[2017] FWC 1574

FAIR WORK COMMISSION

DECISION

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

Mr Christopher Strauss
v
Patrick Projects Pty Ltd
(U2014/5970)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 17 MARCH 2017

Application for relief from unfair dismissal.

[1] Mr Strauss filed an application pursuant to section 394 of the Fair Work Act 2009 (the Act) on 26 March 2014 seeking a remedy for his alleged unfair dismissal by Patrick Projects Pty Ltd (the respondent). Mr Strauss was employed by the respondent on 23 July 2012. His employment was terminated by the respondent on 18 March 2014.

[2] The hearing of this application was delayed by the lodgement and resolution of various Full Bench appeals from the decisions of other Members of the Fair Work Commission (the Commission). Mr Strauss’ application, with the applications of Mr King, 1 Mr Deeney,2 Mr Hughes,3 Mr Park4 and Mr Seiffert,5 was then allocated to me for arbitration.

[3] Mr Strauss represented himself and the other five applicants. I have referred to the six applicants as the “concurrent applicants”.

[4] The respondent was represented by Mr Duncan Fletcher, solicitor of K & L Gates. I granted Mr Fletcher permission to appear after I had considered the requirements of s.596(2)(a) of the Act and the complexity of the issues which were apparent in all six applications which the concurrent applicants wished to have heard together.

[5] I heard Mr Strauss’ and Mr King’s applications in Perth on various dates commencing on 8 August 2016. I received a very large number of exhibits, some of which were relevant to the other applications and some of which were only relevant to Mr Strauss’ application. Mr Burton, a witness for the respondent, gave evidence in both Mr King’s 6 and Mr Strauss’ applications. When determining Mr Strauss’ application I considered the statements and oral evidence of Mr Burton in both applications.

[6] Mr Strauss’ employment was governed by the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015 (the Agreement), a Memorandum of Understanding Deed (MOU) between the respondent and the Maritime Union of Australia (MUA) and his contract of employment, in conjunction with the policies of the respondent not inconsistent with these instruments. Mr Strauss submitted that all of the conditions in the MOU were and are still applicable and enforceable employment conditions. 7

[7] I initially agreed to hear Mr Strauss’ evidence regarding remedy, the respondent’s evidence on remedy and the parties’ final submissions after the evidence in all six applications had been completed. However, having read the transcript of the proceedings to date in Mr Strauss’ application in early 2017, I reconsidered that issue and required Mr Strauss and Mr King to complete their evidence and submissions before completion of the four other applications which, in common with Mr Strauss’ application, all involved the issue of genuine redundancy. I heard the final evidence of Mr Strauss and of Mr Burton, the previous Business Manager of the respondent and final submissions from both parties by video link between Perth and Sydney on 14 and 15 February 2017. The parties filed written submissions after the hearing.

[8] It is necessary for me to determine whether Mr Strauss’ termination of employment was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act which is set out below:

“387. Criteria for considering harshness etc.

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

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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures for followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[9] Mr Strauss was notified on 19 February 2014 that his position would be made redundant on 20 March 2014. He submitted that that termination of his employment by way of redundancy on 20 March 2014 (the proposed termination of employment) would have been harsh, unjust or unreasonable. However, before his employment was brought to an end by that redundancy notice, his employment was terminated on 18 March 2014 (the actual termination of employment) in circumstances which he alleges were also harsh, unjust or unreasonable.

[10] Mr Strauss identified the basis of his contention that his actual termination of employment on 18 March 2014 was harsh, unjust or unreasonable at paragraph 3.2 of his application.

“1. The employer directed the applicant to attend a show cause meeting on the 18th March 2014.

2. The show cause letter was dated the 14^th March 2014 and was on a day when the applicant was not rostered on for work.

3. The applicant wrote to the employer extensively canvassing the previous employment history and numerous matters which remained unresolved.

4. The applicant pointed out that there was insufficient time to investigate the matters raised in the show cause letter, that Scott Orpin had already decided the outcome and that serious limitations had been placed on the role of the support person.

5. The applicant declined to attend the meeting on the 18^th March 2014.

6. The respondent had already terminated the employment contract between it and the applicant by letter of the 19^th February 2014 which was to take effect on the 20^th March 2014.

7. The respondent purported to dismiss the applicant to avoid paying his entitlements to redundancy under his employment contract.

8. The respondent made no payment to the applicant at termination.”

[11] Correspondence from the respondent to Mr Strauss regarding his actual termination of employment is extracted below.

“Your serious misconduct

It has come to our attention that on 29 January 2014 you wrote to Scott Hynes at Agility Project Logistics Pty Ltd (Agility) and that you did so on behalf of 6166 Pty Ltd (Your Letter).

As you are aware, Patrick Projects Pty Ltd (Patrick) provides stevedoring services to Agility for the Gorgon Project.

In your letter you have made allegations regarding Patrick operations. You have also told Agility both in Your Letter and via numerous other communications with Scott Hynes that you and 6166 Pty Ltd, being a company wholly owned by you, are available to provide services which are currently being performed by Patrick (Stevedoring Proposal).

You have also sent communications to Scott Hynes which included an MLF North Yard Line Marking Proposal and an MLF South Yard Line Marking Proposal and asking Scott whether Agility is looking for someone to reinstate the fleet wash (Proposals).

Your communications with Scott Hynes have also included making disparaging remarks about Patrick’s operations.

Your employment contract

On 8 August 2012, you accepted employment with Patrick on the terms set out in a letter of offer of employment dated 2 August 2012 and the Terms and conditions of Permanent and Maximum Term Employment (Terms) which were enclosed and which established your employment contract.

Clause 3.1 of the Terms provide the following.

3.1 Throughout your employment, it is expected you will:

(b) use all reasonable efforts to promote the interests of the Employer;

(c) disclose to the Employer any facts which might involve a conflict between your interests and the interests of the employer…

Clause 3.2 of the Terms provide the following.

3.2 During your employment you must not:

(a) act in conflict with the Employer’s best interests;

(b) on discovery, allow a conflict between your interests and the interests of the Employer to continue;

(c) prepare to be engaged or involved, or engage or be involved in any business or employment other than for the Employer except with the prior approval of the Employer;

(d)compete with the Employer;

(e) in performing your duties, accept any financial or other benefit except from the Employer…

Each of Your Letter, the Stevedoring Proposal and the Proposals individually are capable of constituting serious misconduct and are serious breaches of your obligations to Patrick in accordance with the Terms.

Combined, Your Letter, the Stevedoring Proposal and the Proposals demonstrate a clear intention from you not to be bound by the Terms.

Employee Handbook

At the commencement of your employment, you were provided with a copy of the 2012 Employee Handbook which contains policies, entitlements and obligations applicable to your employment (Employee Handbook).

Relevantly, clause 8 (Employee Responsibilities Code) of the Employee Handbook provides the following.

Every employee of Patrick has the responsibility to:

Behave honestly, courteously and ethically at all times

- Receive their manager’s approval before engaging in outside employment or standing for public office and disclose to their manager any other possible conflicts of personal or financial interest
- Not take advantage of property, information or their position, or opportunities arising from these, to achieve personal gain or to compete with or cause detriment to Patrick
- Must not give preference to personal interests, or the interests of other employees, where to do so would conflict with the company’s interests.

Your actions have demonstrated a complete disregard for your obligations under the Employee Handbook.

Requirement to attend a show cause meeting

Given the seriousness of Your letter, the Stevedoring Proposal, the Proposals and your approaches to Agility, Patrick has lost trust and confidence in your ability to continue working in accordance with the Terms and is considering terminating your employment for serious misconduct.

You are required to attend a meeting as outlined below with myself and Patricia Capelo (HR Advisor), at which time you will be provided with the opportunity to show cause as to why your employment should not be terminated for serious misconduct.

The show Cause meeting is scheduled as follows:

Date: Tuesday 18 March 2014
Time: 9am
Location: Patrick Bulk Site, Henderson (Cnr Rockingham Rd and Russel Rd)

You may bring a support person with you to the meeting should you wish. The role of a support person is to provide you with any support you may require during the interview. This may include taking notes and providing you with emotional support and comfort. The role of a support person is not to participate in the interview as an advocate on your behalf or as a witness.

If you intend to bring a support person, please inform Patricia Capelo, prior to the meeting, who your support person will be.

You may also provide a response in writing as to why your employment should not be terminated for serious misconduct. In order to provide us with suitable time to consider your response, please provide this response to Patricia Capelo by no later than 12 noon on Monday 17 March 2014.

Should you decline to attend this meeting or otherwise provide a suitable response, Patrick will make a decision regarding your ongoing employment based on the information currently before it.

------“ 8

and

“I refer to our letter to you dated 14 March 2014 (Our Letter) directing you to attend a show cause meeting at 9am on 18 March 2014 at the Patrick Bulk Site, Henderson (Cnr Rockingham Rd and Russel Rd (Show Cause Meeting).

The purpose of the Show Cause Meeting was to provide you with the opportunity to show cause as to why your employment should not be terminated for serious misconduct as set out in Our Letter.

Your allocation to attend the Show Cause Meeting

On 14 March 2014, you were given a lawful and reasonable direction to attend the Show Cause Meeting.

On 17 March 2014, you were allocated by sms text message in the usual manner for work on 18 March 2014 to attend the Show Cause Meeting.

On 17 March 2014, in response to your query regarding your allocation, Andrew Gill (Planning and Systems Manager) confirmed to you by email that you were allocated to attend the Show Cause Meeting.

I confirm that you did not attend the scheduled Show Cause Meeting today, in direct contravention of a lawful and reasonable direction given to you, and you have not provided an explanation for your absence from the workplace.

Decision to terminate you (sic) employment

Patrick has made the decision, based on all of the information available to it and your failure to respond specifically to the matters raised in Our Letter, to terminate your employment for serious misconduct on the following basis.

● The serious misconduct engaged in by you as set out in Our Letter.

● Continuing breaches of the terms and conditions of your employment, including failure to follow lawful and reasonable directions.

● Your actions demonstrating a clear intention from you not to be bound by the terms and conditions of your employment.

● A loss of trust and confidence in your ability to continue working in accordance with the terms and conditions of your employment.

Your termination for serious misconduct is effective immediately and you are not entitled to any notice of termination.

You will receive payment for only accrued but unused annual leave, unpaid salary and any other entitlements owed to you in accordance with applicable laws in circumstances of termination for serious misconduct.

Finally, I take this opportunity to remind you of your continuing obligations of confidentiality in respect of these matters.” 9

The Status Quo Clause

[12] The relevant sub clause is set out below:

“Settlement of Disputes and Grievances
……
13.3(e)

Status Quo – Whilst a matter is being progressed according to this clause, and subject to there being no stoppage of work as a result of a matter raised under this clause, the status quo shall be the state of affairs that existed prior to the issue that has been put in dispute.”

