Michael Green v BHP Billiton Iron Ore Pty Ltd

[2012] FWA 5949

[2012] FWA 5949

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Green
v
BHP Billiton Iron Ore Pty Ltd
(U2011/7917)

DEPUTY PRESIDENT MCCARTHY PERTH, 13 JULY 2012

Termination of employment.

Background

[1] Mr Michael Green (the Applicant) asserts that he was unfairly dismissed from his employment with BHP Billiton Iron Ore Pty Ltd (the Respondent).

[2] The Applicant had been employed by the Respondent since he left school, undergoing apprenticeship training, and, after completing his apprenticeship, was employed as a shift electrician. Shift electricians work in small teams of three electricians. The role is to trouble shoot electrical problems as they arise in order for the site to be able to continue to run through the day and night shifts.

[3] It is not in dispute that the Applicant was experienced, highly skilled and very highly proficient in the performance of his work.

[4] The Applicant continued throughout his employment to gain further qualifications associated with his work, such as first aid certificates and various certificates of competency and licenses. He also involved himself in the community including volunteer work such as the Fire Brigade.

[5] The Respondent says the sequence of events leading up to the dismissal were not a consequence of any malice the Applicant had towards the Respondent and its management, nor through any lack of genuine belief held by the Applicant in respect of various concerns and complaints he had about issues.

[6] The Respondent asserts that the relationship between the Applicant and the Respondent had irretrievably broken down and as a consequence, the Applicant was dismissed. The Applicant disputes the conclusions reached by the Respondent about the relationship. Thus, the proceedings were dominated by the events leading up to the dismissal and the justification of the conclusion reached by the Respondent about the relationship.

[7] The Applicant says that he lodged a complaint asserting he was being harassed as a Health Safety and Environment (HSE) representative. He says that the complaint, the events leading up to the lodgment of it and the events following its lodgment, had resulted in the termination of his employment. The complaint was lodged on 5 June 2009.

[8] The Applicant asserts that at all times he was fit for work. He says that his dismissal stems from his position as a health and safety representative, and, in particular, complaints he lodged against the Respondent asserting that he had been harassed.

[9] This application involves a situation where the Respondent was not seriously critical of the conduct nor the performance of the Applicant. There is no event, nor series of events that the Respondent sought to rely on to justify their reasons for dismissing the Applicant. Rather, the Respondent asserts that the relationship has irretrievably broken down.

Facts and Sequence of Events

[10] It is the events from 2008 until the termination of employment that are most relevant for the purposes of this matter. In 2008, there were five fatalities at the Respondent’s workplaces. The Applicant personally knew and was friendly with some of the employees who had died at worksites.

[11] In 2008, clearly in response to the fatalities, the State Mining Engineer required the Respondent to procure and provide an independent study concerning safety and health. I wasn’t provided with a copy of the request but I presume it related to most, if not all, of the Respondent’s operations. Apparently failure to satisfy the State Mining Engineer can lead to mining leases being suspended or cancelled.

[12] The Respondent put considerable and renewed effort into improving its safety performance and its safety culture in 2008 and beyond.

[13] On 9 September 2008, the Respondent says that the Applicant raised his concerns at a safe start meeting regarding a number of safety issues including in relation to “Rollarcs”. The Applicant agrees he had raised concerns about Rollarcs on many occasions. Rollarcs are switches that are used to isolate electrical energy from the downstream electrical circuits. It is a manufacturers name for a type of high voltage switchgear that was fitted to some of the Respondent’s switchboards. When Rollarcs are used they produce a small arc.

[14] The Applicant was concerned about the flashing generated by the Rollarcs and asserted that they should not be used as they had the potential to cause harm to the electricians that worked with them. The Applicant ultimately refused to work with Rollarcs. The Applicant had long held concerns about Rollarcs and conducted his own research on it. It appears he held those concerns since about 2005.

[15] A meeting was held on 9 September involving the Applicant, where the Respondent committed to a series of actions involving Rollarcs. A comprehensive outline of the actions to be undertaken was emailed to the Applicant on that day by the Senior Electrical Engineer, Mr Dieter Mendoza. Mr Mendoza then issued a briefing note on the operational procedures of Rollarc switchgear on 10 September 2008.

[16] On 30 October 2008, the Applicant was elected a Health, Safety and Environment (HSE) representative. His election to that position was thus in an environment with the background of there having been a spate of fatalities and a renewed corporate commitment to safety. He took his HSE role seriously and ensured he was alert to HSE principles and the Respondent’s objectives. He involved himself with employees and management in addressing safety matters.

