Mr Daniel King v Patrick Projects Pty Ltd

[2017] FWC 1583

[2017] FWC 1583

FAIR WORK COMMISSION

DECISION

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

Mr Daniel King
v
Patrick Projects Pty Ltd
(U2014/7097)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 17 MARCH 2017

Application for relief from unfair dismissal.

[1] Mr King filed an application pursuant to section 394 of the Fair Work Act 2009 (the Act) on 7 May 2014 seeking a remedy for his alleged unfair dismissal by Patrick Projects Pty Ltd (the respondent).

[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 King’s application, with the applications of Mr Strauss, 1 Mr Deeney,2 Mr Hughes,3 Mr Park4 and Mr Seiffert,5 was then allocated to me for arbitration.

[3] Mr Strauss, one of the other five applicants, represented Mr King. 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 King’s and Mr Strauss’ 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 all applications and some of which were only relevant to Mr King’s application. Mr Burton, a witness for the respondent and a former Business Manager for the respondent, gave evidence in both Mr King’s and Mr Strauss’ applications. When determining Mr King’s application I considered the statements and oral evidence of Mr Burton in both applications.

[6] On 25 November 2016 the respondent conceded that the termination of Mr King’s employment was harsh, unjust and unreasonable. I issued a Finding to that effect on 30 November 2016. 6

[7] Mr King’s 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.

[8] On Mr Strauss’ application I had agreed to delay Mr King’s evidence as to remedy until after the evidence in all six applications had been closed. However, after having read the transcript of the proceedings in Mr King’s application in early 2017, I reconsidered that issue and required Mr King’s application to be completed. I heard evidence regarding remedy from Mr King and from Mr Burton and took submissions by video link between Perth and Sydney on 13 February 2017. The parties also filed written submissions after the hearing.

[9] Mr King seeks reinstatement with payment of compensation for all monies lost to him as a result of the termination of his employment and continuity of employment. He seeks, as far as possible, to be restored to the position he would have been in had his employment not been terminated on 30 April 2014.

Mr King’s submissions in support of reinstatement

[10] In support of the remedy of reinstatement Mr King made a number of submissions. In these reasons for decision I have dealt with those submissions that I considered determinative.

[11] Mr King submitted that the respondent had had early opportunities to resolve this application, when he had submitted an anti-bullying application and on other possible occasions, but it had failed to do so. 7

[12] Mr King submitted that the respondent is a large employer with many direct employees and many employees in related entities and that therefore reinstatement would not cause any significant operational difficulty for the respondent. He should be reinstated to employment with either the respondent or a related entity.

[13] Mr King submitted that the Gorgon project, on which the respondent was performing work for Chevron, had not ramped down as contemplated by the Agreement. Because the project had not ramped down and work was still available, there was no impediment to his reinstatement. The project ramp down clause is set out below.

“12.13 Project ramp down

The MUA recognises that cargo handling operations at the AMC in Henderson Western Australia under the management of the KJVG are part of the Gorgon construction project. As a construction project, it is understood by the MUA that the employment of employees will come to an end as the project comes to an end and will be progressively terminated on the basis of first on last off after peak manning as a numbers in particular roles are no longer required. The MUA’s members will not seek to dispute a decision by Patrick to terminate employment in these circumstances and the MUA will not directly or indirectly represent or support an employee in bringing any legal action in the event of such a dispute.”

(My emphasis)

[14] Mr King submitted that he had outstanding disputes with the respondent at the date of termination of his employment and 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 in accordance with the dispute settlement procedure. Those disputes included his ongoing entitlement to training. 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)

[15] Mr King submitted that on reinstatement the respondent would be obliged to continue the training which it had, on commencement of his employment, undertaken to provide to him. That training would be a valuable addition to his curriculum vitae. It is a continuing disadvantage for Mr King not to have had that training in the current economic climate. 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)

[1] Mr King’s terms and conditions of employment with the respondent, from which he was excluded by the unjust termination of his employment, were considerably more advantageous than the terms and conditions of employment available with other workplaces in the same industry or connected to the same industry. He submitted that he should be restored to these conditions on reinstatement. These terms and conditions included training in high-risk licences and plant and machinery, a 10 hour per day 7 day on/7 day off roster, an all of pay rate that included ordinary time and overtime, a daily retention and continuity allowance, a yearly retention bonus, a high superannuation rate, five weeks annual leave which were able to be accrued, 13 days of personal leave per year which were able to be accrued and a 5% increase in salary per year.

