Keven Briggs v Cockburn Cement Limited
[2011] FWA 7160
•24 OCTOBER 2011
[2011] FWA 7160 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Keven Briggs
v
Cockburn Cement Limited
(U2011/7356)
DEPUTY PRESIDENT MCCARTHY | PERTH, 24 OCTOBER 2011 |
Termination of employment.
Background
[1] Keven Briggs (the Applicant) was employed by Cockburn Cement Limited (the Respondent) as a Plant Operator for a period of nearly 23 years. The Applicant’s employment was terminated by the Respondent on 15 April 2011.
[2] It is not disputed that the Applicant filled two (2) 20 litre containers with fuel for another employee when he was operating and in charge of a fuel truck that dispensed fuel to various plant and equipment in the Respondent’s operations. The employee who was provided with the fuel was dismissed after he admitted to stealing company fuel.
[3] The Respondent asserts that the Applicant was knowingly involved in the theft of the fuel. Further, they assert that the Applicant was unhelpful and inconsistent with his comments and answers in the investigation that the Respondent undertook into the theft of the fuel.
[4] The Applicant asserts that he was requested by the other employee to dispense the fuel into two containers. He asserts that it was reasonable for him to comply with the fellow employee’s request to fill the two containers with fuel and that he was unaware of the intention of that fellow employee to steal the fuel. Further, the Applicant asserts that there was little or no training in the procedures involving for fuels supply and, in any event, it was common practice to fill containers in the circumstances that existed at the time. The Applicant also disputes that he was uncooperative in the investigation that took place.
The Legislative Framework
[5] The Fair Work Act 2009 (the FW Act), in Part 3-2, deals with the unfair dismissal of national system employees and the granting of remedies for unfair dismissal.
[6] The FW Act, in s. 385, defines an unfair dismissal as one where:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[7] The issue under consideration in this application concerns only s.385(b), namely whether the dismissal was harsh, unjust or unreasonable. Fair Work Australia (FWA) must consider whether it is satisfied that the dismissal fits that description.
[8] In being “satisfied” 1 whether a dismissal is harsh, unjust or unreasonable, FWA is directed by the FW Act to “take into account” matters prescribed by s.387(a) to (h). It is clear that the requirement to take the matters in s.387 into account requires that each of those matters be given proper and separate consideration.
[9] In considering matters of this nature I am also obliged to ensure that a “fair go all round” is accorded to both the employer and the employee. 2 The Objects of the FW Act also include the balancing of the needs of the business and the needs of employees.3
The conduct and whether there was a valid reason for dismissal
Fuel Truck Procedures
[10] The Applicant explained that he operated the fuel truck when the incident occurred. The fuel truck duties involved filling up the fuel tank on the truck at the bowser. Once the tank was full, the fuel run then involved driving around the plant and filling up compressors and anything that needed fuelling. There is a compressor on the truck that is started up and used to supply the fuel from the truck tank to the vessel or equipment being filled. The amount of fuel used for each piece of equipment was recorded on a sheet. There are two types of fuel sheets, one for plant and equipment inside the main plant and one for equipment and plant in the quarry which is across the road.
[11] There is a gauge on the side of the truck which winds back to zero before fuel is dispensed to whatever is being filled. Once the dispensing of fuel is completed the gauge indicates how much fuel has been dispensed. Each machine that is filled with fuel also has an hour meter on it. The amount dispensed and the time shown on the hour meter of the machine that was filled is written on the fuel sheet.
[12] If a container or jerry can was filled up the Applicant says that the amount of fuel used was then written down to a particular piece of machinery rather than to the container. The Applicant also says that the incident occurred during a shut-down and that it can get hectic for the fuel truck when a shut-down occurs. He further submitted that every type of container is filled during shut-downs. On the day of the incident one of five operational kilns at the plant was shut-down. The Applicant also says that he never asked anyone that requested a container to be filled what the fuel was to be used for.
