript PN 2520

145 Ibid PN 2521

146 Ibid PN 2521 - 2522

147 Ibid PN 2523

148 Exhibit A1 paragraph 21 and Exhibit R1 at paragraph 27

149 Ibid at paragraph 22 and ibid at paragraph 28

150 Exhibit R1 at paragraph 29

151 Ibid at paragraphs 31 - 33

152 Ibid at paragraph 9

153 Ibid

154 Ibid

155 Ibid

156 Exhibit A2 at paragraph 7

157 Ibid

158 Ibid at paragraph 8

159 Ibid at paragraph 10

160 Ibid at paragraphs 10 - 13 and Transcript PN 622 - 625

161 Transcript PN 624

162 Ibid PN 624 - 633 and 646

163 Ibid PN 650 - 651

164 Ibid PN 655 - 656

165 Ibid PN 693 - 694

166 Ibid PN 697 - 703

167 Ibid PN 704 - 705

168 Ibid PN 729 - 732

169 Ibid PN 734 - 737

170 Ibid PN 706 - 709

171 Ibid PN 710

172 Ibid PN 711

173 Ibid PN 712 - 718 and Exhibit A2 at paragraph 12

174 Ibid PN 917

175 Ibid PN 722 - 727

176 Exhibit R10 at paragraphs 16 - 19

177 Ibid at paragraph 20

178 Ibid at paragraph 24 and Transcript PN 2298

179 Transcript PN 2299

180 Ibid PN 2300 - 2303 and Exhibit R10 at paragraph 25

181 Exhibit R10 at paragraph 25

182 Ibid

183 Ibid and Transcript PN 2306 - 2311

184 Ibid at paragraph 26

185 Ibid at paragraph 28

186 Ibid at Attachment RM1 and Transcript PN 2304 - 2305

187 Ibid at Attachment RM1 and ibid PN 2306

188 Transcript PN 2307 - 2311

189 Ibid PN 2312 - 2315 and Exhibit R10 at paragraph 27

190 Exhibit R2 at paragraph 26

191 Ibid

192 Ibid at paragraph 32 and Attachment TC4 and Transcript PN 1080 - 1084 and 1057

193 Transcript PN 1051

194 Ibid PN 1058 - 1062 and Exhibit R2 at paragraph 28

195 Ibid PN 1063 - 1067 and ibid at paragraph 28

196 Ibid PN 1068 - 1070 and 1079 and ibid at paragraph 29

197 Ibid PN 1079

198 Ibid PN 1089 and Exhibit R4 at DS1

199 Ibid PN 1091 - 1093

200 Ibid PN 1094 - 1095

201 Ibid PN 1105 - 1106

202 Ibid PN 1107 - 1108

203 Ibid PN 1109 and 1680 - 1681

204 Exhibit R2 at paragraph 30

205 Transcript PN 1116 - 1121

206 Ibid PN 1122

207 Ibid PN 1127 - 1131 and 1682 - 1684

208 Ibid PN 1133

209 Ibid PN 1137 - 1140 and 1144

210 Ibid PN 1142 - 1143

211 Ibid PN 1148

212 Ibid PN 1810 - 1816

213 Ibid PN 1819 and 1822 and Exhibit R4 at Attachment DS1 (email)

214 Ibid PN 1820 - 1821 and 1842

215 Ibid PN 1823 - 1824

216 Ibid PN 1783 - 1816 and 1838 - 1839

217 Ibid PN 1845

218 Ibid PN 1847

219 Ibid PN 1849

220 Ibid PN 1860 - 1861

221 Ibid PN 743 - 744

222 Ibid PN 745 - 747 and Exhibit A2 at paragraph 19

223 Ibid PN 748 - 749

224 Ibid PN 751 - 754

225 Ibid PN 757 and Exhibit A2 at paragraph 16

226 Ibid PN 758

227 Ibid PN 759 - 760

228 Ibid PN 761 - 764