[2] Mr King has a long history of employment as a stevedore, including a previous period with Patrick Stevedoring in Fremantle at the container terminal, and an immediately preceding period of employment with OMSA commencing in 2010, from which his employment was transferred to the respondent. Stevedoring is a family tradition of employment for Mr King. He wishes to be restored to work within that family tradition.

[3] Mr King gave evidence that he has recovered his health and that he is now fit and well and can return to work with the respondent. The ill-health from which he was suffering when he made his workers’ compensation claim, and from which he suffered until 30November 2016, has been improving and has now been eliminated. This has been brought about by my Finding that his termination of employment was harsh unjust and unreasonable. His ill-health has now evaporated completely. His evidence in chief was:

“PN 6365 Why do you feel you are fit to go back to work?---Well, because I feel as if I've been vindicated.  The last time I was in the Commission, it was November and it was like a big cloud - dark cloud - had lifted off my shoulders.  The stress was almost instantaneously removed to feel that after all this time that my position was the right one and I felt vindicated and that's continued every day since and I feel quite physically and mentally strong.  I have gone back to taking part in activities that I wasn't taking part in before socially, things around the house and - and, you know, the responsibilities that I had that I was struggling with are now seem to be things that I'm dealing with quite well.”

and

“PN 6371 You were talking about the ways in which you feel better.  Has anyone else, your family or your friends, commented on your appearance, behaviour?---Yes, most of the people that I deal with, my friends, note that I seem to be different, that I am more optimistic and my behaviour and my attitude and my conversation, everything, everything, you know, I'm just, yes, getting back to what they said I used to be like.”

[4] Mr King’s evidence was that he felt vindicated by my Finding.

“PN 6385 ---- Do you think that reinstatement back to the same company might give you even further vindication?---I think it would complete the circle.  It would - it would - yes, it would justify everything that I've been through and - because going - going through this process, you question yourself along the way and you have doubts.  But just think through it and you know that you're right and you continue the process no matter how hard it got at times.  And I think to complete the circle would be - would be definitely complete the vindication.”

[5] Mr King’s evidence was that he has now, and always has had, a positive attitude towards the respondent. He did not have a difficulty with the respondent during the course of his employment. His difficulties were confined to particular employees who either harassed and injured him, or particular managers at that particular site who failed to deal fairly with him in his employment. 8

[6] Mr King’s evidence was that those persons with whom he had difficulties are no longer employed by the respondent and that therefore he should now be able to be reinstated without difficulty. Although Mr King was not sure exactly who is employed by the respondent now, his evidence was that if all the present employees of the respondent are new he would have no problem with them. 9 His evidence was that he knows people who are employed by the respondent and who are in a good relationship with the respondent10 and he considers that he would be able to have a good relationship with the respondent as well. He had the Code of Conduct and relevant policies before him and he agreed that he could work as a team, sort out any differences and move forward.11

[7] In relation to which site he should be reinstated, Mr King’s evidence was that he would be open to being reinstated to any work site. 12

Conclusion regarding reinstatement

[8] I am required to consider whether the remedy of reinstatement is appropriate in the circumstances of this application.

[9] Mr Burton was the Business Manager on site during the course of and at the date of termination of Mr King’s employment. He gave evidence 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. 13

[10] 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.

[11] I accept Mr Burton as a witness of truth. I prefer his evidence to that of Mr King wherever it was in conflict. 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. 14 I am satisfied and find that the respondent’s work at the Henderson 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 had been retrenched. The work on which Mr King was employed came to an end on 31 December 2015. The project had ramped down.

[12] I am satisfied that Mr Burton did not give any undertaking or guarantee to any employee that there would be multi-generational employment with the respondent on this site on this project. I accept that he 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 fact is that the respondent’s contract with Chevron was for two years and when that work with Chevron ceased the work on the project for which Mr King 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.”

[13] I was not persuaded by Mr Strauss’ cross-examination of Mr Burton that the respondent’s work did not ramp down and complete. He showed Mr Burton various graphs in an attempt to establish that the respondent’s work on this project was ongoing. Mr Burton was 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’ question and Mr Burton’s answer are 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.”

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

[15] I am not persuaded by Mr King’s submission that because the respondent is a large employer it is a straightforward matter to re-employee a stevedore when the work in which that stevedore was previously engaged has been completed. It is a matter to be considered in the circumstances of each case. In this case, given Mr King’s vulnerability to conflict with other employees, which I deal with later in this decision, the placement of Mr King would not be a straightforward matter at any site.

