Mr Andrew Blow v SBD Services Pty Limited

[2013] FWC 5733

[2013] FWC 5733

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andrew Blow
v
SBD Services Pty Limited
(U2013/1037)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 30 SEPTEMBER 2013

Application for relief from unfair dismissal; termination for serious misconduct.

[1] Mr Andrew Blow (the applicant) made an application for an unfair dismissal remedy on 2 April 2013 in relation to the termination of his employment for serious misconduct by SBD Services Pty Limited (the respondent, SBD) on 28 March 2013. The application was referred to me for determination and an arbitration hearing was conducted in Sydney on 5 August 2013.

[2] At the hearing the applicant represented himself. The respondent was represented by Mr Jim Richardson, General Manager of SBD. Mr Blow gave evidence on his own behalf and Mr Guy Lange was a witness for the applicant. Mr Richardson gave evidence on behalf of the respondent.

[3] The respondent supplies labour, plant and other goods and services to clients in the underground coal mining sector in the Illawarra and Hunter Valley regions of New South Wales and the Bowen Basin coalfields in Queensland. It is a wholly owned subsidiary of DeltaSBD Limited.

[4] The applicant was employed by the respondent in March 2012. He was initially located at a mine site in Narrabri; however in October 2012 he was re-assigned to the Integra Underground Operations (Integra) mine site in Singleton.

[5] The applicant contends that the termination of his employment was unfair because his actions did not constitute serious misconduct 1.

The facts

[6] At approximately 06.30 am, on 11 March 2013, Mr Blow presented in person a written safety complaint 2 to Mr Gary Parker, Manager of Mining Engineering and Mr Murray Wood Operations Manager with Integra Coal Operations Pty Ltd (Integra Coal) - the operator of the mine and SBD’s client. The complaint raised a number of concerns relating to heat exposure, diesel fumes, fatigue and harassment. The complaint included the following:

‘I am now in a position of vulnerability through victimisation from the project manager 3 and I feel I have a big red target on my chest. Before divulging the following information I need some assurance of protection. The consequences I fear for divulging this information are far reaching. Obviously I fear dismissal, I also fear that Gerald Linde, Operations Manager of Delta SBD NSW, and Mick Morton will sabotage any future employment opportunities underground elsewhere in the valley.’

[7] At the conclusion of the meeting with Integra Coal management the applicant was then told that he could return to work underground.

[8] In his witness statement 4 Mr Richardson said that Integra Coal decided to carry out a site investigation into Mr Blow’s complaint and asked SBD to remove Mr Morton from the site while the investigation was carried out. SBD told Integra Coal that SBD would be carrying out its own internal investigation in accordance with the requirements of the Delta SBD Health Safety and Compliance Management Plan. Mr Blow would be stood down on full pay so as to be available to allow the investigation to be carried out without having any effect on the project.

[9] According to Mr Richardson’s statement the applicant attended a meeting with him that afternoon. At that meeting it was explained to the applicant that SBD was treating all aspects of his complaint as serious and needed to investigate it internally as well as making themselves available to participate in the site investigation. 5 ‘It was explained that we would remove him from site and requested that he attend our Rutherford Office from 8am on Tuesday 12th March where he would be provided work until the Site investigation was completed and be available to participate in the site investigation.’6

[10] The applicant’s evidence is that he was told at the meeting that afternoon that the respondent was starting an inquiry into the ‘non reporting of incidents’. His evidence was that he was told by Mr Linde: ‘you are required at Rutherford every day to answer questions into the non reporting of incidents, why is this your first complaint?’ He responded ‘People don’t report things because we are intimidated.’ According to his statement he left the office ‘feeling very threatened as I knew I had to be at the Rutherford Office in the morning. Also now based at Rutherford was Mick Morton, as a result of being removed from site after my complaint. Grant Hobden and Jim also worked from that office and I feared I was being ambushed.’ 7 In his oral evidence the applicant confirmed that he had agreed to attend the Rutherford office the next morning at 8:00am.8

[11] Mr Richardson’s evidence is that:

‘In order to provide a member of DeltaSBD management team who was removed from the Operations in NSW North, Chris Rogers, who had only commenced the previous week with the company as the General Manager - Mining Product, was sent by CEO, Steve Bizzaca to assist as DeltaSBD representative in the Integra investigation as well as providing assistance if required in the internal investigation.’ 9

[12] Despite his initial agreement to attend the Rutherford Office, Mr Blow failed to turn up as directed on 12 March 2013. Mr Blow included in his statement the text of a number of voicemail messages he received from the respondent on the morning of Tuesday 12 March 2013. The first two were from Mr Linde, reminding him that they had a meeting that morning ‘to start the incident report.’ One was from Chris Rogers saying that ‘we need to set up a dialogue, impartial to politics, safety issues are important to us, we need to bring this matter not only for yourself but Delta SBD, can you call me on ... so we can sit down and have a chat.’ The last was from Grant Hobden advising Mr Blow that he was required to be at the Rutherford Office the next day at 9:00am ‘for an independent review. OK, you are officially required to be there so someone independent from head office can speak to you.’

