Mr Anthonie Nieberg v The Heran Building Group Pty. Ltd. T/A Heran Building Group
[2017] FWC 6225
•28 NOVEMBER 2017
| [2017] FWC 6225 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Anthonie Nieberg
v
The Heran Building Group Pty. Ltd. T/A Heran Building Group
(U2017/7279)
COMMISSIONER SIMPSON | BRISBANE, 28 NOVEMBER 2017 |
Application for an unfair dismissal remedy –Dismissal for unsatisfactory Performance as Safety Officer- Nature of role as Safety Officer-Three warnings issued – Alleged failure of management to support Safety Officer –Applicant not meeting requirements of role – Dismissal not unfair – Application dismissed.
[1] This matter concerns an application by Mr Anthonie Nieberg for relief for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), on the basis that he alleges the termination of his employment with Heran Building Group (Heran) was unfair.
[2] Mr Nieberg was employed by Heran on a full-time, permanent basis from on or about 16 March 2016 as a Safety Officer until his termination on 16 June 2017, a period of approximately 15 months. Mr Nieberg is currently 65 years of age. 1
[3] A conciliation conference was held on 1 August 2017 at the Fair Work Commission that was unsuccessful in resolving the matter. Although both parties were initially represented, both parties elected to be self-represented at the hearing.
[4] The matter was allocated to me on 15 September 2017 and was subsequently listed for hearing on 18 and 19 October 2017. Each party filed witness statements and submissions prior to the hearing. Mr Nieberg filed statements from himself 2 and Mr William Harris3 and Heran filed statements of Mr Stuart Knock,4 Mr Brian Heran,5 Mr Peter Honeyman,6 Ms Suzie Heylan,7 Mr Ryan MacLellan,8 Mr Martin Heran,9 Mr Glenn Heran,10 Mr Shane Heran,11 and Mr Cliff Robertson.12
[5] Prior to the hearing, Heran sought and was granted permission to call two of its witnesses by telephone, Mr Brian Heran and Mr Ryan MacLellan. Mr Nieberg also sought and was granted the same permission in respect of Mr William Harris.
[6] Mr Nieberg advised at the hearing he did not wish to cross examine Mr Brian Heran, Mr Martin Heran, Mr Honeyman, Ms Heylen or Mr Knock. 13 Mr Martin Heran did however subsequently give oral evidence.
[7] Mr Neiberg did not seek reinstatement, but instead sought compensation as a remedy. 14
Background
[8] Mr Nieberg said he was originally contracted to Heran three days a week by a business called Safety Inductions as a Workplace Health and Safety advisor from 5 May 2012 until 16 March 2016. He became an employee of Heran in March 2016 continuing in a Workplace Health and Safety role. Heran accepted that Mr Nieberg had worked as a sub-contractor on various construction sites of Heran.
[9] Mr Nieberg’s position as described in his letter of offer 15 was as the Workplace Health and Safety Officer and included “all duties necessary to address all Workplace Health and Safety matters for the company.”
[10] Heran said Mr Nieberg was terminated for failing to adequately perform his duties as Heran’s Safety Officer. Heran said Mr Nieberg was issued three written warnings regarding his performance, however following the issuing of the warnings his performance did not improve.
[11] Heran said Mr Nieberg’s failure to enforce safety compliance on Heran’s jobsites, and failure to effectively communicate with the directors regarding issues of compliance left Heran no other alternative but to terminate Mr Nieberg’s employment.
The nature of the role
[12] Mr Nieberg said that late in 2015 he had a conversation with Ms Suzie Heylen, the Administration Manager of Heran which led to the possibility of his being directly employed by Heran. 16 In his oral evidence Mr Nieberg insisted that as a Workplace Health and Safety Officer he can only be an advisor and it is the employer’s role to implement his advice. Mr Nieberg said his role did not really change when he moved from being a sub-contractor to an employee.
[13] It was put to Mr Nieberg that he was expected to implement safety requirements and he responded again his role was to advise and it was for site supervisors to implement safety. A document titled ‘Proposal To Heran Building Group’ 17 was put to Mr Nieberg and he accepted it was a proposal he put to Heran before he was directly employed. It read as follows:
“After 3 ½ years of being a contract Health and Safety Advisor to the Heran Building Group, I have gained extensive knowledge of the on site procedures and forged positive working relationships with supervisors, employees, contractors, WHSQ inspectors and Heran administration staff.
As an employee of HBG I will be able to streamline and improve safety procedures and document implementation and propose to:
• Set up and maintain an electronic database of all on site safety documentation with photographic evidence to cover all possible legal requirements, create new and print existing forms.
• Assist supervisors with collecting, checking and collating all required WHS documentation and file these in a database and onsite in hard copy as required by law.
• Conduct new contractor/employee inductions and regular safety compliance checks with photographic backup.
• Liaise with WHSQ inspectors as and when required.
• Investigate, document and file incident reports as per WHSQ requirements.
• Introduce, implement and enforce a breach of rules document which can be backed up by penalties imposed at the discretion of supervisors and Heran head office. (my emphasis)
• Conduct tool box talks, document audits, sundry training and employee assessments.
• When required, conduct Drug & Alcohol testing and Fire Evacuation Training.
Remuneration
I propose an annual salary of AUD $145,000 – subject to annual review, for inflation adjustment/increases in cost of living – and includes operating expenses as outlined below;
• Vehicle
• Tolls
• Mobile Phone
• Internet
• Office Supplies”
[14] Mr Nieberg was subsequently offered a fulltime role on a salary of $110,000 plus an additional $20,000 to cover expenses including for using his own vehicle and phone. The letter of offer 18 of 10 March 2016 said as follows about the role being offered;
“Your role as our Workplace Health and Safety Officer will include all duties necessary to address all Workplace Health and Safety matters for the company.”