[16] I am persuaded that because the project for which Mr King was employed has ceased it would not be operationally straightforward for the respondent to re-employ Mr King. This situation is exacerbated by Mr King’s expectations in relation to training. He expects the respondent to train in a number of high-risk licences and equipment when he is reinstated in accordance with what he submits is its obligation. I am satisfied that further disputation is likely to arise in relation to this issue.

[17] If Mr King is reinstated to different work, or with a different but related entity, he asserts that he should receive the same beneficial conditions of employment on reinstatement. This is despite the fact that the very beneficial terms and conditions of employment set out in the Agreement were confined to work performed pursuant to that Agreement and that that project ceased on 31 December 2015. Restoring Mr King to any position with conditions comparable to those on which he was employed pursuant to the Agreement with the respondent on this project would not be possible unless particular arrangements were made for him. Conditions of employment with the respondent on the projectwere well above the standard terms and conditions at other projects.

[18] Mr King’s position is that if he was reinstated to employment with the respondent he should be reinstated at the same time as the other concurrent applicants. He should be paid all monies pursuant to any Order I issue immediately. He also proposes a number of conditions concerning the circumstances under which he should be reinstated. The respondent and he should enter into a return to work plan, or at least enter into discussions concerning one, and these discussions should commence within 14 days of the receipt of monies for lost pay. More negotiations are contemplated. 15 In his final submissions Mr King submitted as follows:

“44. Mr Burton gave evidence in relation to employment conditions in the Deed and Agreement in that there were many employment conditions and many benefits within the employment conditions and the employment conditions were something along the lines of 25% or 30% or so better than anywhere else.

45. There was no evidence in relation to how the Applicant might apply his own weighting to any single employment condition or single benefit as compared to any other employment condition.

46. There was no evidence as to how consultation and re-deployment opportunities discussed with current management of the Respondent’s greater family of associated entities might reveal a different weighting than that which Mr Burton applies.

47. The appropriate weighting is that which is most acceptable to the Applicant and the current management and the current configuration and circumstances of the Respondent’s greater family of associated entities as they are now.

48. Logically only consultations and discussions between the Applicant and current management could genuinely reveal re-deployment opportunities and weighting of employment conditions and benefits that the Applicant might consider better including working alongside old friends, operating under the management of previous colleagues, length of service with the Respondent’s greater family of associated entities and the continuation of a family working tradition.”

[19] I do not consider this represents an appropriate proposition for reinstatement. It is not a proposal for an immediate, simple and straightforward return to work for an applicant who professes to have regained his health and to be without any adverse attitude towards his employer.

[20] Mr King submits that there would be work for him to perform if he was reinstated on site because training is work and the respondent continues to have an obligation to train him as a result of the terms and conditions of his employment.

[21] Mr Burton’s evidence in this regard was that it was the respondent’s intention that they would train a sufficient number of employees to maintain operational efficiency or, as Mr Burton described it, “operational resilience”. Mr Burton was a key member of the team that negotiated the MOU with the MUA. 16 It was his evidence that the description of the training obligation in the Agreement was specifically directed towards ensuring that there was no overarching obligation to provide training to all employees in all things. The context, agreed to by the MUA in negotiations, was the operational needs of the respondent for a time-limited construction project. His evidence was that he always consistently described the respondent’s obligation to provide training in these terms.17

[22] Mr King, Mr Strauss and Mr Deeney gave evidence that Mr Burton gave undertakings consistent with Mr King’s evidence and submissions on this issue. I reject that evidence. It is inconsistent with the plain English meaning of the clause and is self serving. I prefer Mr Burton’s interpretation which is consistent with the operational conduct of the respondent.

[23] Pursuant to the training clause the obligation to train employees is an obligation “…in all applicable high-risk licences and plant and machinery used on site…”. Mr King could have lodged a dispute with the Commission during the course of his employment and argued for his interpretation. He did not do so.

[24] Mr King had the same opportunity as all other employees to access and read the Agreement. It is a publicly available document. I am satisfied that Mr King had the wherewithal to do so and to understand the document when he read it. I am not persuaded that any failure to provide the Handbook compromised Mr King’s ability to inform himself.

[25] I am not persuaded that this clause imposes an obligation on the respondent to train all employees in all high-risk licences or to update the training of all employees who already held high-risk licences at commencement of employment. Mr Strauss submitted on behalf of Mr King that all the other concurrent applicants interpret the clause to impose the obligation that he contends for.

