Lorenzo De Villiers v Electricity Networks Corporation T/A Western Power
[2016] FWC 3706
•8 JUNE 2016
| [2016] FWC 3706 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lorenzo De Villiers
v
Electricity Networks Corporation T/A Western Power
(U2015/12122)
COMMISSIONER CIRKOVIC | MELBOURNE, 8 JUNE 2016 |
Application for relief from unfair dismissal.
Introduction
[1] On 4 October 2015, Mr Lorenzo De Villiers made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Electricity Networks Corporation T/A Western Power (Western Power)(The Respondent).
[2] On 14 October 2015, Western Power filed a response to Mr De Villiers application.
[3] Mr De Villiers application was heard on 24 February 2016. Written closing submissions were filed by the parties; both parties agreeing for the closing submissions to be considered on the papers without a requirement for a further hearing for the purpose of making oral submissions.
[4] At the Hearing on 24 February 2016, Mr De Villiers gave evidence on his own behalf. The following witnesses gave evidence for Western Power:
• Mr David Fyfe, Executive Manager of Asset Operations;
• Ms Cassandra Mancuso, Human Resources Business Partner; and
• Mr Graham Downe, acting Project Contracts Manager.
Background
[5] Mr De Villiers commenced his employment at Western Power on 6 August 2012. 1 Mr De Villiers was employed as a Service Delivery Specialist, a role that falls within the operational services business function at Western Power.2 Mr De Villiers worked within the project contracts area and was responsible for the management of contractors.3
[6] Western Power is a Western Australian State Government owned statutory corporation created by the Electricity Corporations Act 2005 (WA). Western Power builds, maintains and operates the electricity network in the south western corner of Western Australia. 4
The Incident of 9 September 2015
[7] At approximately 5:30pm on 9 September 2015, Mr De Villiers was caught by Western Australian Police driving a Western Power vehicle at 75km/hour in a 50km/hour speed limit zone in Piara Waters. Western Australian Police also advised Mr De Villiers that he was driving without a valid licence. As a result, the Western Power vehicle was impounded. 5
[8] At 6:45pm, Mr De Villiers reported the incident by telephone to his team leader, Mr Van der Merwe. At 7:00pm, Mr De Villiers reported the incident to his formal leader, Mr Downe. 6 At 9:37pm, Mr De Villiers emailed Mr Downe to advise him of what happened.7
[9] The following morning on 10 September 2015, Mr De Villiers attended Canning Vale Police Station and completed an application to have the Western Power vehicle released early. Later in the afternoon, Mr De Villiers attended AAAC Kewdale, where the Western Power vehicle was impounded, to exchange it with his personal vehicle and to pay the impound fee. 8
The First Meeting
[10] Also on 10 September 2015, Mr De Villiers attended a meeting with Mr Downe and Ms Mancusso (the first meeting). At this meeting, an allegation was put to Mr De Villiers that as a result of the incident on 9 September 2015 that he had breached Western Power’s code of conduct and his contract of employment. 9 Mr De Villiers was stood down on full pay to allow him to prepare a response to the allegation. 10 Also at this meeting it was explained to Mr De Villiers that the incident was very serious and could result in disciplinary outcomes.11
The Second Meeting and the Termination of Mr De Villiers’ Employment
[11] On 14 September 2015, Mr De Villiers attended a further meeting with Mr Downe and Ms Mancusso to respond to the allegation (the second meeting). Mr De Villiers was accompanied by a support-person, Mr Terry Rothacker, a Senior Contract Delivery Specialist at Western Power. 12 Mr De Villiers provided a written response at this meeting. 13 Mr Downe stated that he did not consider Mr De Villiers response to be adequate and he was not satisfied that he fully accepted responsibility for the incident or appreciated its seriousness. 14
Mr Downe advised Mr De Villiers that that he had made the decision to terminate his employment and that this decision would be confirmed in writing. 15
[12] The termination of Mr De Villiers employment was confirmed by letter dated 17 September 2015 (the termination letter). 16 The termination letter summarised the incident and events leading up to Western Power’s decision to dismiss Mr De Villiers. Western Power’s reasons were summarised as follows:
“In summary Western Powers concerns are that you have breached the Western Power Code of Conduct, Corporate Values and your Contract of Employment.
