Mr Daniel Smith v SafeRad SE Asia Pty Ltd
[2018] FWC 2104
•30 APRIL 2018
| [2018] FWC 2104 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Smith
v
SafeRad SE Asia Pty Ltd
(U2017/12394)
DEPUTY PRESIDENT BEAUMONT | PERTH, 30 APRIL 2018 |
Application for an unfair dismissal remedy.
Introduction
[1] On 2 November 2017, SafeRad SE Asia Pty Ltd T/A SafeRad (SafeRad) dismissed Mr Daniel Smith (Mr Smith) who subsequently made an application to the Fair Work Commission (the Commission) for a remedy in respect of his dismissal (the Application).
[2] Mr Smith started full-time employment with SafeRad on 6 August 2012 as a Non-Destructive Technician. His duties included normalising steel after welding by the use of localised heat treatment methods, communicating with clients concerning work scope, and following company procedures and policies while on projects.
[3] Whilst based in Perth, Mr Smith would at times be required to undertake project work in the northern part of Western Australia. SafeRad dismissed Mr Smith because there were two incidents that occurred while Mr Smith was working on two separate projects.
[4] The first incident occurred when Mr Smith, having requested annual leave with 3-4 days’ notice, refused to work on the Cape Lambert Project (Cape Lambert) after his leave request was denied. A letter concerning the aforementioned ‘performance’ issue was provided to Mr Smith on 27 February 2017 (First Warning Letter).
[5] The later incident saw Mr Smith incur two parking infringements at the Manigurr-Ma Village (the Village), an accommodation facility servicing the Ichthys Onshore LNG Combined Cycle Power Plant Works (Ichthys Project). One of the parking infringements was said to have resulted in the confinement of a SafeRad vehicle. The consequence of such confinement was SafeRad was now unable to transfer its workers from the Village to the Ichthys Project. This was said to have resulted in the reduction in the scope of work that Downer EDI Works Pty Ltd (Downer) had awarded SafeRad.
[6] On 15 March 2018, I issued directions regarding the production of the Manigurr-ma Village Rules (Village Rules) that were said to outline the obligations concerning traffic management or regulation within the Village. In my view, it was appropriate to issue such directions to inform myself of the obligations regulating traffic within the Village and to identify whether any such breach of those Rules had occurred.
[7] I have taken into account each of the matters specified in s.387 of the Act and have considered Mr Smith’s conduct regarding the two incidents. I am satisfied that SafeRad had a valid reason for Mr Smith’s dismissal and that his dismissal was not unjust, unreasonable, or harsh. Therefore, the Application for unfair dismissal remedy in the matter U2017/12394 is dismissed. These are my reasons for reaching that conclusion.
Background
[8] SafeRad is involved in the non-destructive testing and post weld heat treatment industry. The company has approximately 22 employees and Mr Scott Buttery (Mr Buttery) owns 100% of the shares, and is the Operations Director.
[9] Mr Smith was, for the most part, based in the Perth office of SafeRad albeit from time to time he was required to work on project sites and did so pursuant to a fixed term contract for those periods. It was submitted by Mr Singh, Counsel for SafeRad (Mr Singh), that the arrangement to work on the project sites could be seen to be a secondment. Although I am unconvinced the contractual documents were drafted to reflect this it was not contested that Mr Smith had been anything other than a full-time permanent employee of SafeRad from his start date.
[10] As noted there were two ‘performance’ issues (incident(s)) that were said to have culminated in the decision to dismiss Mr Smith; the first, Cape Lambert and the second the Ichthys Project.
Cape Lambert
[11] Regarding the first incident, on or around late November or early December 2016, Mr Smith commenced work on Cape Lambert. He was provided with a ‘letter of offer for fixed term employment – Cape Lambert Project’ and signed the offer on 30 November 2016 (Letter of Offer Cape Lambert). The Letter of Offer Cape Lambert set out:
We are pleased to offer you fixed term employment with SafeRad SE Asia Pty Ltd (the Company) for the Cape Lambert Project (the Project) in accordance with the terms and conditions of the RCR Resources Pty Ltd Northwest Enterprise Agreement 2014 (the Agreement) and the terms and conditions as outlined in this letter of offer 1.
[12] The RCR Resources Pty Ltd Northwest Enterprise Agreement 2014 was not tendered into evidence and the parties appeared to accept that the SafeRad SE Asia Pty Ltd Enterprise Agreement 2016 2(SafeRad EA) applied to Mr Smith from 2 February 2017. Mr Singh submitted that the SafeRad EA was in effect ‘suspended’ when certain work was undertaken. He did not advance the submission further.