[26] Applicable high risk licences are those high-risk licences required by the respondent for the operational needs of its workforce. The clause is not ambiguous. A licence is applicable if the respondent needs an employee to do particular work for which a licence is required. When the respondent is no longer operating there is no need to continue training. The construction argued for by Mr King would turn the respondent into a training organisation for the purpose of improving the curriculum vitae, and future employment prospects, of its employees. Even to a period beyond the term of the project on which they are hired to work. Training may be properly considered work during the course of employment but, even if the obligation contended for by Mr King existed, reinstating an employee for the purpose of training them for work which no longer exists, cannot be appropriate. The contention argued for by Mr King is a self-serving interpretation which strains the meaning of the clause.

[27] I agree with the interpretation argued for by the respondent. I accept the evidence of Mr Burton that any explanation he provided to employees of the respondent regarding the respondent’s obligation was consistent with that interpretation.

[28] I reject Mr King’s submission that the respondent had a continuing obligation to train Mr King arising out of the terms and conditions of his employment. If Mr King was reinstated to a position he would not have an automatic entitlement to training in high-risk licences and machinery. In the Agreement training was contemplated to be undertaken in the course of employment. The respondent is not obliged to continue to employ persons and train them when there is no work to be performed for which they have been trained.

[29] Before the termination of Mr King’s employment he had had various absences from work as a result of an injury from which he was suffering which he alleged was work-related. His evidence was that there were days when he could not face going to work as a result of overt and covert bullying. I accept Mr King’s evidence in this regard.

[30] Mr King made a claim for compensation prior to the termination of his employment. That claim was denied but was then settled by the payment of a lump sum to Mr King. Mr King characterised that payment as a payment in consideration for the withdrawal of workers’ compensation claim rather than a payment of workers’ compensation. I found Mr King’s evidence on this point disingenuous and a deliberate attempt by him to distance himself from the incapacity that he relied upon in his compensation claim and any claim that the payment made to him could be taken into account in assessing compensation for lost income.

[31] On 20 February 2017, after the hearing before me on 13 February 2017, Mr King forwarded to me a copy of the Agreement dated 4 January 2017 made between Mr King and Asciano Limited. The facts are that Mr King made a claim for workers’ compensation. The insurer refused the claim. The application was eventually resolved by the payment of money without admission of liability in consideration of Mr King withdrawing his claim. That was a payment consequent upon Mr King having lodged a claim for workers’ compensation. Workers’ compensation insurers make payments of compensation on the presentation of medical certificates demonstrating incapacity for work.

[32] The only evidence of Mr King’s recovery and fitness for full-time work provided to me during the course of the hearing was a certificate from a general practitioner dated 8 February 2017. 18 It was provided to me and to the respondent on the final day of hearing on 13 February 2017. No copy was provided to the respondent beforehand. No other medical evidence was available at the hearing.

[33] After I had reserved my decision, Mr Strauss provided a two line report from Mr King’s psychologist opining that he was fit to return to work. Mr Strauss also provided the following submission:

“77. To assist the Commission and for avoidance of doubt the Applicant’s psychologist has conducted an assessment and provided an opinion that the Applicant is fit to return to work.

78. Accompanying these submissions are medical documents of the Applicant’s general practitioner and psychologist.

79. To further assist the Commission and to further avoid doubt, should the Commission require it the Commission can obtain an assessment and report from the Applicant’s psychiatrist following the issue of directions for the Applicant to provide a psychiatrist’s assessment and report this being a requirement of the Applicant’s psychiatrist.

80. In any case, the Applicant’s general practitioner has already certified the Applicant is fit to return to work.”

[34] I decided not to provide a further opportunity to call evidence on this issue.

[35] Mr King was emotional giving his evidence regarding the merit of his claim. His sense of grievance was obvious. At the hearing regarding remedy I observed Mr King very closely. I consider that he was still emotionally fragile. Whilst Mr King made every effort to appear calm and positive when discussing the possibility of reinstatement he was aggressive towards Mr Fletcher in proceedings when there was no occasion to be so. He was argumentative when there was no occasion for an argument. Although Mr King gave evidence that his attitude to the respondent was positive, and Mr Strauss described him as having the dark cloud of doom lifted from him, 19 I consider that his attitude when giving his evidence reflects his true attitude towards the respondent.

