Michael Parcej v Apex Gold Pty Ltd
[2012] FWA 10160
•29 NOVEMBER 2012
[2012] FWA 10160 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Parcej
v
Apex Gold Pty Ltd
(U2012/12909)
DEPUTY PRESIDENT MCCARTHY | PERTH, 29 NOVEMBER 2012 |
Application for unfair dismissal remedy.
Background
[1] Mr Michael Parcej (the Applicant) was employed by Apex Gold Pty Ltd (the Respondent) as a driller at an underground gold mine in Wiluna. The town of Wiluna is 966 kilometres northeast of Perth and is situated on the edge of the desert at the gateway to the Canning Stock Route and Gunbarrel Highway. The Applicant was dismissed from his employment with the Respondent on 26 August 2012. He had been employed by the Respondent for about 4 years. The Applicant had about 28 years experience in the mining industry including about 12 years as a long hole driller.
[2] The Applicant lodged an application in Fair Work Australia (FWA) claiming that he had been unfairly dismissed from his employment.
Incidents and Events
Self-Rescuer
[3] The Applicant received a warning in September 2010 for not wearing a self-contained self-rescuer (self-rescuer). A self-rescuer is an oxygen-generating self-contained device. A hazard for underground mines is the risk of fire. The initial problem confronting an underground worker in the event of a fire is securing an immediate supply of breathable air. A self-rescuer allows a person to travel from an endangered position to a safe haven.
[4] It is a standard rule in underground mines that self-rescuers are worn at all times. The evidence of Mr Doust (the General Manager for the Wiluna Underground Operations) and Mr Lingard (the Underground Mine Foreman) was that with the one exception of going to the toilet, the self-rescuer must be worn at all times including when in any vehicle or when operating any machine. Mr Lingard stated that he had never seen a self-rescuer not on an employee underground. Mr Lingard has worked in the mining industry for 33 years and for the Respondent for 5 years.
[5] The Applicant says that the incident occurred because he needed a toilet break. In order to take that break he got down from the rig but let the rig continue to run. He needed to take off the self-rescuer temporarily. Whilst taking the toilet break he heard one of the rods snap, so he quickly stopped his toilet break and endeavoured to rectify the problem. During trying to rectify the problem the crew arrived to pick him up. He got distracted and forgot to put his belt with the self-rescuer attached to it back on. He climbed into the ute with the other employees and proceed to the surface. The applicant also said that it was common practice in the utes for employees to take their self-rescuers off.
[6] The inference the Applicant seemed me to want to draw was that the warning or at least a final warning was not warranted because this was an isolated incident for him, that the circumstances were unusual, that he was distracted and that it was common practice for employees not to wear self-rescuers in some circumstances such as when in the ute.
[7] The Managers involved in the issuance of the warning were the previous Mine Manager, Mr Manuel Hausmann and a previous Mine Foreman, Mr Lindsay Todd. It appears to me that the warning was warranted and was not a disproportionate response to the conduct.
Performance Warning
[8] On 13 August 2012 the Respondents assert that a warning was given to the Applicant about his performance. The Respondents assert that the warning was given during a meeting involving the Applicant Mr Lingard and Mr Eggert (the Underground Mine Manager). Mr Lingard evidenced that the warning was read out to the Applicant regarding poor work performance. Mr Eggert also gave evidence about what transpired. They both stated that a written warning was prepared prior to the meeting and it was attempted to be given to the Applicant. However the Applicant refused to take it or sign it and it was put on the table during the meeting. Their evidence is that the Applicant refused to recognise that his performance was not satisfactory.
[9] The Applicant asserts that he has never seen the written warning. I regard the version of events described in the evidence of Mr Lingard and Mr Eggert as being the more probable. and accurate. The criticism of the Applicant’s performance was not well received by him and he refused to take the written warning and consequently did not sign it. I do not accept that there was no written warning but rather the Applicant did not accept the written warning that was attempted to be given to him.
[10] The Applicant also asserted that the meeting was an informal discussion, inferring that it was of little significance. However as Mr Eggert evidenced the Applicant was brought into the foreman’s office for a discussion with both Mr Eggert and Mr Lingard so that he could be to spoken to specifically and formally about his drilling standards and performance. This action is not consistent with the meeting being an informal discussion.
