Joshua Dittmann v Sedco Forex International Inc T/A Transocean

[2015] FWC 5963

[2015] FWC 5963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Dittmann
v
Sedco Forex International Inc T/A Transocean
(U2014/13569)

and
Tony Zimmermann
v
Sedco Forex International Inc T/A Transocean
(U2014/14752)

COMMISSIONER WILLIAMS PERTH, 7 SEPTEMBER 2015

Termination of employment.

[1] This decision concerns two applications made under section 394 of the Fair Work Act 2009 (the Act), one by Mr Joshua Dittmann (Mr Dittmann) and the other by Mr Tony Zimmermann (Mr Zimmermann) (collectively the applicants). The respondent to each application is Sedco Forex International Inc T/A Transocean (Transocean or the respondent).

Background

[2] Mr Dittmann and Mr Zimmermann were working on an offshore drillship the Deepwater Millennium when Mr Zimmermann was injured necessitating him being flown off the vessel. Mr Zimmermann’s injury occurred when a broom handle he was using passed through a grating and was struck by a rotating auger. This caused the broom handle to hit him near the eye breaking his safety glasses in half.

[3] Subsequent investigations identified that both Mr Dittmann and Mr Zimmermann had been using the broom handle to clear cuttings from a grating covering the rotating auger rather than using the designated tools available for this task.

[4] Consequently the respondent terminated the employment of Mr Dittmann and Mr Zimmermann respectively on 21and 22 October 2014.

Factual findings

[5] Much of the factual background to this matter is not in dispute.

[6] Transocean operates offshore drilling rigs and ships for customers developing offshore oil and natural gas reserves.

[7] The Deepwater Millennium is a dynamic positioned drillship operated by Transocean which in 2014 was drilling off the coast of North Western Australia.

[8] Mr Dittmann was first employed in January 2009 as a roughneck working on the Deepwater Legend and was later transferred to the Deepwater Millennium.

[9] Mr Zimmermann was first employed in April 2013 as a roustabout on the Deepwater Frontier and was later transferred to the Deepwater Millennium.

[10] Mr Zimmermann was injured on 16 September 2014.

[11] At the relevant times both Mr Dittmann and Mr Zimmermann were working as floormen in the shaker house on board the Deepwater Millennium.

[12] Part of the duties of a floorman working in the shaker house is to clear cuttings generated by the drilling operations. These cuttings accumulate in the vicinity of and on top of a grating. Immediately below this grating is a rotating auger that removes the cuttings from the area once they have passed through the grating.

[13] At times it is necessary to sweep the cuttings through the grating. There is a designated scraper tool for this purpose. This scraper tool is specifically designed so that it cannot pass through the grating and so cannot come into contact with the auger underneath. In addition there are high pressure wash down guns which utilise base oil that can be used to clear any blockage in the grating.

[14] Mr Dittmann acknowledged that on 16 September 2014 whilst working in the shaker house he used a broom handle to clear the cuttings on top of the grating. He says that he would usually clean the grating with the scraper tool. Mr Dittmann understands that the design of the scraper tool means the end of the tool cannot pass through the grating above the auger. Mr Dittmann acknowledged these actions during the safety investigation that was conducted after Mr Zimmermann was injured. 1

[15] Mr Dittmann’s evidence was that he had not previously used the high pressure wash down gun to clean the grating. 2

[16] Mr Dittmann says that on that day he told Mr Zimmermann that he had been using the broom handle to unblock the shaker screens to remove the excess cuttings.

[17] Mr Zimmermann’s evidence is that on 16 September 2014 whilst he was working in the shaker house the build-up of cuttings was relatively slow and he only needed to clear the cuttings from the grating every 30 minutes.

[18] The evidence is that Mr Dittmann came onto the drill floor and showed Mr Zimmermann how to use the broom handle to scrape clear the build-up of cuttings on the shaker screens. It is also apparent from the safety investigation report into the incident 3 that Mr Dittmann also explained to Mr Zimmermann that the broom handle was effective when unblocking the grating above the auger.