[36] I am satisfied that restoring Mr King to employment with the respondent would place him in a position of possible further conflict. I am satisfied that this is particularly so in the case of some elements of the MUA. Mr King asserts that he was a proud member of the MUA and has no continuing animosity towards that organisation or its members. I do not accept that. Mr Fletcher showed Mr King a Facebook page of his dated 15 May 2013. In it he addresses how he feels about his relationship with certain other employees. 20 The level of animosity disclosed in that Facebook page to those persons he describes as “Comrades”is considerable. Given what Mr King alleged happened to him I am not surprised by that animosity. Mr King stated that this was just him venting in a pretend place. On Facebook he suggested that you can be someone else21. I am satisfied that his reference to “Comrades”is a reference to the members of the MUA with whom Mr King was in conflict. I am not persuaded by Mr King’s evidence that his sense of grievance has resolved, and I am certain that, should Mr King come into conflict with that organisation or its members again, further difficulties would be likely to occur.

[37] Mr King submitted that his difficulties with the respondent were limited to difficulties with particular employees and managers. Those managers included Mr Burton. He submitted that the absence of those employees and Mr Burton from the employment of the respondent would mean that he could be reinstated without any possibility of future conflict. Mr King’s submission is inconsistent with his evidence before me. I put this to Mr Strauss.

“THE SENIOR DEPUTY PRESIDENT:  I think his evidence went further than saying there was a couple of people.  It was almost his entire swing who didn't speak to him and who – the evidence was engaged in childish pranks against him.  That was his evidence during the course of his hearing, as I understand it.  Not just one or two people.  People put him into Coventry and didn't speak to him; people moved his hat; people put his lunch in the garbage; people put coffee in his hat.  That was more – people put rude slogans about him on to locker.  That was more than just a couple of people.

MR STRAUSS:  I disagree, your Honour.  There's no evidence of that at all.  In fact, Daniel King - - -

THE SENIOR DEPUTY PRESIDENT:  It must have been a very singular group of people, very busy, if it was just one or two people.  He said that people didn't speak to him when he was on his own.

MR STRAUSS:  That may have been, but there's – excuse me.

THE SENIOR DEPUTY PRESIDENT:  No, no, I'm putting to you what he said.  That's my recollection of his evidence that there were periods when no one spoke to him, when he felt isolated and on his own.  Is that not right?

MR STRAUSS:  No, that's not right.

THE SENIOR DEPUTY PRESIDENT:  All right.

MR STRAUSS:  I'm not sure what's in the evidence, but I for one, your Honour, was always in communication with Danny.  I know a large group was, all right.  In fact, in his evidence - - -

THE SENIOR DEPUTY PRESIDENT:  I didn't say that nobody was speaking to him, Mr Strauss, that's not what I said.  I said that there was a larger group of people than just one or two who weren't speaking to him, or who were victimising him.  That was a larger group of people who were engaging in that conduct, not that there were no other people speaking to him.

MR STRAUSS:  Yes, your Honour, but that's not attacking him.  That's the difference.

THE SENIOR DEPUTY PRESIDENT:  Isn't it?

MR STRAUSS:  The issues in particular that he's given evidence about and Mr Burton gave evidence about only revolve around a hand full of people in particular.  While others may not have spoken to him, or may have, that's in contest.  But the names have been raised, Michael Canning, Damian Burton, Marion Storey and Danny even came in with a recording and the recording matches, absolutely matches the markings on his locker and some of the things he was called that he referred to, your Honour.

How wide the direct issues or attacks against him were across the workforce, is not known, because there's only been four people, two in management and two in the workforce that have ever been involved in disputes, claims, warning letters, determination or indeed, the violence restraining orders.

That number may be a handful, but I don't see, your Honour, that - we submit that having 180 or 200 people on a swing, there's been no evidence at all, that any more than a couple or a few or a handful or a small group may have participated in that directly against him in terms of bullying and harassment.  If someone doesn't want to talk to him, that's their choice, but that's not necessarily bullying and harassment.

THE SENIOR DEPUTY PRESIDENT:  That's not what Mr – in his evidence was Mr Strauss.  He gave evidence about how that distressed him, that silence.” 22

[38] I reject Mr Strauss’ interpretation of the evidence and his submission on this issue. Mr King’s evidence was of a widespread campaign against him by those persons who worked with him on his swing. It was conduct that affected how other persons treated him as well.

[39] Mr Burton gave evidence regarding Mr King’s conduct towards him. I accept that evidence. I am persuaded that Mr King’s conduct exhibited more than a particular difficulty with Mr Burton. I am satisfied that his conduct exhibited a general disrespect for the respondent. This evidence was:

PN7404 “MR STRAUSS:  Did you have a problem with Danny King during his employment at Patrick Projects?---MR BURTON: That's a highly unusual question.  In what sense do you mean did I have a problem?