In regards to the Code of Conduct you have;
- Failed to demonstrate our Corporate Value of Safety: We put safety first;
- Failed to protect Western Power’s interests – adhere to and comply with ethical obligations, and avoid taking any actions (including knowingly participate in any illegal or unethical activity), that compromise Western Power’s name, reputation, legitimate interests and business objectives;
- Failed to comply with Western Power’s safety, health and environment policy and all associated health and safety systems, standards and procedures. Specifically the Journey and Transport Management Standard;
- Failed to maintain the highest levels of professional conduct when representing Western Power with its customers, stakeholders and the wider community. In particular failed to have regard for interests, rights, safety and welfare of others; failed to be trustworthy; and failed in promoting a positive image of Western Power; and
- Failed to use Western Power assets (vehicle WPC2030) in an authorised and appropriate way.
The specific breach of your Contract of Employment is under the section of Commitments and Expectations, you have failed to work safely and look out for the safety of others, failed to follow the operating policies and guidelines set (from time to time) by Western Power and work in ways that builds on the good reputation and interests of Western Power its employees and customers.” 17
[13] The termination letter further states:
“As discussed in the meeting the pattern of behaviour you have demonstrated has caused significant damage to the trust and confidence Western Power has in you as an employee. After careful consideration of your responses, Western Power decided to terminate your employment for the following reasons:
- Misconduct relating to behaviour not in line with Western Power’s Code of Conduct and Corporate Values which in turn has led to a fundamental breach of mutual trust and confidence of the employment contract; and
- A consequential lack of confidence in you to continue your position of Service Delivery Specialist.
Your employment is terminated effective 14 September 2015 with 4 weeks’ pay in lieu of notice.” 18
Protection from Unfair Dismissal
[14] Section 382 of the Act sets out the circumstances where a person is protected from unfair dismissal. Section 382 of the Act is as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[15] Western Power is a large employer with thousands of employees. 19 Mr De Villiers commenced his employment at Western Power on 6 August 2012 and his employment was terminated taking effect on 14 September 2015, being a period of more than three years. Therefore, I am satisfied that Mr De Villiers has completed a period of employment with Western Power of at least the minimum employment period pursuant to s.383(a) and s.382 of the Act.
[16] Mr De Villiers’ employment contract provides that the Western Power and Australian Services Union Enterprise Agreement 2009 or any workplace agreement that replaces that agreement will underpin his employment at Western Power. 20 Therefore, I am satisfied that an enterprise agreement applies to Mr De Villiers’ employment pursuant to s.382(b)(ii) of the Act.
[17] As I am satisfied that Mr De Villiers completed a period of employment with Western Power of at least the minimum employment period and that an enterprise agreement applies to his employment I am satisfied that Mr De Villiers is a person protected from unfair dismissal pursuant to s.382 of the Act.
Unfair Dismissal
[18] Section 385 of the Act details the circumstances where a person has been unfairly dismissed from their employment. Section 385 is as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[19] I am satisfied that Western Power dismissed Mr De Villiers from his employment effective 14 September 2015 within the meaning of s.386(1)(a) of the Act.
[20] As stated above, Western Power is a large employer with thousands of employees. Therefore, I am satisfied that the Small Business Fair Dismissal Code does not apply to Mr De Villiers’ dismissal.
[21] Western Power did not submit that Mr De Villiers’ dismissal was a case of genuine redundancy. Regardless, I am satisfied that Mr De Villiers’ dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
Harsh, unjust or unreasonable?
[22] Having been satisfied of each of the matters prescribed by s.385(a), (c)-(d) of the Act, I now must consider whether Mr De Villiers’ dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering whether a dismissal was 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.”
[23] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd (1995) 185 CLR 410. McHugh and Gummow JJ explained as follows:
“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.” 21
[24] I will now consider each of the matters set out in s.387 of the Act.
Valid Reason – s.387(a)
[25] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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). 22 When considering whether a reason is a valid reason for the purpose of s.387(a) of the Act, the reason must be “sound, defensible or well founded”. 23 A reason which is “capricious, fanciful, spiteful or prejudiced” cannot be a valid reason. 24
[26] The Commission will not stand in the shoes of the employer and determine what it would do if it was in the position of the employer. 25 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).26
[27] This is not a matter which concerns whether there was a valid reason for Mr De Villiers’ dismissal which related to his capacity to perform the role of Service Delivery Specialist as was required by Western Power. There is currently nothing before the Commission which I consider demonstrates otherwise. The evidence before the Commission demonstrates that that Mr De Villiers was an enthusiastic and intelligent employee who Western Power considered demonstrated a great deal of potential and who they expected to take on more responsibility in the future. 27 This matter concerns whether there was a valid reason for Mr De Villiers’ dismissal which related to his conduct, namely the incident on 9 September 2015.