(my emphasis)

[13] Mr Strauss submitted that he had unresolved disputes with the respondent at the date of termination of his employment and that the status quo sub clause in the Dispute Settlement Procedure clause of the Agreement required that he be maintained in his employment until those disputes had been resolved. Mr Strauss submitted that he had not been trained in the proper process for the settlement of disputes and grievances and, in any event, the respondent did not follow the proper process in the disputes which were still outstanding. Mr Strauss identified some of the issues in dispute in his Final Submissions. 10 I have set out below some of the issues addressed in transcript which Mr Strauss alleged remained in dispute at the date of the termination of his employment:

● the failure of the respondent to meet its training obligations to Mr Strauss pursuant to clause 12.4 of the MOU (first notified on 17 December 2012);

● Mr Strauss’ removal from cranes;

● the lost opportunity for training arising from Mr Strauss’ removal from cranes;

● the failure of the respondent to provide information;

● verification of competency;

● the failure of the respondent to adhere to agreed outcomes regarding training obligations;

● training profiles;

● whether the respondent had an obligation to train Mr Strauss so that his pre-existing licences at commencement were up to the respondent’s standard;

● whether there are any safety concerns regarding Mr Strauss’ performance;

● whether he had been late for shifts as alleged by Mr Bennetto;

● the provision of a counselling letter;

● the resolution of the allegation that Mr Strauss called the safety manager, Mr Brokloff, an idiot;

● various random issues raised by Mr Burton on 7 July 2013;

● covert and overt bullying and harassment;

● correct paid hours;

● counted hours balancing;

● an alleged assault on 21 August 2013;

● the conduct of the Show Cause meeting, including the availability of a support person, arising from the investigation of a complaint of assault by Mr Baxter on 21 August 2013;

● the failure of the respondent to mediate between Mr Strauss and Mr Baxter;

● the timeliness of investigations generally (the respondent was generally slow but could be quick if it wanted to be and it was in the respondent’s interests);

● the failure to provide assistance or a psychological assessment;

● Mr Strauss’ alleged continual allocation to the wash bay;

● an inadequate mental health programme;

● claims of misconduct against Mr Strauss found to be substantiated;

● disputed investigation findings;

● payment of overtime;

● breach of employee confidentiality;

● abuse by Mr Mick Crisp at pre-start;

● failure to inform Mr Strauss as to the outcome of complaints;

● introduction of change;

● the requirement to sign a Deed Poll extinguishing his right to legal remedies and,

● various other connected issues.

[14] Mr Strauss’s Final Submissions in relation to the Status Quo/Dispute Procedure issue are set out below:

“31. Clause 13 in the Agreement sets out the procedure for settlement of issues, concerns, complaints, grievances and disputes (disputes).

32. Upon the reading a reasonable person would expect the meaning of raising disputes which is not specified nor limited can include by conversation, note, letter or email and or any other method of conveying any type of dispute albeit frivolous or serious.

33. Clause 13.3 (e) in the Agreement includes the part procedure for settlement of disputes that sets out status quo with words to the effect an that an employee's position will remain in status quo until the settlement of disputes raised.

34. Upon the reading a reasonable person would expect that if an employee raises a dispute then the dispute would be settled before the circumstances were changed.

35. A reasonable person would expect that if a serious dispute was raised about a serious issue such as bullying and harassment in the workplace whether overt by individuals or covert by management then that dispute would receive attention as a priority.

36. A reasonable person would expect that if the most serious dispute about termination of employment was raised then the most serious issue of termination of employment would not be effected until such a dispute was settled.

37. Clause 31 in the Agreement describes when a decision has been made to introduce major changes that are likely to cause significant effects on the employees then there is a duty to notify the employees about those major changes and hold discussions about those major changes, how to mitigate any adverse effects of the major changes and give prompt consideration to the employees concerns.

38. A reasonable person would expect that if a decision has been made to introduce major changes then the employees would simply be notified, consulted about adverse effects and have reasonable questions answered. 11

[15] The respondent’s Final Submissions in relation to the Status Quo/Disputes Procedure issue are set out below:

“2.22 Mr Strauss has also alleged that his employment could not be fairly terminated until all of the “disputes” he raised was addressed.

2.23 In particular, Mr Strauss submits that he raised a significant number of disputes with the Respondent, and that the status quo provision in clause 13.3(e) of the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012 - 2015 (Agreement) prohibited or prevented the Respondent from terminating his employment (including by reason of redundancy) until those disputes were resolved.

2.24 The Respondent notes that clause 13.3(e) ensures that the “status quo” is maintained whilst a dispute made in accordance with clause 13 of the Agreement is addressed and notes that Mr Strauss conceded that he was in attendance at an employee briefing where he was provided with a handout of the employee grievance process.

2.25 The Respondent rejects Mr Strauss’ submissions about the effect of clause 13.3(e) and says that this is not supported by the law. The Respondent refers to the decision in CEPU v Tasmanian Water Sewerage Corporation Pty Ltd where it was found at [61] as follows.

Given that the employer retains the right pursuant to the Agreement to summarily dismiss, the apparent freezing of such a decision by the dispute settlement procedure if, in any event, counterintuitive. It is easy to contemplate circumstances where the employer might seek to terminate the employment of an employee for serious misconduct, such as an assault. In my opinion, it would be contrary to commonsense and good industrial practice that an employee whom an employer intended to dismiss, for example, for assault upon a supervisor, could have that process brought to a standstill for a protracted period of time by the dispute settlement procedure and its sequelae in the Fair Work Commission. In my view, the summary dismissal power would remain outside this process.

2.26 In any event, the Respondent did attempt to deal with a number of the “disputes” a number of times, including the Mr Strauss’ overarching claims that there was ongoing bullying at the premises. It was Mr Strauss’ unreasonable demands and refusals to assist unless specific information was provided to his satisfaction that slowed this process down by the need to engage three different investigators, and for a meeting time suitable to Mr Strauss to be agreed.

2.27 The Respondent denies that Mr Strauss was terminated for any reason other than his serious misconduct, or that he was selected for redundancy in the proper sequence for any reason other than his commencement date with the Respondent. The respondent specifically denies Mr Strauss’ contention that employees, including Mr Strauss, were selected for redundancy purely to avoid the cost of an alleged obligation to provide training (which is denied).

2.28 Mr Strauss continues to allege that there was a connection between the training and the selection of his position for redundancy. This is plainly not true having regard to the Orders of Commissioner Cloghan (Orders) [Strauss Exhibit 342, page 32 – 34] which makes it clear that issues such as training and disciplinary history are only relevant if the required number of redundancies is not filled in accordance with the “first on, last off” principle. Mr Strauss’ commencement date fell within the date range for those redundancies and accordingly he was selected for redundancy [See also Strauss Exhibit 198]. ” 12

The Training Clause

[16] The training clause is set out below.

“12.4 Training

I. An agreed training matrix will be drawn up within 30 days of Patrick’s commencement at the AMC to ensure operational employees are trained by MTAG, another registered training organisation or the like in all applicable High Risk Licences and plant and machinery used on site, within 12 months of Patrick’s commencement at the AMC or the employee’s commencement date, whichever is later.

II. No employee will undertake high risk licence work or operate plant or equipment unless they have been VOC’d for such work.

III. Where possible, all employees will be trained on the job, with any training days being treated as a worked shift for the purposes of OMSA Agreement.”

(my emphasis)

[17] Mr Strauss submitted that the respondent had not fulfilled its obligations in relation to training and that, on reinstatement, the respondent would be obliged to fulfil those training obligations which it had, on commencement of his employment, undertaken to provide to him. He submitted that that training would be a valuable addition to his curriculum vitae and that it is a continuing disadvantage for him not to have had this training in the current economic climate. Mr Strauss’ submission in relation to training is outlined in transcript below:

“MR STRAUSS: I’m trying to explain, your Honour, that training is work. It’s paid work. It’s not related to any work from any client, so if there’s a month or two of no work because of bad weather, training can still be provided and should have been, under the employment conditions. If there was no work for a year training can still be provided and should have been, under the employment conditions. If there was no work for 10 years and so on. In other words your Honour, there were multiple types of work, and the same analogy could be drawn if the business didn’t have any of the plumbing work but it had work in the office the perhaps the plumber could go and help out in the office. It doesn’t mean there’s no work. It just means that there’s no part of that work.

THE SENIOR DEPUTY PRESIDENT: You might actually consider that the office work is actually producing a result for the employer, but if there is no task for the employees to perform, except to receive training, it’s hardly producing an outcome, is it?...” 13

(my emphasis)

[18] Mr Strauss’ Final Submissions in relation to the training clause are set out below:

“23. Clause 12.4 in the Deed includes words to the effect in that a training matrix will be drawn up to ensure all operational employees are trained in all applicable high risk licences and plant and machinery used on site, all employees will receive verification of competency (VOC) training before operating the respective plant and machinery and all training is a paid work activity.

24. Mr Strauss, Mr King and Mr Deeney gave evidence to the effect their interpretation was contrary to Mr Burton in that “all applicable high risk licences and plant and machinery used on site” means for example the high risk licences of rigging, dogging and crane operation and the plant and machinery such as trucks, forklifts and cranes are applicable as they are used on site and essential to operations on this and other sites.

25. Mr Park and Mr Seiffert were available to give evidence along the same lines and Mr Hughes will be available at hearing to give evidence along the same lines in future.

26. A reasonable person on the reading would see that “all applicable high risk licences and plant and machinery used on site” would not include a high risk licence such as steam boiler operation and plant and machinery such as steam boilers if the were no steam boilers used on site and no requirement to operate them.

27. Upon the reading a reasonable person would expect that all operational employees regardless of previous training would be trained in all applicable high risk licences and plant and machinery used on that site and “applicable” has intent and genuine meaning to exclude high risk licences and plant and machinery that are not used on that site.” 14

[19] The respondent’s Final Submissions in relation to the training clause are set out below:

“2.14 It was evident during the proceedings that a key complaint of Mr Strauss’ is that he was not provided with the training he believes he was entitled to under clause 12.4 of the memorandum of understanding deed 15 (MOU) between the Respondent and the Maritime Union of Australia.16 It is of import that the vast majority of the Strauss Submissions relate to the alleged enforceability of the MOU, rather than issues that the Commission is required to have regard in accordance with section 387 of the Fair Work Act 2009 (Cth) (FW Act).

2.15 The Respondent denies that Mr Strauss was entitled to be trained in all high risk licences, including ones that the Respondent did not require in order to perform the contract at that time.

2.16 Further, the Respondent submits that Mr Strauss’ position is not borne out by the language of clause 12.4, nor is it reasonable or logical commercially.

2.17 Mr Strauss relies upon the understanding of him and the other applicants of clause 12.4 of the MOU. With respect, this is neither helpful nor reasonable because:

(a) unlike Mr Burton, none of the applicants were involved in or present at the negotiations for the MOU, including those specifically dealing the inclusion of the word “applicable”; 17 and

(b) the interpretation of the MOU is a legal exercise which, with respect to the applicants, is outside of their knowledge and expertise; and

2.18 This is not assisted in any way by references to an unsubstantiated MUA rate sheet of which the Respondent had no knowledge.

2.19 The Respondent denies that the alleged failure to provide training prevents it from lawfully terminating Mr Strauss’ employment, either by way of redundancy (if that had occurred) or for serious misconduct.

2.20 The Respondent does not intend to respond to Mr Strauss’ submissions regarding the legal effect of the MOU save as to rely on the well established principles in Ryan v Textile Clothing and Footwear Union (1996) 130 FLR 313. The Respondent respectfully submits that the enforceability of the MOU is not a matter falling within the jurisdiction of the Commission arising under the FW Act.