PN7411 When was that?---I couldn't tell you dates but I could think of five examples, you know, without thinking where he said, you know, made very significantly derogatory comments about the business, about me personally, which I took to, you know, inflict on the business, yes.  Significant number of occasions.

PN7415 What was 31 May?---31 May was an incident that occurred at approximately 6 am in the morning when the work group turned their back on me personally during the pre-start.  Danny's role in that particularly was to shout from a distance probably similar to you and I, maybe a couple of metres further away from where you are now.  I can't - I'm not going to do the volume but at the top of his voice, "I can't hear you, I can't hear you, I can't hear you", about that number of times.  Over repeated occasions I asked the work group to be quiet and to face the front so that we could do it, and in the end they didn't and they were stood down for a period of four hours.

PN7425 Is it possible that Danny had a problem with you as opposed to the company?---That could be possible.  That's not my experience of Danny.  I mean there were conversations where Danny both made disparaging comments about my own competence and capability, as well as general comments about Patrick.  So certainly I think in fairly even distribution, he was both critical of me personally but also of the business.

PN7426 But as far as you can recall - well, you can't recall at the moment, if there was any other management staff that Danny was critical of.  You can't recall any complaints coming to you about Danny being critical to other management staff?---Let me just clarify that.  In some of those instances that I referred to where in the lead-up to Danny's termination where, you know, in part of the process, you know, it was revealed that he had left site without confirmation, I do know that shift managers had dealt with him and that it was, you know, their view was that Danny was, you know, rude and abrasive in the conduct of those conversations.  So I don't think it's just limited to me.”

[40] My conclusion is supported by a text Mr King forwarded on 4 April 2014 to unidentified employees of the respondent stating:

“Still employed at Patricks on Full Pay… Just another Paid Holiday… The lying CUNTs have’nt(sic) got me yet and they wont..Have a good weekend everyone.” 23

[41] I have considered Mr King’s evidence that he has no continuing issue with the respondent which would cause his reinstatement to be inappropriate. As I have already indicated, Mr King was, in his evidence before me, occasionally unnecessarily aggressive towards the representative of the respondent and argumentative when there was no occasion for argument. I am satisfied that this was not a reaction to Mr Fletcher’s approach. Mr Fletcher was a model of patience throughout this lengthy and sometimes difficult hearing. I am satisfied that Mr King’s attitude went beyond conduct arising from the ordinary stress of making and giving evidence about an application for an unfair dismissal remedy.

[42] I am satisfied that Mr King still feels aggrieved by his treatment. I do not accept his evidence that he has moved on in the manner which he asserts. I found that Mr King’s evidence of vindication to be inconsistent with his evidence of a new found absence of resentment towards the respondent.

[43] Mr King’s evidence regarding his current attitude to the respondent is inconsistent with his attitude to his current litigation against the respondent in other places. The concurrent applicants have continuing proceedings in the Federal Court of Australia where they have a judgement and costs order against them in favour of Asciano, a related entity of the respondent. Although Mr Strauss submits that an attempt to lodge an application for special leave to appeal to the High Court was rejected, the intention of the concurrent applicants, until that rejection, was to seek special leave.

[44] In the proceedings in the Federal Court of Australia the applicant, with the other concurrent applicants, made allegations concerning the conduct of the respondent which are inconsistent with him having had a good and positive view of the respondent as an employer. I do not need to detail those allegations here.

[45] In proceedings before a Full Bench of this Commission, and in these proceedings, allegations of legal trickery and fraud by the respondent have been made by the applicant and the other concurrent applicants. I do not need to detail those applications here. This is not conduct consistent with Mr King having a positive view at the respondent as an employer.

[46] In these circumstances I consider that it is reasonable for the respondent to have lost trust and confidence in Mr King and his ability to work for it

[47] I do not accept Mr King’s evidence and submission that he has moved on and has a positive attitude towards the respondent.

[48] I have not taken into account Mr King’s engagement in any industrial action, the cap that was worn by Mr King and other employees carrying a logo of “PRICKS” instead of “PATRICKS” or the evidence of previous misconduct by Mr King whilst employed at OMSA. The logo may be in poor taste but that is not a matter I consider determinative. There is insufficient material before me regarding the matter of conduct, the subject of investigation at OMSA, for it to be taken into account in these proceedings.

[49] I have considered and taken into account my conclusions regarding all of these issues.