The provision of fuel to fellow employee
[13] The incident in question involved John Clifton (Clifton), an employee of the Respondent, requesting the Applicant to fill two (2) 20 litre containers with fuel. It is asserted that Clifton did not tell him what the fuel was for and the Applicant did not ask him. The Applicant says he assumed Clifton wanted the fuel for the dozer he was operating. He also assumed that it was going to be taken to the location where it would be used.
[14] Clifton left the containers to be filled behind a bund wall at the bowser and asked the Applicant to fill them for him. The Applicant proceeded to fill the containers from the compressor at the back of the truck. He says that there is no difference between fuelling from the bowser and from the fuel truck. Once the containers were full he put them in the lab shed.
[15] He then recorded the fuel on the fuel sheets against two different compressors.
[16] The Applicant’s initially asserted that he placed the containers in the lube bay area. In his verbal evidence he says that he placed them in the lab shed area. It was asserted by the Respondent that they were placed near the other employee’s Ute which had been parked there. The Applicant also says that he put the containers where they would be out of the way.
[17] Mr Yerkovich gave evidence about the incident stating there were a number of elements to the conduct that made it unusual. Firstly, jerry cans were colour coded for designated areas or purposes. Secondly, jerry cans were usually located near where the machine requiring that fuel was located and thirdly, filling containers near the fuel bowser was unusual.
Knowledge of other employees’ intention to steal
[18] This matter substantially concerns whether or not the Applicant was knowingly involved in the theft of fuel from the Respondent by another employee (Clifton) and if he was involved, was his termination of employment for that involvement unfair?
[19] The Applicant gave evidence that he did not know, nor was he in a position where he should have known, that the other employee was going to use fuel the Applicant provided to him by the filling of two containers for any other purpose that was not work related. He also asserted that he had not been properly trained in the fuel run operations and it was common practice to fill up various types of containers and put the quantity down to other equipment.
[20] The Applicant knew that Clifton was working on the dozer and he also knew that fuel for the dozer was filled up from another bowser. The Applicant tried to explain away the potential need for containers of fuel by saying that there were three or four containers down there (where Clifton worked) with bits of fuel in them.
[21] That is not a reasonable explanation of a possible need by Clifton for containers of fuel for work purposes and, in my view, the Applicant knew there was no need. I do not consider it credible that the Applicant, knowing where Clifton was working, knowing what equipment he was operating and with no reasonable explanation of a possible need for containers of fuel, had no knowledge that Clifton intended stealing the fuel.
[22] Of course the central figure in these proceedings was the other employee, Clifton, who had admitted to the respondent to having stolen the fuel. Clifton was not called to give evidence and nor was any explanation provided why he wasn’t called.
Adequacy of Training
[23] The Applicant says that his training for the fuel run occurred about 12 months ago and involving a total of about one and a half hours. Firstly, he was shown how to fill the tank from the bowser and secondly, he was shown what was involved in dispensing fuel from the truck’s tank. This seems to be similar to the training that the more regular fuel run operator had also received.
[24] The implication of the Applicant’s assertions regarding his claim that he had inadequate training in performing the fuel run role is that he may not have known some of the obligations such as how to properly fill in fuel sheets and account for fuel usage. He stated that whilst he had been given some training, the role was not a complicated one. The requirement to record what fuel was used for was described simply and directly by Anthony Yerkovich as, “whatever you fuel up you record on the sheets. It’s as easy as that”. He regarded the task as beneath him, having described the role as one for “dead heads”.
[25] Indeed the more regular fuel run operator, Eric Patroni, despite his criticisms of a lack of written procedures when compared to other places where he had been employed, described the role similarly.
Common practice filling containers during shut-downs
[26] The Applicant asserted that it was the common practice to write the fuel used for containers down to machinery. This is not supported by the evidence. When confronted with the evidence, the Applicant asserted that others were more familiar with the actual practice of writing down and attributing fuel to a jerry can before later again saying he did it because it was common practice. But even that is not credible as the evidence showed that the Applicant had, in previous shut-downs, applied the correct practice of recording the fuel against jerry cans.