[13] The SafeRad EA at clause 14.4 provided:
Annual leave can be taken by agreement between the Employer and the Employee following a request by the Employee to take accrued annual leave. Leave approval is subject to the operational requirements of the workplace but shall not be unreasonably withheld.
[14] At clause 11.1 of the SafeRad EA under the title of Assignment Terms and Conditions the agreement provided:
An employee and the Company may agree on assignment terms and conditions. The employee must not be disadvantaged on the overall monetary basis when compared to the terms and conditions of this Assignment 3.
[15] Regarding shift work, clause 12.2 of the SafeRad EA addressed this in the following terms:
The Employer has the right to direct Employees to work shiftwork as required. Prior to the commencement of shiftwork, the Employer shall seek the agreement of the Employees involved. Failing agreement, the Employer will provide the Employees concerned one week’s notice of the commencement of shift work and the starting and finishing times of ordinary hours of the shifts 4.
[16] Mr Smith gave evidence that there was no designated roster for work at Cape Lambert and that he could be at the site from two days to a week. Mr Smith said that much depended on the scope of work of the client, RCR Tomlinson (RCR), which meant return dates were often decided by the client.
[17] Mr Parrott, Operations Manager (Mr Parrott), similarly said that there had been no set roster for Cape Lambert. In his witness statement, Mr Parrott stated that the nature of Cape Lambert was that it did not have a definite fixed schedule and the arrangement was such that RCR would contact SafeRad management when it required services 5.
[18] It is observed that on commencement with SafeRad, Mr Smith had signed a document titled ‘Services Expectations Agreement’ 6. The Services Expectation Agreement set out various expectations and commitments, which included expectations for leave arrangements. The leave part of the Services Agreement provided:
It is expected that no leave will be taken without prior arrangement and approval of the General Manager.
[19] The Letter of Offer Cape Lambert placed certain obligations on Mr Smith with regard to performance and flexibility. Clause 7 of the Letter of Offer Cape Lambert stated:
You will work in an efficient and effective way and will carry out all work within your competence as required by the Company, subject to any safety and statutory requirements. You may need to hold or obtain licences, permits, certificates or security clearances relevant to your work.
The Company will inform you of any such requirement. From time to time you may be required to temporarily perform duties other than those normally undertaken. Payment for such work will be at the Base Wage Rate unless the duties are such that a change of classification is warranted or agreed between you and the Company 7.
[20] The first incident that arose and which resulted in Mr Smith receiving a written warning, was Mr Smith’s refusal to attend the Cape Lambert site when his request for annual leave was declined.
[21] Mr Smith explained that his wife’s parents were arriving from Thailand to see both his wife and their three year old grandchild for the first time 8. Mr Smith was concerned that he would be away from home at this time having been informed that he would be at Cape Lambert9. According to Mr Smith, he was informed by Mr Parrott to phone the client directly to ask what the return dates were10. Mr Smith said that he followed Mr Parrott’s instruction and having heard the dates he was required to be back on the Cape Lambert site he voiced his concern to Mr Parrott about the impending family visit11.
[22] Mr Parrott states that before 27 February 2017, RCR had contacted him to inform him of the next dates when they required SafeRad’s services at Cape Lambert 12. He then called Mr Smith to discuss his remobilisation to Cape Lambert13.
[23] Mr Parrott states when he informed Mr Smith of his remobilisation dates, Mr Smith informed him that he had spoken directly with RCR to arrange not to work on certain dates which fell within the period he was required to work 14.
[24] Mr Parrott recalls that on or around 27 February 2017, after Mr Smith was informed that he was required to go back to the site, Mr Smith verbally made an enquiry if he could take the two days off in question. Mr Parrott said that Mr Smith did mention the time off was required to see family who were travelling from overseas. Mr Parrott declined the request expressing that Mr Smith was required to be on site.
[25] Having had his request for annual leave declined for the dates of 2 March 2017 and 3 March 2017, Mr Smith expressed that he made a personal decision to refuse to go to the Cape Lambert site due to family reasons.
[26] On 27 March 2017 a meeting was held between Mr Parrott and Mr Smith concerning Mr Smith’s:
● …refusal to attend the next work period at Cape Lambert, when you have commercially committed to this project
● [A]ttempting to arrange return dates to site directly with the client before consulting SafeRad management.
[27] Mr Parrott stated that he informed Mr Smith that he had no right to contact the client directly, he had breached SafeRad’s standing instructions by talking to the client and he was not prepared to allow him to take leave 15.