[28] In cases relating to alleged misconduct, the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. It is not enough for the employer to establish that it had a reasonable belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it. 28 The reason is valid where the Commission finds that the conduct occurred and justified termination of employment. The reason might not be a valid reason where the conduct did not occur or where it did occur but did not justify termination. 29
[29] Western Power submits that there is a valid reason for Mr De Villiers’ dismissal related to his conduct, being the incident on 9 September 2015. The conduct involved:
A. Excess Speeding (Being 75kms in a 50km zone.);
B. Driving Western Power Vehicle without a licence; and
C. Causing a Western Power Vehicle to be impounded.
Mr De Villiers does not dispute the facts in relation to the incident. 30 Western Power submits that Mr De Villiers’ conduct:
• Was in breach of the Code of Conduct;
• Was in breach of Mr De Villiers’ employment contract;
• Put Western Power’s reputation at risk; and
• Was unsafe behaviour consistent with Western Power’s corporate values.
[30] Mr De Villiers accepted that the incident on 9 September 2015, was serious and severe in nature and was in breach of Western Power’s values, code of conduct and his contract of employment. Further, Mr De Villiers accepted that his position at Western Power included a requirement to demonstrate safety behaviours and ensure compliance with safety standards and values amongst the workers he managed. 31
Mr De Villiers’ Contract of Employment
[31] Mr De Villiers’ contract of employment, under the heading ‘Commitments and Expectations’, provides that he:
• Consistently demonstrate Western Power’s values and principles;
• Work safely and look out for the safety of others;
• Follow the operating policies and guidelines set (from time to time) by Western Power; and
• Work in ways that build on the good reputation and interests of Western Power its employees and customers. 32
Western Power Code of Conduct
[32] Western Power’s Code of Conduct is a document which establishes standards for appropriate ethical, responsible and professional behaviours and the fundamental values which form the basis of, and, underpin business and personal relationships. The Code of Conduct applies to all Western Power personnel, which includes every employee, officer and director of Western Power, as well as every contractor when performing activities on behalf of Western Power. 33
Safety, Health and Environment – Journey and Transport Management Procedure
[33] Is a document which sets out the procedure within Western Power for vehicle related journey management and associated activities. The procedure applies to all Western Power personnel, including employees, officers and directors of Western Power, as well as every contractor when performing activities on behalf of Western Power. 34
Managing Driving – Traffic Infringements, Guidance to Support Safe Driving
[34] Western Power’s Managing Driving – Traffic Infringements Guideline (the Guideline) sets out guidance for formal team leaders on how to manage traffic infringement incidents. The Guideline gives examples of different traffic infringements such as various amounts by which the speed limits could be exceeded and the disciplinary outcome that such conduct would warrant. The Guideline for speeding infringements exceeding the speed limit by 10 to 19kms per hour corresponds with a disciplinary outcome in the realm of a written warning to termination of employment. An employee issued with a traffic infringement for exceeding the speed limit by greater than 20kms per hour, the disciplinary outcome range is a written warning through to termination of employment. 35
[35] Mr De Villiers submits that prior to the traffic incident on 9 September 2015 he had a good safety record and that Ms Mancuso did not give weight to the Mr De Villiers’ initial response, whereby he repeatedly took responsibility for his actions. She instead chose to use one element of the Mr De Villiers’ response to the allegations as reason to sway from a ‘first and final warning’ to termination of employment 36.
[36] Mr De Villiers does however concede that by speeding significantly above the 50 km speed limit he failed to comply with his safety obligations under the Western Power Journey and Transport Management Standard (the Standard) 37as well as company policies, guidelines and codes of which Mr De Villiers was aware.
[37] The Respondent submits that due to the nature and inherent danger of their operations and the strict regulatory environment in which it operates it places a premium on safety as a core corporate value. This is reflected in the Respondents values and safety culture which places safety above all else. 38
[38] The Respondent is a statutory corporation overseen by various bodies including Energy Safe and Worksafe. As a result there is a high expectation for the Respondent and its employees to act at all times appropriately, safely and in accordance with community expectation. 39
[39] The Respondent is subject to strict safety requirements as required by State Legislation. 40 Traffic Infringements are considered by the Respondent as a serious safety issue41 and as a response to concerns regarding the number of traffic incidents within the Respondents workforce, the Standard and the Guideline was introduced mid-201442. The Guideline detailing the appropriate disciplinary action in response to a breach of the Standard.