[15] Mr Nieberg said during his first face to face conversation with Ms Heylen, he asked her “who is my go to person” to which Ms Heylen replied “me”. He said from that point his queries regarding company policy regarding his role were directed to Ms Heylen by email or phone conversation. He said occasionally he would see Ms Heylen in person at Heran’s Head Office in Southport.
[16] Mr Glenn Heran said that in 2017 Mr Nieberg had told him that he was having difficulty in getting onsite personnel to comply with his directions regarding safety issues. Mr Glenn Heran claimed he told Mr Nieberg he could not become too friendly with the onsite personnel otherwise they would not listen to him.
[17] Mr Glenn Heran said that he told Mr Nieberg to give him the names of individuals who were not complying with his directions and said that he would deal with them personally if they continued not to comply. Mr Glenn Heran claimed that Mr Nieberg reacted positively to this and thanked him for his support. Mr Glenn Heran said he did not receive from Mr Nieberg the names of individuals who were non-compliant. 19
[18] Further, Mr Glenn Heran said that after his conversation with Mr Nieberg regarding compliance issues Mr Nieberg did not come to him with any issues relating to any difficulties obtaining safety compliance on Heran building sites. 20
[19] Mr Shane Heran said that Mr Nieberg had only contacted him twice about safety compliance issues he was experiencing on Heran sites, and this related to one issue which occurred in May 2016. Mr Shane Heran said that Mr Nieberg explained to him that he was experiencing ongoing issues with a contractor who continued to leave the site each day in a mess. He said Mr Nieberg told him he had tried to speak to the contractor about the mess but had been unsuccessful obtaining compliance with the contractor. Mr Shane Heran said he ended up stepping in and he had several conversations with the contractor about the mess. Mr Shane Heran said that following his conversations with the contractor, the issues were rectified. 21
[20] Mr Cliff Robertson is engaged as a Civil Supervisor with Heran and part of his role is to advise on the relevant council standards affecting Heran’s building sites. 22 He said when Mr Nieberg commenced employment in 2016 he showed Mr Nieberg the site safety folders which contained the relevant safety documents. Mr Robertson said he explained the contents of these folders and advised Mr Nieberg that these folders were to remain on site at all times.
[21] Mr Robertson gave evidence that throughout Mr Nieberg’s employment these folders were frequently misplaced or removed from site, as he was unable to locate them on many occasions when he required them to perform his role. 23 When Mr Nieberg challenged Mr Robertson about this evidence, Mr Robertson maintained that documents that were supposed to be inside the folders were missing.24 He also said the folders never had work method statements in them and he had to go through the folders.
[22] Mr Robertson said that throughout Mr Nieberg’s employment they would speak approximately twice per week about safety issues on Heran’s building sites. Mr Robertson said one of the most serious issues he spoke to Mr Nieberg about was the lack of barricading around trenches and fencing. He said he reminded Mr Nieberg that these issues needed to be addressed to prevent injuries should people trip or fall into the trenches. Mr Nieberg referred Mr Robertson to an instance where he had requested Mr Robertson to fence and barricade a site at Gardner Road and Mr Robertson gave evidence about having taken time to comply with that request. 25
[23] Mr Robertson said he also spoke to Mr Nieberg about how onsite personnel had become complacent about safety which meant that Mr Nieberg needed to drill into them the importance of complying with safety standards. Mr Robertson said Mr Nieberg told him that he did not know what to do about the lack of compliance he was experiencing onsite.
[24] Mr Robertson said he told Mr Nieberg that he couldn’t be friends with the contractors on site as they did not follow his instructions as their friend. Mr Robertson said that he reminded Mr Nieberg that as Heran’s Workplace Health and Safety Officer he had the power to shutdown Heran’s sites should they fail to be safety compliant. 26 Mr Robertson gave evidence that Mr Nieberg was knowledgeable about safety generally, however he saw Mr Nieberg struggle to implement and enforce safety.27
2 February 2017 email
[25] Mr Nieberg said that on 2 February 2017 he received an email 28 from Ms Heylen regarding weekly safety reports as requested by Mr Brian Heran. The email read as follows;
“Tony,
Brian has asked you to send me a weekly report at the end of each week for the management of safety onsite.
Please can you prepare one so that I can send it to the directors each Monday am”
[26] Ms Heylen said in February she was made aware by the directors that Heran’s building sites were not compliant with safety requirements. 29
1 March 2017 first warning letter and email
[27] Mr Peter Honeyman, the Acquisition/Development Manager at Heran said that his role is to oversee the various consultants relating to each of Heran’s building sites. Mr Honeyman said he did not deal with Mr Nieberg frequently but had met him on at least one occasion.
[28] Mr Honeyman said on 1 March he received a call from Mr Ryan MacLellan a town planner, expressing concerns regarding the condition of Heran building sites. The complaint included that the sites were unsafe and did not have adequate fencing or barriers around them, machines and tools were left lying around and that Heran sites were generally unclean and messy. 30 Mr Honeyman said that day he was directed by Mr Brian Heran to send an email to Mr Nieberg.
[29] Ms Heylen said that on 1 March 2017 Mr Brian Heran informed her that Heran’s sites had never been so unsafe and Mr Nieberg was responsible as Safety Officer for ensuring that sites remained safety compliant. Ms Heylen said Mr Brian Heran directed her to issue Mr Nieberg with a written warning outlining the site safety issues. Ms Heylen attached to her statement what she said was the first warning letter. Mr Nieberg said in his oral evidence he did not recall receiving the first warning letter. He said that it was possible he received it on his phone and thought it was a joke. He said there was a random inspection by Workplace Health and Safety Queensland around this point.