[28] At the hearing, Mr Parrott expressed SafeRad did not permit communication between its employees and the client. It was the case that, communication occurred through the SafeRad representative. Mr Parrott qualified that remark noting that communication between SafeRad technicians and the client on site was authorised however arrangements concerning leave and rosters were to go through management. Mr Parrott refuted Mr Smith’s evidence that he had requested Mr Smith to contact the client directly regarding return dates. Mr Parrott did not direct the Commission to a written instruction, policy, or other document concerning the restriction on communicating with SafeRad clients.
[29] Concerning the aforementioned performance issues, on 27 February 2017, Mr Parrott issued to Mr Smith the First Warning Letter, which was signed by Mr Smith on that same date. The First Warning Letter set out:
● Your request for leave on 2nd March (Thursday) and 3rd March (Friday) 2017 has been declined.
● Should you fail to attend work on either of these days, this well [sic] be treated as a further performance issue and will incur further disciplinary action.
It is disappointing that this action has been required to be taken. As a long term, valued employee of SafeRad we would have expected that you would approach myself or Scott directly, and with some notice, which would have allowed us to come to some agreement that could have been acceptable to all concerned 16.
[30] It was not entirely clear on the evidence presented whether Mr Smith worked on 2 and 3 March 2017. The absence of further disciplinary action may indicate that Mr Smith was ultimately agreeable to attend the Project on the aforementioned dates. However, from what transpired at hearing it would appear that another employee covered the days in question.
Ichthys Project
[31] On 26 June 2017, Mr Smith was offered work at the Ichthys Project. Mr Smith accepted the work by signing the letter of offer of 26 June 2017 (Ichthys Letter). The letter of offer provided:
Compliance with Policies
You agree to comply with any applicable policies and procedures (including Project specific policies and procedures) (together, “Policies”), as varied from time to time. This includes Policies concerning performance or conduct during the work cycle (whether at the workplace, accommodation village or in the community, and whether during the performance of work or outside of working hours).
Such Policies operate independently of this letter and are not incorporated into this letter. You agree that such Policies constitute reasonable and lawful directions and instructions by the Company. You agree that the Policies are for the Company to manage the conduct of its business, and that the Company itself is not bound to abide by the Policies.
Policies setting expected standards of behaviour and conduct include, but are not limited to:
(a) Project Information Booklet;
(b) Project Code of Conduct
Each of which is provided to you at the same time as this letter of offer.
A breach of any applicable Policy may result in termination of your employment, revocation of your right to access the Project site or accommodation village, and/or withdrawal of your accommodation 17.
[32] Mr Smith acknowledged that he had seen both the Project Information Booklet and Project Code of Conduct and signed acknowledgment forms confirming such 18.
[33] At section 6.1 of the Project Information Booklet, behaviour in the accommodation village was traversed. It provided:
…
Your behaviour in the accommodation village is important. All residents should be able to enjoy and relax in their time off without disruption from inappropriate behaviour. As such, you will be required to agree to and sign off on an Accommodation Code of Conduct (Village Rules). You will be provided with the Village Rules upon your check in at the accommodation village and are required to sign it prior to accommodation being issued to you.
Breaches of Village and Project Rules may result in disciplinary action, removal of Project Access and could result in termination of your employment.
[34] The Village Rules provided:
1.6 Disobeying Road Rules and Traffic Management Plan:
A resident shall not breach the road rules (NT Traffic Act), the Village Traffic Management Plan, including, speeding, parking in unauthorised areas, and the requirement to swipe in and out of the Village.
…
6.0 Vehicles
6.1 Vehicle Permit: No person shall drive, ride or park any unauthorised vehicle within the Village. Permission must be obtained from the Village Administration Office for legitimate access requirements.
No resident vehicles will be permitted access to the Manigurr-Ma Village without an approved Vehicle Access Permit. All MANIGURR-MA VILLAGE residents who own a personal vehicle and park at the MANIGURR-MA VILLAGE must register their vehicles. A Permit Pass will be issued and placed on the vehicle to ensure visibility of ownership. Registration forms are available at the Security Gatehouse and Village Administration reception. Failure to comply with the above will result in vehicles being denied access to MANIGURR-MA VILLAGE.
…
6.3 Traffic Rules: Drivers shall observe the NT Road Traffic regulations and sign posted speed limits and directions at all times.
6.4 Parking: Parking of vehicles shall be in the designated resident parking areas only. Failure to park in the designated residential parking areas may result in the vehicle access to the Village being withdrawn.