[17] The Applicant had experienced back pain since an accident in 2005. He was prescribed medication that either alone, or in combination with other factors, appears to have had adverse serious side effects on the Applicant’s mental wellbeing. In late 2008, this nearly led to catastrophic consequences for the Applicant. After ceasing using the medication, it seems the depressed mental state of the Applicant abated. In November 2008, during a period when the Applicant was depressed, he threatened to resign during an interchange with Mr Owen, the Maintenance Supervisor. That discussion was “heated”.

[18] Eventually, the Applicant refused to work with Rollarcs because of his concern about safety. It is unclear exactly when he first refused but it appears to have been in September 2008.

[19] In November 2008, the Applicant also made a complaint to the Department of Mines and Petroleum (DMP) about Rollarcs. After that complaint was lodged, a meeting was arranged for Saturday, 29 November at 6.00pm with Mr Gerhard Veldsman, Manager Port Maintenance, Nelson Point, which the Applicant was expected to attend. The Applicant did not attend. He had not notified those that did attend, obviously inconveniencing them and causing some annoyance. The Applicant asserts that he thought the meeting was a setup and he had already arranged to have the day off.

[20] The meeting was rearranged for and held the following day. At the outset, Mr Veldsman unsurprisingly expressed his disappointment at the failure of the Applicant to attend the previous day. Mr Veldsman also expressed annoyance that the Applicant had not come to see him before the Applicant lodged the complaint. Mr Veldsman banged his fists on the table during a confrontation with the Applicant about the issue. The meeting became heated and the Applicant left the meeting and went home. The Applicant’s safety issues were therefore not properly discussed.

[21] The Applicant subsequently lodged a complaint about Mr Veldsman.

[22] On 9 December 2008, two DMP inspectors attended the site and issued an Improvement Notice. The Notice stated that the grounds for the inspector’s opinion were that “Studies carried out by BHP Billiton into High Voltage Switchgear have not been implemented with respect to the findings”. Pursuant to the State Mines Safety and Inspection Act 1994, the Respondent was directed as follows:

A timeline is (sic) provided with respect to implementation of the findings forwarded to Inspectorate within 28 days.

Maintenance records are reviewed for current HV switchgear and manufacturers requirements.

Temporary control measures established until compliance achieve (sic).

[23] The Electrical Maintenance Superintendent for Port Hedland, Mr Gregory Blair, developed a risk mitigation timeline in response to the Improvement Notice. On 30 December, the General Manager Port, Mr Mathew Currie, sent the response to the District Inspector for Mines who had issued the Notice.

[24] Between January and April 2009, the Manager Human Resources - Port and Rail, Ms Kristy Brackstone, was contacted by Mr Blair as a consequence of his concerns about the Applicant’s welfare. Mr Blair had been a work colleague of the Applicant for a long period. It seems their friendship fractured as a consequence of Mr Blair viewing the Applicant’s behaviours and methods in dealing with safety issues. Other managers also made requests for assistance from Human Resources over what was considered to be erratic and irrational behaviour.

[25] On 28 April 2009, the Applicant made another complaint to DMP regarding the use of Personal Protective Equipment (PPE).

[26] On 13 May 2009, a meeting was held with the Applicant to address how to achieve a solution to the Applicant’s continual refusal to work with Rollarcs. A range of options was canvassed including: (i) working day work rather than shifts; or (ii) remaining on shifts and doing not electrical work. It was agreed that the Applicant would remain on shifts but not work on Rollarcs. The agreement reached at the meeting on 13 May was confirmed in writing to the Applicant on 20 May. It was also stated in that letter that the arrangement would be in place until all of the Rollarcs had been changed out.

[27] On 1 June 2009, the Applicant issued a Provisional Improvement Notice (PIN) with the DMP regarding a P26 conveyor isolator. The PIN indicated that the ground of the opinion was that ‘Isolatable/Taggable in the on position phase indication lights not working”. The remedy was to “make safe isolator”. It was indicated that another safety and health representative had been consulted but the identity was withheld.

[28] Mr Blair evidenced that he investigated the matter and determined that the isolator was working as intended. Mr Blair recognised that the Respondent’s “own isolation procedures says that we should only be able to lock out in the on position”, however he explained that the switchboard manufacturers in Australia only designed switchboards to be isolated in both the on and off positions. The Respondent had therefore been working with the manufacturers to try and be able to isolate in only the off position. Mr Blair accepted that the Applicant had raised a valid concern.