[13] Based on the evidence presented to me, both in written form and orally, I am satisfied that the respondent had decided to conduct its own investigation into the applicant’s safety complaint (not the ‘non reporting of incidents’.) I am also satisfied that the respondent had decided as early as 12 March 2013 to involve Mr Rogers in the investigation. It is reasonable to infer that this was because he was not involved in the site and could take an impartial view irrespective of the personalities involved. He would also provide an independent person the applicant could speak to, rather than Mr Linde, who he had named as someone he was afraid of in his safety complaint.

[14] Mr Blow says he left a voice message for Chris Rogers that afternoon. 10 The message read in part:

‘If you want to know what the problem is, I suggest you look at my written complaint. I will co-operate with the ICAM (investigation) at the pit only at this stage. After the ICAM is over half the issues will be resolved anyway. I am stood down on full pay and will stay like that until the ICAM is over. I do not wish to enter into any correspondence until the ICAM is over. Nothing personal mate.’

[15] The applicant sent a fax to Mr Linde on the morning of 12 March 2013 saying he would not be attending due to reasons outlined in his complaint; however he said he would attend Integra Colliery at any time to assist with the independent ICAM investigation organised by the Mine Manager or Operations Manager 11. Mr Blow also sent a fax to SBD’s head office marked for the attention of Mr Steven Bussake, the CEO, and Mr Glynn Dawkins. The fax was attached to Mr Richardson’s statement. It contained the following:

‘I raised many safety concerns yesterday at Integra Colliery. After meeting with the mine manager, Operations Manager, check inspector, union representative, Mick Morton was removed from site (pending ICAM findings.)

I have been stood down on full pay until ICAM investigation is complete. Gerald Linde has directed me to attend the Rutherford Office daily to answer questions in relation to SEPARATE investigation.

I am intimidated by Gerald & Mick Morton after previous experiences. These were documented in my complaint. On this basis, I refuse to be interrogated on a daily ambush & participate in any form of witch-hunt through use of intimidation and skilful word play.

As previously stated to Mine Manager & Ops. Manager, I will give my full co-operation. I believe safety is their objective. It has a SBD representative. The ICAM investigation is impartial & transparent. I have already seen the decisions made by the Mine Manager to ensure fairness.

If the DeltaSBD investigation requires my input after the perusal of all statutory reports, incident reports, obtaining all witness statements and the findings of the ICAM are known, I may co-operate.

I have not been able to obtain any legal or union representation at this point.

Gerald has read the complaint and can give you the further information you will require.’

[16] It is clear that the applicant was refusing to co-operate with any investigation of his safety complaint by the respondent - at least until the ICAM investigation to be conducted by the mine operator was completed. This refusal extended to refusing to engage with Mr Rogers.

[17] On the morning of Wednesday 13 March 2013 Mr Bussake left a voice mail message for the applicant which said in part:

‘I have organised one of our other general managers, Chris Rogers to be involved in the investigation of the matters you brought up. Also to advise you know that we take these matters very ah important and we will look at resolving any issues you have raised, if you need to give me a buzz, please do not hesitate to call back...’

[18] The Integra investigation meetings were conducted on 13 and 14 March 2103.

[19] On Wednesday 13 March 2013 the applicant attended an ICAM interview at Integra Underground as arranged by the mine manager. Chris Rogers and a union representative were also present.

[20] Later that day the applicant spoke to Mr Bussake. He asked if Mr Linde was going to be leading the investigation. He was assured by Mr Bussake that Mr Linde was not going to be leading the investigation. 12

[21] On 14 March 2013 the applicant spoke to Mr Rogers. According to his statement:

‘He said, “I’ve had a chat at the Campbelltown Office and with Gary Parker via a telephone conference. We agreed to let them work it out and we will let you know, it won’t be until next week so you will be on full pay until Integra decides the best course of action”

I said, “ok that sounds fair”.’ 13

[22] This suggests that the respondent had decided at this stage not to pursue conducting its own interview with the applicant, while the Integra investigation was proceeding.