[50] I have considered and taken into account the legal confrontation between Mr King and a related entity of the respondent in the Federal Court of Australia. This is not consistent with or likely to promote an on-going relationship of trust and confidence.

[51] I have considered and taken into account the fact that the respondent no longer conducts any business at its previous site.

[52] I have taken into account my findings regarding the likelihood of Mr King having an on-going incapacity for work or being vulnerable to further conflict whilst in employment with the respondent.

[53] I have considered and taken into account the present situation regarding trust and confidence between the parties. Mr King professes total trust and confidence in the respondent. I do not accept that. The respondent submits that it does not and cannot have trust and confidence in Mr King. I accept that that is an accurate description of the respondent’s attitude to Mr King and I am persuaded that it is a reasonable position for the respondent to take. In coming to this conclusion I have taken into account Mr King’s conduct in these proceedings.

[54] Whilst many issues in Mr King’s application concerning his treatment by other employees and the manner in which relevant investigations were conducted weigh in favour of reinstatement, I have concluded that on balance reinstatement is not an appropriate remedy in all the circumstances of this application.

Consideration of Compensation

[55] I have considered whether an order for payment of compensation is appropriate in all the circumstances of this case and I am satisfied that it is. I have considered the criteria set out in section 392(2).

[56] No submission was made that any order I might make would have any effect on the viability of the employer’s enterprise. I am satisfied, given my knowledge of the respondent’s operations, that no such submission could properly be made.

[57] The length of Mr King’s service with the respondent was for a moderate period. It was a neutral issue in my consideration of what compensation should be paid to Mr King.

[58] I have considered the remuneration that Mr King would have received, or would have been likely to receive, if his employment had not been terminated. I am satisfied that Mr King would have earned his average gross weekly income from termination of employment until 31 December 2015, when his position would have been made redundant at the same time that all other Patrick stevedores working on the Gorgon project were retrenched. Mr King was high on the seniority list at that site. It was his evidence that he was number 28 in seniority. 24 I am satisfied that he would have been one of the last employees retrenched.

[59] I informed the parties that I wanted to be provided with information concerning Mr King’s average gross weekly wage so that I could consider the question of compensation. There was a dispute between the parties concerning the calculation of Mr King’s likely average gross weekly earnings had he continued in the employ of the respondent. I was provided with a lost pay calculation by Mr King. 25 The respondent and Mr King differed in their interpretation of how personal and annual leave were to be treated. Mr Strauss suggested that Mr King be paid his entitlement excluding the disputed component for sick leave and annual leave, which I could then order be paid later, after I had the opportunity to consider Mr Strauss’ submission on this issue. The parties agreed that written submissions would be provided. The respondent’s position was outlined in transcript by Mr Fletcher as follows:

“MR FLETCHER:  Our submission will be, your Honour, that the - this is a peculiarity of the stevedoring industry which you may be aware of.  There's a process by which annual salaries are set according to a defined number of hours per year and it's my instruction that the 1820 hours per year includes a calculation for anticipated sick leave, and annual leave or sorry personal leave and annual leave.  The effect of that is that annual leave and personal leave are already grossed into the figure that's referred to as the rate per year in Mr Strauss' calculations.

Mr Strauss is - in the calculations is suggesting that there's an additional rate per year for both personal leave, which he's called sick leave, and annual leave, which he's called holiday leave.  In our submission, because that's already counted in the 1820 hours and the salary for working 1820 hours, those amounts shouldn't be counted as income.  The reason for that is that they are contingent payments if you like.  So they're payments that would - they may be made as a lump sum if the leave is not taken at the end of employment, but as an actual amount earned they're already counted in the 1820 hours, and the salary of $116,000.

That makes sense if you look at the final row where Mr Strauss' document shows income should have been an income earned elsewhere.  If you look at the first year which we know we can definitively say that Mr King was let go on 30 April, which would mean that there would be two months left in the year, and you can see that the lost pay amount is $85,000, which by my reckoning seems like a lot more than two months' worth of work.” 26

[60] I have considered the operation of the Agreement and am satisfied that, on termination of employment, Mr King would have been entitled to payment of accrued sick leave and annual leave as part of his termination entitlements. However, given the operation of the compensation cap I am satisfied that this finding makes no difference to the amount I am able to order be paid in compensation.

[61] There is no evidence that Mr King had any intention of leaving his employment and I am satisfied there is no matter of conduct or performance which might otherwise have provided a reason for the termination of his employment prior to that date. His position was not identified for an earlier redundancy.