[29] The Applicant asserted that there “was a danger that had been in place of longstanding and I tried to report it on numerous occasions to get it fixed”. The Applicant had raised the issue with Mr Paul Slocombe, the Manager Nelson Point, in May and had shown him the isolators he had concerns about. It appears it was left on the basis that Mr Slocombe would get back to the Applicant. Later, Mr Slocombe had come to look for the Applicant but after not finding him, he left a message with Mr Owen to advise the Applicant, which Mr Owen did. There was no communication following that about the isolator until the issuance of the PIN. The Applicant believed that Mr Slocombe should have followed up with an email as he did not think it was his job to follow up.

[30] On 2 June 2009, the Applicant was required to attend a meeting with Mr Slocombe. Mr Owen says that the Applicant became abusive at that meeting as he considered that Mr Slocombe had done nothing about the PIN. He walked out of the meeting and returned and abused Mr Slocombe.

[31] Mr Blair contacted the DMP on 12 June 2009 outlining that he had conducted an investigation, including a risk assessment workshop, with the electrical workforce on 10 June. An interim solution was implemented and a longer term solution initiated involving changing of hardware which was planned to be, and was, completed by 20 July. The DMP agreed with the planned rectification and timeline for it. The Applicant was kept informed throughout this process.

[32] It was initially asserted by Mr Blair that around that time the Applicant was also involved in an incident with Brendan Lynn, the Maintenance Manager. The Applicant charged towards Mr Lynn with his fists raised. Earlier that same day, Mr Blair had observed the Applicant and was worried that the Applicant did not seem to be well. The Applicant did not dispute the incident but asserted that it had occurred about a year beforehand. The written statement of Mr Blair was later acknowledged by the Respondent to be incorrect and it was acknowledged that it had occurred in June 2008 and not 2009.

[33] On 5 June 2009, the Applicant made a complaint that he was “being unduly harassed as a repercussion of my (his) elected role as a HSE representative”. The Applicant asserts that he made the complaint verbally on 4 June in a conversation with Mr Owen. The written complaint was in the form of an email to Mr Owen. Mr Owen forwarded the email to Mr Peatey. The Applicant requested in the complaint that a formal independent investigation be conducted.

[34] Ms Brackstone telephoned the Applicant on 5 June and offered three alternatives to the conduct of the investigation. It was agreed that a lawyer, Mr Peter Swingler from the law firm Mallesons, would perform the investigation. This was confirmed in a letter to the Applicant dated 7 June.

[35] The complaint did not name individuals that the Applicant was complaining about. He disclosed the persons he was complaining about to Mr Swingler. Mr Swingler provided the Respondent with an investigation protocol which was provided to the Applicant.

[36] The Applicant and a support person met with Mr Swingler on 1 July. The Applicant says he became concerned about the independence of the investigation and that he raised those concerns with Mr Swingler and Ms Brackstone. He says he received no response to those concerns, and although Mr Swingler sent him “a statement of independence”, it did not allay his concerns.

[37] During the period of the review, the Applicant says he was under the supervision of a person who was the subject of his complaint, which he found humiliating and intimidating. He says he raised this and says that he was placed on restricted duties and meaningless tasks in retaliation. The Applicant stated that Mr Peatey, Superintendent Outflow Maintenance, restricted his duties under instruction from Ms Larsen, Superintendent Human Resources, which he claims was evidenced in a letter he received from Ms Larsen. The Applicant was requested to produce the letter which he did. However, that letter, dated 17 July, merely refers to conversations on 17 July regarding his inability to return to full duties until he had undergone a psychological assessment. The letter was clearly a consequence of events involving the Applicant’s responses in daily fitness for work assessment sheets which I refer to below.

[38] In early 2009, the Respondent introduced a process involving employees self assessing their own fitness for work (FFW Assessment). If there are any answers that require inquiry or clarification by the Supervisor, it is discussed with the employee, following which the Supervisor assesses the employee’s fitness for work. If an employee is to be placed on restricted duties, the decision is made by the Supervisor.

[39] On 10 July 2009, the Applicant answered “yes” to the question: “Is there anything that might cause you to lose concentration and be at risk?” That question was either not answered or answered with “yes” on 11, 12, 20 and 22 July and again on 5, 15 and 24 September. On the form dated 10 July, the Supervisor noted the discussion he held with the Applicant and that the Applicant answered “yes” because of the stress he was under as a result of the investigation into his harassment complaint.

[40] As a result of the FFW Assessments, the Applicant’s Supervisor placed him on restricted duties. The Shift Supervisor, Mr Levey, discussed the matter with Mr Peatey and Ms Brackstone before making that decision.