[23] Mr Blow sent further material to Integra Coal on Wednesday 20 March 2013. He did not provide a copy to SBD. 14

[24] On the same day at 2:24pm he received a voicemail message from Chris Rogers. He said:

‘Good afternoon Andrew, it’s Chris Rogers from DeltaSBD, ah sorry it’s been a while, we’ve been waiting for Integra, can you give me a call? We need to get some closure on this, can you call me on....I have organised a discussion with Jim at 11am Friday and you can bring a support person or representative, Gerald won’t be there, I am aware of your feelings towards him.’

[25] Mr Blow did not respond to this message, and Mr Rogers left another voicemail message at 8:45am on Thursday 21 March 2013. This was somewhat more forceful in tone.

‘Hello Andrew, it’s Chris Rogers again, I left you a message yesterday, mate I need you to call me to get this sorted out, you can’t stay off on full pay and not co-operate with the company, so we really need to get this sorted, you really need to call me, you can bring a union rep or support person but we really need to get this sorted out for your own sake.’

[26] These two messages made it quite clear that the applicant was expected to co-operate with the respondent, including by phoning Mr Rogers and attending a meeting on the morning of Friday 22 March 2013.

[27] Mr Blow did not call Mr Rogers, as requested. However, he sent him an SMS at 9:06am which said:

‘Dear Chris, I sent a fax yesterday afternoon to the mine manager and operations manager re further information for ICAM investigation. I will be speaking to them soon in relation to having a meeting including all parties, until then I do not wish to enter into any correspondence with Delta SBD.’ 15

[28] It is clear that once again the applicant was deliberately refusing to co-operate with the respondent - even though the respondent had made it plain he would not need to speak to anyone involved in his complaint.

[29] According to Mr Richardson’s statement:

‘SBD management were ... informed by Integra Mine that the Integra investigation could not substantiate Andrew Blow’s safety complaints and were to attend a site meeting with Mick Morton on Thursday 21st March. At this meeting, Mick Morton was reinstated as Site Project Manager as the Integra investigation could find no evidence to support any of Andrew Blow’s claims.’ 16

[30] The investigation report produced by Integra Coal was tendered by the applicant. The conclusions were contained at section 7 of the report.

‘1. Based on the information provided it has been identified that there has been an issue relating to control of diesel emissions in MG12. The investigation team concluded that this issue was not directly related to the activities of SBD but to a wider field including Integra personnel and other contracting companies.

2. There is an apparent personality clash between Andrew Blow and Mick Morton. It is the considered opinion of the investigation team that the language used by Andrew Blow in his statement has been embellished to present a case to discredit Mick Morton. This was confirmed through description of events during Andrew Blow’s interview which were later disproved through interview of witnesses to incidents described in Andrew Blow’s statement.

3. Andrew Blow indicated displeasure and anger in relation to the decision taken by SBD Management to change his place of work and the impact that this is having on his personal life in terms of custody of his daughter.

4. That Mick Morton, as a supervisor can be seen to be rude and direct in his dealings with personnel. It is the considered opinion of the investigation team that he has not acted in a way to bully or harass.

5. The investigation team has concluded that Mick Morton has been acting in a manner consistent with the requirements to ensure health and safety as part of his role as Project Manager. A reference check at other operations where Mick Morton has worked confirms his good record with regard to health and safety matters.

6. There is circumstantial evidence to suggest that Mick Morton has been pursued due to personality clashes. The investigation team has discovered that copies of the Andrew Blow statement or parts of the statement were distributed prior to it being presented to Murray Wood. At that initial meeting it was stated by Andrew Blow that copies of the statement were only given to Murray Wood and that if the statement became public it could only come from one source.’ 17

[31] On Friday 22 March 2013 Mr Richardson conveyed by email and registered mail a message requesting the applicant to contact the company by close of business on Monday 25 March 2013 to arrange a time on Tuesday 26 March 2013 for a discussion regarding his allegations. The applicant was told that if he ignored the request of the company to attend a meeting with them, they would have no alternative but to declare that he had abandoned his employment.

[32] The applicant responded with an email on Monday 25 March 2013. He did not respond directly to the request to make arrangements to meet with the company on Tuesday 26 March 2013. Instead he said:

‘Your assertion that I have been ignoring Senior Management phone calls is totally incorrect.

The last advice I got from Chris Rogers was that Vale were conducting an enquiry and I was to be stood down on full pay until it was completed. Chris told me they expected it to be early the following week.

