Matthew Reid v Broadspectrum Australia Pty Ltd

[2014] FWC 7108

[2014] FWC 7108 [Note: An appeal pursuant to s.604 (C2014/7954) was lodged against this decision - refer to Full Bench decision dated 29 January 2015 [[2015] FWCFB 519] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Reid
v
Broadspectrum Australia Pty Ltd
(U2014/6520)

COMMISSIONER HAMPTON ADELAIDE, 5 NOVEMBER 2014

Application for relief from alleged unfair dismissal - long term casual employee assigned to a client business - non work related injury - failure to notify of absence or to apply for leave through the employer - informal client-based procedure followed - result was absence without knowledge of the employer - client requested that position be filled by a replacement employee - no work available when employee returned - whether dismissal - whether abandonment of employment - dismissal found - whether unfair - real reason based upon absence of work - sound and objective reason - procedural fairness matters not relevant to real reason and not significant in the circumstances - dismissal not unfair - application dismissed.

1. Introduction and case outline

[1] Mr Matthew Reid has made an application to the Commission seeking a remedy for an alleged unfair dismissal. The application has been made under s.394 of the Fair Work Act 2009. Mr Reid’s employer was Broadspectrum Australia Pty Ltd (Broadspectrum).

[2] Mr Reid was engaged by Broadspectrum in July 2009 and in November of that year he was assigned to work as a Senior Electrician at the BHP Billiton Olympic Dam Corporation Pty Ltd (BHPB) operations at Olympic Dam in South Australia’s far north. This work took place within the Non Process Infrastructure (NPI) department and occurred in the context of a contract with BHPB which requires Broadspectrum to provide labour to support various parts of the Olympic Dam operations.

[3] Although engaged as a casual employee, Broadspectrum accepts that the nature of that service is sufficient for Mr Reid to be otherwise protected from unfair dismissal as contemplated by s.382 of the Act.

[4] Much of the broad setting for this application is not in dispute. Mr Reid was employed by Broadspectrum and he had certain reporting and other obligations in that regard. However, he worked in effect under the day-to-day supervision of BHPB staff in accordance with working rosters and patterns set by that organisation. He completed a shift on 5 February 2014 and was due to work again on 11 February 2014.

[5] Unbeknown to Broadspectrum, Mr Reid suffered a non-work related back injury that required specialist treatment and advice. Mr Reid notified the area supervisor of BHPB of the injury and his likely long-term absence, but did not contact Broadspectrum. The absence, nominally approved by BHPB, extended for a period that ran into a further period of leave that had also been nominally approved by BHPB, again without any reference to Broadspectrum.

[6] During Mr Reid’s absence, senior management of BHPB contacted Broadspectrum, without apparently knowing about the “leave” being “approved” by the local BHPB supervision, and advised that Mr Reid had not been attending for work. BHPB directed Broadspectrum to arrange for a replacement employee, which it did.

[7] Upon becoming aware that Mr Reid had not been attending work, Broadspectrum contacted him and sought clarification. Mr Reid advised that he had a non-work related injury and would be unavailable for a long period but had not got around to advising Broadspectrum. Mr Reid made no reference to the “leave” being “approved” by BHPB.

[8] In due course, Mr Reid attended the Olympic Dam operations and sought to resume work. He required a medical clearance under BHPB site rules and to that point had a conditional return to work approval from his Doctor based upon specialist advice. On 24 March 2014, having returned to his Doctor and obtained a full clearance as required by BHPB, Mr Reid attended at Broadspectrum at the request of management.

[9] There is a dispute about precisely what was said at that time, however on any view he was informed that there was no work for him in the previous role at BHPB and Mr Reid has not undertaken work for Broadspectrum in any capacity since that time.

[10] Mr Reid contends that he was dismissed on 24 March 2014 on the basis of his medical condition and/or absence. He further contends, in effect, that he had permission from BHPB for his absences and that this was both appropriate and sufficient to meet his obligations to Broadspectrum.

[11] Mr Reid also contends that his position was being performed by another casual and that work for him was available as a Broadspectrum employee within the Olympic Dam operations. He further contends that his dismissal was unfair and initially sought reinstatement to the former position. During the course of proceedings, both his circumstances and those of Broadspectrum changed and he now seeks compensation.

[12] Broadspectrum oppose the application on various grounds. It denies that there was a dismissal at its initiative and contends that Mr Reid abandoned his employment. Further, and in the alternative, it contends that as Mr Reid had not followed the required procedure to notify it of his absences, there were valid grounds to dismiss him.