[41] There are a number of observations that are appropriate to make relating to events at this juncture as it appears to me that the events to this point impacted on the Applicant’s regard for, and trust, of some of management.

Observations regarding complaint to DMP and the PIN regarding Isolators

[42] It is apparent that the Applicant had been concerned about Rollarcs for an extended period of time. He appears to have become frustrated with what he considered to be a lack of urgency or effort by the Respondent in dealing with the issue. In an effort to bring the matter to a more urgent footing, the Applicant made a complaint to the DMP.

[43] Whilst efforts had been made by the Respondent to control the risk, it seems only after the complaint was made did the Respondent establish a clear and urgent risk management programme and timetable to comprehensively deal with the problem and rectify it. It seems to me that as a result of this complaint, the Respondent did give more priority and attention to the issue than it had in the past.

[44] The manner that the Applicant went about making the complaint unsurprisingly caused concern to the Respondent. The manner in which the Applicant approached issues and interacted with management was poor. The Applicant, for example, should have dealt with the incident with Mr Veldsman better. The Applicant, at the very least, showed significant discourtesy and lack of regard to the inconvenience and lack of concern regarding that inconvenience by not attending or advising of his inability to attend a meeting arranged for with him. Whilst the meeting itself did involve fault on both sides with the manner in which the discussion, or more accurately, argument, took place, it did involve a lack of respect for the management of the Respondent.

[45] The Applicant got frustrated with the apparent lack of urgency and response given to the PIN he issued. The PIN was issued on 1 June. It was not until 10 June that a risk assessment workshop with the electrical workforce was held.

[46] In my view this delay, whilst not long, added to the Applicant’s perception that he was either not being taken seriously or that he needed to take serious actions himself for matters to be promptly and properly addressed.

[47] I consider that the Applicant was likely to consider his approach to bringing the Rollarc issue and the issuance of the PIN for the isolators to a head was vindicated by the events following his actions. However, he also considered that because of these actions he was being, or was likely to be, targeted and mistreated. Whilst the Applicant may have considered this to be the case, there is insufficient evidence to make a finding that he was, in fact, mistreated. What is important for the purposes of this matter is that the Applicant considered, and believed it to be the case, that he was, and would be, mistreated.

Placement on Restricted Duties

[48] It is apparent to me that the reason the Applicant was placed on restricted duties during this period was his answers to the FFW Assessment and not retribution for his complaint, as he claimed.

[49] I therefore do not consider that there was any element of retaliatory or discriminatory action by the Respondent in taking this action. Clearly the Applicant himself had, by his actions and responses, caused some action to be taken. Indeed if not for taking that or other appropriate action, the Respondent would have been subjected to allegations of ignoring FFW Assessments. Furthermore, I consider the action to place the Applicant on restricted duties was a reasonable one.

Swingler’s Findings against the Applicant

[50] The Swingler report was received by the Respondent at some time in August 2009. The Applicant was advised that he could attend a reading of the report on 25 August. The Applicant was also provided with extracts from the report. The Applicant was requested to sign a confidentiality agreement before he could be given a copy of the report because the report dealt with and made findings with respect to a number of individuals.

[51] The Swingler report made conclusive findings in respect of a number of breaches of the Respondent’s Code by three individuals. One of those individuals was the Applicant for his conduct in abusing Mr Slocombe.

[52] The Applicant strongly objected to the Swingler report making any finding at all against him as he regarded the investigation to be limited to his complaints against others. The Applicant considered that in order for there to be any findings against him, that there should first be a complaint lodged against him and an investigation into that complaint. I disagree. It was clear his complaint related to an incident where he was partly responsible for the escalation of discussion into shouting and abuse. He did not deny his conduct at that meeting. It is unrealistic to expect his behaviour to be ignored when it contributed to the conduct of Mr Veldsman. Perhaps Mr Swingler should have made it clearer to the Applicant that there could be findings against him even though there was no formal complaint about him.

[53] The developments from this point took three distinct directions. Firstly, there are developments in regard to the psychological assessments. Secondly, there was the release of the Swingler report of the Applicant’s complaints and thirdly, there was another review (by Dr Merryweather) established and undergone because of concerns of the Applicant regarding the Swingler report. Throughout this period the Applicant also lodged a number of further complaints.

Referrals and Assessments

[54] On 11 July 2009, the Applicant had a discussion with Ms Brackstone and indicated he felt he could lose concentration. He also expressed to her his concerns about being in the workshop and felt that it was humiliating being in there. Ms Brackstone, later that day, arranged an appointment with the Respondent’s Occupational Physician, Dr Silbert. On 12 July it was agreed with the Applicant that he would undergo a psychological assessment. She then spoke to Dr Silbert on 17 July.