[11] I therefore do consider that the Applicant was warned on 13 August 2012 that his performance was not up to the standards expected by the Respondent and was unsatisfactory. It also appears to me that the standards expected were reasonable and that there were reasonable grounds for that view being formed by the Respondent.
Smoking
[12] Smoking is banned in drill rig cabins. The Applicant was observed smoking in the cabin of his rig on 26 August 2012, the day of his dismissal. Mr Lingard and Mr Doust approached him in the rig and he was instructed to shut down the rig and they spoke to him about smoking on machines.
[13] The Respondent’s evidence was that Mr Doust and Mr Lingard observed the Applicant smoking a cigarette inside the cabin. They approached the Applicant and requested that he shut down the rig and inquired of him whether he was aware that smoking inside the cabin was against company policy. Mr Doust then asked the Applicant why he was smoking in the cabin. The Applicant stared at the ground time and he said “it’s a boring job”.
[14] The Applicant does not dispute that he was smoking in the cabin but there are a number of differences in the detail of the evidence between the Applicant and the version of Mr Doust and Mr Lingard, such as whether the door was open and whether the air conditioner was functional. The Applicant also disputes that he said anything and specifically that he did not say that “it was a boring job”. Rather on the Applicant’s version he said nothing.
[15] The Applicant acknowledges that he was asked why he was smoking in the cabin but that he chose not to respond at all. He asserts that was because “he saw it as being something other than something about smoking” and there “was no value in responding”. He claims he was being victimised and this was part of the harassment of him.
[16] Even on the Applicant’s own version there are several aspects of inappropriate conduct involved in this incident. Firstly he was smoking where he should not have been. Secondly he chose to look around when questioned rather than face the managers and thirdly he decided that he would not respond at all. I consider his explanations for the conduct he asserts to be unconvincing and not a justification for those actions.
[17] I prefer the evidence of Mr Doust and Mr Lingard about the incident. I consider the Applicant’s response and manner when he was found smoking is conduct of an insubordinate nature.
Victimisation
[18] Much of the Applicant’s response to the Respondent’s reasons for dismissing him centres on accusations of victimisation and retribution against him. The basis of these allegations by the Applicant is that they are a reaction to him taking extended leave and of a refusal to pay a bonus which was due to him.
[19] I do not agree that there were actions of retribution against the Applicant and I do not agree with the grounds he uses for his assertions. The evidence of Mr Doust, Mr Eggert and Mr Lingard were all indicative to me of professional miners endeavouring to safely and properly operate a mine. There were pressures on the profitability if not viability of the mine but the evidence does not support the contentions of the Applicant that he was victimised, singled out or treated differently to others. Indeed the incident involving the failure to wear a self-rescuer did not involve any of the management involved in the termination of the Applicant’s employment.
Consideration
Was there a valid reason for the dismissal related to the person’s capacity or conduct?
[20] I find that the Applicant did not wear a self-rescuer contrary to his obligation to do so. I have taken into account that this incident occurred two years before the dismissal. I have also considered the Applicant’s version of the circumstances involved. I do not accept his explanation. I consider that a warning was justified. I have also taken into account the nature of the conduct which I regard as a serious breach or the safety rules and requirements in an underground mine.
[21] I also consider that the Respondent had justification for raising their concerns about the performance of the Applicant not meeting their expectations. . There are two aspects of this element of my considerations. Firstly there is the issue of whether the performance was unsatisfactory and secondly there is the issue about the Applicant’s response to the Respondent’s concerns about his performance being raised with him. The nature of his response when his performance was raised with him on 13 August I consider to be inappropriate conduct. Whilst the performance issue was a factor as to whether there was a valid reason for termination I do consider it to be as much a factor as the conduct of the Applicant by his reaction. I also consider that the Respondent had good grounds to raise their concerns.
[22] I have found above that the conduct on 26 August in two respects to be poor conduct. Firstly the Applicant was smoking where not permitted. Secondly his manner and response when he was questioned at that time, near his rig, was inappropriate conduct. Furthermore this was a second occasion where the manner of the Applicant’s response to concerns raised was inappropriate poor if not insubordinate.
[23] I find that there was a valid reason for the dismissal of the Applicant; indeed there are a number of valid reasons. One valid reason was the conduct of the Applicant on 13 August and 26 August by his reaction to the matters raised by the Respondent. Another valid reason was the breach of rules at the mine.