[27] The Applicant did say that the purpose behind assigning fuel that filled containers to machinery was to “just write it off.” But behind that answer, in my view, there appears a motive that by “writing off” fuel it could then be stolen.
[28] The Applicant knew that the purpose of recording fuel usage to particular machinery was in order that data could be collected to identify how much fuel each machine was using. The Applicant then tried to argue that the figures would not be distorted because on night shift, fuel usage is not recorded. Whilst it was not entirely clear, that would not appear to be the case. What does appear to be the case is that the night shift fuel truck driver may not put his name to the fuel usage but he does put the fuel usage figures onto the fuel sheet. However, because it was not entirely clear that this was the case, I have not placed much weight on this element of the evidence other than for illustrative purposes of the Applicant appearing to not accept responsibility for any distortion of the figures, yet knowing that his recording would distort fuel usage figures.
[29] The Applicant stated that during shut-downs it can get hectic, trying to infer that the recording of fuel usage was not as accurate during shut-downs. However, he admitted that he was not busy that day and had plenty of time to record the fuel used in filling the jerry cans on the fuel sheets.
[30] Mr Patroni stated in his evidence that whatever you filled up with fuel you would write down on the sheets how much fuel was used. He also stated that during shut-downs if you filled containers then they would identify how much fuel had been used filling containers, although he would aggregate the total amount of fuel where there were multiple containers.
[31] Mr Mario Giacchetta also gave evidence. Mr Giacchetta is a plant operator. The cross examination of Mr Giacchetta evidenced clearly that he did not engage in a practice of falsely allocating fuel to machines and that where jerry cans were filled with fuel, that was itemised on the fuel sheets. Mr Giacchetta also confirmed that Mr Yerkovich, the Supervisor for this area, had raised the issue of the need for accuracy with the fuel sheets and he was aware of the purpose of the recording.
[32] Mr David Jefford, a plant services operator with the Respondent, gave evidence. Mr Jefford stated that the allocation of fuel was inaccurate because there were often discrepancies and a true figure is never attainable. Mr Jefford evidenced that the operators of the fuel truck had been alerted on at least two occasions by Mr Yerkovich to ensure all he had been properly and accurately allocated. He also evidenced that the purpose of the accurate allocation was so that the Respondent knew how much fuel each machine was using.
[33] Mr Jefford’s verbal evidence was that he would sometimes be allocated to a particular plant to cover and balance any shortfalls. The fuel sheets that were shown to him during his evidence clearly displayed that he had been in the practice of identifying the filing of jerry cans during shut-downs and the amount of fuel allocated to jerry cans.
[34] Despite Mr Jefford’s evidence that he did falsely allocate fuel to machines, the inconsistencies in his evidence lead me to the conclusion that the filling of jerry cans or other containers and not allocating the fuel used to those containers was not a practice he did engage in. His evidence is therefore not supportive of there being a general practice of balancing fuel sheets by falsely allocating fuel to machines.
Conclusions regarding the incident
[35] The nature of the issue to be satisfied about here involves theft and complicity in that theft. The written evidence, the verbal evidence and the video footage evidence weighs substantially in favour of the Respondent’s assertions rather than the explanations of the Applicant. Specifically, I do not accept the Applicant’s version of events about his lack of complicity in the theft. I do not accept that his training was inadequate nor was he unfamiliar with the procedures involved. Further, I do not accept that he simply followed common practice in filling up the containers and falsely assigning that fuel.
[36] Arising from my conclusions regarding the incident, I am satisfied that there was a valid reason for dismissal.