[55] Ms Larsen wrote to the Applicant on 17 July and informed him of the plans for a psychological assessment, that Dr Silbert was arranging an appointment and that she was hoping to hear back in the next few days for the date and time. Ms Brackstone says that also on 17 July she had discussion with Dr Silbert about the Applicant and, informed him of some of the content of the Applicant’s discussions with her.

[56] On 20 July 2009, Dr Silbert issued a referral for the Applicant to see Dr Blumberg requesting a psychiatric assessment of the Applicant including his fitness to undertake his employed duties as a shift electrician. The referral states that the Applicant presents as clinically depressed. The Applicant asserts that he had not seen Dr Silbert. He says that he saw Dr Silbert many times relating to his back injury but he subsequently saw Dr Atkins at this stage and since then has not spoken to Dr Silbert.

[57] It seems that either Dr Silbert made the referral based on his previous treatment of the Applicant, or relying on input from Ms Brackstone, or both. The Applicant clearly believes that Ms Brackstone’s input was the basis for a diagnosis of “clinical depression” and that the diagnosis was not justified.

[58] Either on or prior to 17 July, the Applicant provided a fitness for work certificate from Port Hedland Hospital. It was decided by the Respondent that until a full psychological assessment had been undergone, the Applicant should remain on restricted duties.

[59] It is unsurprising therefore that the Applicant, faced with a clearance from the hospital and a diagnosis in circumstances where he had not been personally examined, was confused as to why he was not permitted to go back to work.

[60] Ms Brackstone arranged an appointment with Dr Blumberg on 20 August but the Applicant declined to attend as he considered the assessment was being used against him. He also requested that he be declared fit for work and his placement on restricted duties be rescinded.

[61] On 2 September 2009, the Applicant was put back on full duties after a meeting with Michael Hoare, Manager, Employee Relations based in Perth, despite the Applicant not having been psychologically assessed. However, on 5, 15 and 24 September, the Applicant stated either “no comment” or “yes” for question seven on the FFW Assessment regarding whether there was anything that could cause him to lose concentration and be at risk.

[62] On 15 September 2009, Mr Chris Levey placed the Applicant on restricted duties. Mr Levy made the decision after considering the responses to the FFW Assessment and his discussion with and observations of the Applicant. The Applicant was restricted to the workshop.

[63] On 20 September the Applicant made a complaint again Mr Hoare asserting that Mr Hoare had acted in retribution against the Applicant because he had lodged a complaint.

[64] On 21 September the Applicant requested to be returned to normal duties. The Applicant reportedly stated at that time that “he could do as much damage in the plant as he could in the workshop”. By this stage the Applicant had been on restricted duties for about six weeks, although he had a period of leave.

[65] On 24 September 2009, the Applicant was told that he was not required to attend work. He was absent from that time until his dismissal on 3 May 2011.

[66] On 9 October 2009, Ms Brackstone met with the Applicant and requested that he attend Dr Silbert as the Respondent was concerned about his fitness for work. The Respondent decided to direct him to Dr Silbert as the Applicant had declined an appointment with Dr Blumberg. The appointment was arranged for 14 October with Dr Silbert, and alternatively, on 28 October with Dr Atkins. The Applicant sent a consent form for any report prepared by Dr Silbert to be made available to the Respondent. The Applicant missed the appointment due to the shortness of notice.

[67] On 21 October 2009, the Applicant went and saw his own consultant psychiatrist, Dr Jackson. He did not provide the report to the Respondent. He refused to provide it until the Respondent paid the costs incurred by the Applicant. It was eventually provided to Dr Blumberg on 30 January 2010.

[68] Despite being aware that he was not going to see Dr Silbert, the Applicant nevertheless signed and sent the consent form with Dr Silbert’s name only on 26 October. The Applicant says that he never signed a consent form for any reports from Dr Atkins to be provided. Dr Atkins provided a report on 28 October. Dr Atkins outlined in some detail the medical history and his medical assessment. He then identified his recommendations for medical management and his fitness for work. In summary, Dr Atkins was unable to classify the Applicant as fit for work until he had undergone psychiatric assessments. Dr Atkins opined that the Applicant “demonstrated a fixation on concepts of persecution, harassment and victimisation which is not easily able to be overcome” and that “Mr Green is not currently able to safely perform the requirements of his position until a formal psychiatric condition can be ruled out”.