[30] It was difficult to be clear from Mr Nieberg’s oral evidence whether his evidence was that he though he did receive the first warning, or he did not remember receiving it but accepted he may have. 31 In any event Ms Heylen said in her evidence she could confirm the first warning letter was successfully delivered by post to his residential address, and by email to his work email address. Ms Heylen attached to her statement a copy of the postage details and a record of the email server noting the first warning was sent to the postal address and Mr Nieberg’s email address.32
[31] The first warning in summary said that Heran was concerned with the state of the job sites and in particular the Ormskirk job site. The letter said it was Mr Nieberg’s responsibility to ensure that the job sites comply with WH&S standards and that there had been reports that Mr Nieberg had not been seen onsite at some jobs for significant timeframes. The letter said that Mr Nieberg must be seen to be onsite rigorously managing safety issues, testing for Drug and Alcohol and educating the supervisors and trades as to expected standards.
[32] The letter said that the directors were concerned, and that it appeared Mr Nieberg needed to have better control measures in place with the supervisors, and the supervisors must keep the sites up to standard between Mr Nieberg’s visits. I am satisfied on the balance of probability that Mr Nieberg would have received the first warning letter.
[33] Mr Nieberg said on 1 March 2017 an email 33 from Mr Ryan MacLellan to Mr Peter Honeyman suggested that Mr Brian Heran wanted Ms Heylen to update his job description. The email read as follows;
“Hello Pete,
Just spoke to Brian
He would like an urgent email to go to all supervisors:
Before any supervisor leaves the site this afternoon they must confirm:
1. ESC in place – as per local authority requirements
2. Sites are clean and tidy
3. Ensure all sites are safe
4. Ensure all permits for road/verg are in place and left safe.
5. Tree protection fencing
6. Ensure all building that are to lock up are locked up
This is of utmost importance to ensure safe and no fines.
Also.
He would like Suzzie to update Tony’s (safety officers) to update his job description.”
[34] Mr Nieberg said on the same day he received an email also sent to other employees of Heran from Mr Peter Honeyman. The email reminded employees of their obligations as site foreman and advised of numerous complaints and calls from council regarding Heran sites. The email included the following;
• “ENSURE ALL EROSION AND SEDIMENT CONTROL MEASURES ARE IN PLACE AS PER THE ENGINEERS PLANS (if you do not know or do not have the plan, please ask the office) – This can end up in the supreme court for environmental negligence.
• CLEAN THE SITES UP – The current state of the sites is atrocious
• ENSURE ALL SITES ARE SAFE – Meet OH+S and council standards.
Please do not leave the site TODAY UNTIL THE ABOVE ARE ADDRESSED.
Other matters we will be cracking down on include:
• ENSURE ALL PERMITS ARE IN PLACE/VERGE IN PLACE AND LEFT SAFE. If you are storing anything in road reserve or undertaking activities in council or state roads, you will need a PERMIT! If you don’t have a permit, get ONE IMMEDIATELY BEFORE DOING ANY WORKS/STORING ETC.
• ENSURE ALL TREE PROTECTION FENCING IS IN PLACE AND IS NOT REMOVED/MOVED AT ANY TIME UNTIL THE SITE IS COMPLETE
• CONSTRUCTION ACCESS ROUTES ARE ADHERED TO AS PER THE APPROVED CMP FOR THE SITES. It is a $12,000 fine on the spot.
We need to ensure the sites are safe and we do not receive any further fines.
It is Tony’s full responsibility to report back to management on matters that are not being done to an acceptable Council Standard!”
[35] Mr Nieberg said he was not, and was not at the time of the hearing familiar with who Mr Honeyman was. Mr Nieberg said that he believed Mr Peter Honeyman was adding additional tasks to his existing job role.
[36] Mr Nieberg in response to these emails stated what his knowledge and skills were and that he lacked familiarity with the requests that he was asked to perform. He said he sent an email to Ms Heylen that read as follows:
“Suzie I fail to comprehend how it is suddenly thrust upon me to be familiar with acceptable council standards on top of my health and safety role..” 34
[37] Mr Nieberg said that Ms Heylen suggested he respond with an email to Mr Brian Heran, Mr Martin Heran and Mr Peter Honeyman.
[38] Ms Heylen said that Heran had intended to add to Mr Nieberg’s responsibility the knowledge of council standards. Ms Heylen said subsequently on 20 March Heran advised Mr Nieberg that they had enrolled him in a training course on sediment erosion control which would help him in understanding council standards. Ms Heylen said she ultimately did not direct Mr Nieberg to perform this additional duty as the directors and herself had noticed that Mr Nieberg was not keeping up with his existing duties. 35
[39] Mr Nieberg accepted that the respondents had arranged for Mr Nieberg to attend a training course in regard to sediment control but he did not ultimately attend the course because he was terminated before the date on which he would have attended the course.
[40] Ms Heylen said in her statement that the job description issued to Mr Nieberg on 1 March 2017 detailed his duties and responsibilities as Heran’s Safety Officer and did not add further duties to his role but was meant to clarify exactly what Heran expected from Mr Nieberg in performing his role. 36 Ms Heylen said throughout his employment she tried to assist Mr Nieberg perform his role.
2 March 2017 email
[41] Mr Nieberg sent an email to Mr Brian Heran, Mr Martin Heran and Mr Peter Honeyman on 2 March 2017 stating in summary, that he felt there may be some confusion over his role, and that his training was to cover workplace health and safety legislation, regulations and related obligations and he did not have training in council standards. Mr Nieberg then set out in the email a summary of what he saw as his role. 37 Mr Nieberg said he received an email in response the same day from Mr Brian Heran stating “I’m not confused, please comply as directed.”38
6 March 2017 email
[42] Mr Nieberg said that on 6 March 2017 he received a follow up email from Mr Honeyman 39 outlining what Mr Nieberg said was how to conduct his “new role”. The email attached to it an example of an Erosion and Sediment Control Plan and asked that Mr Nieberg familiarise himself with the plans and if he had any queries to consult. The email went on to discuss road/footpath closure and said that is more challenging.