[19] Approximately 40 minutes later Mr Zimmermann noticed a build-up of cuttings on top of the grating and used the scraper tool to spread out the cuttings. Mr Zimmermann then attempted to use the broom handle to push the cuttings through the grating. The broom handle passed through the grating, caught on the auger below and the broom handle struck Mr Zimmermann in the face. The force broke his safety glasses in half and caused an injury in the vicinity of his right eye.

[20] Medical examination of Mr Zimmermann on the vessel concluded that it was necessary for him to be medically evacuated off the drillship by helicopter.

[21] Approximately one hour before the incident Medivac coverage had been withdrawn due to fog on the coastline which would restrict a helicopter using alternate landing points if needed in an emergency. The fact that Medivac coverage had been withdrawn had been relayed to all employees including Mr Dittmann and Mr Zimmermann prior to the incident.

[22] Notwithstanding what was assessed as an additional risk to the helicopter team due to the fog compromising onshore landing options Mr Zimmermann was Medivac’d to shore for treatment.

[23] Subsequently Transocean undertook a review of the incident from a safety perspective and following this the ongoing employment of Mr Dittmann and Mr Zimmermann was reviewed.

[24] At the meeting that lead to his termination Mr Zimmermann explained that he had used the broom handle because the high pressure wash down guns were not working. It is clear however that Mr Zimmermann never mentioned this explanation for his actions during the safety investigation at all. 4 In fact this explanation was not provided by Mr Zimmermann until the third meeting regarding this incident, a meeting at which he had been advised that it was likely he may be terminated for his actions. No other person interviewed during the safety investigation said that there was a problem with the high pressure wash down gun. Mr Dittmann did not say this was a reason he used the broom handle. I do not find the evidence of Mr Zimmermann credible that this explanation was never mentioned by him in any previous meetings because he did not think it was relevant, including a meeting when he was given a written warning for unsatisfactory performance which he aggressively rejected and refused to sign.

[25] It is also significant that contrary to this explanation given at the termination meeting during the safety investigation Mr Zimmermann said he chose to use the broom handle rather than going to the trouble of putting on the protective equipment that is required to be worn when using the wash down gun which is inconsistent with him using the broom handle because the wash down guns were not working.

[26] My conclusion is that Mr Zimmermann made up the explanation that he used the broom handle because the wash down gun was not working and his explanation to this effect at the termination of employment meeting was an attempt to avoid dismissal.

[27] In any event as the applicants’ representative concedes even if the wash down gun had not been working this would not excuse Mr Zimmermann’s action in using the broom handle as he did because as he well knew he was required to use the designated scraper tool that was at hand and which on his own evidence he had used that day.

[28] I note as the applicants’ representative pointed out that the respondent’s witnesses gave conflicting evidence regarding whether or not the wash down guns were in working order at the time of the incident.

[29] The evidence of Mr Callander was that he had been told by the lead investigators who undertook the safety incident review that the high pressure wash down guns had been tested and were working. Mr Coletta also gave evidence that he understood the wash down guns were tested and were found to be working.

[30] One of those lead investigators Mr Mattiasson gave evidence that none of the four floormen interviewed during the safety investigation, including Mr Dittmann and Mr Zimmermann, suggested that the problem was that at the time of the incident the high pressure wash down guns were not working. His evidence was that consequently the high pressure wash down guns were not tested. His evidence was that he had not told Mr Callander or Mr Coletta that the wash down guns had been tested during the investigation.

[31] The applicants’ representative submits the Commission should conclude that the evidence of Mr Callander and Mr Coletta was not truthful and so their credibility is in question.

[32] There are a number of possible explanations for the conflict in the evidence of the respondent’s witnesses on this point. One possibility is that Mr Mattiasson rather than Mr Callander and Mr Coletta is mistaken in his evidence. Alternatively it may simply be that Mr Callander and Mr Coletta honestly but mistakenly believed the wash down guns had been tested and so their evidence was given truthfully but is not correct. In any event nothing turns on this specific issue because I have rejected Mr Zimmermann’s explanation that the reason he used the broom handle was because the high pressure wash down gun was not working.