[35] Mr Smith was said to have completed an Online Induction for the Ichthys Project on 12 July 2017 and he had checked into the Village on two separate swings therefore completing the process of accepting the Village Rules.
[36] Mr Smith gave evidence that he had received two Village parking infringements 19. He stated that the first infringement occurred when he had picked up SafeRad employees from the Village20. Mr Smith said he pulled into a parking bay to pick up the two employees who were walking from the wet mess21. He reports having been in the parking bay for no more than three minutes when he was asked by Village security to move on22. Mr Smith said that he tried to explain the situation to Village security23. Mr Smith drove the vehicle to a give way sign at which point he stopped as the vehicle doors were open24. He did not want to hurt anyone and awaited for the SafeRad employees to safely enter the vehicle25.
[37] Mr Liam Ivory, a current employee and Non Destructive Testing Technician with SafeRad (Mr Ivory), gave evidence that in or around June or July 2017, he made plans with Mr Smith and some others to go to Darwin City for recreational purposes 26. Mr Smith was said to have offered to drive Mr Ivory and informed him that he would call when ready to pick him up27. Mr Ivory said that he received a call from Mr Smith informing him that he would pick him up in the parking area opposite the wet mess28. Mr Ivory reported that as he approached the vehicle Mr Smith started to drive away from the parking area and Mr Ivory caught up with him just before the exit29.
[38] Mr Ivory observed that a member of Village security approached the SafeRad vehicle that Mr Smith was driving and that same security person was talking to Mr Smith 30. Mr Ivory relayed that Mr Smith had informed him that the security person had said that he was not allowed to park in the staff parking area and that he needed to move the vehicle31. Mr Smith reported to Mr Ivory that he had argued with the security person and told him words to the effect that there was plenty of parking available and to go away.
[39] The second parking infringement arose under the following circumstances:
● The second infringement I received was for pulling up at parking bay infront [sic] of the Wilson security and picking up an employee standing for no longer than one minute
● Notified site supervisor Michael Kennedy of the potential second infringement 24hrs prior to official infringement notice as my second infringement was the fourth on the vehicle S602-BAA meaning Village access had be [sic] revoked. Did this so that SafeRad SE Asia Pty Ltd management and Downer Engineering would be aware of the pending vehicle issue…. 32.
[40] From the evidence presented at hearing it appeared that the conduct leading to the second infringement occurred on 19 October 2017 33. Mr Smith acknowledged at the hearing that he had tendered his resignation from Ichthys on that same date as he no longer wished to work on the Ichthys Project due to family reasons. It is important to note that while Mr Smith had tendered his resignation to work on the Ichthys Project it did not follow that he was resigning from SafeRad by this action.
[41] By letter of 21 October 2017, Mr Rick Doyle, Senior Project Manager for Downer (Mr Doyle), notified Mr Buttery, that the vehicle with registration S602-BAA had been banned from the Village. The letter set out that the full detail of the events leading to the ban had been sent to Mr Buttery via email and that should the vehicle return to the Village the registered driver’s Village accommodation would be revoked. The aforementioned email was not tendered into evidence.
[42] Attached to the letter of 21 October 2017, was a document titled ‘Removal of Access Rights’ dated 19 October 2017 on JKC Australia LNG Pty Ltd letterhead 34. It set out that the vehicle registered S602-BAA with the driver ‘Daniel Smith’ was no longer permitted to access the Village due to multiple parking infringements35. Further, there was a document titled ‘Notice to Drivers’ that set out in capital letters:
UNAUTHORISED VEHICLES ARE NOT PERMITTED TO STOP, PICK UP, DROP-OFF PASSENGERS OR ENTER OR PARK IN THE ADMINISTRATION OR OPERATIONS CARPARKS, THE TEAR DROP, SERVICE ROADS OR VISITOR CARPARKS 36.
[43] By letter of 23 October 2017, Mr Doyle informed Mr Buttery that vehicle CB-32-CA had been involved in a collision, and that vehicles CB-32-CA and S602-BAA would remain on site 37. Mr Buttery was informed that driving privileges were to be reviewed pending the outcome of the investigation into the collision involving vehicle CB-32-CA38. Mr Doyle noted the implications that the vehicle restriction would have for SafeRad namely the inability to provide labour for 12 hour shifts39. It was the case that if Village bus transportation were to be relied upon then SafeRad would only be able to provide labour for 10 hour shifts due to the departure times of the buses.