[43] Mr Honeyman’s email said to Mr Nieberg to monitor the sites, notify the office/Shane and site foreman if he noticed buildings/site sheds/gates etc. left open. The email said the site foreman should be largely responsible for this and is why they have a 2IC on each site.
7 March 2017 email
[44] He said he continued visiting worksites and writing daily safety reports and fulfilling his safety role as far as reasonably practicable. Mr Nieberg said on 7 March 2017 he was emailed “a new job description”. 40 Mr Nieberg provided a site safety report on Tuesday 7 March about the Marsden and Seven Hills sites.
[45] It was put to Mr Nieberg that Heran was not giving him a new role but clarifying his existing role. Mr Nieberg was also asked during cross examination when he received the job description attached to his statement, and how he replied. Mr Nieberg answered that he did the work. He was then asked if he accepted all of the terms and conditions and he answered yes. Mr Nieberg in his oral evidence indicated he accepted the position description. 41
[46] The evidence tends to indicate that the provision of the job description by Heran well after the commencement of employment in March 2016 was an attempt to affirm the parties understanding of the existing role, and despite Mr Nieberg’s suggestion in his evidence that this was a new role the evidence supports the conclusion it was not. Mr Nieberg’s evidence was to the effect that he accepted the job description. It is true Mr Nieberg had complained he did not have training in regard to council compliance issues. The evidence indicates that while Heran had intended to expand Mr Nieberg’s role to also incorporate responsibility for compliance with council standards this was never implemented. On that basis the evidence does not support a conclusion that Mr Nieberg was offered a different role, the job description merely committed to writing what was otherwise the nature of the position offered and accepted in March 2016.
9 March 2017
[47] On 9 March 2017 Mr Nieberg received a reply from Ms Heylen to his site safety report of 7 March concerning the Marsden and Seven Hills sites 42 that read as follows;
“Tony this report identifies problems but states little of what you have done about the problems…
Did you issue infringement notices/fines/rectification dates and to whom? Who’s responsible for fixing? Tell us about this please
Your role is not advisory anymore
You MUST report on rectification measures you took to address the problems you have identified…”
[48] This email then sets out a series of examples of how Ms Heylen said Mr Nieberg could take all measures and opportunities to rectify problems. On the same day Mr Nieberg submitted a safety report for the Benhiam Street site. 43
10 March 2017
[49] On 10 March 2017 Ms Heylen sent an email to Mr Nieberg 44 saying as follows;
“Hi Tony, That’s a better report – thankyou
Why are folders not on Benhiam job already? Is there no site shed?
Why are you getting involved in sexual harassment between trades – can’t you cover by issuing notice for carpet layer boss to speak to Adam at Reseal – how serious is it?”
Further Reports from Directors
[50] Ms Heylen said that after issuing Mr Nieberg with the first warning she continued to receive reports from directors that the site safety issues were not improving. Ms Heylen said she emailed Mr Nieberg on several occasions requesting further information from him about how he was enforcing safety on site, and gave the example of an email on 20 March telling Mr Nieberg that Heran was still not getting enough information about what he had done regarding non-negative drug and alcohol tests from onsite personnel. 45
22 March email
[51] Mr Nieberg was referred to an email 46 from Mr Brian Heran to him dated 22 March 2017 that read as follows;
“Sites are still very untidy and dangerous … any reason?”
24 March - Second Warning
[52] On Friday 24 March 2017 Ms Heylen sent an email to Mr Corey Weslford, a supervisor and also sent to Mr Nieberg and other directors of Heran stating as follows;
“Corey,
Please ensure you addressed the photographed issues immediately. The directors want this site cleaned up before finishing time today!
Tony will be there on Monday to ensure the issues have been addressed – if not – Tony is tasked with ensuring the jobsite does not open”
[53] Ms Heylen then sent an email to Mr Nieberg as follows;
“Tony, the instruction from Brian is you are to be onsite first thing Monday
If the issues in the below email have not been addressed the site must not open. I’ve told Corey, you will be there to enforce the sites stays closed – as per Brian’s instructions”
[54] Mr Nieberg said on Monday 24 March he went to the site and spoke to Mr Weslford about the issues and by Monday afternoon they were to a large degree cleaned up relative to the availability of staff. Mr Nieberg was asked why it had got to the stage of having to threaten to close the site and he responded that when he told supervisors to clean up a site they would answer that they have been overridden, particularly by Mr Martin Heran. 47 Mr Nieberg claimed when he attempted to speak to Mr Martin Heran about this Mr Martin Heran told Mr Nieberg to speak to Mr Brian Heran.
[55] When Mr Nieberg was asked if he ever emailed the directors about this claim he said this was in his safety reports. It was not apparent from Mr Nieberg’s safety reports that this specific claim was communicated. Mr Nieberg claimed there was a culture of supervisors saying to trades they could make a pile and it would be picked up by a bobcat. Mr Nieberg said he spoke to the supervisors and said this was not good. He said at the Ormskirk site the rubbish started to build up and he contacted Mr Steven Heran, and he came to site and a new company was engaged to put bins on site. 48
[56] Mr Martin Heran, a director of Heran, 49 said in his statement that Mr Nieberg was employed to ensure all sites complied with regulations and to ensure systems were put in place to ensure a safe work environment. He said after discussions with Mr Brian Heran and concerns raised by various contractors on sites, it became apparent that the sites were not in a compliant state and subsequently warnings were issued to Mr Nieberg regarding his performance. Mr Martin Heran said he had spoken to Mr Nieberg once on the phone and advised him to speak to Mr Brian Heran.