[33] Returning to the question of credibility I have observed both Mr Callander and Mr Coletta give their evidence and whilst acknowledging there is this conflict in the respondent’s witness evidence on this particular point I do not accept that the truthfulness of Mr Callander’s and Mr Coletta’s evidence in general is in question.

[34] I accept the evidence of Mr Mattiasson that when interviewed Mr Zimmermann explained that he chose to use the broom handle because the effort of donning the personal protective equipment required when using the high pressure wash down guns was more difficult.

[35] Mr Dittmann and Mr Zimmermann were aware that their employment and their day-to-day conduct was subject to the provisions of their Contracts of Employment, the Transocean Health, Safety and Environment Handbook 2011 and the Employee Manual – Residents and Commuters 2012. In particular Mr Dittmann and Mr Zimmermann understood that they were bound to observe the various safety protocols of the respondent and that they could be dismissed for breaching these safety protocols.

[36] Transocean has a well-developed safety management system. Both of the employees would attend a pre-start meeting before every shift where safety is a point of discussion. In addition they would then attend toolbox talks where they risk assess the jobs to be undertaken for that shift. Additionally weekly general safety meetings are held which both employees would attend which reinforce the importance of safety in the workplace.

[37] A report from a safety perspective into the incident was completed in mid-September 2014.

[38] Mr Dittmann and Mr Zimmermann were each issued with a notice of unsatisfactory performance by the Senior Tool Pusher Mr Munro around 22 September 2014 which referred to a violation of the company policies with respect to the use of the correct tools. Their direct Supervisor Mr Jarvis was present at this meeting. It was explained to them at this time that this did not conclude the matter from the company’s perspective. Mr Zimmermann refused to accept or sign this notice, became aggressive and walked out of the meeting. He returned some time later and only then did he sign the notice having been advised by others to do so.

[39] On 24 September 2014 Mr Zimmermann’s Supervisor Mr Jarvis sent a note to Mr Callander the Rig Manager raising concerns that Mr Zimmermann had not accepted the unsatisfactory performance notice regarding the incident and did not appear to accept responsibility or accountability for his actions. Mr Jarvis expressed the view that this disregard for company safety policies meant Mr Zimmermann was no longer of value to his crew and he would appreciate Mr Callander’s assistance in resolving this.

[40] Mr Callander spoke to Mr Jarvis who explained that when presented with the unsatisfactory performance notice Mr Zimmermann responded aggressively and indicated no acceptance of responsibility for his actions.

[41] Mr Callander had noted that Mr Dittmann since the date of the incident had not demonstrated he was remorseful over the incident. Rather he had commented in reference to Mr Zimmermann that “I didn’t tell him to poke it through the grating”, which Mr Callander took as an indication that he had not accepted any responsibility for Mr Zimmermann being injured.

[42] Meetings were then held on 21 October 2014 with Mr Dittmann and on 22 October 2014 with Mr Zimmermann. Mr Callander and Mr Coletta attended these meetings. Each employee was advised they had an opportunity to provide any evidence as to why their employment should not be terminated having breached company safety protocols and in Mr Zimmermann’s case having demonstrated an unconstructive attitude toward safety on board following the incident. At both meetings Mr Danny Cain from the Maritime Union of Australia (the MUA) attended as each employee’s representative.

[43] At the meeting with Mr Dittmann in reference to what had occurred with Mr Zimmermann he made the comment “If I told you to jump off a cliff, would you?” Mr Dittmann also characterised the incident as minor. Mr Coletta’s impression was that when they told him it was viewed as a serious breach it did not appear that Mr Dittmann accepted this. It also appeared that Mr Dittmann did not recognise his failure to follow proper safety procedures.