[44] On 24 October 2017, Mr Buttery issued to Mr Smith a letter titled ‘Written Warning Letter Ichthys Onshore LNG Combined Cycle Power Plant Works (the ‘Project’)’ (Second Warning Letter). The Second Warning Letter informed Mr Smith that SafeRad had received a ‘Removal of Village access notice – S602-BAA’ (Village Access Notice). It was said that the Village Access Notice had the effect that vehicle S602-BAA was no longer permitted to return to the Village and if it did the registered driver’s access rights to the Village would be revoked. The Second Warning Letter informed Mr Smith that on return from Project Ichthys on his current roster he was required to attend the Perth office on 2 November at 0930hrs to discuss the matter further 40. It was not disputed that Mr Smith received the letter and presented for the meeting.
[45] Mr Buttery said that before he issued the warning letter to Mr Smith he spoke to Mr Smith about the infringements via telephone 41. At that time Mr Buttery was in the Perth office of SafeRad and Mr Smith was on the Ichthys Project. Mr Buttery said that he had asked Mr Smith for an explanation regarding what had occurred and that Mr Smith agreed with Mr Buttery that he had committed the infringements42. According to Mr Buttery’s account, Mr Smith expressed that the infringements were trivial and that Downer was being ‘petty’ and ‘over the top’43. Mr Smith appeared not to agree with this version of events.
[46] During the course of the telephone discussion between Mr Buttery and Mr Smith, Mr Buttery said he informed Mr Smith that Downer were investigating the matter and that for now Mr Smith would be issued with a written warning.
[47] A meeting was held between Mr Buttery and Mr Smith on 2 November 2017. Mr Buttery reports that he informed Mr Smith of the purpose of the meeting and repeated details of the infringements. Mr Smith was said to have admitted to the infringements, and did not provide any reason why disciplinary action should not be taken against him. Mr Buttery said that Mr Smith did not present any mitigating circumstances for him to consider.
[48] Mr Buttery issued a termination letter to Mr Smith 2 November 2017. The letter set out that Mr Smith had been issued with a letter on 26 October 2017 regarding incidents which had occurred and had resulted in a vehicle having to remain on site. Further, Mr Buttery noted that Downer had expressed concern about SafeRad’s ability to meet contractual requirements and that the scope of work that SafeRad had previously with Downer had been reduced. Mr Buttery also made reference within the letter to the performance issues that Mr Smith demonstrated while working on the Cape Lambert Project regarding a refusal to work when Mr Smith’s annual leave for 2 and 3 March 2017 was not approved. Mr Buttery concluded that it was as a result of the aforementioned issues, SafeRad had no option but to terminate Mr Buttery’s employment effective immediately with a payment of 4 weeks’ payment in lieu of notice.
[49] As mentioned, it was not disputed that the SafeRad EA 44applied to Mr Smith’s employment when in the Perth office and working at Cape Lambert. Whilst working on the Ichthys Project it appeared from the file that the SafeRad SE Asia Pty Ltd Ichthys Onshore Construction Greenfields Agreement45applied to Mr Smith at those times when he worked on the Ichthys onshore facility performing construction or commissioning work, or at the onshore marine construction work or construction related activities at the marine offloading facility at Blaydin Point. Mr Smith’s remuneration equalled $95,222.00 gross per annum.
CONSIDERATION
Matters in dispute
[50] In short, Mr Smith conceded that he was involved in the two parking infringements in October 2017, and had declined to work when informed that his annual leave would not be approved for the dates 2 and 3 March 2017. However, he advanced the argument that his dismissal was nonetheless unfair because of the following:
(a) SafeRad had not made it clear that employees were not permitted to contact clients regarding service provision and interruptions to such provision by way of leave;
(b) while the two infringements contributed to the vehicle ban of S602-BAA at the Village, and Mr Smith’s second infringement in the Village gave rise to the ban due to it being the fourth for that vehicle, Mr Smith was not solely responsible for the ban;
(c) it was the case that signage and instruction at the Village did not make it clear where one could or could not park; and
(d) Mr Smith received disparate disciplinary treatment when compared to a co-worker who had been involved in a collision with a SafeRad vehicle, had not reported the collision and had only received a written warning.
Agreed Matters
[51] It is not in contest and I am satisfied on the evidence that:
(a) Mr Smith is a person protected from unfair dismissal because, at the time of his dismissal, he had completed a period of employment with SafeRad of at least the minimum employment period, an enterprise agreement applied to the Applicant in relation to the employment 46;
(b) Mr Smith was dismissed by SafeRad 47;
(c) SafeRad was not a ‘small business employer’ as defined in s.23 of the Act, so the Small Business Fair Dismissal Code was inapplicable 48;
(d) Mr Smith’s dismissal was not a case of genuine redundancy 49; and
(e) Mr Smith’s Application was made within the period required 50.