[57] During his oral evidence Mr Martin Heran rejected the suggestion that he had told supervisors to prioritise getting the job done over safety. 50 Mr Martin Heran accepted that he had asked Mr Nieberg to contact WHSQ and tell them to ring before they visit. Mr Heran said he did this because he thought it was common courtesy.
[58] Ms Heylen said that on 24 March 2017 she was instructed by the directors to issue Mr Nieberg with a second warning 51 as they advised her that Mr Nieberg’s performance had not improved and the safety on sites still posed an unacceptable risk.
[59] Mr Nieberg said that on 24 March 2017 he received by email Written Warning 2. In summary the letter stated that the Directors still had deep concerns regarding the state of the job sites in particular, the Ormskirk job site. The letter said it was Mr Nieberg’s responsibility to ensure that all the job sites comply with WH&S standards as well as the company’s own safety standards, and that he needed to enforce better control measures with supervisors.
[60] The letter stated that Mr Nieberg must find a way to ensure the supervisors comply and enforce down the line to employees that safety must be maintained at all times. The letter said if Mr Nieberg could not get compliance from site supervisors to discuss this with Brian (Heran) and Martin (Heran). The letter said the warning was to give Mr Nieberg an opportunity to improve his performance.
6 April - Third Warning
[61] Ms Heylen said after issuing the second warning she continued to receive reports from directors that the site safety issues were not improving and on 6 April 2017 the directors instructed Ms Heylen to issue Mr Nieberg with a third written warning. 52
[62] Mr Nieberg said that on 6 April 2017 he received a Written Warning 3. 53 The warning letter said it pertained to the state of the Ormskirk job site. The letter again emphasised the view that Mr Nieberg had to find a way to enforce safety and ensure compliance. The letter said Mr Nieberg must be seen to be strong in enforcing safety. The letter stated that Mr Nieberg should discuss any lack of compliance with the site supervisors, and Brian and Martin (Heran). The letter concluded by saying that the warnings were serious, the intention being to give Mr Nieberg an opportunity to improve his performance.
Alleged attempts at Discussions
[63] It was put to Mr Nieberg that the number of safety reports and daily diary entries increased after his first warning. Mr Nieberg said he was asked by Mr Brian Heran to send reports and prior to this he regularly reported to supervisors.
[64] Mr Nieberg said that all attempts to discuss the warnings with either Ms Heylen, Mr Martin Heran or Mr Brian Heran were in vain. Mr Nieberg said he phoned Mr Martin Heran a director regarding the warnings and he said Mr Martin Heran told him to speak to Mr Brian Heran as they had nothing to do with him.
[65] Mr Nieberg claimed that he sent an email to Mr Brian Heran asking for his support and to phone him, and his email was not answered. Mr Brian Heran said in his statement that with regard to the email he passed this down to the appropriate Heran staff member to handle. 54 The email referred to appears from the evidence to have been sent after the third warning was issued. The request “for support” is not elaborated on. In his oral evidence Mr Nieberg said that occasionally he would try to phone the office but was not able to be put through by whoever was on the phone.55 He also said that he had suggested to Ms Heylen that he should have a meeting with the directors and Ms Heylen said that would not happen.
[66] Mr Nieberg did not cross examine Mr Brian Heran. In his statement Mr Brian Heran said he had not formally met or spoken to Mr Nieberg. He said he noticed on his visits to sites that they consistently appeared to be in a dangerous condition and needed to be made safe as a matter of urgency.
[67] Mr Brian Heran said that he received complaints from other works directly regarding the danger of Heran sites and this was documented in Mr Nieberg’s weekly safety reports that Mr Heran attached to his statement for 8 and 9 March and 14 March 2017. 56 Mr Brian Heran attached to his statement photographs of unsafe conditions on sites, and said he directed a total of three warnings to be issued to Mr Nieberg about the unsafe poor state of site conditions. He said when the site conditions did not improve he decided to terminate Mr Nieberg.
[68] Mr Brian Heran gave as the reasons for dismissal failure to;
(a) Take measures necessary to ensure Heran’s jobs sites complied with workplace health and safety legislation, regulations and other safety related obligations; and
(b) Issue written warnings and report onsite personnel who had failed to comply with the relevant safety requirements outlined above.
[69] I asked Mr Nieberg a question in connection with whether he had raised with directors the claim that supervisors were prioritising production over safety. He referred to the statement of Mr Brian Heran I referred to above where Mr Brian Heran said that he passed this matter down to the appropriate Heran staff member to handle. 57
2 June 2017
[70] Ms Heylen said that after the issue of the third warning she received further reports from the directors that the sites were not improving, and Mr Nieberg had not provided an explanation as to why he consistently failed to enforce safety across Heran sites. Ms Heylen said she called Mr Nieberg and advised him that the directors had decided to terminate his employment. On 2 June 2017 Mr Nieberg was sent the following letter;
“Hi Tony,
I regret to inform you that following three previous warnings issued, the Directors have advised me that they wish to terminate your employment.
This letter represents our obligation to provide you with 2 weeks written notice.
As such, we anticipate your final day will be Friday 16th June 2017.
Please can you arrange to send all records into the office and return any stock or equipment to either the site or head office on or before 16th June 2017.
We wish you every success in the future
Yours sincerely”
[71] Mr Nieberg attached to his witness statement copies of tool box talks he had conducted, some rectification notices he had issued, diary entries of dates he had visited sites in January, February, March and April 2017, safety reports from March and April 2017 and some logs of drug and alcohol testing he had conducted in 2017.