[40] I am satisfied that Mr De Villiers’ conduct was in breach of the Respondent’s code of conduct, his employment contract and was unsafe behaviour inconsistent with the Respondent’s corporate values. Accordingly, there was a valid reason for Mr De Villiers’ dismissal.
Notification of the Valid Reason – s.387(b)
[41] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was notified of the reason. 43 Procedural fairness requires that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment. 44 The notification of the valid reason must be in explicit, plain and clear terms. 45
[42] Mr De Villiers was notified at the first meeting on 10 September 2015 that disciplinary action was being considered by the respondent and at the subsequent meeting held on 14 September 2015, prior to his dismissal. Mr De Villiers was notified in clear terms of the reasons for the termination of his employment, and was offered an opportunity to respond to the Respondents proposal that his employment was to be terminated as well as to the allegations 46 The reasons for termination were further confirmed in a letter from Mr Downe to Mr De Villiers dated 17 September 2015.47
[43] I am satisfied that Mr De Villiers was notified of the reason for his dismissal.
Opportunity to Respond – s.387(c)
[44] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. 48 An employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made. 49 This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. 50 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of this section. 51
[45] Mr De Villiers was made aware of the allegations in relation to his conduct at the meeting on 10 September 2015, attended by Ms Mancuso and Mr Downe. During that first meeting he was asked to attend a further meeting on Monday 14 September 2015. He was also provided a letter explaining that he was being stood down on full pay, effective immediately and setting out the details of the meeting scheduled for 14 September 2015. 52 Mr De Villiers was advised during that meeting that the disciplinary outcome could ‘go either way” and that his response would be important to that process.53
[46] Mr De Villiers provided a written and oral response to the allegations made at the meeting held 14 September 2015. 54 The written response dated 14 September 2015 details the events of 9 September 2015, the night that the incident occurred, in chronological order:
● At 1730 on 9/09/2015, I left work from the Prinsep Rd Western Pawer depot for my home
● Due to a planned early start (600) working from Head Office on 10/09/2015, I utilised a Western Power restricted pool vehicle, leaving my personal vehicle at Prinsep Rd depot
● At 1740, I passed through the intersection (roundabout) of Warton Road and Jandakot Rd. Now travelling on Mason Rd, a stationary Police Car signalled me to pull over.
● The police officer requested my license, which I produced.
● The police officer returned to the Police vehicle to perform checks and prepare the infringement documentation.
● The police officer returned to my vehicle and alleged that I was driving whilst under suspension.
● The police officer issued the infringement for speeding and required the vehicle be impounded.
● The police officer arranged for the vehicle to be towed an impounded at AAAC, Kewdale.
● After completion of the required paperwork and returning home, at 1845 I reported the incident to my Team Leader (Theunis van der Merwe)
● At 1900 on 9/09/2015, I reported the incident to my Formal Leader (Graham Downe)
● At 830 on 10/09/2015, I presented at Canning Vale Police Station and completed a vehicle early release application, in order to have the vehicle released as soon as possible
● At 1530 on 10/09/2015, I presented at AAAC Kewdale with my personal vehicle, exchanging it for the impounded vehicle and paying he impound fee in full ($1063.71) 55
[47] In addition Mr De Villiers provided an explanation regarding the allegation of driving whilst under suspension indicating his intention to accept a good behaviour bond for a period of one year. The letter of 14 September further states:
“I am not aware of any correspondence from the Department of Transport to confirm the alleged suspension of my licence on account of the visit to the Licencing Centre on 9/07/2015”
[48] In response to the allegation of speeding, and the contributing factors leading to the infringement, Mr De Villiers presented reasons including; the surrounding speed signs, that he had been “living at this address and traveling this route for more than 2 years.”, that he was unaware of the restriction and that the signs must have been installed recently. Mr De Villiers stated that he had contacted Main Roads querying the installation of the signs and was yet to receive a response; however upon review of the Main Roads website there was an indication that the 50km/h speed signs were not in line with desired practice. 56
[49] Mr De Villiers submits that he was told that the meeting on 14 September would be a chance to formally respond to the allegation of misconduct. In doing so he must show reasons as to why his conduct was not wilful and highlight any mitigating factors.