[69] Despite these clear, unambiguous and direct opinions expressed by Dr Atkins, the Applicant disputed what the opinion stated and asserted that he considered the report found him fit for work.

[70] Ms Brackstone met with the Applicant on 9 November 2009. The intensity of the Applicant’s safety concerns was exampled at that meeting. He blocked off the entrance to the room with “do not enter” tape as he considered the ceiling panels sometimes shifted due to air pressure changes, such as when doors are opened or closed. An investigation was conducted as a consequence of the Applicant lodging a hazard into the electronic safety recording system but no hazard was found to exist. The actions of the Applicant were an overreaction and were unreasonable.

[71] The Applicant maintained that he was steadfast in his complaints against the Respondent’s managers. There were a few more interchanges with the Applicant resulting in an appointment being made with Dr Blumberg on 15 December 2009.

[72] Dr Blumberg made a comprehensive report with observations that:

(i) The Applicant’s thought content was preoccupied with concerns that his managers were looking for “ways to get rid of me” due to his insistence on improving workplace safety.

(ii) Both he (Blumberg) and Dr Jackson were of the opinion that the Applicant is currently fit to perform the requirements of his position as a Shift Electrician from a psychiatric perspective.

(iii) From a medical perspective, Dr Atkins had declared that the Applicant was fit to safely perform the requirements of his position.

(iv) However, the Applicant was fixated on concepts of persecution, harassment and victimisation which he is not easily able to overcome and he clearly harbors significant resentment towards the Respondent. Dr Blumberg made it clear that he considered these issues needed to be addressed with counselling.

(v) Importantly, Dr Blumberg stated that he “strongly believe(d) that the conflict issues need to be resolved” before he resumes work and that the issues identified in the referral letter “need to be addressed at a case conference between the Applicant and his supervisors prior to engaging him back at work”.

(vi) The Applicant believed he would be fired in the long term due to his efforts and quest for safety.

[73] It is clear from this report that Dr Blumberg, after consultation with Dr Jackson, considered that there was no psychological condition that should prevent the Applicant returning to work, but that because of his fixation and preoccupation with victimisation type issues, counselling and resolution of conflict issues needed to be resolved first.

[74] It is also clear that the Respondent considered the Blumberg report was partly ambiguous and did not give enough direction as to how to overcome the outstanding issues without causing further stress and potentially decomposition if sanctions were imposed against him as a result of the investigation.

[75] The Respondent decided to establish a return to work plan but also to request a supplementary report from Dr Blumberg. The Applicant was told of this in January 2010. The Applicant advised that he wished to provide supplementary material to Dr Blumberg. He also complained about the referral letter to Dr Blumberg not being provided to him prior to the appointment and its content.

[76] The Applicant requested a copy of the Blumberg report but was told it would be provided if he forwarded a copy of the Jackson report. The Jackson report was provided to the Respondent on 30 January 2010.

[77] The Blumberg report was provided to the Applicant on 7 February 2010. The Applicant was also advised that all investigations into his complaints were on hold until his fitness for work assessment had been completed and that whilst the Respondent did not think another appointment with Dr Blumberg was necessary, it would be arranged once he provided all the additional material he wanted to give Dr Blumberg, and some information about discrimination complaints procedures.

[78] The Respondent made requests for the additional material on 13 and 28 January, 3 and 7 February, 10 and 18 March and 1 and 13 April. The Applicant seemed unperturbed by this delay, responding that “Okay, so there was that three month delay?---They [the requests] were all replied to.”

[79] The Applicant sent the information direct to Dr Blumberg on 6 April 2010. He also informed Ms Brackstone on 20 April that he had sent it and it was at the post office. She received notification from the Post Office on 22 April 2010.

[80] The Respondent then asked the Applicant to sign a consent form so that the supplementary report by Blumberg could be released to the Respondent. Requests were made on 20 and 22 April, 6 May, 15 and 24 June and 5 July.

[81] The Applicant asserted to Dr Blumberg that “they (the Respondent) are not cooperating so I am not cooperating”.

[82] On 15 June 2010, the Applicant attended a meeting with Ms Linda O’Farrell, Vice President Human Resources WAIO. The purpose of the meeting as explained to the Applicant was to discuss the Applicant’s return to work. It was explained to the Applicant at the meeting that the ongoing refusal to sign the consent form could lead the Respondent to believe that he may not want to return to work. The meeting appears to have developed into a repetition by the Applicant of his complaints about victimisation, complaints and conflict related issues.