2.21 Finally, Mr Strauss’ position that the Respondent was not able to make his position redundant whilst there was still an obligation to provide training is incorrect and inconsistent with the MOU and the law in relation to reduction of work and resulting redundancies within an enterprise. 18

“2.27 ……The Respondent specifically denies Mr Strauss’ contention that employees, including Mr Strauss, were selected for redundancy purely to avoid the cost of an alleged obligation to provide training (which is denied).

2.28 Mr Strauss continues to allege that there was a connection between the training and the selection of his position for redundancy. This is plainly not true having regard to the Orders of Commissioner Cloghan (Orders) which makes it clear that issues such as training and disciplinary history are only relevant if the required number of redundancies is not filled in accordance with the “first on, last off” principle. Mr Strauss’ commencement date fell within the date range for those redundancies and accordingly he was selected for redundancy.” 19

The Actual Termination of Employment on 18 March 2014

[20] Mr Strauss submitted that he was terminated from the employment of the respondent so that management could avoid resolving the many disputes he had raised with them, some of which I have identified.

[21] Training was an issue in dispute. Mr Strauss submitted that he was terminated from the employment of the respondent so that management could avoid the expense of complying with its obligations to train him in all high risk licences and machinery. 20

[22] Mr Strauss submitted that he was hampered in the resolution of these disputes by the failure of management to provide any training regarding the processes involved in dispute and grievance resolution and how to engage in them. He referred to the fact that the Employee Handbook, or as he referred to it, the Little Red Book, was supposed to be provided to all employees but was not printed and issued as required. 21 He and the other concurrent applicants therefore could not inform themselves as to the means of notifying and resolving disputes and grievances.

[23] Mr Strauss’ Final Submissions regarding his alleged misconduct and the procedural failures of the respondent are set out below:

“193. Mr Strauss gave evidence that at about end of 2013 or start of 2014 it was common talk and knowledge around the site that management had quoted against one's own client Agility Project Logistics (Agility) by quoting direct to Agility's client being KJV.

194. Mr Strauss, Mr King and Mr Deeney gave evidence, Mr Park and Mr Seiffert were in attendance at hearing and available to give evidence and Mr Hughes will be available to give evidence, that Mr Burton during inductions made presentations and representations along the lines of:

(a) “this is Australia's biggest ever project and it will be going for 50 years and we can be here then and your children and grandchildren might be working here”

195. Neither the Applicant's nor any employees in the workplace had any suspicion, information or knowledge there was any contract that might end in early 2014 until the “quoting against your own client” issue arose.

196. The nominal expiry date of the Agreement is 30 June 2015 more than 18 months later which indicates the employment will go to at least 30 June 2015.

197. Mr Strauss gave evidence of his view along the lines that management was undermining Agility in an attempt to win direct the same work that management already had and was performing and which was already secure by simple extension of the existing contract with Agility without risking any of the employee's jobs.

198. Mr Strauss gave evidence many employees were very worried about losing their jobs when most employees loved their job, worked hard and repeatedly did whatever they had to do as a team to get the required cargo processed, loaded and lashed ready for sail.

199. Mr Strauss and Mr Deeney gave evidence about an interaction with Mr Scott Hynes of Agility along the lines of the following.

(a) Mr Strauss was with his colleague Mr Deeney near the lunch truck when Mr Hynes was in the area.
(b) The trio greeted each other and a conversation ensued.
(c) Mr Strauss asked Mr Hynes “what do you think about us quoting against you and direct to your client?”.
(d) Mr Hynes stopped and replied sharply “fucking pissed off!”.
(e) Mr Strauss asked Mr Hynes “what does that mean for our jobs?”.
(f) Mr Hynes said “we are considering options”.
(g) Mr Strauss asked “so are you looking at Qube or Strategic or other ideas?”
(h) Mr Hynes asked “have you got any ideas?”.
(i) Mr Strauss said “maybe...”.
(j) Mr Hynes reached into his pocket and held out his arm outstretched and then said “if you have any ideas let me know what they are.”.
(k) Mr Hynes handed his business card to Mr Strauss.

200. Mr Strauss had not approached Mr Hynes with any intention to solicit any work but in effect had only enquired about the management upsetting the client and the employees keeping the jobs.

201. Mr Strauss gave evidence this was an invitation or instruction to contact Mr Hynes and let him know about any ideas to keep the cargo work at the AMC in any way possible.

202. Mr Strauss was perhaps therefore inadvertently enabled to assist Mr Burton in keeping the work at the AMC by talking with and perhaps consoling Mr Hynes so Mr Strauss asked Mr Burton about the issue and Mr Burton told Mr Strauss to look for other work.

203. Clearly Mr Burton and the management behaviour had:

(a) annoyed the client above,
(b) worried the employees below,
(c) risked losing the work from the AMC,
(d) risked losing the employees the jobs.

204. Mr Strauss was in no way trying to further jeopardise anything that Mr Burton had already risked by quoting against his own client.

205. There were communications between Mr Strauss and Mr Hynes on a one on one and personal basis, exploring what Agility might do about the employees and their jobs and those earlier communications were not via business entity or on business letterhead.

206. Mr Strauss had already verbally raised the issue so raised a dispute with Mr Burton by asking what was happening about quoting against Agility.

207. On 16 January 2014 Mr Strauss raised a dispute with Mr Burton by way of email with letter attached entitled “Loss of Confidence – Premature End of Contract”.

208. This dispute raised questions in relation to Mr Burton quoting against the one's own client, eroding Agility's confidence, risking the employment of all employees and breaching clause 31 in the Agreement.

209. Mr Burton did not respond to any of the verbal enquiries, the email or the letter and did not respond to or address the dispute that was raised in writing on 16 January 2014.

210. In response to Mr Hynes's request Mr Strauss made contact and asked if Agility might have any work on any other Agility projects, any other work around the AMC for other Agility subcontractors and if the situation presented in future then work at the AMC.

211. Mr Strauss did not in any way intend or actually upset or interject into the relationship between Mr Hynes and Mr Burton or between Agility and it's subcontractor.

212. Mr Strauss did not do anything in conflict with or not in the best interests of everyone concerned and if anything tried to promote the workforce skills that had been gained through working on the project.

213. Mr Strauss had been in business since the mid 1980s, provided a CV to Mr Burton through the application process and had came to employment with Mr Burton with business and company in place.

214. Mr Burton started and proceeded with redundancies even though the cargo work was not reducing and while the project was not ramping down.

215. Mr Burton was damaging the relationship and told Mr Strauss to look for other work.

216. Mr Strauss incorporated a new company 6166 Pty Ltd but this new company has never done any business, never had an Australian Business Number (ABN), never been issued a tax file number, never filed a tax return and never had a bank account.

217. Mr Scott Orpin provided a letter to Mr Strauss dated 14 March 2014 alleging serious misconduct.” 22

[24] Regarding the show cause meeting Mr Strauss made the following Final Submissions:

“218. Mr Orpin's letter on page 2 refers to “Requirement to Attend Show Cause Meeting”

219. Mr Orpin says:

“...you will provided with the opportunity to show cause as to why your employment should not be terminated.”

220. Mr Orpin had already decided Mr Strauss was guilty of serious misconduct without providing Mr Strauss any opportunity to provide any input into any investigation.

221. Mr Orpin's letter has not referred to any investigation that was undertaken of completed.

222. Mr Orpin's letter on page 2 refers to the “Employee Handbook” and claims Mr Strauss was “issued“ the Employee Handbook at the commencement of employment.

223. The Little Red Book containing the Employee Handbook was never printed and was never “issued“.

224. Page 16 of the Employee Handbook clause 15.4.1 asks: what if misconduct is alleged?

“If an allegation is made that you have engaged in misconduct or if you are suspected of engaging in misconduct then an investigation into the matter will take place.

As part of the investigation you will be given details of the allegations and will be entitled to provide a response to the allegations and your version of events surrounding the conduct. You will be entitled to be accompanied by a representative of your choice, as noted above.”

225. Mr Orpin refers to the procedures in the Employee Handbook but did not follow the procedures in the Employee Handbook.

226. Mr Orpin gave evidence along the lines that he did not know anything about:

(a) the circumstances around Mr Strauss's contact with Mr Hynes,
(b) whether it was Mr Hynes who invited Mr Strauss to provide ideas to Mr Hynes,
(c) whether Mr Hynes facilitated the ongoing contact between Mr Strauss and Mr Hynes by providing Mr Strauss with his contact details or
(d) whether Mr Hynes first contacted Mr Strauss or whether Mr Hynes first contacted Mr Strauss and when and how many times that may have been.

227. Mr Orpin gave evidence that one of his assistants asked if he wanted Mr Strauss to be contacted and interviewed to which Mr Hynes declined thereby intentionally preventing any investigation into the matter according to policies and procedures.

228. Mr Strauss gave evidence Mr Orpin sent his letter on a Friday afternoon of a rostered week off, there was an agreement in place that Mr Strauss would not be contacted during off swing or be expected to reply to management during off swing.

229. Mr Strauss gave evidence that the Monday after the Friday letter but before the scheduled meeting on the Tuesday morning was the Monday of Mr Strauss's “job search day” as provided by Mr Burton, so there was insufficient time to make any preparations.

230. Mr Strauss gave evidence that the representative of his choice was his lawyer Mr John Benari who was not contactable over the weekend and in any case it was unreasonable and inappropriate to require his lawyer as the representative of his choice to be contacted over a weekend and attend on such short notice.

231. Mr Orpin's letter on page 3 invites Mr Strauss to provide a response in writing.

“You may also provide a response in writing as to why your employment should not be terminated for serious misconduct.”

232. Mr Orpin had reiterated his own pre-determination that Mr Strauss was guilty of misconduct without providing Mr Strauss any opportunity to provide any input into any investigation and in any case Mr Orpin had not followed the procedure in the Employee Handbook.

233. Mr Strauss sent Mr Orpin correspondence on the morning of the scheduled meeting.

234. This correspondence by email included copies of many unresolved disputes.

235. This correspondence also included a letter raising a new dispute against Mr Orpin.

236. This new dispute letter advised Mr Orpin had not followed procedure, had not provided sufficient time for Mr Strauss to prepare and respond, had not provided sufficient time for Mr Benari to be contacted and organised and in any case, Mr Strauss had been previous told he was up on his counted hours and would not be allocated to come to work again as Mr Strauss was up on his counted hours.

237. Mr Orpin did not respond.

238. Mr Burton gave evidence in answering a question of Senior Deputy President Drake in that Mr Burton agreed that Mr Strauss was not provided sufficient time by Mr Orpin.

239. Mr Burton also gave conflicting evidence.

240. Clearly the way in which Mr Burton responds to whom he acknowledges as his superior is very different to the way Mr Burton responds to whom he considers his subordinate.

241. Mr Burton and Mr Orpin gave evidence that was evasive, dubious and conflicted.” 23

[25] In summary Mr Strauss submitted that:

“245. (e) Mr Orpin on 18 March 2014 terminated Mr Strauss's employment for misconduct, however, Mr Orpin did not:

i. did not follow procedure in the Handbook,
ii. did not provide an investigation,
iii. did not provide Mr Strauss opportunity to participate in an investigation,
iv. did not provide Mr Strauss sufficient time to prepare a response,
v. did not provide Mr Strauss sufficient time to arrange his representative,
vi. did not respond to Mr Strauss's written response on the day of the show cause meeting.” 24

“247. In these circumstances the dismissal due to misconduct was harsh, unjust and unreasonable under section 385 (b) of the Act.