[50] The 14 September meeting was adjourned to enable Ms Mancuso and Mr Downe to consider Mr De Villiers response to the allegations. The decision to terminate Mr De Villiers was made after the meeting reconvened and he was informed of the likely disciplinary outcome. Mr De Villiers was asked whether he wished to make a further response, which Mr Downe considered. 57
[51] The Respondent’s decision to terminate Mr De Villiers employment was made after taking into account the Mr De Villiers’ written and oral responses during the second meeting on 14 September 2015. For the reasons identified above, I find that Mr De Villiers was given an opportunity to respond to the allegations made against him.
Unreasonable Refusal of a Support Person – s.387(d)
[52] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. 58 With respect to this consideration, the Explanatory Memorandum to the Act states:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 59
[53] The Respondent did not refuse to allow Mr De Villiers access to a support person, as Mr De Villiers brought Mr Terry Rothacker to the meeting on 14 September 2015. 60 On that basis I find the Respondent allowed Mr De Villiers to have a support person present.
Warnings regarding Unsatisfactory Performance – s.387(e)
[54] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal. 61 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than to their conduct. 62 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance. 63
[55] The dismissal of Mr De Villiers did not relate to his performance. I consider this factor neutral.
Impact of the Size of the Respondent on Procedures Followed and Absence of Dedicated Human Resources Management Specialist/Expertise on Procedures Followed - s.387(f) – (g)
[56] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. 64 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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. 65
[57] Mr De Villiers accepts that the Respondent is a large employer with dedicated human resources professionals. The Respondent did not contend that it was disadvantaged in relation to s387(f) of the Act, nor does it lack the resources in this regard. I do not consider that there are any factors which might have impacted on the ability of the Respondent to follow a fair process in effecting Mr De Villier’s dismissal.
Other Relevant Matters – s.387(h)
[58] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any other matters that the Commission considers relevant. 66
[59] In his final submissions, Mr De Villiers submitted the respondent acted harshly in deciding to terminate his employment as:
“a.Incorrect weight was given to the Applicant’s first traffic infringement, which occurred prior to the Applicant receiving the updated traffic guide.
b. The decisive factor that swung the decision from a warning to a termination was not considered in context of the Applicants safety history and employment record.
c. The Respondent unfairly sought to categorise the Applicant as a high risk employee when considered in context of the Applicant’s safety history.
d. The respondent failed to apply the same disciplinary actions to other employees who committed similar, or in some cases multiple similar breaches as the applicant.” 67
[60] In response the Respondent submits:
a. The Applicant’s prior performance and safety record were carefully considered before a decision to terminate the Applicant’s employment was made 68
b. The respondent appropriately considered both the Applicant’s risk tolerance and lack of accountability when determining to terminate the Applicant’s employment 69. The Respondent’s view that the applicant has a high risk tolerance was based on a number of factors including:
(a) the excessive speed and recklessness involved in the infringement
(b) That the applicant drove in this manner despite not having a valid driver’s license or, alternatively, while believing he was on a good behaviour bond; and
(c) The prior traffic infringements incurred by the Applicant which ultimately led to his driver’s licence being suspended. 70
c. The Applicant did not fully accept responsibility for the Infringement or appreciated its seriousness consequently the Respondent lost confidence in the Applicant’s ability to perform his role and act in a safe manner and identified the Applicant as an ongoing safety risk due to his conduct;
d. The Applicant’s comparison of disciplinary procedures was misconceived as no other employee was involved in a traffic infringement as serious as the Applicant’s, a scenario unprecedented at Western Power. 71
[61] While there was some agitation by Mr De Villiers in his post hearing submission that there was not a thorough deliberation process prior to making the decision to dismiss him, the Respondent submits “the decision to dismiss a highly regarded employee was a difficult one which followed careful and extensive deliberation and consultation 72,” including obtaining the approval of two heads of function and consulting with Mr Fyfe, the Executive Manager of Asset Operations.
Conclusion
[62] Taking into account the matters set out above I must now consider whether the termination of Mr De Villiers was harsh, unjust or unreasonable.
[63] The Guideline describes the appropriate disciplinary action, which Mr De Villiers was made aware of in November 2014. The Guideline specifies that an excessive speeding infringement incident, in excess of 20 kilometres per hour, warrants a written warning or termination of employment. Different minds will form different views on what disciplinary action is appropriate in a given set of circumstances. The nature of the safety breach, the circumstances surrounding it and the paramount importance of safety in the workplace meant that the Respondent reasonably made the decision to terminate Mr De Villiers’s employment. In this case termination was expressly contemplated by the Guideline. The speed reached here was within that more severe category and the breach of policy was at the higher end.