229 Ibid PN 765 - 767

230 Ibid PN 768 - 779

231 Ibid PN 782

232 Ibid PN 784 - 785 and Exhibit A2 at paragraph 20

233 Ibid PN 790

234 Ibid PN 799 - 803 and Exhibit A2 at paragraph 19

235 Ibid PN 809

236 Ibid PN 810 - 814

237 Ibid PN 822

238 Ibid PN 815 - 816 and Exhibit A2 at paragraph 18

239 Ibid PN 823 - 824 and ibid

240 Ibid PN 817 - 819 and ibid

241 Ibid PN 822

242 Ibid PN 827 - 828

243 Ibid PN 829 - 831

244 Ibid PN 1780

245 Ibid PN 1864 and Exhibit A5

246 Ibid PN 1867 - 1872

247 Ibid PN 1875 and Exhibit A5

248 Ibid PN 1888 and Exhibit R4 at Attachment DS4

249 Ibid PN 1894 - 1895

250 Ibid PN 1904 - 1908 and Exhibit R4 at paragraph 23 and Attachment DS5

251 Ibid PN 1909 - 1910 and ibid at paragraph 25

252 Ibid PN 1911 and ibid at paragraph 33

253 Ibid PN 1913

254 Ibid PN 1918 - 1920 and 1923

255 Ibid PN 1921 - 1922

256 Ibid PN 1937 - 1938

257 Ibid PN 1924 - 1926

258 Ibid PN 1936

259 Ibid PN 1930 - 1934

260 Exhibit R4 at paragraph 34 and Attachment DS9

261 Transcript PN 1927

262 Ibid PN 1971

263 Ibid PN 1970

264 Ibid PN 1997 - 1999

265 Exhibit R2 at Attachment TC7

266 Ibid

267 Ibid

268 Ibid

269 Ibid

270 Transcript PN 2022

271 Ibid PN 2023

272 Ibid PN 1160 - 1167

273 Ibid PN 1162

274 Ibid PN 1164 - 1166 and Exhibit A5

275 Ibid PN 1176, 1181 - 1182, 1184 and 1187

276 Ibid PN 1176 - 1177, 1185 - 1186, 1188 - 1191, 1193, 1199 - 1201 and 1269 - 1270 and Exhibit R2 at paragraph 36

277 Ibid PN 1183

278 Ibid PN 1195 - 1197

279 Ibid PN 1202 - 1204

280 Ibid PN 1205 and 1219 - 1220

281 Ibid PN 1206 - 1208

282 Ibid PN 1209 - 1210 and 1614 - 1615

283 Ibid PN 1221 - 1223, 1225 - 1227, 1231 and 1685 - 1686

284 Ibid PN 1228

285 Ibid PN 1230

286 Ibid PN 1233 - 1253

287 Ibid PN 1254 - 1264

288 Ibid PN 1267 - 1268 and 1271 and Exhibit R2 at paragraph 35

289 Ibid PN 832 - 833

290 Ibid PN 836 - 837 and 2326 and Exhibit A2 at paragraph 30

291 Ibid PN 2327 and 2343

292 Ibid PN 842 - 844

293 Ibid PN 838 - 839 and 847

294 Ibid PN 849

295 Ibid PN 856 - 857 and Exhibit A2 at paragraph 27

296 Exhibit A2 at paragraph 28

297 Transcript PN 856 - 860

298 Ibid PN 865

299 Ibid PN 861 - 862

300 Ibid PN 863 - 864 and 870 - 873 and Exhibit A2 at paragraph 29

301 Ibid PN 866 - 868

302 Ibid PN 918 - 919

303 Exhibit A2 at paragraphs 32 - 34

304 Exhibit R6 at paragraph 11

305 Ibid at paragraph 15 and Transcript PN 2024 - 2025

306 Transcipt PN 2027

307 Exhibit R6 at paragraphs 14 - 16

308 Ibid at paragraph 18 and Transcript PN 2033

309 Ibid at paragraph 19 and ibid PN 2028 - 2030, 2032 and 2035