[13] Broadspectrum also relies upon the notion that as it had replaced Mr Reid’s position given his absence, there was in fact no position for him as a casual when he did eventually report back for work. On that basis, Broadspectrum contends that if there was a dismissal, it was not unfair.

[14] In terms of any remedy sought by the applicant in this matter, Broadspectrum opposed the notion and indicted that it has recently lost the BHPB contract under which Mr Reid was engaged.

[15] In these rather unique circumstances, it is necessary to consider whether there has been a dismissal within the meaning of Act. If so, I need to consider whether it was unfair. This requires me to consider the nature of the employment and the detailed conduct of the parties as it might bear upon these issues.

[16] Given the evident factual conflicts, I was obliged 1 to conduct a hearing or conference in order to make the necessary findings leading to the determination of the jurisdictional issues and the matter more generally.

[17] A hearing was conducted over two days to facilitate the attendance of certain BHPB witnesses and to permit some clarification as to their internal processes relied upon by Mr Reid.

2. The nature of Mr Reid’s employment and the circumstances leading to the apparent dismissal

[18] In reaching my findings I have considered the evidence relied upon by the parties including the following:

The statements and oral evidence of:

● Mr Reid - the applicant;
● Mr James Frederick - Supervisor with BHPB (called by Mr Reid);
● Mr Steven Bell - Electrical Planner with BHPB (called by Mr Reid); and
● Mr Corne Briel - Area Manager for Broadspectrum.

Written material including:

● Medical reports and certificates relating to Mr Reid;
● A letter of offer forming the basis of Mr Reid’s employment contract;
● Broadspectrum House Rules document;
● Induction form completed in relation to Mr Reid;
● Material from BHPB pertaining to their leave approval arrangements; and
● Selected BHPB rosters for the area where Mr Reid was working.

[19] I do not consider that any witnesses attempted to mislead the Commission.

[20] I found that Mr Reid’s evidence regarding the reasons for not contacting Broadspectrum in relation to his absences, and his obligations in that regard, was unconvincing. I also prefer the evidence of Mr Briel in terms of the meeting conducted with Mr Reid on 24 March 2014. Mr Briel made appropriate concessions and did not attempt to fill in the gaps even when such would have been helpful to the respondent’s case.

[21] I also accept the evidence of all other witnesses and note there is little factual conflict arising from their evidence.

[22] I have set out above the broad context for this matter. It is not necessary to repeat the same and the following deals with the additional facts necessary to determine the application.

2.1 The circumstances of Mr Reid’s employment and his reporting arrangements

[23] Mr Reid entered into a casual employment contract with Broadspectrum in July 2009. The contract was for a casual New Start Electrician to be based at the BHPB Olympic Dam site. The contract indicated that the actual hours of work would be as agreed with the relevant BHPB Supervisor or Manager. 2

[24] The employment contract also made mention of a House Rules document that was also signed by Mr Reid at the time of his employment. 3 The House Rules document included a disciplinary policy and this cited4 “being absent during a period in which a request for leave has been declined,” as an example of “serious misconduct.” It also cited5 “being absent without authorisation of the area supervisor” under the list of examples of “less serious misconduct”.

[25] Mr Reid also undertook an extensive induction program and this included being provided with an induction booklet that indicated, amongst many other things, that working hours had to be approved through Broadspectrum and that absences must be approved by, and notified to “your Supervisor”. 6 The induction booklet contained the names and addresses of two Broadspectrum “Site Supervisors” and an Area Manager.

[26] Mr Reid’s employment was subject to the terms of the Broadspectrum Australia Olympic Dam Workplace Agreement 2009 (the Workplace Agreement). The Workplace Agreement provided that until such time as weekly employment was offered, all employees would be engaged and employed as casuals. 7

[27] Broadspectrum conducted regular safety tool box meetings for its employees at Olympic Dam. It was expected that the employees attend at least once per month.

2.2 The arrangements with BHPB

[28] Broadspectrum had at the relevant time, contracts to supply labour in three areas of the Olympic Dam operations; namely, cable reclaiming, an ad hoc service contract, and a diesel maintenance contract.

[29] Mr Reid was engaged as part of the ad hoc service and was assigned to the NPI department. His role was however one of the three ongoing roles that had to be filled by Broadspectrum as part of the ad hoc service.