[44] Mr Callander formed the view that Mr Dittmann was not contrite nor had he adequately accepted the importance of safety on the drillship as he should.

[45] Given that Mr Dittmann had provided the broom handle to Mr Zimmermann and had showed Mr Zimmermann what he had been using it for Mr Callander and Mr Coletta felt his responses did not show that he had accepted responsibility for Mr Zimmermann’s injury but rather viewed it as Mr Zimmermann’s fault. The respondent viewed this as a failure by Mr Dittmann to accept responsibility for his actions which had directly contributed to a fellow employee being injured. The respondent did not view Mr Dittmann’s attitude as appropriate in the circumstances.

[46] At the meeting with Mr Zimmermann he was not made aware of Mr Jarvis’s note to Mr Callander.

[47] Mr Callander asked Mr Zimmermann how they could rely on him to have regard for the safety standards in the future and in response Mr Zimmermann replied that he still regarded what he had done as a minor breach but also said he was remorseful and would not do it again however he gave no other commitment to changing his safety behaviour.

[48] Mr Zimmermann during the interview with Mr Callander and Mr Coletta accepted responsibility for his actions but persisted with the view that notwithstanding his injury his actions were not a serious breach. Mr Zimmermann’s view that his actions were a minor breach of safety protocols was not viewed as an appropriate attitude in the circumstances and left Mr Callander and Mr Coletta with no confidence that he would change his behaviour in future.

[49] Having considered the responses of the employees the respondent subsequently decided to terminate the employment of both employees.

Submissions

The applicants

[50] The applicants both concede the incident on 16 September 2014 was a breach of Transocean’s policies relating to safety in the workplace and that the incident occurred because they failed to follow a safe work instruction.

[51] This was conceded by the applicants at the investigation stage, at the discipline meeting stage, at the termination meeting stage and while giving evidence in the witness box. The applicants submit that to their credit, neither applicant has sought to resile from their personal responsibility for the incident.

[52] The applicants maintain their position that the wash down guns were not working at the time in question but this is not proffered to excuse their conduct but rather as an explanation for the course of conduct they have adopted. The applicants do not contend they would be blame free if the wash down guns were found to be not functioning at the time in question.

[53] However, the applicants do contend that the incident was not so serious as to justify the termination of their employment in the absence of a pattern of similar misconduct in the past. The respondent has provided no evidence of similar misconduct by either applicant.

Mr Zimmermann: Concerns about his willingness to accept responsibility for the future commitment to delivering on health and safety obligations

[54] Mr Zimmermann gave evidence that he was interviewed by Mr Coletta and Mr Callander on 22 October 2014 and was explicitly asked about his future commitment to safety. His evidence was that he did not believe he was going to put anyone in jeopardy in the future.

[55] Mr Zimmermann was challenged in that evidence on cross examination and confirmed he gave a commitment to comply with safety procedures in the future and was remorseful for his actions in breaching the safety procedure at the time of the incident.

[56] Mr Zimmermann submits that the view to terminate his employment was formed by Mr Callander and Mr Coletta before the interview occurred on 22 October 2014 and this view was based upon unfair and erroneous information.

[57] It is submitted Mr Coletta had also predetermined that termination of Mr Zimmermann’s employment was appropriate.

[58] The evidence indicates that the default position for Mr Zimmermann, absent any compelling information to the contrary was to terminate his employment.

[59] Mr Zimmermann submits this position can only have been reached in reliance on the note from Mr Jarvis passed to Mr Callander which concluded that Mr Zimmermann was unwilling to accept responsibility for his actions. There were no other intervening events or factors upon which Mr Callander and Mr Coletta could have reached this conclusion.

[60] It is submitted that the conclusions reached by Mr Callander and Mr Coletta in relation to Mr Zimmermann’s future commitment to health and safety were conclusions based upon erroneous and unfair evidence and that he never had a chance to respond to them. This makes his termination fundamentally unfair.