[64] Considering all the factors, including the particular consequences of the dismissal for Mr De Villiers, I do not accept that the dismissal was disproportionate to the gravity of the misconduct.
[65] In the circumstances of this case, having taken into account the considerations of s.387(a)-(h) and having taken into account the matters set out above, I am not satisfied that Mr De Villiers’ dismissal was harsh, unjust or unreasonable pursuant to s.385(b) of the Act. It follows from those findings that I dismiss the application.
[66] An order to that effect will be published separately to this decision.
COMMISSIONER
Appearances:
Lorenzo De Villiers, for the Applicant;
Beth Robinson of Allion Legal, for the Respondent.
Hearing details:
2016
24 February.
Final written submissions:
Applicant’s Final Submission, 16 March 2016
Respondents Final Submission, 5 April 2016
Applicant’s Final Submission in Reply,19 April 2016
1 Exhibit A2; Exhibit R3, Attachment CMM-3B
2 Exhibit R3, para. 7
3 Exhibit R4, paras. 9 & 11
4 Exhibit R1, para. 10
5 Exhibit A1
6 Exhibit R4, GAD-8
7 Exhibit A2, email dated 9 September 2015
8 Exhibit A1; Exhibit A2, impound fee invoice dated 10 September 2015
9 Exhibit R3, para. 13; Exhibit R4, Attachment GAD-5
10 Exhibit R3, para 33
11 Exhibit R3, para 35
12 Exhibit R3, paras. 45 – 48; Exhibit R4, paras. 60 – 62
13 Exhibit R4, paras. 62 – 69, Attachment GAD-8 , Attachment GAD-9
14 Exhibit R4, paras. 65 – 72
15 ExhibitR4, para. 82
16 Exhibit R4, Attachment GAD-10
17 Exhibit R4, Attachment GAD-10
18 Exhibit R4, Attachment GAD-10
19 Exhibit R1, para. 8
20 Exhibit R3, Attachment CMM-3B
21 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465 (McHugh and Gummow JJ)
22 Fair Work Act 2009 (Cth) s. 387(a)
23 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
24 Ibid
25 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
26 Ibid
27 Exhibit R4, paras. 11 – 14
28 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213, [24]
29 Edwards v Giudice (1999) 94 FCR 561, 565
30 Exhibit A1
31 PN352 – PN355
32 Exhibit R3, Attachment CMM-3B
33 Exhibit R3, Attachment CMM-3E
34 Exhibit R3, Attachment CMM-1
35 Exhibit R3, CMM-2
36 Applicants Post Hearing Submission at para 41
37 Transcript PN353 and PN354
38 Exhibit R1, paras 19-21
39 Respondent Final submissions, para 20
40 Respondent Final submissions, para 21
41 Respondent Final submissions, para 25
42 Respondent Final submissions, paras 6 and 20
43 Fair Work Act 2009 (Cth) s. 387(b)
44 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151; Gooch v Proware Pty Ltd T/A TSM (The Service Manager)[2012] FWA 10626
45 Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730,
46 Exhibit R4, para 53 and 60-82, GAD 8
47 Exhibit R4, para 83 GAD-10
48 Fair Work Act 2009 (Cth) s. 387(c)
49 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151
50 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ)
51 Ibid
52 Exhibit R4 para 53-55, GAD-5
53 Ibid, para 58
54 Exhibit R3
55 Applicants response to the allegations dated 14 September 2015
56 Ibid
57 Exhibit R4 Paras 79-80
58 Fair Work Act 2009 (Cth) s.387(d)
59 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542]
60 Exhibit R4, para 60
61 Fair Work Act 2009 (Cth) s.387(e)
62 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237
63 Johnston v Woodpile Investments T/A Hog’s Breath Café - Mindarie [2012] FWA 2, [58]
64 Fair Work Act 2009 (Cth) s.387(f)
65 Fair Work Act 2009 (Cth) s.387(g)
66 Fair Work Act 2009 (Cth) s.387(h)
67 Applicants Post Hearing Submissions, para 49
68 Respondents Final Submissions, para 67
69 Respondents Final Submissions, para 70d
70 Respondents response, para 71
71 Respondents outline of submissions, para 102
72 Respondents outline of submissions, para 115
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