[30] The NPI department set nominal rosters 12 months in advance and nominated various workers, both direct employees and those supplied by Broadspectrum, to fill the various roles. The actual roster is confirmed two weeks in advance.

[31] Mr Reid was included within both the nominal and actual rosters on a regular and systematic basis from late 2009 up to the time of his absences in 2014.

[32] The work allocation to be undertaken by Mr Reid was determined by the management of NPI and he received direct advice of those matters from BHPB.

[33] The local management of NPI conducted a leave request and approval arrangement for the employees who were supplied by Broadspectrum, and other contractors. This was an unofficial arrangement which involved the employees completing an application for leave (to be absent in the case of the casuals) and approval being given. The rosters were mostly, but not always, changed to reflect the leave approvals.

[34] The unofficial leave arrangements were not sanctioned by Human Resources department of BHPB and were not intended to be a substitute for the requirements of Broadspectrum and the other contract employers. However, the management of NPI effectively conducted these arrangements, and its direction of Mr Reid and other contract staff, largely in the same manner as if BHPB was the employer.

[35] Mr Reid had previously applied for “leave” using the NPI process on a number of occasions and there is no indication that he also notified Broadspectrum at any time in relation to those periods.

[36] The normal approach to planned absences expected for employees in circumstances similar to Mr Reid was to complete a Broadspectrum leave form and then approach BHPB to confirm that they could be released. This form was then to be provided to Broadspectrum so that “leave” could be approved and a relief employee organised.

2.3 The circumstances associated with Mr Reid’s absences from work in 2014

[37] Mr Reid suffered a non work-related back injury on 7 February 2014. He was advised that the nature of the injury was such that he required specialist treatment, which was not available to him until 5 May 2014.

[38] On 10 February 2014, Mr Reid verbally informed BHPB of the above and both he and the NPI management expected that he would not be available to resume work until at least that time. Mr Reid did not advise Broadspectrum and there was at least at that time, no contact made with Broadspectrum by BHPB.

[39] Mr Reid had already had some (holiday) leave approved through the NPI system in January 2014 for the period between 20 February and 5 March 2014. Given the circumstances, and the fact that the back injury absence approved by NPI ran into the period, Mr Reid decided to keep those holiday arrangements in place. This involved travelling to various Australian cities to attend concerts. Whilst doing so, Mr Reid on at least two occasions visited medical specialists that could assist him with his back complaint.

[40] On 18 February 2014, Mr Edwards, a Superintendant from the NPI department at BHPB, contacted Mr Briel and advised that Mr Reid was not attending for work as scheduled. The Superintendant also requested Mr Briel to organise a replacement and to provide a resume. Mr Briel understood that this meant that BHPB were seeking an ongoing employee rather than a more temporary fill-in employee as a resume was not normally required for the latter.

[41] On the same day, Mr Briel also rang Mr Reid to discuss his absence. Mr Reid informed him that he had a non work related injury and would need to seek specialist advice. He also advised that he could not give an indication of how long this would take and implied that his absence would be a long time. Mr Briel did raise with Mr Reid why he had not notified Broadspectrum as required and Mr Reid advised, in effect, that he had meant to, but did not get around to it. Mr Reid did not however mention that he had advised BHPB of his injury and circumstances, or that he had “approval” for his upcoming holiday period.

[42] Mr Briel subsequently forwarded a resume of an appropriately qualified employee to BHPB and that employee was accepted by BHPB for the role previously undertaken by Mr Reid. That employee commenced working and remains in that role at the time of hearing this matter.

2.4 The events leading to meeting of 24 March 2014 and the conduct at that meeting

[43] On 11 March 2014, Mr Reid returned to his home in Roxby Downs. He did not advise Broadspectrum of his return or of any developments in his medical circumstances. Armed with some specialist advice, Mr Reid did attend his local Doctor. He was provided with a partial clearance to perform work. That clearance had limitations on the frequency of bending and the lifting of weights. 8

[44] Mr Reid attended the on-site medical centre at BHPB and was advised that he needed to be accompanied by a representative of his employer, Broadspectrum. I note that a person in Mr Reid’s circumstances required the use of a security pass to visit the BHPB centre. I also note that Broadspectrum had not undertaken any actions at that point to contact BHPB to remove Mr Reid’s pass or to take any other steps to change his status as a casual employee.

[45] On 13 March 2014, Mr Reid made contact with a representative of Broadspectrum and sought assistance with a further visit to the BHPB medical centre that had already been arranged at that point.