Notification of the reason
[37] The Applicant’s employment was suspended on 6 April 2011. A letter informing of the suspension was provided to him on that date. The suspension letter notified the reason for the suspension as the withdrawal of fuel for non operational purposes. He was also advised that an investigation was to be conducted and that he was required to attend a meeting on 7 April, where he would be expected to answer questions regarding the allegations. He was also advised that he could have a support person present.
[38] Meetings were conducted as interviews with the Applicant on 7 April, 11 April, 13 April and 14 April.
[39] It is clear that the Applicant was notified that the reason he was being interviewed was that disciplinary action might be taken depending on the findings from the Respondent’s investigation.
Opportunity to respond
[40] It was clear from the letter notifying the suspension and from the interviews conducted that the Applicant was, through those interviews, being given an opportunity to explain his involvement in the incident and any other explanation regarding his conduct.
[41] The Applicant, during those interviews, gave differing accounts of some of his actions during those interviews. These different accounts included whether he filled the containers from the bowser or from the fuel truck and where he placed the containers once he had filled them.
[42] The Respondent held suspicions that the Applicant was carrying a fuel funnel on the day in question. During the interviews the Applicant disputed that he was carrying a fuel funnel but could not, or would not, explain what the object was.
[43] The Applicant also stated that he did not think he had been dishonest. He also asked the Respondent to consider his personal circumstances including a serious condition his son had which involved him moving back to live with the Applicant. He also reminded the Respondent of his age.
[44] I am satisfied that the Applicant was given a number of opportunities to respond to the allegations about his conduct.
Presence of a support person
[45] I am satisfied that a support person for the Applicant was allowed to be present at the interviews and indeed was present.
Impact of the Respondent’s size on procedures followed
[46] The Respondent is a reasonably large employer. The procedures followed involved extensive interviews with the Applicant and what I consider to be a thorough investigation of the incident and circumstances surrounding the incident.
[47] I am satisfied that the procedures followed were appropriate.
Absence of Dedicated Human Resource Specialists
[48] The Respondent employs dedicated Human Resource Specialists and those specialists were involved in the procedures here.
Other matters I consider relevant
[49] Other matters I consider relevant to this application are:
(i) the Applicant’s personal circumstances
(ii) the length and quality of service of the Applicant;
(iii) prospects for other employment;
(iv) the seriousness of the conduct;
(vi) cooperation of the Applicant in the investigation and meetings regarding the conduct; and
(vii) alternative disciplinary action.
[50] The Applicant is 52 years of age and has three adult children. One of his sons has been diagnosed with black nodules on both lungs. He has lost 40 per cent of his lung capacity. His son has had to stop working and has moved in with his wife and children to live with the Applicant. The dismissal and the Applicant’s personal circumstances would no doubt have combined to cause stress and trauma more than most employees would encounter.
[51] The Applicant had 23 years of service and I am satisfied that there are no issues about the lack of any quality of that service. The Applicant is not a young man and the reality most likely is that his employment prospects are limited, notwithstanding current low levels of unemployment.
[52] The conduct that the Applicant was involved in however is serious. The Respondent employer not only has the right to an expectation that employees will not steal but an expectation that an employee will not be complicit in another person stealing. This is not a case of turning a blind eye to another person’s conduct as I regard the Applicant having been complicit in that conduct.
[53] Evidence of the conduct of the employee during the investigation and meetings conducted by the employer convince me that he did not cooperate with the employer but rather, endeavoured to exonerate himself and explain away his behaviour with what I regard as vague, changing and implausible explanations.
[54] This dismissal involves a single instance of misconduct and alternative disciplinary actions are, in my view, obliged to be considered, especially given some of the other factors considered above including the length of service of the Applicant. As Mr Yerkovich explained in his evidence, “These guys have been given a duty at the start of the day...and then they’re unsupervised for that day...So there’s an element of trust - what you set your guy out to do at the day...that’s what he goes and does...That’s an element of trust.”