310 Transcript PN 2031 - 2032 and 2035

311 Exhibit R6 at paragraph 20

312 Ibid at Attachment DA1 and Transcript PN 2034

313 Ibid at paragraph 25 and Attachment DA3 and ibid PN 2036 - 2037

314 Exhibit R6 at paragraph 24

315 Ibid at paragraph 25 and Attachment DA3 and Transcript PN 2036 - 2037

316 Transcript PN 2038 - 2039

317 Exhibit R6 at paragraph 29

318 Transcript PN 2099

319 Ibid PN 1003 - 1007

320 Ibid PN 1305 and 1344 and Exhibit R2 at Attachment TC14

321 Ibid PN 1342 - 1346

322 Ibid PN 1326 - 1340, 1349 - 1353 and 1704 and Exhibit A6

323 Ibid PN 1356 - 1357 and 1616 - 1617 and Exhibit A6

324 Ibid PN 1714 - 1716

325 Ibid PN 1722 - 1723

326 Ibid PN 1355

327 Ibid PN 2655 - 2657

328 Ibid PN 2663

329 Ibid PN 2664

330 Ibid PN 2665

331 Ibid PN 2666

332 Ibid PN 2674

333 Ibid PN 2423 - 2424 and 2670

334 Ibid PN 2425 - 2426

335 Ibid PN 2427 - 2429

336 Ibid PN 2430

337 Ibid PN 2431 - 2437, 2664 and 2667

338 Ibid PN 2438

339 Ibid PN 2667

340 Ibid PN 2668 and 2671

341 Ibid PN 2669

342 Ibid PN 2439 - 2440

343 Ibid PN 2441

344 Ibid PN 2672

345 Ibid PN 2673

346 Ibid PN 2443

347 Ibid PN 2445

348 Ibid PN 2445 - 2446

349 Ibid PN 2448

350 Ibid PN 2447

351 Ibid PN 2448

352 Ibid PN 2676

353 Ibid PN 2449

354 Ibid PN 2524 - 2526

355 Ibid PN 2528

356 Ibid PN 2531

357 Ibid PN 2532 - 2533

358 Ibid PN 2535 and 2537

359 Ibid PN 2534

360 Ibid PN 2544 - 2546

361 Ibid PN 2547 - 2549

362 Ibid PN 2551 - 2555

363 Ibid PN 2556 - 2558

364 Ibid PN 2558 - 2563

365 Ibid PN 2570 - 2571

366 Ibid PN 2571 - 2573

367 Ibid PN 2574 - 2584

368 Ibid PN 2585 - 2606

369 Ibid PN 2607

370 Ibid PN 2608

371 Ibid PN 2610 - 2611

372 Ibid PN 2616

373 Ibid PN 2617

374 Ibid

375 Ibid

376 Ibid PN 2618

377 Ibid PN 2537 - 2540

378 Ibid PN 2619

379 Ibid PN 2620 - 2621

380 Exhibit R10 at Attachment RM1

381 Transcript PN 2450 and 2677 - 2678

382 Ibid PN 2451 and 2679 - 2680

383 Ibid PN 2681 - 2682

384 Ibid PN 2622

385 Exhibit R1 at paragraph 48

386 Transcript PN 2623

387 Ibid PN 2624

388 Ibid

389 Ibid

390 Ibid PN 2626

391 Ibid PN 2628

392 [2014] FWCFB 236

393 Ibid at paragraphs [10] – [12]

394 (1998) 88 IR 21

395 Transcript PN 2452

396 Ibid PN 2630

397 Exhibit A2 at paragraph 60

398 Ibid at paragraph 63, Exhibit A3 at paragraphs 10 - 11 and Transcript PN 348 - 349

399 Exhibit A2 at Attachment JT9

400 Transcript PN 2634

401 Ibid PN 2634 - 2635

402 Ibid PN 2684

403 PR592446

Printed by authority of the Commonwealth Government Printer

John Taylor v Qube Ports Pty Ltd T/A Qube Ports

[2017] FWC 2238

28 APRIL 2017

DECISION