Mr Dittmann: His lack of understanding of the importance of safety requirements

[61] In order for this reason to be valid, the reason must be sound, defensible or well founded. Mr Dittmann contends that this reason is not sound, defensible or well founded.

[62] Mr Dittmann gave evidence that Mr Callander and Mr Coletta did not put it to him that he was failing to accept responsibility for the incident or that they had concerns about his future conduct at their disciplinary meeting.

[63] He further gave evidence that he admitted he had made a mistake and had given an undertaking that he would comply with safety with safety requirement in the future.

[64] Mr Dittmann submits that the view to terminate his employment was formed by Mr Callander and Mr Coletta before the interview occurred on 21 October 2014 and this view was based upon unfair and erroneous information.

[65] It is submitted that a view that was formed by Mr Callander in relation to Mr Dittmann that he had an unconstructive attitude to safety on board after the incident was in part motivated by his apparent failure to approach his Supervisors to give a commitment to safety in the future and by the alleged concerns raised by fellow employees during the investigation process. To the extent the respondent relies upon these factors to reach its conclusion, it is unfair an unjust. Further, these issues were never put to Mr Dittmann to respond to them.

[66] Mr Dittmann submits that there is no evidence to support the proposition that he had an unconstructive attitude to safety on board after the incident.

[67] In the circumstances, it is submitted there was no proper basis to terminate Mr Dittmann’s employment and, as such, the Commission ought conclude that his termination was harsh, unjust and unfair.

[68] The Commission ought to find that both applicants were unfairly dismissed.

The respondent

[69] Neither applicant disputes that they failed to follow a safe work instruction and acted in breach of Transocean’s applicable policies relating to safety.

[70] It is clear that the use of the broom handle to clear the grating instead of the designated tools created a high risk of injury and was done in clear breach of the safety protocols and without any proper assessment of the risk which was also a breach of the safety requirements.

[71] The respondent submits the conduct of both applicants was reckless and in breach of the Transocean safety protocols and their training.

[72] Transocean submits that there was a valid reason for dismissing Mr Zimmermann and for dismissing Mr Dittmann related not only to the safety of themselves but to the safety of other employees; Mr Dittmann’s conduct in providing the broom handle to Mr Zimmermann had already led to a fellow employee, Mr Zimmermann being injured.

[73] Transocean characterises the incident not as a minor breach of safety protocols but as a major breach of safety requirements, carried out wilfully and recklessly or in knowing and deliberate disregard of safety protocols where the applicants knew the risks.

[74] Transocean has important statutory obligations with regard to safety at the workplace. This was a high risk workplace, remote from shore based medical assistance, similarly employees have statutory obligations with regard to working safely including in respect of their own personal safety and that of fellow employees as well as contractual obligations. That obligation was disregarded by both Mr Dittmann and Mr Zimmermann.

[75] Neither Mr Zimmermann nor Mr Dittmann displayed any insight into the significance of their breaches of safety protocols during the investigation, the subsequent meetings with Mr Callander and Mr Coletta or during the hearing. Both persisted in characterising the breaches as minor and a ‘lapse in judgement’.

[76] It was not the role of the incident investigation team to make recommendations about an employee’s employment. Subsequently Mr Callander and Mr Coletta legitimately formed the view that they had concerns about whether Mr Zimmermann and Mr Dittmann would comply with safety protocols in the future based on the incident itself and the downplaying of what had occurred by each of the applicants.

[77] A single incident involving unsafe conduct can form the basis for a fair dismissal.

[78] Both Mr Dittmann and Mr Zimmermann knew that the broom handle was not the appropriate tool, they both knew that there ought to be a risk assessment prior to using any non-designated tool such as the broom handle. They both knew the risks and they both chose to use the broom handle putting themselves and others at risk such that their behaviour should be characterised as wilful and reckless. They both knew they could be dismissed for breaching safety protocols.

[79] There were no procedural deficiencies that would warrant a finding that the dismissals were harsh, unjust or unreasonable.