Valid reason for the dismissal – ss.387(a)
[52] When determining if a dismissal was unfair the Commission must take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct 51.
[53] Where the reason for termination of employment relates to an employee’s capacity or conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct 52.
[54] The reasons considered are the employer’s ‘reason(s)’ 53. The Full Bench in B, C, and D v Australia Postal Corporation T/as Australia Post54 (Australian Postal Corporation) stated:
[34]... In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).
[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal 55.
[55] Therefore, the question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the matter before it. As referred to in Australian Postal Corporation, the test is not whether the employer believed, on reasonable grounds after sufficient enquiry the employee was guilty of the conduct which resulted in termination 56.
[56] The valid reason need not be the reason given to the employee at the time of the dismissal 57 and the reason should not be ‘capricious, fanciful, spiteful or prejudiced’58. It is the case that the provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly59.
Consideration
[57] At its most simple, there were two reasons cited regarding why SafeRad ended the employment of Mr Smith. The first reason arose from Mr Smith’s conduct at Cape Lambert and the second from his conduct at the Ichthys Project.
Cape Lambert
[58] The first reason concerned Mr Smith’s refusal to attend work having had his request for annual leave on 2 and 3 March 2017 rejected, and, in addition, contacting the client directly regarding his personal availability to work on Cape Lambert.
[59] It is uncontested that Mr Smith made the request for annual leave some 3-4 days before the proposed annual leave was to be taken and refused to work once the request was declined.
[60] The SafeRad EA provided at clause 14.4:
Annual leave can be taken by agreement between the Employer and Employee following a request by the Employee to take accrued annual leave. Leave approval is subject to the operational requirements of the workplace but shall not be unreasonably withheld.
[61] There was no evidence before me regarding the period in which Mr Smith was aware that he would require annual leave on 2 and 3 March 2017. Mr Smith explained that he requested the annual leave because his wife’s family were to visit from Thailand. There is no question in my mind that the request for the annual leave was legitimate. It did not appear to be the case that Mr Smith was simply attempting to avoid work but that he genuinely held the belief that it was important to be with his in laws when they visited.
[62] However, in the circumstances I find that it is not unreasonable for an employer, such as SafeRad, to decline a request for annual leave in circumstances whereby only 3-4 days’ notice is provided concerning the request. This is more the case in circumstances where the employer is an entity with only 22 employees and is providing services to a remote location.
[63] The notions of capacity or conduct appear in conjunctive relationship in ss.387(a) 60. Taken together, it appears that the Act refers inherently to personalised phenomena. That is to say, the reference to capacity means the personal attributes of an employee in relation to their ability to carry out their duties, just as ‘conduct’ refers to the personal conduct of the employer for which he or she is responsible61. It was not in issue that Mr Smith possessed the capacity to undertake the duties and responsibilities assigned to him.
[64] However, the First Warning Letter referred to matters relating to the performance of Mr Smith. While characterised as an issue of performance, I am disinclined to agree. Mr Smith’s refusal to attend Cape Lambert was not in my view an issue of performance. His reaction to the rejection of his annual leave request simply constituted misconduct.
[65] The SafeRad EA is silent regarding the meaning of misconduct, serious misconduct, or underperformance. However the Letter of Offer Cape Lambert provided that regarding performance, Mr Smith was required to work in an efficient and effective way, carrying out all work within his competence.
[66] There was no evidence before me to suggest that Mr Smith had not produced the product required, or provided the contracted services, in anything other but an efficient and effective way. There was no mention of not meeting key performance indicators, or producing poor quality product or service.
[67] I am satisfied that Mr Smith’s refusal to attend work following his request for annual leave being declined, constituted misconduct. That is, his behaviour was such that it was contrary to his duty to comply with any lawful and reasonable direction given by SafeRad 62.
[68] Evidence before the Commission was that Mr Smith had contacted the client directly to confirm work dates. Both parties admitted that this was the case albeit Mr Smith asserted he was directed to do so by Mr Parrott and Mr Parrott adamantly objected that he had provided such instruction.
[69] The evidence of Mr Smith was that, on hearing the dates he was required on site, he had voiced his concern to the client about his availability to work on the Project. Further, Mr Smith said that when speaking to the client he did suggest how he could accommodate the request of the client but when he was speaking to the client he purported that he did not speak on behalf of SafeRad.