[46] On 18 March 2014, Mr Reid attended the Broadspectrum office and provided a current medical certificate from his Doctor. Also on that day, he again attended the BHPB on-site medical centre, this time with representatives of the employer. A medical practitioner at the Clinic issued a work capabilities certificate broadly in the same terms as the 11 March 2014 certificate from Mr Reid’s Doctor. Mr Reid was also advised by BHPB that it required a full medical clearance in order for him to resume work on site.

[47] At some point in this period, Mr Briel contacted Mr Edwards and advised that Mr Reid had returned and had a partial clearance for work. During that conversation, Mr Edwards confirmed that BHPB was happy with the replacement employee supplied by Broadspectrum for what had been Mr Reid’s position.

[48] On 19 March 2014, Mr Reid attended his own Doctor and was given a full medical clearance to resume work. 9 Mr Reid advised Broadspectrum of that development and a further appointment at the BHPB centre was organised.

[49] On 24 March 2014, Mr Reid attended the BHPB on-site medical centre and obtained a full medical clearance.

[50] On the same day, Mr Briel contacted Mr Reid and requested that he attend his office for a meeting. Mr Reid was not informed of the reason for the meeting.

[51] Mr Briel became aware of the fact that Mr Reid now had a full medical clearance from his Doctor and the BHPB medical centre. Given that the medical clearance was provided without further recourse to specialist advice that had in part led to the partial medical clearance, Mr Briel sought clarification of Mr Reid’s medical status.

[52] Mr Reid offered to provide any further medical reports to assure Mr Briel that he was fit for work. Mr Briel responded to the effect that in any event Broadspectrum had no work available for Mr Reid. This was said in the context that the position previously undertaken by Mr Reid was being filled by the replacement employee that had been organised at the request of BHPB.

[53] There is a dispute about whether Mr Briel expressly informed Mr Reid that he was being let go or words to that effect. It is evident to me that this was Mr Reid’s understanding of the effect of Mr Briel’s comments, however on balance I am not persuaded that this was said.

[54] Subsequently, Mr Reid discovered that Mr Briel had advised a person known to Mr Reid, via Facebook, that employment opportunities were available. I note that this reference was to the person joining a list of potential employees who could be referred to BHPB when an opportunity arose. I also note that Broadspectrum has considered Mr Reid to be in the same position since 24 March 2004. That is, on the books as a casual and potentially available for work assignments. There have been no such assignments provided to Mr Reid since that time.

3. Was Mr Reid dismissed within the meaning of the Act?

[55] Given the positions contended by the parties, it is necessary for me to consider whether a dismissal has taken place within the meaning of the Act. Section 386 provides as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[56] I note that Mr Reid has not contended that a “forced resignation” took place so as to fall within the scope of s.386(1)(b) of the Act. The circumstances of s.386(2) and (3) do not arise in this matter.

[57] The general legal principles to be applied in this case are well settled. Stated succinctly, they include:

• A termination at the initiative of the employer involves the action of the employer as the principal constituting factor leading to the termination; 10

The employer must have engaged in some action that intended to bring the employment relationship to an end or had that probable result; 11 and

• In determining the question whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required. 12

[58] Mr Reid was engaged and paid as a casual employee. He had regular and systematic employment when assigned to the NPI role within BHPB and had a reasonable expectation that this would continue. His contract remained however as a casual employee whose assignments and working hours were largely dependent upon the requirements of BHPB from time to time.

[59] Some insight into the notion of service by casual employees is revealed from the consideration of the Full Bench in Wayne Shortland v The Smiths Snackfood Co Ltd, 13 (Shortland) which said:

“[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.”

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”

[60] I note that this decision was in the context of the provisions of the Act dealing with the period of employment necessary to be protected from unfair dismissal. It does however provide some insight into how more regular casual service and employment should be treated in relation to circumstances which might be said to represent a dismissal. That is, in general terms, the dismissal takes place when the employer or casual employee make it clear to the other party, by words or actions, that there will be no further engagements.

[61] Against that background it is appropriate to firstly consider whether Mr Reid abandoned his employment in February/March 2014 by being absent without notifying his employer or seeking permission for his holiday absence. There is no doubt that Mr Reid did not advise his employer of his absence or seek permission from his employer for his “leave.” The House Rules and induction materials required him to do so. I do however accept that he treated the BHPB supervisor as his supervisor for all purposes, and I note that the conduct of the local BHPB supervisors and the prior history of only notifying BHPB supervisors of his absences would have (wrongly) reinforced to Mr Reid that this was appropriate.