Criteria for Considering Harshness

(a) There was no valid reason related to Mr Strauss's capacity or conduct.
(b) Mr Strauss was not given notification during his on swing. (which had finished)
(c) Mr Strauss was not given sufficient opportunity to respond.
(d) Mr Strauss was not given enough time to notify and organise his lawyer.
(e) The dismissal did not related to unsatisfactory performance of Mr Strauss.
(f) Mr Orpin quoted procedure but did not followed procedure in effecting dismissal.
(g) A large and complete human resources department was available at all times.
(h) There are many other matters the Commission might take into account.” 25

[26] The respondent submitted that Mr Strauss was required to comply with his obligations pursuant to his employment contract in the following fashion:

“(a) Use all reasonable efforts to promote the interests of the Respondent (clause 3.1(b)).

(b) Disclose to the Respondent any facts which might involve a conflict of interest between the Applicant’s interests and the interests of the Respondent (clause 3.1(c)).

(c) Be familiar and comply with all policies of the Respondent and the Asciano Code of Conduct in place or as varied or replaced, notwithstanding that the policies did not form part of the Employment Contract (clause 3.1(f)).

(d) Not act in conflict with the Respondent’s best interests (clause 3.2(a)) or allow a conflict between the Applicant’s interests and the interests of the Respondent to continue (clause 3.2(b)).

(e) Not prepare to be engaged or involved, or engage or be involved in any business or employment other than for the Respondent except with the prior approval of the Respondent (clause 3.2(c)).

(f) Not to compete with the Respondent (clause 3.2(e)).” 26

[27] The respondent submitted that Mr Strauss was also required:

● to keep confidential information confidential and not accept any engagement after termination of employment which required him to disclose confidential information;

● to meet his obligations at law including his duties of fidelity and confidentiality.

[28] The respondent alleged that it became aware on 28 February 2014 that Mr Strauss had:

● established a lift and shift company in competition with the business of the respondent; and

● had actively attempted to compete with and solicit work away from a client of the respondent to that company.

[29] The respondent became aware of Mr Strauss’ misconduct when Mr Scott Hynes, Operations Manager of a client of the respondent, informed the respondent that Mr Strauss had approached him on a number of occasions to discover whether Mr Hynes would be interested in pursuing opportunities with a provider other than the respondent. The respondent alleged that Mr Strauss had requested sensitive information from the client regarding tenders and had sent a number of text messages to Mr Hynes containing a number of “serious and disparaging” allegations about the respondent.

[30] In undertaking these approaches to its client, the respondent submitted that Mr Strauss engaged in serious misconduct by acting in conflict with his obligations pursuant to his contract of employment and also as to his fiduciary obligations to the respondent. The respondent submitted that Mr Strauss’ actions were inappropriate, had the potential to cause irreparable damage to the respondent’s reputation and viability and to irreversibly damage the relationship of trust and confidence between Mr Strauss and the respondent.

[31] The respondent denied that any previous complaints, correspondence or disputes between Mr Strauss and the respondent formed part of the reasons for Mr Strauss’ termination of employment.

[32] Having become aware of these issues the respondent attempted to meet with Mr Strauss and hear his response. That attempt failed.

[33] The respondent’s Final Submissions regarding whether there was a valid reason for the actual termination of employment are set out below:

“2.1 The Respondent submits that the evidence produced by Mr Strauss and the Respondent must satisfy the Commission that there was a valid reason for dismissing Mr Strauss, and that the dismissal was for reasons that were “sound, defensible or well founded”.

2.2 Mr Strauss agreed that the phone number at the top of the photos and the email address contained in the emails to Scott Hynes of Agility belonged to him. Mr Strauss however avoided admitting that he sent those text messages and emails, but did not provide any alternative reason as to how those texts and emails were sent from his phone and email.

2.3 During the proceedings, Mr Strauss has made assertions that he was approached by Scott Hynes of Agility and asked to provide proposals for Mr Strauss to carry out some work on Agility projects generally. 27 Mr Strauss has also alleged that he has documentary evidence to support this.

2.4 However, these allegations go no higher than that and Mr Strauss has continued to fail to produce any documentary evidence which he says is in existence and would prove his case. This is significant having regard to the voluminous (and, the Respondent submits, largely irrelevant) material filed by Mr Strauss in his case. It is therefore difficult to fathom that Mr Strauss would not produce evidence that would be such a vital part of his case. In addition, it was evident during the proceedings that Mr Strauss resisted any attempts to confine the issues in dispute as an impermissible curtailment on the presentation of each particular part of his case.

2.5 Further, it would have been open and reasonable for Mr Strauss to call Mr Hynes or seek an order that he be required to attend to give evidence to support his contentions. He did not do so.

2.6 The Respondent notes that a Jones v Dunkel inference may be open in the circumstances. In any event, the Respondent submits that this evidence is flawed and unreliable, particularly having regard to the wording of the text messages and emails Mr Strauss sent to Mr Hynes. For example, in a letter to Mr Hynes from Mr Strauss dated 20 January 2014, Mr Strauss stated (our emphasis):

We would like to offer our services and supply of lifting and shifting labour on Agility projects. If your current subcontractor ceases working for you on Gorgon then we can take up that role.
…
You might consider our unsolicited approach to you and advise in relation to further discussion.

(emphasis added)

2.7 It is also important that this is the first time that this explanation has been raised by Mr Strauss. This is the case, notwithstanding that Mr Strauss has stated that the letters sent to Mr Scott Orpin contained his response to the “Show Cause” letter dated 14 March 2014 and the letter to Eliza Anning of the same date was “connected” to his response. It is logical and reasonable that, if it were true that Mr Strauss had not made unsolicited approaches to Mr Hynes, that Mr Strauss would bring that to the Respondent’s attention. He did not do so at any stage before 9 August 2016.

2.8 Further, during the hearing Mr Strauss gave clear and voluntary evidence in chief that he had previously approached Mr Hynes and deliberately informed him of a rumour that the Respondent intended to “cut” Agility out of the contract with Chevron. The Respondent submits that this conduct is entirely consistent with its contention and evidence that it was Mr Strauss that approached Mr Hynes and made unsolicited offers of work and denigrating comments about his employer.

2.9 The Respondent notes that Mr Strauss did call Jason Deeney (Mr Deeney) in relation to this conversation with Mr Hynes. However, Mr Deeney’s evidence supported the Respondent’s position that it was Mr Strauss who approached Mr Hynes first. Mr Deeney’s evidence was that Mr Strauss, after enquiring inappropriately about a rumour involving his employer and its client, stated words to the effect, “Well okay, so you still looking for ideas”?

2.10 The Respondent notes that Mr Strauss has attempted to lessen the effect of Mr Deeney’s evidence in his recount of this conversation in the Strauss Submissions. Regardless, the Respondent submits that the clear implication of Mr Strauss’ words by themselves and in the context suggested that Mr Strauss had suggestions to make in respect of the work being performed (some of which was previously performed by the Respondent) and was actively looking to provide them.

2.11 Mr Strauss then did so, as well as making inappropriate comments about the Respondent to Mr Hynes. The Respondent submits that it is not, and should not be, permissible for an employee to make disdainful and denigrating comments about his or her employer’s commercial performance to their client which could have a damaging commercial effect. This alone, it is submitted, amounted to misconduct.

2.12 In any event, the Respondent submits that it has provided clear and undisturbed evidence regarding the delicate commercial environment at that time, as the Respondent was renegotiating its contract with Agility. In those circumstances, Mr Strauss’ conduct was particularly serious and was calculated towards harming the Respondent’s reputation. Having regard to Mr Strauss’ repeated contention that his company could perform the work if the “current contractor” lost it, the Respondent submits that it should be inferred that his conduct in betraying the confidence of the Respondent and making denigrating comments was designed to bring about a situation where the Respondent was no longer performing the work.

2.13 Mr Strauss has provided no compelling reason for these text messages and emails, other than to repeat that he was allegedly approached first by Mr Hynes, and that his employment would be coming to end on 20 March 2014 anyway by reason of redundancy.” 28

[34] The respondent’s Final Submissions regarding notification of the reason for the actual termination of employment are set out below:

3.1 The Respondent submits its actions were not procedurally deficient or lacking so as to demonstrate harshness, unfairness or unreasonableness. 29

3.2 On 14 March 2014 the Respondent wrote to Mr Strauss notifying him of the details of his conduct which had come to the Respondent's attention, and that given the seriousness of the conduct, the Respondent was considering terminating his employment (Show Cause Letter). 30 The Respondent submits that those details were sufficient for Mr Strauss to firstly know what the meeting was about, and to respond to the allegations. Mr Strauss has not denied that he provided the proposals and text messages to Mr Hynes and therefore, the Respondent submits that he would have known, and did know, what the allegations were referring to.

3.3 The Respondent denies that Mr Orpin’s actions were inconsistent with the procedure set out in the Employee Handbook, as alleged by Mr Strauss. Mr Orpin did not resile from his evidence that no final determination had been made regarding Mr Strauss’ employment as at the date of the Show Cause Letter, or at the date of the scheduled meeting. 31 He also agreed that it was possible that Mr Strauss may have provided information which would have explained the communications with Mr Hynes and may have militated against his employment being terminated for misconduct.32

[35] The respondent’s Final Submissions regarding an opportunity for Mr Strauss to respond to the reasons for the actual termination of employment are set out below:

“4.1 It was Mr Strauss’ choice not to turn up to the meeting, or to in fact notify anyone that he was not attending the meeting and it was this decision which led the Respondent to dismiss him because:

(a) the Respondent did not have any reason before it to justify Mr Strauss’ conduct; and
(b) accordingly, it could only proceed on the information before it.

4.2 In addition, whilst Mr Strauss has alleged that he did not have time to respond to the Show Cause Letter, he in fact send lengthy and detailed letters on the morning of the scheduled meeting, which he admits that he “probably didn’t start writing at 6am”. Therefore, Mr Strauss had sufficient time to consider the allegations put to him and to prepare these letters. Moreover, Mr Strauss did not notify the Respondent that he considered that he had insufficient time to prepare for the meeting.

4.3 Finally, much was said during the hearings that the Respondent did not set out in particular detail the allegations against Mr Strauss. With respect, the Respondent disagrees with this position and notes that the fact that Mr Strauss addresses his conduct in approaching Mr Hynes in his letter to Ms Anning 33 demonstrates that Mr Strauss was under no confusion or misapprehension as to what conduct he was alleged to have engaged in.”34

The proposed termination of employment on 20 March 2014 for redundancy

[36] Mr Strauss gave evidence concerning the particularly advantageous terms and conditions of employment for employees of the respondent working for Chevron on the Gorgon project. This included the advantages of not travelling extensively, of working on shore and the experience of working in the marine and oil and gas industries. 35 He also outlined these benefits in his Final Submissions.36

[37] Mr Strauss gave evidence that Mr Burton, the most senior manager on site, advised Mr Strauss that his employment would continue long enough that Mr Strauss’ children could be working there. Mr Strauss submitted that he had accepted that Mr Burton was speaking for the respondent. 37

[38] Mr Strauss disputed that the project on which the respondent employed him had ramped down. His submissions on this issue are set out below:

“28. Mr Burton gave evidence to the effect that the words “Project Ramp Down” and “Gorgon construction project” mean the ramp down of the Respondent's work.