On 20/3 at 2.24pm, I missed from Chris Rogers. I did not get that message until later that night. I missed another call at 8.45am on 21/3. I listened to the message and responded by text at 9.06am 21/3

I have spoken to Murray Wood this morning and he said the mine Manager would be in touch to go through the findings.

As soon as this is completed, I will contact you with a view of having a meeting with all parties involved so these issues can be examined.

I believe this will take place either late this week or early next week.

I look forward to resolving these issues promptly.

In the interim, if you have any points of clarification, please do not hesitate to email me and I will provide you with a prompt response.’

[33] Some of what the applicant had to say in this email is quite disingenuous. He acknowledged that he had received Mr Rogers’ two messages (even if he initially missed the first one). However he ignores the two requests Mr Rogers made: to call him and to attend the meeting on Friday 21 March 2013. In effect he was indicating that he would continue to ignore requests to co-operate with his employer - at least until after he had heard back from Integra Coal. Presumably he was unaware at this point that the Integra Coal investigation had largely rejected his complaint - especially his allegation of bullying by Mr Morton.

[34] The applicant received a further email from Mr Richardson on the afternoon of 25 March 2013. The email contained a final warning that the applicant’s employment would be terminated it he did not comply with the respondent’s request for him to attend a meeting with them, at the Rutherford Office, to discuss his claims by 5:00pm on Tuesday 26 March 2013. The applicant did not contact the company on Monday 25 March 2013. However he called Mr Richardson at 2:15 pm on Tuesday 26 March 2013 and said he would be there by 4:30 to 5:00 pm. The applicant finally arrived for the meeting with the respondent accompanied by his support person Mr Guy Lange. He arrived some time after 5:00pm, though Mr Lange’s evidence is that the delay was due to traffic. 18

[35] Mr Lange gave evidence that he attended a meeting at the Rutherford Office with the applicant on 26 March 2013 as his support person. Mr Lang confirmed that Mr Richardson denied that the applicant had been called to the meeting because he had filed a safety report. Rather it was because he had failed to respond to correspondence and telephone messages from the respondent and had failed to come in and be interviewed. 19

[36] In Mr Richardson’s witness statement he states that:

‘...it was stressed to Andrew Blow that the meeting was now focussed on his behaviour and his ongoing refusal to comply with a reasonable request by his employer when he had been stood down on full pay.’ 20

[37] Mr Lange was asked by the Bench if Mr Richardson had said what the outcome of the meeting may be.

‘Had he said that one outcome might be that the applicant would be terminated? --- Words to that effect, but Mr Richardson had the termination paper sitting there on the desk.

But you knew that was the potential outcome of the meeting?--- Yes, certainly. Mr Blow was there to be sacked.’ 21

[38] Notes of the interview were tabled in evidence. 22 It is clear that the interview was not primarily to deal with the issue of safety at the site, but with the applicant’s conduct. He was asked why he had not reported the complaint to SBD. It was also put to him that ‘at every attempt to bring you to the table you have not responded.’ He answered that he had given responses by fax or text. The discussion veered into some of the specifics of the applicant’s complaint. However Mr Hobden said ‘Just to clarify, Andrew is here today as a result of not responding to our requests to bring this to the table.’ At the conclusion of the meeting Mr Richardson said he would make a recommendation, and would consult with Mr Bussake.

[39] On Thursday 28 March 2013 the applicant was sent a notice terminating his employment for serious misconduct (attachment 1 to the F3 form). The letter stated that he had confirmed at the meeting on 26 March 2103 that he was ‘deliberate in continuing to refuse a number of SBD management instructions to meet to discuss issues raised by you with the Operations Manager at Integra Coal Operations on 11 March 2013.’ The notice of termination stated that the applicant’s employment was terminated on 28 March 2013 for serious misconduct. It further quoted Clause 8.4 of the enterprise agreement:

‘Clause 8.4 Serious Misconduct

Provisions contained in this sub-clause shall not affect the right of the Company to dismiss an employee summarily, without notice, if the employee is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the Company to continue the employment of the employee concerned during the required notice period.’

[40] Mr Blow was advised that his employment was to be terminated immediately effective from Thursday 28 March 2013. He would not be paid notice.

[41] I am satisfied that the applicant was terminated for serious misconduct on the grounds that he had deliberately and continually refused a number of instructions by his employer to meet to discuss the allegations he had made to Integra Coal.

Consideration

[42] Section 387 of the Fair Work Act 2009 requires that 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.’