Tool Box talks
[72] Mr Nieberg accepted the documented evidence concerning conducting tool box talks was limited however said he did not have access to the records at worksites.
Drug and Alcohol testing
[73] Mr Glenn Heran is the Accounts Payable Manager and said he had known Mr Nieberg for about three years. He said he would speak to Mr Nieberg about once a month where he would check in with him about any queries he had with his role.
[74] Mr Glenn Heran claimed that he was made aware by Heran’s directors that onsite personnel were working whilst under the influence of alcohol and drugs. He said as a result he purchased an alcohol testing kit for Heran worth $3000. He said he told Mr Nieberg to test onsite personnel regularly and at random for any drugs or alcohol. 58
[75] Mr Nieberg said the extent of drug and alcohol testing was affected by a requirement for a toilet to be nearby and this was not a simple task. He said supervisors sometimes said they would not have their employees stood down and that he would conduct random checks when he could. 59
[76] Mr Nieberg was asked why there was a gap between November 2016 and March 2017 (of evidence of testing) and he said there was a Christmas break and sites would dictate. It was put to him that the Christmas break was only for two weeks. Mr Nieberg also said he had an extended break. Mr Nieberg accepted that he was qualified to conduct drug and alcohol tests.
[77] Mr Glenn Heran said that he told Mr Nieberg based on the testing records that he was not using the alcohol and drug testing kit regularly enough. He said he told Mr Nieberg he was not testing onsite personnel for drugs and alcohol as directed. 60 Mr Glenn Heran said in his oral evidence that while he did maintain to some degree Mr Nieberg did not do drug and alcohol testing he accepted now having seen reports that some testing was done.61 In his oral evidence Mr Glenn Heran clarified that his conversation with Mr Nieberg about drug and alcohol testing was not an instruction.62
[78] Mr Shane Heran is engaged as a Civil Estimator with Heran. He gave evidence that he dealt with Mr Nieberg in relation to drug and alcohol testing across Heran building sites. Mr Shane Heran said when Mr Nieberg commenced employment with Heran in 2016 he instructed Mr Nieberg to undertake regular drug and alcohol testing of onsite personnel. Mr Shane Heran said he told Mr Nieberg he should be carry out drug and alcohol testing at least once per fortnight across all Heran’s building sites. 63
[79] Mr Shane Heran said he also told Mr Nieberg he should be testing at random and that announcements of testing were to be done on the spot to ensure personnel did not avoid testing by walking off site. 64 He said he instructed Mr Nieberg to conduct this testing because he had received reports from Heran’s directors that various trades working on site were working whilst under the influence of alcohol and drugs. Mr Shane Heran said Mr Nieberg did not contact him about any difficulties he was having in testing onsite personnel for drugs and alcohol.
[80] Mr Shane Heran said that Mr Nieberg was not conducting testing on a regular basis, and Mr Nieberg’s records demonstrated that he was not testing at least once per fortnight and failed to test at random. Mr Shane Heran attached to his statement the drug and alcohol testing record for 2016 and 2017. 65
[81] The evidence supports the conclusion that Mr Nieberg was not conducting drug and alcohol testing with the level of frequency, or on a random basis in the manner in which he had been directed to.
Evidence of Mr Harris
[82] Mr William Harris provided a statement 66 and gave oral evidence in support of Mr Nieberg’s application. His evidence was directed to what he described as the culture and compliance of Heran. Mr Harris said he worked as a Safety Advisor for Heran for just under three months from 19 June 2017 to 11 September 2017. Mr Harris claimed he was not backed up by management with health and safety rectifications that were required to make an area safe.
[83] Mr Harris claimed he would give directions to a supervisor and send the rectification notice with photos attached to directors of Heran and he received a reply only once. Mr Harris claimed suggestions he made mattered little to some of the supervisors because they were protected as long as the progress of the sites continued without interruption.
[84] Mr Harris said on one site it was so bad he rang Workplace Health and Safety Queensland (WHSQ). He said within two hours of WHSQ closing areas of the site down, the supervisor on the site had got trades back to work in those areas. Mr Harris said the culture was getting to him and he resigned. 67
[85] In cross examination it was put to Mr Harris that on the occasion of the incident referred to above at the Seven Hills site, when he advised the Heran Office about the issue concerning a lack of scaffolding, he was instructed to close the site down. Mr Harris indicated he was advised by email to close the whole site down. 68 He clarified this was in regard to the areas regarded as dangerous by WHSQ. Mr Harris said that it was actually WHSQ that closed part of the site not Heran. He also claimed Mr Jackson, a supervisor made a phone call and he was instructed to get the workforce back to work. Mr Harris accepted that he had not heard a director say this.69
Complaint from Wolter Consulting Group
[86] Mr Knock, the accountant for Heran, said that he received a complaint from Wolter Consulting Group, one of Heran’s building consultants regarding the danger the Heran sites posed and how the sites were non-compliant with safety requirements. A copy of the letter of complaint was attached to Mr Knock’s statement. 70
[87] The complaint was from Mr Ryan MacLellan a town planning and project co-ordination consultant for Heran for over 7 years, and said that on numerous occasions he had witnessed Mr Nieberg fail to ensure a safe working environment on sites under construction by neglecting basic safety procedures which brought about hazardous situations and placed employees and visitors safety at risk. The letter stated that Mr MacLellan did not believe Mr Nieberg performed his responsibilities in a satisfactory manner.
[88] The letter claimed that Mr MacLellan often raised his concerns with Mr Nieberg regarding these matters and was concerned that the lack of safety would potentially injure Heran staff, site visitors, contractors and members of the public. Mr MacLellan attached to his letter a series of photographs which he said illustrated examples where the safety of persons was compromised.