[55] The Respondent also stated that they had considered alternatives to dismissal, although those alternatives were not outlined. the Respondent indicated that had the Applicant stolen a roll of industrial strength paper wipes, then most likely his employment would not have been terminated. However, the nature of this incident the Respondent regarded as more serious. Clearly the Respondent regarded complicity in the theft of fuel as a very serious offence. I agree. The alternatives most likely would involve demotion or a period of suspension. I have considered these types of alternatives in my deliberations on this matter.
Conclusions
[56] Whether a termination of employment is “harsh, unjust or unreasonable” was described in Byrne v Australian Airlines Ltd 4 (Byrne and Frew) in the following way:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 5
[57] Byrne and Frew involved a consideration of whether Australian Airlines Ltd had breached an award that contained a provision that an employee shall not be dismissed harshly, unjustly or unreasonably. Indeed Justices McHugh and Gummow cautioned that:
”it should be emphasised that the present task is to construe the Award and that nothing now said necessarily determines the meaning of the phrase “harsh, unjust or unreasonable” in any other setting.” 6
[58] Notwithstanding that Byrne and Frew was concerned with an award breach, it is of particular interest in this matter as it involved the dismissal of two baggage handlers who were found to be complicit in pilfering from passengers’ luggage. Byrne had been employed by Australian Airlines for 20 years and Frew for 25 years. McHugh and Gummow, in their joint judgement, observed that “it remains for the Full Court to determine whether Hill J erred in his findings of fact as to complicity in pilfering. If those findings were upheld it would be very difficult to see how the dismissal of the appellants could be regarded as harsh, unjust or unreasonable.” 7
[59] I am obliged to and have given consideration to each of the matters referred to in s.387(a) to (h). I am also obliged to give appropriate weight to each of those matters. There is no direction as to the primacy of weight to be given to any of the matters, although clearly some matters are of greater importance than others and should obviously be given greater weight.
[60] I have found that there was a valid reason for dismissal which involved a single instance of misconduct. However, significant weight needs to be given to the nature of that misconduct. As Mr Yerkovich, the supervisor involved, explained in his evidence, “These guys have been given a duty at the start of the day...and then they’re unsupervised for that day...So there’s an element of trust - what you set your guy out to do at the day...that’s what he goes and does...That’s an element of trust.” 8 I have therefore given significant weight to the nature of the misconduct which I consider to be serious.
[61] I have also given significant weight adverse to the Applicant concerning his conduct during the investigation and interviews he was involved in regarding the incident. I consider his vagueness, his changing of his accounts of the incident and his inability to remember simple matters that he later recalled once confronted with evidence displayed uncooperativeness on his part. I have considered but do not accept that his judgement and memory were affected by his personal or any other circumstances to an extent that it limited his ability or capacity to have been more cooperative.
[62] I have also given significant weight to the personal circumstances of the Applicant and the effect on him. It was one act and clemency could be given to him. However, the extent of clemency to be afforded is diminished in my mind by the lack of cooperation in the investigation.
[63] Taking all of the matters above into account and also giving various degrees of weight to those matters, I am not satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable. The termination of his employment was therefore not unfair.
DEPUTY PRESIDENT
Appearances:
Ms M Papa on behalf of the Applicant.
Mr J Blackburn of counsel, on behalf of the Respondent.
Hearing details:
2011.
Perth:
July, 21 & 22.
Final written submissions:
5 August 2011.
1 Rejfek v McElroy (1965) 112 CLR 517 at 521
2 s.381(2)
3 s.381(1)(a) & (b)(2) The term “business” seems to be used as being the same as the needs of employers.
4 [1995] HCA 24; (1995) 131 ALR 422; (1995) 69 ALJR 797; (1995) 185 CLR 410 (11 October 1995)
5 Ibid para 128 per McHugh & Gummow JJ
6 Ibid para 133 per McHugh & Gummow JJ
7 Ibid para 136 per McHugh & Gummow JJ
8 PN1921-1925
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