[43] The applicant was dismissed by SBD for serious misconduct. It is clear from the evidence that Mr Blow failed to respond to correspondence and telephone requests to attend meetings with his employer to discuss the claims made in the safety report he presented to Integra Coal. The applicant did eventually attend a meeting with the respondent after receiving an email stating that if he did not his employment would be terminated. The key issue to be determined is whether this pattern of behaviour by Mr Blow amounted to serious misconduct.

[44] It is serious misconduct for an employee to refuse to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

[45] Under cross examination by the applicant, Mr Richardson re-iterated that the reason for the applicant’s termination was that he continually and deliberately refused a reasonable request to meet with his employer.’ 23 When asked by Mr Blow about the correspondence sent to the applicant on 25 March 2103, that stated that if the applicant did not attend a meeting on the following day his employment would be terminated, his response was ‘---I was left with no alternative. You wouldn’t communicate with your employer and you wouldn’t come to meet with us.’24 When asked why, after the applicant did attend the meeting on 26 March 2013 his employment was still terminated Mr Richardson’s response was ‘---At no stage, as a result of the interview you had at Rutherford office on the Monday night (26 March 2031), did you give a reasonable explanation as to why you hadn’t complied with reasonable directions.’25

[46] In his verbal submission the applicant stated that the safety complaint was made in good faith, that he had felt intimidated speaking with Mr Richardson and Mr Linde and that his actions in not attending meetings with the company did not constitute serious misconduct.

[47] I consider it an open question whether the safety complaint was indeed made in good faith. The Integra Coal report (introduced into evidence by the applicant himself) suggested that at least part of the complaint may have been made because of the applicant’s personal dislike of Mr Morton. Nevertheless the applicant was not dismissed because he made the safety complaint, but because of his failure to obey his employer’s directions in relation to their attempt to conduct their own investigation of his complaint. Employers have a statutory duty to maintain a safe workplace and it is was reasonable for the respondent to consider that it had a duty to investigate the complaint made by the applicant. It could not conduct such an investigation without interviewing the applicant. The applicant claimed he felt intimidated by certain of the respondent’s managers. However the respondent very properly appointed Mr Rogers to conduct the investigation and to deal with the applicant. Once that occurred, the applicant had no reasonable excuse not to attend the respondent’s office to discuss his allegations with the respondent. Despite this the applicant repeatedly refused to do so. It was not reasonable for him to dictate to his employer how and when they would conduct their investigation. His repeated and deliberate refusal to cooperate with the respondent’s attempt to conduct its own investigation constituted a valid reason for his dismissal.

[48] I am satisfied, based in part on Mr Lange’s evidence, that the applicant understood at the 26 March 2013 meeting that the respondent was considering dismissing him because of his action in refusing to attend meetings at the Rutherford site to cooperate with the respondent’s investigation - failing to respond to their attempts to ‘bring him to the table’. He had an opportunity at that meeting to respond to this concern, but failed to provide a good reason for his conduct.

[49] The applicant was afford the opportunity by the company, in correspondence date 25 March 2013, to bring a support person with him to the 26 March meeting and in fact bought his witness Mr Lange. Mr Rogers had previously made clear that he could have a support person present at the meetings he had tried to organise.

[50] None of the other factors referred to in s. 387 of the Act are relevant. I find that the applicant’s dismissal was not harsh, unjust or unreasonable. His application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Andrew Blow – the applicant

Mr Jim Richardson for SBD Services Pty Ltd

Hearing details:

SYDNEY

2013

5 August

 1   PN93

 2   Attachment 3a to Exhibit B2

 3   Referring to Mr Mick Morton

 4   Exhibit S1 paragraphs 3-4

 5   Exhibit S1, paragraph 8.10

 6   Exhibit S1, paragraph 8.11

 7   Exhibit B2, paragraph 14

 8   PN334

 9   Exhibit S1, paragraph 8.16

 10   Exhibit B2, paragraph 17

 11   Exhibit B1, attachment 4(a)

 12   Exhibit B2, paragraph 20

 13   Exhibit B2 page 8 paragraph 21

 14   Exhibit S1, paragraph 8.19

 15   Exhibit B2 paragraph 23

 16   Exhibit S1, paragraph 8.20

 17   Exhibit B5

 18   Exhibit B1

 19   PN164, 190-2

 20   Exhibit S1 paragraph 8.28

 21   PN167-8

 22   Exhibit S1, attachment 9

 23   Transcript PN654

 24   Transcript PN655

 25   Transcript PN658

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