[89] Mr MacLellan also provided a statement and appeared as a witness for Heran. 71 Mr MacLellan’s evidence was generally consistent with the earlier letter. He said he did not believe Mr Nieberg was capable of fulfilling his role. In his oral evidence Mr MacLellan said he was quite often unhappy with the conditions of Heran sites when he attended them with rubbish and a disorderly running of the site. He said he is a town planner and he felt it was unsafe for himself and that he would speak to Mr Nieberg about his concerns. He referred to issues such as a lack of temporary fencing, a pool not fenced and continuous other safety issues.72
[90] Mr MacLellan was asked if he ever questioned supervisors about these matters and he responded that he had however he believed the “buck” stopped with Mr Nieberg. 73 He said that time and time again he saw unsafe outcomes. Mr MacLellan said the Ormskirk site which he said he visited around 15 times was probably the worst he had seen, and the sub-contractors needed a strong talking to.
Harsh, Unjust or Unreasonable
(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)
[91] Mr Nieberg asserted in closing submissions that Heran management was negligent because they were notified, or attempted to be contacted and sent safety reports and statements (about safety) however they would buck pass and blame others for their negligence. 74
[92] Mr Nieberg said that the warning notices he received did not stipulate a time or date when things needed to be done, or offer assistance or a recommendation as to how he should go about these things. 75
[93] I accept there is some validity to Mr Nieberg’s complaint that each of the three warnings letters could have included more specific references to issues. At the same time each of the three warning letters made reasonably clear to Mr Nieberg what the nature of the deficiencies Mr Nieberg was being asked to address were, or if he could not address them, to speak directly to nominated directors. As an employee with a relatively high level of responsibility it would have been expected Mr Nieberg could understand the nature of the issues that Heran was asking him to address, and the issues were sufficiently clear as to be measurable as to whether what was happening across the job sites including Ormskirk was improving or not.
[94] The first warning letter of 1 March stated the directors had concerns with the state of job sites generally, but also made specific reference to the Ormskirk job site. The first letter said there were reports he had not been seen on site “at some jobs” for significant timeframes. The letter went on to state Mr Nieberg must be seen to be on site rigorously managing safety issues, conducting drug and alcohol testing and educating supervisors and trades about expected standards. The letter said Mr Nieberg needed better control measures in place and sites kept to standard between visits.
[95] The second warning letter just over three weeks later on 24 March described “deep concerns” and made particular reference to the Ormskirk job. The second letter largely repeated much of the first letter but added reference to supervisors using the policy documents to ensure trades understood the consequences of not keeping sites clean and tidy. The letter went on to direct that Mr Nieberg to remind supervisors they are personally accountable and responsible in addition to himself and directors should a serious incident occur. The second warning letter said that if he could not get compliance to discuss with Brian or Martin Heran. The third warning letter approximately two weeks later on 6 April essentially repeated the matters raised in the second letter, and again directed Mr Nieberg to discuss matters with Brian or Martin Heran if he could not get compliance.
[96] Despite this the warning reports continued to be received from different sources that sites remained unsafe. The evidence indicates that the issues were not being addressed and improvement was not occurring following the issuing of the warnings and I am inclined to the view on the evidence that Mr Nieberg was not taking the necessary appropriate steps to confront the issues on site, or alternatively raise directly and assertively with directors of Heran his concern that site supervisors were simply not doing as he instructed.
[97] Ms Heylen’s evidence was that Mr Nieberg advised her that in his previous safety role he was required to advise on site safety issues but was not required to enforce safety compliance. Ms Heylen said that she explained to Mr Nieberg on numerous occasions throughout his employment that his role as Safety Officer was that Heran required him to enforce safety compliance across all personnel onsite and that he needed to “crack down” on personnel who failed to follow his requests to comply with safety. 76 Mr Nieberg under cross examination maintained that his role was advisory.77 As Mr Neiberg chose not to challenge Ms Heylen’s evidence on this point, this evidence is accepted.
[98] Despite Mr Nieberg holding a position of considerable accountability and responsibility as Safety Officer his evidence gave the impression he was of the view that if a safety matter had been reported he had fulfilled his responsibility and it was then over to management. Mr Nieberg’s role was broader than that and involved a shared accountability for deficiencies in safety which was at the very heart of his role.
[99] Mr Nieberg tended to seek to deflect responsibility for the identified safety deficiencies to either site supervisors, or directors for not supporting him. However given Mr Nieberg’s level of responsibility it fell to him to take action when others failed to comply with their safety obligations. I am inclined to accept that he did not escalate issues and insist on consequences being imposed on a failure to comply despite clear warnings that this was expected of him.
[100] At the same time the evidence also tends to indicate directors were less responsive then they should have been to the limited evidence that Mr Nieberg attempted to engage with them about safety concerns.
[101] Whilst there was some conflict in the evidence about the extent that Mr Nieberg indicated that management was unresponsive to his efforts to raise concerns, the balance of the evidence tends to support the conclusion that directors had offered to assist him to enforce safety over specific issues and generally it appeared Mr Nieberg was not sufficiently active in attempting to enforce safety either with site supervisors, or in escalating specific concern when he struck resistance.
[102] The evidence of Mr Cliff Robertson was that Mr Nieberg acknowledged that he was unable to obtain safety compliance from onsite personnel. The evidence of Mr Brian Heran and Mr Martin Heran was that they were increasingly frustrated as a result of the performance issues and discussed their concerns with Ms Heylen who issued instructions to Mr Nieberg.