29. A reasonable person on the reading of the Deed would see the words “Project Ramp Down” and “Gorgon construction project” and not see any other words such as “Patrick Projects Ramp Down” or “Employer Ramp Down or just simply ”Work Ramp Down”.

30. The Applicants submit Mr Burton's interpretations seem ridiculous and motivated by defending what was done to save expense by stopping training and starting redundancy.” 38

“149. Firstly, a reasonable person on the reading of the Deed would quite simply see the words “Project Ramp Down” and “Gorgon construction project” and not see any other words such as “Patrick Projects Ramp Down” or “Employer Ramp Down”.

150. Secondly, the Applicants and a reasonable person would indeed need to be issued the Deed in order to read the Deed in order to consider and attempt any interpretation.

151. Thirdly, the graph showing TEU by Month shows oscillations, does not show any reduction in cargo, does not show any “Project Ramp Down” and does not show the “Gorgon construction project” coming to any end.

152. Fourthly, Mr Burton gave evidence confirming graph showing TEU by Month shows oscillations but does not show any reduction in the actual TEU by Month.

153. Fifthly, Mr Burton accepted the graph showing TEU by Month came from him and that the graph as a whole, the blue and red bars and resulting figures are correct.

154. Sixthly, Mr Strauss, Mr King and Mr Deeney gave evidence, Mr Park and Mr Seiffert were available to give evidence and Mr Hughes will be available to give evidence, to the effect the work did not reduce and the project did not ramp down. 39

160. On 19 February 2014 the workforce attended presentations about redundancy given by Mr Burton and his name can be seen on the front page.

[Strauss Evidence - Volume E - Annexure E23 – page 101 of 265]

161. During this presentation some of the workforce were given a redundancy pack.

162. In the redundancy pack envelope were several documents including a letter entitled “Termination of Employment Due to Redundancy” that was signed by Mr Burton and that was dated the same day of the same presentation that being 19 February 2014.
[Strauss Evidence - Volume E - Annexure E24 – page 111 of 265]

163. In the letter of termination at paragraph 5 Mr Burton said:

“Patrick has given consideration to whether there are any viable alternatives to redundancy, including redeployment, and has reached the view that unfortunately there are none.”

164. Accompanying the letter of termination was a list of “Current Opportunities”. [Strauss Evidence - Volume E - Annexure E24 – page 113 of 265]

165. The same “Current Opportunities” list accompanied other Applicant's letters of “Termination of Employment Due to Redundancy” that was signed by Mr Burton and that was dated the same day of the same presentation that being 19 February 2014.
[Common Evidence - Volume B - Annexure 40 – page 207 of 245] (Mr Deeney) [Common Evidence - Volume B - Annexure 40 – page 211 of 245] (Mr Hughes) [Common Evidence - Volume B - Annexure 40 – page 215 of 245] (Mr Park) [Common Evidence - Volume B - Annexure 40 – page 219 of 245] (Mr Seiffert) [Common Evidence - Volume B - Annexure 40 – page 222 of 245] (Mr Strauss)

166. Upon the list of current opportunities is a range of positions available at a range of locations with application closing dates ranging from 21 February to 13 March 2014.

167. Given the redundancy presentations were conducted and the redundancy packs were issued on 19 February 2014 then all of the “Current Opportunities” were available for re-deployment consultations and then implementation on 19 February 2014.

168. Mr Strauss gave evidence to the effect he was qualified for most if not all of the positions available but had not been consulted about “any viable alternatives to redundancy, including re-deployment”.

169. Mr Burton gave evidence along the lines he was not prepared or concerned to troll through employee files looking to match redundant employees with available jobs.

170. Mr Burton gave evidence he did not know what any of his other management personnel may or may not have done in relation to consultation with any of the 43 employees that had already been selected for involuntarily redundancy as to “any viable alternatives to redundancy, including re-deployment”.

171. Accompanying the letter of termination was a “Severance Payment Calculation”. [Strauss Evidence - Volume E - Annexure E24 – page 114 of 265]

172. Mr Strauss gave evidence he had not requested any “Severance Payment Calculation”.

173. Accompanying the letter of termination was a “Letter of Offer of Employment” signed by Mr Burton and dated the same day of the presentation that being 19 February 2014.
[Strauss Evidence - Volume E - Annexure E24 – page 115 of 265]

174. Mr Strauss gave evidence he signed the letter on 1 March 2014 but had not signed other documents in other places as he disputed the terms of the offer of employment and had marked the documents in numerous locations indicating references to the dispute.

175. Accompanying the letter of termination was a “Deed Poll” which was intended to effectively waive employment conditions and rights.
[Strauss Evidence - Volume E - Annexure E24 – page 118 of 265]

176. The orders of Commission Cloghan made 22 July 2013 were consent orders that included provisions in order for any future redundancies to be genuine.
[Order – PR539220 – C2013/1088 – 22 July 2003]

177. Order 7.1 states as follows.

“The redundancy of the redundant employees and any future redundancies that are effected consistent with the terms of this order are genuine redundancies...”

178. The orders do not mention the term “Deed Poll”

179. Mr Strauss gave evidence that his redundancy was not “effected consistent with the terms of this order” of Commissioner Cloghan's as Mr Burton had imposed a Deed Poll waiving all rights which was not specified, or mentioned or contemplated anywhere in the order.

180. Mr Strauss received a letter dated 4 March 2014 signed by Mr Burton entitled “Personal Grievance Outcome Letter” in relation to the merging group commencement dates. [Strauss Evidence - Volume E - Annexure E32 – page 151 of 265]

181. Mr Strauss gave evidence he was not afforded any opportunity to have any input into the grievance.

182. Mr Strauss gave evidence along the lines of while he had accepted the offer of employment in principle, he had simultaneously raised a dispute in that the conditions for any future redundancy to be genuine in the first instance, then the re-employment as a condition of any future genuine redundancy, as per the orders of Commissioner Cloghan, could not impose the conditions in the “Deed Poll” that Mr Burton required. (the word “dispute” is used twice)
[Strauss Evidence - Volume E - Annexure E52 – page 212 of 265]

183. Mr Burton gave evidence he did not consider a letter using the word “dispute” twice means a dispute was being raised.

184. Mr Strauss gave evidence as he had raised a specific dispute about his specific redundancy and re-employment and conditions being imposed, so his employment was not to move into redundancy but was to remain in status quo in accordance with clause
13.3 (e) in the Agreement, until the dispute in relation to redundancy was settled.

185. Mr Strauss received a letter dated 6 March 2014 signed by Mr Burton entitled “Letter of Offer of Employment”, however, this letter of offer of employment effectively reduced Mr Strauss's previous position from A Supplementary to B Supplementary.
[Strauss Evidence - Volume E - Annexure E55 – page 224 of 265]

186. The decision and reasons for decision by Commission Cloghan on 14 August 2013 had set down conditions that would provide for any future redundancies to be genuine including weighting for skills and competencies and attendance record
[Decision - [2013] FWC 5636 – 14 August 2003]

187. Mr Strauss gave evidence he had the most or one of the most extensive skills and competencies list on site, had a perfect attendance record and had not been consulted in relation how re-selection reduced Mr Strauss's previous position from A Supplementary to B Supplementary and neither does the letter explain re-selection or re-positioning.

188. On 11 March 2014 Mr Strauss in a letter to Mr Burton requested information in relation to Mr Burton saying “the Deed Poll must be signed before the company will provide any opportunity of casual work”.
[Strauss Evidence - Volume E - Annexure E62 – page 260 of 265]

189. Mr Strauss received a letter dated 14 March 2014 signed by Mr Burton with multiple headings including “Response to Dispute Regarding Deed Poll and Right To Legal Remedy”.
[Strauss Evidence - Volume F - Annexure F9 – page 26 of 208]

190. Mr Burton's “response” under the heading “Response to Dispute Regarding Deed Poll and Right To Legal Remedy” confirms Mr Strauss had raised a dispute and Mr Burton had acknowledge the dispute but Mr Burton had also included the follow threat.

“If you do not sign all of the necessary documents as set out in your letter of offer, you will not have accepted our offer of employment to you you will therefore not be employed as a B Supplementary employee.”

191. The decision and reasons for decision of Commission Cloghan set down conditions that any redundant employee will be re-employed without any contemplation of a Deed Poll.

192. Groups 4 and 5 were the first groups to be issued a “Deed Poll” to waive their rights. 40

[39] Mr Strauss submitted that he was advised by the respondent that his position was redundant at the same time that he was advised that there were no opportunities for redeployment. The respondent did not discuss any opportunities for redeployment with him in person. Mr Strauss submitted that there were opportunities for redeployment within the respondent’s family of companies. In particular Mr Strauss relied on Asciano’s document “Current Opportunities”. Mr Strauss submitted that there could be no proper consultation because there was no personal consultation. He submitted that, in the absence of personal consultation, the respondent was not in a position to know what Mr Strauss might find viable.

[40] Mr Strauss submitted that the respondent calculated his redundancy pay-out before the question of any viable redeployment was resolved through consultation. He submitted that this provides support for his proposition that redeployment was not genuinely considered.

[41] Mr Strauss submitted that on termination of employment the respondent’s retrenched employees were offered casual employment on specific terms and conditions. They were asked to sign on a Deed Poll the terms of which included a waiver of the previous terms and conditions of employment, including the right to on-going training, and any right to take action against the respondent arising from his previous employment.

“d) Pursuant to the Order, I acknowledge that my redundancy is genuine and will not make any claim arising from my length of service or the termination of my employment as a permanent employee (Redundancy Claims).

e) Where the process in the Order has been followed in relation to my employment, I acknowledge that this means that I am a casual employee and I will not make any claims, including unfair dismissal claims, against the Employer in reliance on not being a casual employee (Casual Claims).

f) This Deed may be used as a bar to any Redundancy Claims or Casual Claims.” 41

[42] Mr Strauss submitted that terminating an employee’s permanent employment on one day and offering casual employment on the next day made no sense and was inconsistent with a genuine redundancy.

[43] Mr Strauss objected to the respondent requiring him to treat as confidential Mr Burton’s second offer to place him on the casual placement list.

[44] Mr Strauss submitted that Mr Burton was an incompetent manager and his failures of performance were responsible for the failure of the respondent to keep its contract or to keep the project going. The downturn in work was not the result of the ramping down of the project. It was the result of Mr Burton’s incompetent management.

[45] Mr Strauss’ Final Submissions regarding genuine redundancy are set out below:

“243. If a dismissal due to redundancy is not a case of genuine redundancy then it is an unfair dismissal,

(a) Redundancies and future redundancies were the subject of a dispute and the order, decision and reasons for decision of Commission Cloghan on 22 July 2013 and 14 August 2013 which set down conditions in order for any future redundancies to be genuine and the redundancies were not consistent with the order.

(b) “Project Ramp Down” under clause 12.13 in the Deed had not occurred or started to occur at any time during 2013 as is demonstrated in the TEU by Month graph provided by Mr Burton on 9 January 2014.

(c) Mr Strauss's termination due to redundancy had already been decided before he attended a presentation to the masses about redundancy on 22 February 2014.