[80] The dismissals were not harsh, unjust or unreasonable and the applications should be dismissed.

The legislation

[81] Section 387 of the Act, set out below, specifies the criteria the Commission must consider when determining whether or not the dismissals in this case were harsh, unjust or unreasonable.

“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.”

Consideration

Valid reason

[82] Considering each employee in turn, Mr Dittmann by using the broom handle to clear cuttings around the grate as he did rather than the tools designated for this task acted in breach of Transocean’s safety protocols. In addition by showing Mr Zimmermann how to use the broom handle in this way and then giving him the broom handle he encouraged Mr Zimmermann to also breach Transocean safety protocols.

[83] These actions of Mr Dittmann involved a conscious decision to ignore the applicable safety protocols of which he was fully aware. Mr Dittmann’s actions in providing the broom handle to Mr Zimmermann encouraged him to use it as he ultimately did and so directly contributed to Mr Zimmermann being injured.

[84] Mr Zimmermann by using the broom handle to clear cuttings around the grate as he did rather than the tools designated for this task acted in breach of Transocean’s safety protocols.

[85] This action of Mr Zimmermann involved a conscious decision to ignore the applicable safety protocols of which he was fully aware. Mr Zimmermann’s actions resulted in him being injured and the employer having to Medivac him off the drillship.

[86] The actions of Mr Dittmann and Mr Zimmermann in each case did amount to a valid reason for dismissal.

Notification of the reason

[87] The applicants acknowledge, and I am satisfied, that they both were notified of the reason for which they were to be dismissed before the final decision to dismiss was made.

Opportunity to respond

[88] The applicants acknowledge, and I am satisfied, that in the respective meetings that resulted in termination both Mr Zimmermann and Mr Dittmann were given an opportunity to respond to the reasons for which they were dismissed and did so.

Support person

[89] There was no unreasonable failure to allow the applicants to have a support person present during discussions about their dismissals and in fact a representative of the MUA participated in both discussions.

Warnings relating to unsatisfactory performance

[90] The reasons for the dismissal did not relate to performance or the employees’ capacity to do their job and so this matter is not relevant in these cases.

Size of the respondent’s undertaking

[91] The respondent is a large business and the procedures followed were appropriate.

Human Resource management and specialists

[92] The respondent does have dedicated Human Resource Manager and specialists and the procedures followed were consequently appropriate.

Other relevant matters

[93] The length of service of the applicants is a relevant consideration. Mr Zimmermann had been employed for less than a year and a half and Mr Dittmann had been employed for approximately four years.

[94] Another relevant consideration is the fact that the respondent is subject to statutory obligations regarding safety in the workplace. It is the respondent who is to ensure that hazards are identified and risks to health and safety are minimised. Finally it is the respondent who will be held to account if employees are injured in the workplace. Consequently conduct by employees which undermines the respondent’s efforts to meet their statutory safety obligations can be expected to result in disciplinary action and potentially dismissal.

[95] It is not uncommon for employees to be dismissed for not following safety protocols and so causing an increased risk of harm to themselves or others but where no one is injured. In this case however both employees ignored safety protocols and their actions resulted in actual harm to an employee and in the respondent incurring significant costs to medically evacuate the employee. The actions of Mr Zimmermann and Mr Dittmann cannot be characterised as a minor breach of their duties to observe Transocean’s safety protocols.

[96] In this case there were no mitigating factors for either of the employees’ actions.

[97] Both parties in this matter have made submissions regarding the respondent’s assessment that both employees had not satisfied the employer that they were committed to adhering to the respondent’s safety protocols in the future.

[98] I accept that if an employee makes it clear that they will not in future comply with their employer’s safety protocols that by itself can be a valid reason for dismissal.

[99] In this case however I do not accept that either Mr Zimmermann or Mr Dittmann had expressly communicated to the respondent that they would not in future comply with the respondent safety protocols.

[100] Rather what occurred here was that the respondent had doubts as to whether or not these employees were truly committed to future compliance with the respondent safety protocols.