[83] However, the Applicant agreed at the meeting on 15 June 2010 to sign the consent form within seven days for Dr Blumberg to be able to release any further report. Ms O’Farrell sent an email on 24 June again requesting the consent. The Applicant responded on 27 June with what can only be described as a litany of complaints, objections and accusations. The email response was copied to a number of media outlets and the Chief Executive Officer of the Respondent. On 5 July 2010, the Respondent, despite there being no consent form provided at that time, agreed to the Applicant’s request for a second appointment with Dr Blumberg and made arrangements for that to occur. The Applicant provided a signed consent form, dated 8 July, on 9 July.

[84] On 14 July 2010, a referral letter was sent by Ms O’Farrell to Dr Blumberg. The letter outlined the history of events, including the various complaints made by the Applicant. It outlined the proposed return to work management plan and requested Dr Blumberg to advise “whether there are any steps the Respondent can take at each stage of this process to minimise the likelihood of a deterioration in the Applicant’s mental state, and to maximise the opportunity for a successful return to work”.

[85] Dr Blumberg saw the Applicant on 20 July 2010 and provided a report on 28 July. Dr Blumberg reported that:

(i) The Applicant is fixated on conflicts of persecution, harassment and victimisation which he is not easily able to overcome and he clearly harbours significant resentment towards the Respondent.

(ii) The Applicant does have the capacity to participate in ongoing investigations into his various complaints.

(iii) Importantly, he found that:

(1) the Applicant “still continues to harbour feelings of harassment, persecution and retribution in dealings with management which clearly need to be addressed and resolved before he can re-engage back at work”; and

(2) he (Blumberg) was in agreement with the management plan that the conflict issues need to be resolved to ensure a successful return to work.

[86] A letter was also received from Dr Jackson indicating that he had assessed the Applicant on 22 July 2010. Dr Jackson assessed the Applicant fit for his role from a psychiatric perspective and with a capacity to participate in workplace investigations into his various harassment and other work-related complaints.

[87] Dr Jackson stated that he considered the proposed return to work management plan to be essentially a human resources issue rather than a psychiatric one and made no comment about the plan other than stating that the Applicant was free from any mental illness that would impact upon his capacity to engage in it.

[88] On 3 September 2010, a letter was sent to the Applicant advising that under the RTW plan he was required to participate in six counselling sessions with a clinical psychologist of his choice. The delay between 22 July and 3 September was not explained. The Applicant chose a Dr Merryweather.

[89] A consent form for the reports of Dr Atkins and Dr Blumberg to be provided to Dr Merryweather and for Dr Merryweather to be able to provide reports to the Respondent were requested from the Applicant. The Applicant refused to sign the form. The Applicant was concerned about reports from Dr Merryweather being able to be provided verbally and he was embarrassed about some aspects of his history disclosed in the reports of Dr Atkins and Dr Blumberg.

[90] On 24 September 2010, the Applicant emailed Ms Louise Gibson (Superintendent Human Resources, Rail from January 2010 to March 2011, then Acting Manager Human Resources, Port & Rail) with 38 items consisting of observations but mainly complaints, requests, objections and criticisms.

[91] On 18 October 2010, the Applicant emailed Ms O’Farrell asserting the she had a conflict of interest and had provided a less than professional response and less than exemplary behaviour. He outlined a number of complaints and requests. He stated that should there be no response to his email, he would assume the internal processes were exhausted and he would start (I presume instigate or lodge) complaints with the MSI tribunal or the Office of Equal Opportunity. He also indicated that he retracted his alternative consent form and would not be signing any further consent. Ms O’Farrell responded on 22 October 2010 that she was commencing parental leave on 5 November and would hand the file over to someone else.

[92] It was clear that on 18 October 2010 the Applicant decided he would not participate in counselling with Dr Merryweather.

[93] In October and November 2010 the Respondent considered further options to endeavour to have the Applicant return to work. They made contact with Mr Tony Cooke and engaged him in December 2010. Mr Cooke is well known to be passionate about and have extensive experience in Occupational Health and Safety, Workers’ Compensation and other workplace related issues. He has an extensive background in representing employees and in participating in policy bodies related to these issues.

[94] Mr Cooke had close and frequent contact with the Applicant and worked closely with him in addressing the history and concerns and complaints the Applicant had. Mr Cooke had no contact with the Respondent during this period concerning these discussions.

[95] Mr Cooke provided a copy of his report to the Applicant and to the Respondent on 8 April 2011. It is unnecessary to canvas the detail of the report. Suffice to say the report evinces an angst and frustration by Mr Cooke in being unable to progress the Applicant to a point beyond a pre-occupation with his perceptions of victimisation. Mr Cooke also clearly had concerns about the Applicant’s welfare.