[103] Whilst Mr Nieberg denied that he failed to implement safety initiatives and solutions, the evidence of Mr Brian Heran, Mr Martin Heran, Mr Stuart Knock, Mr Peter Honeyman and Mr Cliff Robertson is that Heran’s jobsites consistently posed unacceptable safety risks because Mr Nieberg’s was not carrying out his responsibilities.
[104] Heran submitted Mr Nieberg failed to implement adequate control measures to enforce safety across sites. The photographs attached to the statement of Mr Brian Heran showed Heran’s sites littered with rubbish and inadequate fencing resulting in Heran’s sites being left open and unsafe.
[105] I have taken into account the evidence of Mr Harris that was to the effect that he resigned because of what he described as a poor culture of compliance, and because management did not back him up. This would have been of more assistance to Mr Nieberg had Mr Nieberg demonstrated he had been escalating issues to management and actively pursuing enforcement of safety however there is little evidence to prove that he was.
[106] It is also appears from the evidence that Mr Nieberg did not implement the comprehensive drug and alcohol testing system to the extent that Heran had wanted implemented. The testing was not conducted fortnightly and at random. Mr Nieberg gave reasons as to why this didn’t occur, however there was not clear evidence of Mr Nieberg taking acting steps to overcome the obstacles he claimed was preventing implementing the proper roll out of the program.
[107] Having considered all of the evidence, I am satisfied Heran had a valid reason to dismiss Mr Nieberg based on his performance over an extended period as Safety Officer in not taking measures necessary to ensure Heran’s jobs sites complied with workplace health and safety legislation and other safety related obligations, or to assertively escalate matters when personnel failed to comply with the relevant safety requirements.
(b) Whether the person was notified of that reason
[108] Mr Nieberg was notified of the reasons for his termination in the termination letter dated 2 June 2017, namely the matters the subject of the three earlier warnings issued.
(c) Whether the person was given an opportunity to respond to any reasons related to the capacity or conduct of the person
[109] Mr Nieberg had an opportunity to respond given he was issued three written warnings prior to the decision to terminate his employment.
(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
[110] There was no evidence of a refusal by the employer to allow Mr Nieberg to have a support person.
(e) If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about the unsatisfactory performance before the dismissal
[111] Mr Nieberg was issued three written warnings prior to termination.
(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
[112] Heran’s Form F3 response to the application said that it had 62 employees. Heran’s size was not a factor likely to impact on the procedures followed in effecting the dismissal.
(g) The degree to which 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
[113] Heran did not have a dedicated human resource management specialist. The Administration Manager Ms Heran oversaw the procedures followed in effecting the dismissal. Ms Heylen did not give evidence that she was a human resource management specialist.
(h) Any other matters that the FWC considers relevant
[114] Mr Nieberg’s length of direct employment with Heran was not particularly lengthy, at approximately 15 months. Mr Nieberg said that he was 65 years of aged but was still not eligible to claim a pension.
Conclusion on Harsh Unjust or Unreasonable
[115] After having weighed each of the matters that are required to be taken into account under section 387 of the Act I have concluded that dismissal is not harsh, unjust or unreasonable and on that basis the application is dismissed.
COMMISSIONER
Appearances:
Mr A. Neiberg appearing on his own behalf
Mr S. Knock appearing for the Respondent.
Hearing details:
2017,
Brisbane:
October 18
1 Transcript PN 235
2 Exhibit 1
3 Exhibit 4
4 Exhibit 6
5 Exhibit 7
6 Exhibit 8
7 Exhibit 9
8 Exhibit 10
9 Exhibit 11
10 Exhibit 12
11 Exhibit 13
12 Exhibit 14
13 Transcript PN 55
14 Transcript PN 233
15 Exhibit 1 attachment A
16 Exhibit 1 para iii
17 Exhibit 2
18 Exhibit 1 attachment A
19 Exhibit 12 para 5
20 Exhibit 12 para 6
21 Exhibit 13 para 7
22 Exhibit 14 para 1
23 Exhibit 14 para 3
24 Transcript PN 857
25 Transcript PN 866
26 Exhibit 14 para 6
27 Exhibit 14 para 7
28 Exhibit 1 attachment B
29 Exhibit 9 para 6
30 Exhibit 8 para 3
31 Transcript PN 348- 369
32 Exhibit 9 para 8
33 Exhibit 1 attachment D
34 Exhibit 1 attachment E
35 Exhibit 9 para 9
36 Exhibit 9 para 4
37 Exhibit 1 attachment F
38 Exhibit 1 attachment G
39 Exhibit 1 attachment H
40 Exhibit 1 attachment I
41 Transcript PN 341
42 Exhibit 1 attachment J
43 Exhibit 1 attachment K
44 Exhibit 1 attachment L
45 Exhibit 9 attachment SH 5
46 Exhibit 3
47 Transcript PN 374
48 Transcript PN 406
49 Exhibit 11
50 Transcript PN 739
51 Exhibit 9 attachment SH 6
52 Exhibit 9 attachment SH 7
53 Exhibit 1 attachment N
54 Exhibit 7 para 8
55 Transcript PN 472
56 Exhibit 7 para 3
57 Exhibit 7 para 8
58 Exhibit 12 para 3
59 Transcript PN 311
60 Exhibit 12 para 4
61 Transcript PN 759
62 Transcript PN 781
63 Transcript PN 820
64 Exhibit 13 para 3
65 Exhibit 13 attachment SH1
66 Exhibit 4
67 Exhibit 4 para 5
68 Transcript PN 550 – 553
69 Transcript PN 622
70 Exhibit 6 attachment SK 1
71 Exhibit 10
72 Transcript PN 693
73 Transcript PN 694
74 Transcript PN 892
75 Transcript PN 511
76 Exhibit 9 para 14
77 Transcript PN 242-259
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