(d) While at the presentation on 22 February 2013, Mr Strauss received a redundancy pack including a “Letter of Termination of Employment Due to Redundancy” that is signed and dated on the same date 22 February 2013.

(e) Mr Burton in the “Letter of Termination of Employment Due to Redundancy” said there were no “viable alternatives to redundancy” including re-deployment when there were many alternatives and when Mr Strauss had not been consulted.

(f) The redundancy pack included “Current Opportunities” showing many current opportunities many of which were viable alternatives to redundancy including re- deployment.

(g) The redundancy pack included a “Deed Poll” intended to waive all the rights of Mr Strauss but which was not contemplated in the order, decision and reasons for decision of Commissioner Cloghan in order for any future redundancies to be genuine.

(h) Mr Strauss had not been consulted about his redundancy prior to receiving the “Letter of Termination of Employment Due to Redundancy” which was dated and signed 22 February 2013.

(i) Mr Strauss raised disputes about his redundancy which Mr Burton acknowledged in his letter dated 14 March 2014, however, Mr Burton did not progress the dispute but instead only referred Mr Strauss to the Order of Commissioner Cloghan that does not contemplate the Deed Poll in any case.

(j) Mr Strauss had raised many disputes with Mr Burton however Mr Burton had not put Mr Strauss's employment into status quo as required by clause 13.3(e) in the procedure for the settlement of disputes and grievances in the Agreement.

(k) Mr Strauss raised a dispute which on 11 June 2013 by way of Mr Burton's recommendations in the letter and promises in the meeting, was to be settled by
Retraining Mr Strauss in the cranes which is a specific job for the specific position of Mr Strauss's position so that specific position was not redundant until completion of re-training Mr Strauss in the cranes.

(l) The order, decision and reasons for decision of Commission Cloghan on 22 July 2013 and 14 August 2013 provided workplace rights under section 341.

(m) Mr Strauss's workplace rights were protected under section 340.

(n) Mr Strauss was subjected to coercion under section 343.

(o) Mr Strauss had not been trained according to clause 12.4 in the Deed which provides for training as paid work in Mr Strauss's position to be done and until that work in that position is done then the position of Mr Strauss is not redundant.

244. In these circumstances any dismissal due to redundancy would not be a case of genuine redundancy and would be unfair dismissal under section 385 (d) of the Act. 42

[46] The Respondent made the following Final Submissions regarding Mr Strauss’ Proposed Termination on Employment 20 March 2014 and the genuineness of that proposed redundancy:

“2.25 The Respondent rejects Mr Strauss’ submissions about the effect of clause 13.3(e) and says that this is not supported by the law. The Respondent refers to the decision in CEPU v Tasmanian Water Sewerage Corporation Pty Ltd 43where it was found at [61] as follows.

and

“6.1 The Respondent refers to and repeats its submissions at paragraph 2.25 above.

6.2 Mr Burton gave evidence that the Respondent gave effect to the decision to make Mr Strauss’ position redundant, as well as others within the relevant period according to the “last on, first off” principle, in accordance with the Orders. 45

6.3 Mr Strauss did not dispute, that:

(a) this was the third time there were not insignificant numbers of redundancies by the Respondent on the AMC site (Site); 46

(b) the employees on the Site were regularly briefed about ongoing redundancies; 47

(c) the employees, including Mr Strauss were in fact briefed about the redundancies which would take effect on or by 20 March 2014; 48

(d) the employees were also provided with a letter advising them of the redundancies, being “workplace changes”; 49 and

(e) the employees were also provided with a list of current opportunities on a number of occasions. 50

6.4 It is Mr Strauss’ position that the Respondent did not consult with him regarding a position of any one of the list of opportunities to which Mr Strauss would have had the skills and experience to perform, and which Mr Strauss actually wanted to perform.

6.5 Given the significant number of employees, all with remarkably similar skills and work experience, it was not possible nor reasonable for the Respondent to meet with each one and offer each of them positions that they may or may not have been interested in. Rather, the Respondent provided the employees with a list of opportunities for their consideration and to which they could identify which positions (if any) they individually considered that they had the capacity and experience and desire to perform. Armed with that knowledge, the Respondent could then take that matter further. This constituted the “first step” in the redeployment process. 51

6.6 A number of Full Benches have previously found that it would not have been reasonable to redeploy an employee in circumstances where that employee was provided with a list of vacant positions and failed to indicate any interest in any of the positions despite having time to do so. 52 Mr Strauss agreed that he did not advise the Respondent that he considered that he was able and interested in performing any of the positions in any of the lists of opportunities provided to him.53

6.7 In the present circumstances, the Applicants were provided with a list of current vacancies on 22 January 2014 and were also provided with a number of weeks to consider any vacant positions they believed were suitable and to indicate their interest to the Respondent. The Respondent submits that this was more than sufficient time for the Applicants to do so if they were in fact interested.

6.8 Finally, the Respondent submits that even if the Respondent had adopted a different approach to redeployment, and Mr Strauss’ employment was not terminated for serious misconduct, it would not have altered the outcome for Mr Strauss, as he had similar skills and experience to the other redundant employees and accordingly there is no certainty that Mr Strauss would have been redeployed to that particular position.” 54

CONCLUSION

A. ISSUES RELEVANT TO BOTH THE ACTUAL TERMINATION OF MR STRAUSS’ EMPLOYMENT ON 18 MARCH 2014 AND THE PROPOSED TERMINATION OF MR STRAUSS’ EMPLOYMENT ON 20 MARCH 2014

The Status Quo Clause

[47] For the purpose of considering s.387(a) of the Act in relation to the actual termination of Mr Strauss’ employment on 18 March 2014 and the proposed termination of Mr Strauss’ employment on 20 March 2014 I have decided not to resolve Mr Strauss’ contention that he was in dispute with the respondent in relation to the numerous issues identified by him. I am satisfied that the issues which Mr Strauss identified as issues outstanding at the termination of his employment, between himself and the respondent, are irrelevant to the issues for determination by me. I have therefore not made any findings regarding the merit of those disputes or the related conduct of the parties, referred to in great detail in Mr Strauss’ evidence. I do not consider that the determination of that issue to be necessary because of my finding regarding the operation of the status quo clause.

[48] No issue which Mr Strauss alleged was still in dispute at the date of termination of his employment was relied upon by the respondent for the termination of his employment.

[49] I am satisfied that the status quo clause in the Agreement does not have the effect argued for by Mr Strauss. Mr Strauss’ submissions in this regard are misguided. I have set out the relevant sub-clause again.

“Settlement of Disputes and Grievances
……
13.3(e)

(My emphasis)

There is nothing in this clause that dictates that the respondent has to maintain in all circumstances the employment of an employee who is involved at some stage or other in an unresolved grievance or dispute. This is particularly clear in circumstances where a genuine operational reason arises for the retrenchment of employees or where an unrelated instance of serious misconduct occurs. In this case the ramp down of the respondent’s work on the Chevron project had occurred and was a genuine operational reason for the reduction of staff and there was an unrelated allegation of serious misconduct which I will deal with in more detail later in this decision.

[50] I am satisfied that the Status Quo Clause was properly applied by the respondent. I am satisfied that the respondent maintained the status quo in relation to each dispute notified by Mr Strauss. The status quo clause requires that the state of affairs that existed prior to an issue being raised be maintained. That state of affairs was maintained in relation to Mr Strauss’ disputes, as unsatisfactory as he found those various states of affairs to be. The clause does not require Mr Strauss’ employment, or the employment of any other person, to be maintained if there is an independent genuine reason for the termination of employment.

[51] Mr Strauss conceded in evidence that serious misconduct would be an exception to his submission that his employment could not be terminated until all disputes were resolved.

“THE SENIOR DEPUTY PRESIDENT: I know that is your factual position. He is asking you whether it’s your submission that in relation to those things that you consider were not resolved, that until they were resolved your employment could not be terminated.

[75] As events unfolded the assumptions of the respondent did not matter since Mr Strauss did not make any effort to attend the meeting. He forwarded correspondence to Mr Orpin commencing further disputation. He did not seek further information about the matters that were referred to in the show cause letter or telephone to seek an adjournment. He did not attend the meeting and provide his version of the facts. He did not attend the meeting and ask for a separate occasion on which to address possible outcomes. Mr Strauss assumed the worst of the respondent’s intentions without making any inquiry and did not obey the instruction to attend the meeting.

[76] I have considered the possibility of procedural unfairness arising from the short time between the correspondence from the respondent and the show cause meeting and the fact that the respondent had conducted an investigation without interviewing Mr Strauss or providing him with a copy of the report. Despite these circumstances, the facts surrounding the termination of Mr Strauss’ employment and the details of the allegation of misconduct are such that I am satisfied and find that Mr Strauss’ prospects of providing a satisfactory explanation were so unlikely as to make no difference to the outcome of the meeting.

[77] I have considered the history of Mr Strauss’ employment, particularly the failure of the respondent to deal promptly with matters that ought to have been resolved. I am satisfied that this procrastination exacerbated the difficulties in Mr Strauss’ employment. I have considered Mr Burton’s and Mr Orpin’s evidence. I have considered the email forwarded by Mr Orpin to other management employees of the respondent and, unfortunately for him, copied to Mr Strauss after he had terminated the employment of Mr Strauss. That email is extracted below:

“Just letting you know we have today terminated a very difficult and problematic employee in Patrick Projects.

There is a very long history much of which has been under investigation that I have spoken to you about previously.

Specially, the Show Cause Letters outlines allegations Chris acted contrary to his employment contract and his T & C’s.

I flew to Perth/Fremantle to have a Show Cause meeting which Chris failed to attend.

Based on the evidence we have moved to terminate him today.

He will receive no support from the MUA and very little from the majority of the workplace.

Eliza has kept Fiona Mead in the picture.

Happy to discuss any matters relating to this.” 66

[78] I am satisfied that Mr Strauss was considered to be a difficult employee by those management employees of the respondent that he came into contact with. I have considered the history of disputation and complaint initiated by Mr Strauss against the respondent and its officers and I am satisfied that this history was a matter taken into account in the decision to terminate the employment of Mr Strauss without notice. I am nevertheless satisfied that Mr Strauss’ conduct which comprised his attempting to obtain a contract from an existing client of the respondent, making derogatory remarks about the respondent to its client and then failing to attend a meeting to discuss these issues when he could have done so without any difficulty had he wished to do so was, considered as a whole, constitutes serious misconduct which provided a valid reason for the termination of his employment on a summary basis.

[79] For the reasons I have already outlined, having considered s.387(a) of the Act in relation to the termination of Mr Strauss’ employment on 18 March 2014, I am satisfied that the respondent had a valid reason for the summary termination of the employment of Mr Strauss’ employment. I am satisfied that the respondent’s reasons for the termination of Mr Strauss’ employment without notice on 18 March 2014 were sound, defensible and well founded.

[80] Having considered s.387(b) of the Act in relation to the termination of Mr Strauss’ employment on 18 March 2014, I am satisfied that Mr Strauss was notified of the reason for his termination of employment.

[81] Having considered s.387(c) of the Act in relation to the termination of Mr Strauss’ employment on 18 March 2014, I am satisfied that Mr Strauss was given an opportunity to respond to the reasons related to his conduct for which termination of employment was being considered. I am satisfied that Mr Strauss did not avail himself of that opportunity.