[101] These doubts arose because of the actions of both employees after the incident.

[102] Firstly Mr Zimmermann’s Supervisor Mr Jarvis in the note he sent to Mr Callander brought this concern to his attention. Mr Callander became aware that Mr Zimmermann had refused to sign his unsatisfactory performance notice based on the incident and had walked out of that meeting and only later returned and agreed to sign this. Objectively this behaviour can reasonably be interpreted as Mr Zimmermann not accepting he should be held accountable for his actions nor viewing his breach of the safety protocols as particularly serious.

[103] Separately prior to the final meeting with Mr Dittmann, Mr Callander had interacted with Mr Dittmann in the workplace and was concerned by the fact that Mr Dittmann seemed to solely blame Mr Zimmermann for what happened and did not accept that he was also directly responsible for Mr Zimmermann being injured.

[104] With this background it was quite appropriate during the final meeting with each employee for the respondent to have consideration for whether or not the employee was demonstrating that they were truly committed to future compliance with the respondent’s safety protocols.

[105] What the employees said during these meetings to reassure their employer about their commitment for the future was positive but the evidence is that both employees in other comments continued to display the same attitudes that initially gave rise to the respondent’s doubts about their future commitment to the safety protocols.

[106] Mr Zimmermann continued to downplay the seriousness of the breach of safety protocols. Mr Dittmann also referred to the incident as minor and continued to largely blame Mr Zimmermann rather than accepting responsibility for his own part in Mr Zimmermann being injured. In any event what was said in the final meetings was only part of the factual background the respondent was entitled to consider.

[107] The respondent was also entitled to have regard for Mr Zimmermann’s actions and Mr Dittmann comments made since the incident occurred. It was appropriate for the respondent to consider all of this information when forming its view as to whether or not they were satisfied that each of the employees was truly committed to future compliance with the safety protocols. Ultimately the respondent concluded that they were not so satisfied.

[108] Having considered all of this information myself I find that objectively there where good reasons to doubt whether both employees had genuinely acknowledged the seriousness of their breach of the respondent’s safety protocols, had accepted personal responsibility for their actions and were truly committed to not repeating similar behaviour and so could be said to be fully committed to complying with the respondent’s safety protocols in future. I accept this is a relevant consideration for the Commission in determining this matter.

[109] The attitudes displayed by each employee since the time of the incident and during the termination meeting are matters that the Commission should rightly have regard for in determining these applications.

[110] The attitude of each employee since the incident, explained above, and the consequential doubt about each employee’s commitment to complying with safety protocols in the future in my view supports a finding that the dismissal was not harsh, unjust or unreasonable.

Conclusion

[111] In this case both Mr Zimmermann and Mr Dittmann were fully aware of their obligations to comply with the safety protocols the respondent had put in place, had trained them in and had regularly reinforced to them must be followed. The respondent had provided safe systems of work for the employees to use. Both employees however ignored these and made a conscious and deliberate choice to act in an unsafe manner. Their actions resulted in one of the employees being injured.

[112] Subsequent to the incident their behaviour indicated that they had not accepted the seriousness of their breaches of the safety protocols and had not fully accepted responsibility for their actions. Objectively it was reasonable to doubt whether each of the employees was committed to complying with the respondent’s safety protocols in future.

[113] Considering all of these circumstances I am satisfied that neither of the dismissals of Mr Zimmermann or Mr Dittmann were harsh, unjust or unreasonable. Consequently both of these applications will be dismissed and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

L Edmonds of the MUA for the applicants.

L. Nickels of Norton Rose Fulbright Australia for the respondent.

Hearing details:

2015.

Perth:

March 13 and April 14.

Final written submissions:

Respondent, 28 April 2015.

Applicants, 5 May 2015.

 1   Transcript at PN1081.

 2   Ibid., at PN90.

 3   Ibid., at end note PN1074 and 1099 and Exhibit R3, attachment JM1.

 4   Transcript at PN1196.

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