[96] The Applicant then contacted Mr Cooke by email and by phone on 10 and 11 April 2011. He indicated to Mr Cooke that he intended to make a complaint about the Cooke Report and about Mr Cooke’s involvement. He also emailed Mr Cooke on 11 May seeking information about how to lodge a complaint against him. Mr Cooke provided him with that information. It appears a complaint was not lodged.

Consideration

General Observations

[97] This matter does not involve the conduct of the Applicant nor his performance. Rather, it involves the relationship between the Applicant and the Respondent. It is that relationship that is at the core of this application. When I refer to the relationship I refer not to the legal standing of it but their capacity to have faith in each other, for goodwill to be displayed to each other and for the responsibilities to be properly and fairly discharged to each other.

[98] The main issue here is whether the Respondent can rely on the Applicant to be able to establish relationships and trust with his direct supervisors and management generally to be able to discharge his duties. The Applicant recognises that there are trust issues between him and the Respondent. He clearly does not trust the management. His view is that those issues cannot be overcome unless he returns to work. On the other hand the Respondent says that the trust issues must be overcome before they can be confident he is in a state to be able to return to work.

[99] I have outlined in some detail as accurate a picture of the history of the last few years between the Applicant and the Respondent and surrounding events relating to that relationship as I was able to form.

Was there a valid reason for the dismissal?

[100] I consider that the Respondent had good grounds to stand down the Applicant from work. The medical and psychological reports left the Respondent with little alternative option other than to do so. The catalysts for the stand downs were the Applicant’s own FFW Assessments that indicated that he, himself, did not consider he was in a fit state to undertake work. The Respondent, in response to those Assessments in combination with management observations and interactions with the Applicant, endeavoured to address the health or perception issues of the Applicant through a variety of initiatives and medical and psychological advices. It was right and proper that the Respondent took those actions.

[101] However, every endeavour and effort the Respondent made did not shift the underlying perception of the Applicant that he was victimised as a result of his raising safety complaints. The equipment and issues giving rise to the Applicant’s primary two safety complaints had long been resolved.

[102] At almost every turn of the Respondent’s efforts, the lack of trust he held resulted in further complaints, or threat of them, directed at the people involved. I consider that the Respondent was professional and patient in endeavouring to have the Applicant return to work. I agree with their judgment that it would not be appropriate for the Applicant to be allowed to return to work until they could be confident that the relationship issues with management had been overcome. The steps they required to address and help overcome those issues were reasonable.

[103] The efforts by the Respondent to overcome the difficulties, the relationship encountered and the financial support provided to the Applicant over an extended period of absence from work were significant. The situation could not continue indefinitely without being resolved and there was no likelihood at all that it would be resolved.

[104] The evidence establishes to my satisfaction that the relationship had irrevocably broken down. I therefore find that there was a valid reason for the Applicant’s dismissal.

Was the Applicant notified of that reason?

[105] The dismissal here did not concern the conduct or performance of the Applicant. However, even if it did, I consider given the history and nature of the relationship between the employer and the employee in this matter, that the Applicant was clearly aware of all relevant circumstances leading up to his dismissal.

Was the Applicant given an opportunity to respond to any reason related to his capacity or conduct?

[106] As stated above, the dismissal here did not concern the conduct or performance of the Applicant. He nevertheless was given ample opportunity to respond to the issues leading up to his termination of employment.

Was the Applicant allowed to have a support person present?

[107] The Applicant was allowed a support person present on all relevant occasions.

Employer size and procedures followed

[108] The procedures followed were what one would expect from an employer of the Respondent’s size. Indeed, as I found above, I consider the Respondent dealt patiently and carefully with the issues associated with the health and trust issues they had concerns about with the Applicant.

Other relevant issues

[109] The Applicant had been employed for a long period of time. He was very competent in discharging his duties over that period and there are no complaints about it.

[110] In circumstances like those here, considerations of alternatives to the termination of employment might be considered. But here the relationship itself was the issue. It was not a single or multiple conduct or performance concern. It was also not a minor relationship breakdown but a deep and fundamental breakdown that went to the very core of it. If the relationship could not be repaired, then there was no alternative available.

Finding

I do not consider that the dismissal of the Applicant from his employment was harsh, unjust or unreasonable. I find that the dismissal was not unfair.

DEPUTY PRESIDENT

Appearances:

Mr M Green on his own behalf.

Mr J Blackburn with Ms H Beech for the Respondent.

Hearing details:

2012.

Perth:

May, 21-24.

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