[82] Having considered s.387(d) of the Act in relation to the termination of Mr Strauss’ employment on 18 March 2014, I am satisfied that there was no unreasonable refusal by the respondent to allow a support person to be present to assist Mr Strauss.

[83] Having considered s.387(e) of the Act in relation to the termination of Mr Strauss’ employment on 18 March 2014, I am satisfied that this consideration is not relevant.

[84] Having considered s.387(f) of the Act in relation to the termination of Mr Strauss’ employment on 18 March 2014, I am satisfied that this consideration is not relevant.

[85] Having considered s.387(g) of the Act in relation to the termination of Mr Strauss’ employment on 18 March 2014, I am satisfied that this consideration is not relevant.

[86] Having considered s.387(h) of the Act in relation to the termination of Mr Strauss’ employment on 18 March 2014, I considered whether the respondent’s failure to provide specific personal training to Mr Strauss in the Dispute Resolution Procedures of the Agreement had any relevance. I decided that it did not.

C. ISSUES RELEVANT TO THE PROPOSED TERMINATION OF MR STRAUSS’ EMPLOYMENT ON 20 MARCH 2014

[87] I accept Mr Strauss’ evidence concerning the advantageous terms and conditions of his employment with the respondent on this project. 67 There is no dispute that the Agreement made with the MUA was very beneficial to employees and that there were additional advantages to not working offshore or travelling to a fly in/fly out position. However, I do not consider this circumstance to be relevant to the determination of the issue before me. A redundancy is no less genuine because the position which has become redundant is a position highly valued by the retrenched employee and with manifest advantages for the retrenched employee.

[88] Mr Strauss submitted that, had it been offered to him, he would have accepted redeployment with the respondent or any other related entity across the country. However his submission on this issue is conditional. He would accept those offers because he considers that he would be entitled to receive, in any of those positions, the training which he should have received when he was employed by the respondent.

“I would have been consulted about my redeployment opportunities, the redeployment opportunities that were there would have been offered to me. I could have considered those or any of the others around the country or, indeed, in any redeployment within the group. I would have received all my training because that wasn't excluded in the orders of Cloghan C and the training wasn't linked to the project whether it ramped down or not or ramped up, indeed. So it would have been redundancy in a genuine - it would have been a genuine redundancy in any case if that had happened.” 68

(my emphasis)

[89] I reject Mr Strauss’ submission that there is some adverse inference to be drawn from the respondent having calculated his redundancy payout before the consultation process, as he sees it, was completed. I am satisfied that all employees considered for redundancy would have had their pay-outs calculated as part and parcel of ordinary commercial practice and careful preparation.

[90] Mr Strauss submits that he had to be consulted in person if there was proper consultation. I reject Mr Strauss’ submission that he was not consulted regarding the redundancies which occurred as a result of the ramp down. This was not a one-on-one process. The whole project was coming to an end. A large number of employee positions were being made redundant. There was a great deal of correspondence from the respondent to its employees regarding the proposed redundancies and PowerPoint presentations occurred at employee briefings. Handouts regarding the process and the possibilities for redeployment were delivered to employees. Mr Strauss remembers attending such a presentation. Mr Strauss was given a list of positions available. Mr Strauss neither applied for nor lodged an expression of interest for any of those positions.

“THE SENIOR DEPUTY PRESIDENT: He didn't ask you that, Mr Strauss. Would you just answer the questions. Do you remember the PowerPoint presentation occurred?

MR STRAUSS: Yes.

THE SENIOR DEPUTY PRESIDENT: There you go.

MR FLETCHER: Thank you. Do you remember the letter dated 22 January 2014 that said, "Dear Colleague", from Damian Burton, which was a notice of proposed workplace changes. Do you remember receiving that letter?

MR STRAUSS: Yes, I think that's in my evidence.

MR FLETCHER: It is in your evidence. There was a form 1 and form 2 which is an expression of interest for voluntary redundancy and a request for voluntary redundancy calculation estimate.

MR STRAUSS: Okay.

MR FLETCHER: Did you ask for one of those estimates?

MR STRAUSS: No.

MR FLETCHER: You didn't indicate that you wanted to take voluntary redundancy?

MR STRAUSS: No.

MR FLETCHER: At the same time, you were also provided with a list of current Asciano career opportunities, weren't you?

MR STRAUSS: I think we were on multiple occasions.

MR FLETCHER: Yes, so I've got - in your materials there's a list that would appear to have been provided on 22 January and then another one that was provided on 19 February, which - were they the only two occasions or were you provided - - -

MR STRAUSS: No, I think the first list came out in - look, I don't have the materials in front of me and there's so many of them, but I think it was sometime after, you know, that July or August. I think there was multiple times that - because the list of course kept changing over the course of several months or several redundancy processes or whatever.

MR FLETCHER: Yes. You also got the frequently asked questions document. Is that right?

MR STRAUSS: Yes.

MR FLETCHER: Did you either apply or lodge an expression of interest for any of the positions that were on any of those lists?

MR STRAUSS: No.” 69

(my emphasis)

[91] I accept Mr Burton’s evidence regarding the non-availability of redeployment with the respondent. He distinguished between viable alternatives to redundancy and expressions of interest for other roles. He acknowledged that he did not personally consult with Mr Strauss. In cross-examination his evidence was that there were no available standing positions.

“Are you able to explain or comment or allude to why Patrick would have the view there are no viable alternatives to redundancy, including redeployment, when at the same time the greater company is asking for expressions of interest from stevedores in three different ports, Fremantle, Darwin and Dampier? I think probably the most logical response to that question is that it's an expression of interest. There were no standing roles. If you look at the individual positions available, it's clear that, you know, at Fisherman Island they need a forklift operator, or maybe more but let's assume it's a forklift operator. And they must have a clear vacancy for that. The expression of interest, maybe Patrick was, you know, anticipating that it might win more contracts and so it's having a look at the market, seeing, you know, what level of capability it is out there. If it did win a contract, how quickly were people available. But I think the most important point of all is that it's an expression of interest. It's – there's no specific role advertised.” 70

(my emphasis)

[92] Mr Burton described what the respondent did in relation to redeployment opportunities and what he considered to be the role of each individual employee in that process.

“The 13 March is – well, it's almost a month after the 19th, perhaps three weeks or so after the termination. Then I put it to you that that's a redeployment opportunity. Can you comment on that?---So I think my comment would be that you have to remember context of the time, the number of people and individuals involved that each individual had a responsibility to play a part in the management of their own future destiny. I think if you look with – and, I mean, certainly her Honour will do this when she makes her decision, but if you look at this with a, you know, a cold set of eyes you'd say, "Okay, what did Patrick do for its employees?" So on 22 January it announced that it was thinking about that this situation was occurring, and that if various things played out the way they might, this is a likely outcome.

At the same time, as well as giving emotional support, et cetera, et cetera, at the same time they provided a list of jobs that were available within the business. There was very clear dates outlined as to what may happen, no certainty, and again nothing in life except one or two things are certain; that, you know, these options were there. The HR team were there and again I, you know, indicated you may well have been having discussions with them about various parts of this, but I don't think you are identifying in the way you are discussing this the individual's role in playing a part in this.

We were certainly not of a view that we were going to force someone to move to Port Botany. That was an individual's role. We absolutely gave them the information, and I know that people came to the HR department and talked about, "Should I move to Port Botany? What's the salary? What's it like? Are you going to give me assistance?", and the like, and in the end no one chose to, you know, to facilitate that outcome. So I think when you look at what any reasonable person would except an employer to do, it's provide consultation; it's provide the opportunity for information as we best understand it at the time, which, you know, this list certainly does. It provides the opportunity for people to come and talk, discuss.

You know, there is a website there. People could do that, they could come and talk to HR, so there was multiple opportunities for advice and information to be given. It's certainly – you know, when you look at the numbers of people that we are talking about I think it's an unrealistic expectation that we were going to fish through someone's record to say, "I knew you came from Geelong, so we thought this might interest you". We were a reasonable employer dealing with very large numbers of people who – you know, and provided them with the best information that we could.” 71

“Yes?---I don't think anyone denies that, but the consideration is here, is we we're not going to say to you, "Chris, you have to move to Geelong". Okay. Or, "Let's talk about a skill which you've said you're qualified for. You do not have to move to Fisherman's Island in Brisbane". Okay. But what our role was to provide you the opportunity to make a considered and informed decision as to whether that was best for you. You knew your skills absolutely. You know, I think you knew that already. We've provided you with that information and we were happy to attempt to facilitate those on your behalf. Now, we knew what positions were available with absolute certainty but we also know that, you know, there was an assumption that you had, you know, played a part in this as well.

THE SENIOR DEPUTY PRESIDENT: Could I just summarise the position just so I understand what you're saying, Mr Burton, is that you made the positions available and left it to the employees to apply? Is that what you did?---I wouldn't put it quite that as coldly as that, your Honour.

I didn't intend it to be cold. I'm just trying to be accurate?---In its most succinct form, yes, your Honour. No, in fact, that doesn't do it justice because we also sought – went out to the other business units and said, you know, "We've got this group of people coming off line, you know, do you have any vacancies? Is there much there?" So it wasn't just, "Here have a letter, you go and look", there was a much more engaged – we were much engaged in the process than that.

All right. When you'd done that you made them available for people to make application?---Yes. That's right, yes.” 72

(My emphasis)

[93] I am not persuaded by Mr Strauss’ submission that there was some impropriety in the offer of placement on a casual employment list to employees whose positions had been made redundant. There was nothing in the terms on which this offer was made which was inappropriate. It was a matter for the respondent to decide on what terms such a placement would be made. Mr Strauss rejected that offer for reasons that were without merit, not in his own best interests and demonstrated a misunderstanding of the offer. That was his decision. Mr Burton offered Mr Strauss a final opportunity to accept a placement on the casual employment list but Mr Strauss rejected that offer.

“Response to dispute regarding terms and conditions of casual employment

I refer to your letter dated 12 March 2014 in which you continue to dispute the terms and conditions set out in the schedule to the letter of offer of employment.

Patrick has offered you employment as a B Supplementary casual employee on the terms and conditions set out in your letter of offer. If you do not sign all of the necessary documents as set out in your letter of offer, you will not have accepted our offer of employment to you and will therefore not be employed as a B Supplementary casual employee.

I understand there may have been some misunderstanding on your part and I am prepared to give you a final opportunity to accept the offer of employment by signing where indicated at the end of your letter of offer of employment, the deed poll and the schedule and returning the signed copies to me by no later than 10am on Monday 17 March 2014.

If you do not complete the above and agree to be bound by the terms and conditions of employment, as set out in your letter of offer, the offer of employment will lapse at your initiative and you will not be employed by Patrick.

I remind you of your obligations of confidentiality and that this is a confidential matter not to be discussed with any other employee or persons” 73

The Ramp Down Clause

[94] Mr Burton was the Business Manager on site during the course of and at the date of termination of Mr King’s and Mr Strauss’ employment. He gave evidence in both applications regarding the closure of the respondent’s operations on site at Henderson. He was aware of, and could confirm, the closure date of the project for the respondent as 31 December 2015. He could do this because he continued to have a close association with persons still on the site after he left the respondent’s employ in July 2015, and because of his current employer’s association with Chevron, the respondent’s client. He gave evidence that he had responsibility for that business, along with other portfolios, until he left the employ of the respondent 74.