[62] Mr King has been preoccupied for much of the time since the termination of his employment with conducting or instructing in proceedings before this Commission. In giving evidence about the difficulty he might experience in obtaining new employment he said:

“Well, the current market has changed.  The fact that the skills that I believed I would have when I left this project, I wasn't provided with.  I would be going to a new employer and they would ask me what I've done the last three years and if I'm honest with them and tell them that I haven't worked because I've had my employer in the Commission for the last three years, it's probably not - - -” 27

[63] There are a range of positions which Mr King might have undertaken below the skill level of his usual employment with the respondent. He did not apply for such positions. However, when I consider Mr King’s incapacity for work arising from his work-related psychological injury, I do not consider his failure to apply for such positions to be a negative factor.

[64] Mr King was in paid employment for a labour hire firm, Programmed Integrated Workforce, for 6 to 8 weeks at the end of 2014. He earned $7,500. He also attempted to perform work as a contractor in the communications industry. He invested money in equipment and training. He was not successful in that undertaking. There were issues with his ability to manage that work and deal with it. He therefore did not proceed. 28

[65] Whilst I am satisfied that Mr King could have undertaken other less skilled work, or worked more often instead of concentrating on this litigation, I have balanced that against my understanding of Mr King’s significant ill-health and his continuing incapacity which I am satisfied was considerable. 29

[66] I have taken into account the fact that Mr King, despite his expressed desire to work as a stevedore, has not applied for work in this industry at any time, or particularly since the apparent alleviation of his health issues since November 2016.

[67] I have taken into account Mr King’s evidence that he has not applied for any full-time work in mining. He did not do so because he did not want to work away from home because of his health issues. He did not want to “… throw myself into the deep end and damage myself any further.” 30 Whilst that concern might have been relevant before November 2016, there is no reason why he could not have applied for such employment when he felt that he had recovered. I have taken Mr King’s inactivity in this regard into account.

[68] Mr King’s evidence was that he had undertaken no work since November 2016. He has spent that time seeing his psychologist and his psychiatrist and making sure that he was fit and ready to go for whatever outcome. 31 I have taken that evidence into account.

[69] I have considered the amount of any income reasonably likely to be earned by Mr King from the making of my Order for compensation to the payment of actual compensation. I am satisfied that there will be no income earned in this period.

[70] I have not taken into account any shock or distress suffered by Mr King.

[71] I have not reduced the amount of any compensation I have ordered by any consideration of misconduct by Mr King. I am satisfied that he did not engage in any relevant misconduct.

[72] I have considered the compensation cap at the date of Mr King’s termination of employment and the amount I have ordered be paid to Mr King in lieu of reinstatement does not exceed the compensation cap applicable at the date of termination of employment.

[73] I have not taken into account any lump sum paid to Mr King upon the withdrawal of his workers’ compensation claim. There is insufficient material before me on which I can determine the basis on which that payment was made and for what periods.

[74] I am satisfied that applying these findings Mr King would have earned well in excess of the high income threshold had he remained employed.

[75] Applying s.392(5) I have determined that the appropriate compensation payable to Mr King is $64,655. I Order the respondent to pay Mr King the sum of $64,655 within 14 days.

[76] If there are other entitlements due to Mr King as a result of my Finding and Order these entitlements should also be paid within 14 days of the date of my Order. Mr King will be responsible for the declaration of any income payable to him as a result of my Order and for the payment of any taxation arising from the payment of monies pursuant to my Order or the payment of any further entitlements.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr C Strauss appeared for Mr King

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 13 by videolink Sydney/Perth

2017

 1   U2014/5970

 2   U2014/982

 3   U2014/1008

 4   U2014/983

 5   U2014/1059

 6   PR588080

 7   TPN 6426 and TPN 6437

 8   TPN 6381

 9   TPN 6473

 10   TPN 6447 and TPN 6448

 11   TPN 6473

 12   TPN 6475

 13   TPN 7223

 14   TPN 7295 to TPN 7297

 15   TPN 7295 to TPN 7297

 16   TPN 7236

 17   TPN 7231

 18   Exhibit King 62

 19   TPN 7521

 20   Exhibit Respondent 13

 21   TPN 6839

 22   TPN 7523 to TPN 7537

 23   Annexure DB 11 to Exhibit Respondent 15

 24   TPN 6394

 25   Exhibit King 61

 26   TPN 7482 to TPN 7484

 27   TPN 6287

 28   TPN 6724

 29   TPN 6990

 30   TPN 6732

 31   TPN 6967

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