[70] There was no evidence before me to suggest that it was the usual course of practice for SafeRad Technicians to liaise directly with SafeRad’s client to confirm when services would be provided or to otherwise suggest alternative dates for the provision of such services. Mr Parrott stated that while it was usual for SafeRad employees to discuss with the client directly the technical aspects of the provision of services, arrangements regarding leave and rosters was to go through management.
[71] Mr Parrott had stated that he informed Mr Smith that he had no right to contact the client directly and he had breached SafeRad’s standing instructions by talking to the client 63. While no standing instructions were produced at hearing, I was persuaded by Mr Parrott’s evidence that rostering and leave arrangements were matters that sat within the remit of management to discuss with SafeRad clients. I believe Mr Parrott’s account in preference to the account of Mr Smith.
[72] With regard to my preference for Mr Parrott’s evidence, I observe that Mr Smith purported that he did not speak on behalf of SafeRad when communicating with the client to make alternative suggestions concerning the work on Cape Lambert for 2 and 3 March 2017. This seems most implausible. If the communication pertains to confirming when services are to be provided to RCR, it is difficult to conceive that this could be anything other than speaking on behalf of SafeRad. It is SafeRad who was contracted to provide the services, it was not Mr Smith in his personal capacity.
[73] I consider Mr Smith’s direct liaison with the client regarding work at Cape Lambert on 2 and 3 March 2017 contrary to what was required of him by his employer.
Ichthys Project
[74] The second reason that contributed to SafeRad’s decision to dismiss Mr Smith was his accretion of two parking infringements, one of which was said to have resulted in the ban of vehicle S602-BAA from the Village.
[75] It was clear from the evidence that Mr Smith appreciated that to park in the area he did would risk a further parking infringement and potentially a ban of vehicle S602-BAA. So much was evident from Mr Smith’s prompt notification of Mr Kennedy. Mr Smith was aware that there would be a potential second infringement and therefore 24hrs before the official infringement notice he notified Mr Kennedy noting that it would be the fourth now on the relevant vehicle, meaning Village access would be revoked 64.
[76] While Mr Smith advanced an argument that he did not know that there were parking areas within the Village confines where vehicles were not permitted to park, regrettably I have difficulty believing him. The evidence of Mr Ivory was that on commencement at the Ichthys Project there was a compulsory induction program conducted by Downer in which strict Village Rules were traversed relating to parking. Mr Ivory gave further evidence that there were signs in many places within the Village where parking restrictions were clearly stated.
[77] In respect to the induction process the evidence of Mr Ivory and Mr Buttery was similar, and the evidence referred to by SafeRad showed Mr Smith had acknowledged the Village Rules. The Village Rules made explicit reference to not parking in unauthorised areas. Given the content of the Village Rules and the evidence of Mr Ivory, I am satisfied that there were unauthorised parking areas within the Village. Mr Ivory’s account was compelling when considered in light of the regulatory framework governing traffic management in the Village and the accounts provided by Mr Smith and Mr Ivory concerning the first infringement. For these reasons I preferred the evidence of Mr Ivory than that of Mr Smith. Evidence referred to by SafeRad showed that Mr Smith was acquainted with the Village Rules. Mr Buttery gave evidence that Mr Smith had been required to attend an induction and orientation program prior to working on the Ichthys Project, which was evinced in subsequent documentation that was provided to the Commission 65.
[78] It sat well within the remit of the Village operator to establish traffic and parking regulations to ensure the orderly flow of vehicle traffic within the Village. There were no submissions made that such regulation was unreasonable or unlawful. Further having signed the Ichthys Letter, Mr Smith was obliged to comply with Ichthys Project specific policies and procedures.
[79] Mr Smith acknowledged that he was aware of the Downer Project Information Booklet and had signed an acknowledgement that he had received it, in addition to signing the Ichthys Letter that referenced the obligation to comply with the Project Information Booklet. At clause 6.1 of the Downer Project Information Booklet it stated:
Your behaviour in the accommodation village is important. All residents should be able to enjoy and relax in their time off without disruption from inappropriate behaviour. As such, you will be required to agree to and sign off on an Accommodation Code of Conduct (Village Rules). You will be provided with the Village Rules upon your check in at the accommodation village and are required to sign it prior to accommodation being issued to you.
Breaches of the Village and Project Rules may result in disciplinary action, removal of Project Access and could result in termination of your employment.