[95] Mr Burton’s evidence was that the process of this project ramping down commenced in June 2013 when the respondent received an indication from its client that the work it provided would commence to decline from the date of notification.

[96] I accept Mr Burton as a witness of truth. I also accept that Mr Burton has particular and reliable knowledge concerning the respondent’s operational issues on this project. I am satisfied and find that from 31 December 2015 the respondent employed no more persons on that site 75. I am satisfied and find that the respondent’s work at the site is complete. The respondent’s contract with Chevron came to an end. On 31 December 2015 the last of the respondent’s employees at that site on that project were retrenched. The work on which Mr Strauss was employed came to an end on 31 December 2015. The project had ramped down.

[97] I accept Mr Burton’s evidence that any work that remained on this project went to QUBE in Fremantle. 76 He is aware of the transfer of that work because of his areas of responsibility in other parts of the respondents business.77

[98] Another of the concurrent applicants, Mr Jason Deeney gave evidence on 15 February 2017 regarding conversations he had had with Mr Burton regarding high-risk licences in plant and machinery and the expected longevity of employment on that site. His evidence was that Mr Burton mentioned that the project would be going for a long time. He estimated that it was possibly 70 years worth of project. 78

[99] In any conflict between the evidence of Mr Deeney and Mr Burton I have preferred Mr Burton’s evidence. I am satisfied that Mr Burton did not give any undertaking to Mr Strauss or any other employee that there would be multi-generational employment with the respondent at this site or on this project. Mr Burton’s evidence is consistent with the reality of the project and the terms of the Agreement.

[100] I accept that Mr Burton and others in management might have aspired to have achieved the longest period of work and employment, even including employment that extended beyond the expected timetable of the Gorgon project. Mr Burton acknowledged that there would have been potential for a continuation of employment if the contract with Chevron had continued. However, the facts are that the contract with Chevron was for two years, and when that ceased the work on the project for which Mr Strauss was employed ceased. The Agreement acknowledged that reality. Mr Burton’s evidence was that all parties involved in the negotiation of the Agreement understood that the project would eventually ramp down and close. I accept his evidence in this regard

“PN 7243 ----- to mean?---Okay. I think I indicated in, you know, evidence a moment ago that it was clear to us all from the outset that this was not likely to be a longstanding ongoing concern. It would last for a period of time, but it was always going to be a fixed period of time, and it was supporting the construction element. In fact it says that there, the Gorgon construction project, and so once - it was anticipated once the project was, you know, in operational, production phase that there would be no further agreement to that. In order to set that scene very clearly from the start so that there wouldn't be, you know, confusion potentially later on, you know, this was a negotiated clause between us and the MUA so that all parties to this arrangement very clearly understood that, you know, it was at some stage going to ramp down and close.”

[101] I was not persuaded by Mr Strauss’ cross-examination of Mr Burton that the respondent’s work did not ramp down and complete. Mr Strauss showed Mr Burton various graphs in an attempt to establish that the respondent’s work on this project was on-going. I am satisfied that Mr Burton is in the best position to be informed about and to give evidence about the ramp down and closure. In addition, the respondent’s operational conduct was consistent with Mr Burton’s evidence on these issues. He was questioned about the wording of the ramp down clause. Mr Strauss’ exchange with Mr Burton is set out below.

“PN 7314 So why does the clause, if you had development input authority over this clause, why doesn't the clause say something along the lines, as you just described, for example, when Patrick Projects work ramped down? Why does it say Project Ramp Down and Gorgon Construction Project, and there's no reference to Patrick Projects work ramping down?---Because I don't think that it's required under any - any reasonable person understanding the site, understanding the work, understanding the nature of the clause, would interpret anything different to what I am now.”

[102] I agree with Mr Burton’s answer. The plain English meaning of the clause is consistent with Mr Burton’s understanding.

[103] Mr Strauss submitted that any downturn in work arose from mismanagement of the project by the respondent. I put it to Mr Strauss that redundancies arising from mismanagement are nonetheless redundancies.

“THE SENIOR DEPUTY PRESIDENT: Yes, I know that. Take that as a given. If you would take it as a given that Mr Burton’s incompetence in the management of Patrick Projects is incompetent, and as a result the operations are unsuccessful in their work and lose work, the end result is that the workforce is stuck with that and some of those workers, their positions may become redundant. How does that make them any less genuine redundancies? It makes it unfortunate. You might point the finger of blame at inadequate management but it doesn’t make the redundancies that flow less genuine.” 79

[104] I have determined that the proposed retrenchment of Mr Strauss arose for genuine operational reasons.

[105] I am satisfied that there was no inappropriate offer of casual work at termination of employment. It was a satisfactory commercial arrangement, beneficial to both employees and the respondent alike, to have an agreed pool of casual employees to whom work could be offered as it arose.

[106] I am also satisfied that it was not an inappropriate requirement by the respondent that the Deed Poll provided by the respondent be signed by employees wishing to undertake casual work. Permanent employment at the site was at an end. The respondent was entitled to set the terms and conditions on which it offered casual employment to future employees. If Mr Strauss did not want to accept the terms and conditions of employment set out in the Deed Poll he was entitled to reject it. That is what he did.

[107] Having considered s.387(a) of the Act in relation to the proposed termination of employment of Mr Strauss’s employment planned for 20 March 2014, I am satisfied that that proposed termination of Mr Strauss’ employment arose from a genuine redundancy which would have been a valid reason for termination of Mr Strauss’ employment. I am satisfied that the respondent’s reasons for the proposed termination of Mr Strauss’ employment on 20 March 2014 were sound, defensible and well-founded.

[108] Having considered s.387(b) of the Act in relation to the proposed termination of Mr Strauss’ employment on 20 March 2014, I am satisfied that Mr Strauss was notified of the reason for his proposed termination of employment.

[109] Having considered s.387(c) of the Act in relation to the proposed termination of Mr Strauss’ employment on 20 March 2014, I am satisfied that Mr Strauss was given an opportunity to respond to the reason for which termination of employment was being considered.

[110] Having considered s.387(d) of the Act in relation to the proposed termination of Mr Strauss’ employment on 20 March 2014, I am satisfied that there was no unreasonable refusal by the respondent to allow a support person to be present to assist Mr Strauss.

[111] Having considered s.387(e) of the Act in relation to the proposed termination of Mr Strauss’ employment on 20 March 2014, I am satisfied that this consideration is not relevant.

[112] Having considered s.387(f) of the Act in relation to the proposed termination of Mr Strauss’ employment on 20 March 2014, I am satisfied that this consideration is not relevant.

[113] Having considered s.387(g) of the Act in relation to the proposed termination of Mr Strauss’ employment on 20 March 2014, I am satisfied that this consideration is not relevant.

[114] Having considered s.387(h) of the Act in relation to the proposed termination of Mr Strauss’ employment on 20 March 2014, I have considered whether the respondent’s failure to provide specific personal training to Mr Strauss in the Dispute Resolution Procedures of the Agreement had any relevance. I decided that it did not.

[115] For these reasons this application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr C Strauss appeared on his own behalf

Mr D Fletcher, solicitor of K & L Gates, appeared for the Respondent with Ms K Maric

Hearing details:

Perth

August 8, 9, 10 and 11

October 12, 13 and 14

November 23, 24 and 25

2016

February 14 and 15 by videolink Sydney/Perth

2017

1 U2014/7097

2 U2014/982

3 U2014/1008

4 U2014/983

5 U2014/1059

6 U2014/7097)

7 Final Submissions 17 February 2017

8 Exhibit Strauss 1

9 Exhibit Strauss 2

10 Final Submissions 17 February 2017 pn 39

11 Final Submissions 17 February 2017 pn 31 - 38

12 Respondent’s Final Submissions pn 2.22 – 2.28

13 TPN9079 – TPN9080

14 Final Submissions 17 February 2017 pn 23 - 27

15 Strauss Exhibit 341, page 167.

16 See for example, PN26, 8 August 2016.

17 PN9272 - PN9273, 15 February 2017.

18 Respondent’s Final Submissions pn 2.14 – 2.21

19 Respondent’s Final Submissions pn 2.27 – 2.28

20 Final submissions 17 February 2017 pn 57

21 Final submissions 17 February 2017 pn 72

22 Final submissions 17 February 2017 pn 193 - 217

23 Final Submissions 17 February 2017 pn 218 - 241

24 Final Submissions pn 245 (e)

25 Final submissions 17 February 2017 pn 247

26 Exhibit Respondent 10

27 PN678 - PN679 and PN732, 12 October 2016.

28 Respondent’s Final Submissions pn 2.1 – 2.13

29 Crozier v Palazzo Corp Pty Ltd (2000) 98 IR 173 at 151, [73]; contra Hutchings v Alex Fraser Group[2013] FWC 73 at [46] – [47] (Richards SDP).

30 Strauss Exhibit 282, page 38-40.

31 PN3704 - PN3707, PN3983 and PN3986, 23 November 2016.

32 Respondent’s Final Submissions pn 2.14 – 3.3

33 Strauss Exhibit 299, page 109.

34 Respondent’s Final Submissions pn 4.1 – 4.3

35 TPN7714 – TPN7716

36 Final Submissions 17 February 2017 pn39

37 TPN7731

38 Final submissions 17 February 2017 pn 28 – 30

39 Final submissions 17 February 2017 pn 149 - 154

40 Final submissions 17 February 2017 pn 160 - 192

41 Exhibit Strauss 242 (Annexure E24)

42 Final submissions 17 February 2017 pn 243 - 244

43 [2015] FCCA 2382.

44 Respondent’s Final Submissions pn 2.25

45 PN9443, 15 February 2017.

46 PN9458, 15 February 2017.

47 PN8739 - PN8742, 15 February 2017.

48 PN8739 - PN8742, 15 February 2017.

49 PN8750 - PN8751, 15 February 2017.

50 PN8758 - PN8759, 15 February 2017.

51 Jason Deeney & Ors v Patrick Projects Pty Ltd [2014] FWC 6700 at 16, per Williams C.

52 Marshall v UBS AG Australia Branch [2012] FWAFB 6852; MacLeod v Alcyone Resources Limited [2014] FWCFB 1542.

53 PN8764 - PN8765, 15 February 2017.

54 Respondent’s Final Submissions pn 6.1 – 6.8

55 TPN9015 – TPN9018

56 TPN7741 – TPN7744

57 TPN7878

58 TPN8810 – TPN8811

59 TPN 7236

60 TPN 7231

61 TPN9273

62 TPN9327 – TPN9329

63 Final Submissions 17 February 2017 pn 200 – 206

64 TPN2347 – TPN2355

65 TPN1815

66 Exhibit 302 – page [149 of 208] Volume F

67 Final Submissions 17 February 2017 pn39

68 TPN 8011

69 TPN 8747 – TPN 8765

70 TPN 9519

71 TPN 9577 – TPN 9580

72 TPN 9596 – TPN 9599

73 Exhibit Strauss 280 (Annexure F9)

74 TPN 7223

75 TPN 7295 - TPN 7297

76 TPN 9268

77 TPN 9269

78 TPN 9138

79 TPN 9076

Printed by authority of the Commonwealth Government Printer

Mr Christopher Strauss v Patrick Projects Pty Ltd

[2017] FWC 1574

17 MARCH 2017

DECISION