[62] Mr Reid also failed to advise Broadspectrum about the “approvals” provided by BHPB when contacted by Mr Briel on 18 February 2014. At that point, there was also no indication as to how long he would be absent from work due to his non-work related injury. Although now contended to be an abandonment of employment by Broadspectrum, this was not advised to Mr Reid and it took no steps to change his employment status in any manner.

[63] Abandonment of employment was considered by Vice President Watson in Lazar v Inghams Enterprises Pty Ltd 14

“[12].... I consider that the law is adequately stated in the Full Bench decision of Searle v Moly Mines Limited 15 (the Searle Case), as applied in various other cases, including the case of Sharpe v MCG Group Pty Ltd16 (the Sharpe Case), a decision of Commissioner Asbury of 22 March 2010. The relevant law arising from those decisions is that an abandonment of employment does not in itself terminate the contract of employment or the employment relationship, that when an abandonment of employment occurs, the employer has an option of accepting a repudiation and bringing the employment relationship to an end or considering the reasons for the absence and allowing the employment relationship to remain on foot.

...

[15] Nevertheless, the Full Bench in the Searle Case found that the abandonment of employment did not terminate the employment, that it allowed the employer to waive or accept the repudiation and that a further action was required by the employer to terminate the employment which it found had occurred in that case contrary to the findings of the Commissioner at first instance. Commissioner Asbury in the Sharpe Case applied that approach and although she did note a decision of Commissioner Simmonds which appears to be to the contrary effect, 17 ultimately applied the same principle and found that the abandonment of employment did not terminate the employment, the subsequent action of the employer amounted to the termination of employment and relevantly provided jurisdiction for an unfair dismissal remedy in that case.”18

[64] On that approach, even if Mr Reid’s actions represented what amounts to an abandonment of employment, this does not of itself end the employment relationship. Rather, it provides the foundation for the employer to form that conclusion and to make a decision to end the relationship on that basis. This would however be a dismissal within the meaning of the Act. 19

[65] Given the length of time that Mr Reid occupied the NPI position, and the practical basis upon which it operated, the role within the NPI department at BHPB became the focus of the employment relationship. During the course of the meeting on 24 March 2014, Mr Briel informed Mr Reid that there no work available. This had the effect of confirming that Broadspectrum would not be assigning Mr Reid to that role and would continue to assign the replacement employee to the NPI role. In the particular context in which that occurred, this was, in effect, confirmation of the termination of Mr Reid’s employment. The nominal retention of Mr Reid on a list of casual employees does not change that result given the nature and focus of the employment evident here.

[66] I am satisfied that Mr Reid was dismissed within the meaning of the Act.

4. Was Mr Reid’s dismissal unfair within the meaning of the Act?

[67] Section 385 of the Act provides as follows:

“385 What is an unfair dismissal
(1) 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.”

[68] I have found that Mr Reid was dismissed, the Small Business Fair Dismissal Code does not arise and this is not a case of genuine redundancy. Accordingly, I need to consider whether the dismissal was harsh, unjust or unreasonable.

[69] The Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

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

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

[70] It is clear that s.387 of the Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the Act sets out a number of considerations that must, where relevant, be weighed up in totality.

[71] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Ried’s capacity or conduct (including its effect on the safety and welfare of other employees)

[72] Valid in this context is generally considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 20

[73] This requires consideration of what was the reason (or reasons) for Mr Reid’s dismissal. Mr Reid has postulated that his medical condition was the actual reason for dismissal. This is based on the fact that Mr Briel raised the issue during the course of the 24 March 2014 meeting.

[74] It is evident to me that the actual reason for dismissal was that in the context of the casual employment relationship, Mr Reid had been absent without notifying his employer and when contacted by the client seeking an ongoing replacement, a replacement employee was provided by Broadspectrum.

[75] By the time that Mr Reid was fully fit to resume work, which was a requirement of BHPB, the replacement employee had been in place for a period and BHPB, as the client, had indicated that they were happy with that employee. As a result, by the time of the 24 March 2014 meeting, the NPI work was no longer available for assignment to Mr Reid and this was the reason for the dismissal.

[76] This is a sound and objective reason for dismissal, however it is not related to Mr Reid’s capacity or conduct in the sense contemplated by s.387(a) of the Act.