[24] The Applicant was dismissed at a meeting on the date of his dismissal at the end of his shift. How that meeting was conducted and what transpired at that meeting is disputed. The Applicant says he was dismissed after he had been given a parcel of documents. The Applicant says that Mr Eggart gave him a parcel of documents and he started to talk about the smoking policy. The Applicant’s account of what was being explained was described by him as “Here’s the policy, blah blah blah”. This evidence displays to me that the Applicant cannot even describe the incident without showing a disregard if not contempt for the Managers and rules he should comply with.
[25] The Applicant’s version of events is that as soon or soon after the meeting started that Mr Lingard informed him “we are letting you go”. He says this was within a minute of the meeting starting. He says he then responded to the effect that he would be informing the union and that there was no point in discussing the matter further.
[26] There is an inconsistency in the Applicant’s own version of what transpired at the meeting. In his examination in chief he says that Mr Eggert raised the smoking policy. In cross examination he said that he said that he did not know that they actually mentioned it (the smoking policy) and that he could not recall.
[27] The Applicant also says that that the meeting took no longer than 2 minutes maximum or 3 minutes at the outside. On his version in that time he was led in, he was asked to sit down, he was given a parcel of documents, he rifled though the documents, he looked at the paperwork and noticed some of it including his induction and his warnings, he responded that there was nothing further to discuss, he told Mr Lingard he was “effed”, and he raised an issue concerning Mr Lingard from a few days earlier.
[28] Mr Eggert says that they met at about 6:20 to discuss the smoking incident and the Applicant’s employment generally. The Applicant requested a witness to be present and was told a safety representative or a colleague of his choice could attend. Mr Eggert raised the smoking incident and the Applicant “gave no reply, just shrugged his shoulders and sat there.”
[29] Previous warnings and performance issues were raised by Mr Eggert and Mr Lingard and there was discussion about them. The performance issues the Applicant disputed and the self-rescuer warning he considered to be a disproportionate discipline. The Applicant asserted that he was being victimised by the Respondent and made comments about a file of complaint type issues had been compiled by him. Mr Lingard also gave evidence about the issue the Applicant raised of his conduct a few days earlier and the discussion that ensued.
[30] Mr Eggert says the meeting took over 20 minutes compared to the Applicant’s version that it took 2 to 3 minutes.. The version of the meeting and what transpired as evidenced by Mr Lingard and Mr Eggert is the more likely version of what occurred and I prefer that version to that of the Applicant. I find that the Applicant was told he was dismissed because of the history of his conduct. I find that the Applicant was notified of the reason, and he was given an opportunity to respond.
[31] I find that the Applicant was offered the opportunity to have a health and safety representative present at the meeting or any colleague he chose.
[32] There are aspects of performance that were involved in the events that led up to the termination of employment of the Applicant. He was warned about that performance. However he refused to accept the Respondent’s view that his performance was not satisfactory. Ultimately however his employment was terminated for conduct related issues rather than for his performance.
[33] The employer employs about 250 employees. The size of the employer I find did not impact on the procedures followed.
[34] The Respondent did have dedicated human resource expertise.
[35] Other matters that I considered as relevant were the length of service of the Applicant, his level of skill, the Applicant’s age and alternative disciplines to dismissal
[36] A further relevant consideration involves an incident involving the Applicant making a posting on a public Facebook website called Underground Miners. The website apparently is a social interaction site and has thousands of miner members or participants in the site. On 22 May 2012 a bus operated by the Respondent for transporting employees to and from site was burnt out. The Applicant had a copy of the photo of the bus on his phone. He says that he tried to send it to a friend of his but it would not transmit from his phone. He therefore posted the photo on the website with the caption “Wiluna. This is what happens when boys don’t get paid.” He claims this was a tongue in cheek joke. I make it clear that the Applicant was not on site at the time and there is no suggestion at all that he had any involvement in the arson. However I find his explanation about the posting to be disingenuous and meant as a public criticism of the Respondent.
Conclusion
[37] Taking all of the above matters into consideration I find that the dismissal of the Applicant was not harsh unjust or unreasonable. I therefore find that the Applicant was not unfairly dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Quinn for the Applicant
Mr Boyle for the Respondent
Hearing details:
2012
Perth
November 20, 21
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