[77] I also note that Broadspectrum relied, in the alternative, upon the actions of Mr Reid in not following the required process for his absences and leave arrangements. In the rather unusual circumstances outlined earlier in this decision, whilst technically correct, this conduct would not of itself have represented a valid reason for dismissal.

Section 387(b) – whether Mr Reid was notified of the reasons for dismissal

[78] Mr Reid was notified that there was no work available and this was the actual reason for dismissal. I note that it has been held that the notification relates to the valid reason contemplated by s.387(a) of the Act 21 and that it must be done prior to the dismissal.22

[79] To the extent that the conduct in not following the absenteeism and leave approval process is relevant, Mr Reid was not notified of that reason.

Section 387(c) – whether Mr Reid was given an opportunity to respond to any reason related to his capacity or conduct

[80] This does not arise in relation to the lack of available work.

[81] To the extent that the conduct in not following the absenteeism and leave approval process is relevant, Mr Reid was not given an opportunity to respond to that issue.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Reid a support person

[82] Although he was not aware of the purpose of the meeting, a support person was not requested by Mr Reid.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Reid – whether he has been warned about that unsatisfactory performance before the dismissal.

[83] To the extent that the conduct in not following the absenteeism and leave approval process is relevant, Mr Reid was not given a warning in relation to that issue.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(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.

[84] This does not arise in this matter.

Section 387(h) - other matters considered to be relevant

[85] Although the real basis for Mr Reid’s dismissal was not related to Mr Reid’s capacity or conduct in the sense contemplated by s.387(a) of the Act, it represents a sound, objective and well-founded reason for dismissal and this is an important and relevant consideration. 23

[86] The loss of the NPI work for Mr Reid was significant, however it occurred largely as a result of an unfortunate sequence of events. This included that the NPI supervisors had a misunderstanding about the operation of the leave arrangements for employees of Broadspectrum and this reinforced the lack of procedure adopted by Mr Reid. Further, although “leave” had been approved by the NPI supervisor, this was not apparently known to the BHPB Superintendant who required Broadspectrum to fill the NPI role previously undertaken by Mr Reid.

[87] Further, Mr Reid did not advise Broadspectrum of the BHPB “approvals” and no one closed the loop.

[88] I would add that I make no criticism of the NPI managers and supervisor. They were simply following a practice inherited from their predecessors.

Conclusion on nature of dismissal

[89] In all of the rather unique circumstances evident here, I am not persuaded that Mr Reid’s dismissal was harsh, unjust or unreasonable.

[90] There was a sound and objective reason for the dismissal and no procedural unfairness arises in relation to that reason. To the extent that Mr Reid’s failure to follow the required absentee and leave procedures is relevant, there are some procedural fairness issues. However, this failure contributed to the circumstances leading to the dismissal and was not significant in its own right. Further, any procedural fairness issues associated with that aspect did not create or contribute to any unfairness in relation to the dismissal itself.

5. Conclusion

[91] In the absence of an unfair dismissal, this application must be dismissed. I have issued an Order 24 to that end in conjunction with this decision.

Appearances:

M Reid on his own behalf.

G Gosling on behalf of Broadspectrum Australia Pty Ltd.

Hearing details:

2014

Adelaide

August 25 and October 8.

 1   Section 397 of the Act.

 2   Exhibit R1.

 3   Exhibit R2.

 4   Ibid at 2.1(n).

 5   Ibid at 2.2(f).

 6   Exhibit R3.

 7   Clause 7.1 of the Workplace Agreement.

 8   Exhibit A5.

 9   Exhibit A7.

 10   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at [205].

 11   Searle v Moly Mines Limited [2008] AIRCFB 1088.

 12   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 - 528.

 13   [2010] FWAFB 5709.

 14   [2012] FWA 8815

 15   [2008] AIRCFB 1088.

 16   [2010] FWA 2357.

 17   Georgevski v Caroma Industries Limited[2001] AIRC 1135.

 18   [2012] FWA 8815.

 19   See also the earlier discussion of abandonment of employment by Asbury C (as she then was) in Sharpe v MCG Group Pty Ltd[2010] FWA 2357.

 20   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

 21   Chubb Security Australia Pty Ltd v Thomas, 2 February 2000, Print S2679 at [41].

 22   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [73].

 23   See UES (Int’l) Pty Ltd v Harvey[2012] FWAFB 5241 at [47] in relation to the relevance of a “valid” reason that does not fit within the scope of s.387(a) of the Act.

 24   PR557191.

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