[80] The letter from Downer to Mr Buttery of 21 October 2017 informed SafeRad of the Village vehicle ban for vehicle S602-BAA. The letter further advised that if the relevant vehicle was returned to the Village the registered driver would have their Village accommodation revoked. Attached to the letter was a JKC Notice to Drivers providing details on the Village parking requirements. Some of the contents of that Notice have already been traversed in this decision.
[81] When the fourth infringement was issued Mr Smith was the driver of SafeRad vehicle S602-BAA and it was therefore, at the very least, his responsibility to ensure he was familiar with, and knew of, the vehicle restrictions that were in place at the Village. I have no doubt from the evidence provided that Mr Smith was familiar with the restrictions regarding parking having already incurred a parking infringement previously and demonstrating that he understood the significance of the further fourth infringement.
[82] I appreciate that Mr Smith was not solely responsible for the ban of S602-BAA given that another or others must have contributed to the vehicle accreting four infringements in total. However, it was his action on or around 19 October 2017 that resulted in the issuing of the fourth infringement and Downer’s decision to ban the relevant vehicle.
[83] The fourth infringement had seemingly obvious implications that Mr Smith was familiar with namely, a vehicle ban would follow.
[84] The implications however were said to have gone further than that for SafeRad. In Downer’s letters to Mr Buttery of 21 October 2017 and 23 October 2017, particularly that of 23 October 2017, Mr Doyle wrote that the vehicle restrictions concerning S602-BAA and CB-32-CA would have implications on the delivery of scope as personnel would be required to take site provided transport which would mean that SafeRad would not be able to deliver 12 hour days. In the Termination Letter Mr Buttery set out that Downer had reduced the scope of work on the Project which had previously been contracted.
[85] I am of the view that Mr Smith made an imprudent decision to park within a restricted area of the Village and did so in the knowledge that a further infringement would give rise to a vehicle ban regarding the vehicle he was driving. I am further satisfied that Mr Smith was cognisant that such a ban would have ramifications for SafeRad hence his prompt notification of the potential ban to Mr Kennedy.
[86] While Mr Buttery relied in part upon the report of Downer concerning the conduct of Mr Smith he also sought to ascertain from Mr Smith his version of events. Mr Smith clearly admitted to the conduct that gave rise to the infringements. It is not the case that there was no independent attempt by Mr Buttery to verify what had occurred.
[87] Mr Smith’s refusal to work when on short notice he had requested annual leave and subsequently it was not granted, in culmination with the accretion of parking infringements, the latter of which resulted in the ban of SafeRad vehicle S602-BAA are, in my view, valid reasons for his dismissal. There was a deliberate flouting by Mr Smith of what were, in my view, lawful and reasonable instructions to attend work when Mr Smith’s annual leave was declined and to comply with the Village rules with regard to vehicle use and access.
Notification of the valid reason –ss.387(b) and an opportunity to respond –ss.387(c)
[88] The Commission must take into account whether notification of a valid reason for termination has been given to an employee protected from unfair dismissal before the decision is made 66, and in explicit67, plain and clear terms. It is accepted that this is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality68.
Consideration
[89] Mr Buttery gave evidence that a telephone discussion was held with Mr Smith before issuing the Second Written Warning. Mr Buttery said that he had asked Mr Smith for an explanation for what had happened and Mr Smith purportedly responded. During the course of this discussion, Mr Buttery informed Mr Smith that there was an ongoing investigation by SafeRad into matters involving his vehicle infringements and that for now he would receive the Second Warning Letter 69. While Mr Smith contested Mr Buttery’s account, I am satisfied, based on the evidence, that Mr Smith received the Second Warning Letter.
[90] Mr Buttery notified Mr Smith that a meeting would be held on 2 November 2017 to discuss the matter of the infringements further 70. At the meeting on 2 November 2017, Mr Buttery gave evidence that he asked Mr Smith about the infringements again and asked if Mr Smith could give any reason why disciplinary action should not be taken against him. In the circumstances I am satisfied that Mr Smith was clearly notified of the valid reason for dismissal.
[91] Mr Smith gave evidence that he had been denied the opportunity to respond when provided with the Second Warning Letter 71 and was simply requested to attend the office on Project Ichthys and instructed to sign the letter. However, at hearing Mr Smith acknowledged that he had been provided with the Second Warning Letter and had taken it away for a day for consideration before signing it and giving it back to his Supervisor, Mr Kennedy. Mr Smith noted that the Termination Letter was signed when he arrived at the meeting on 2 November 2017. I am of the view that preparing a termination letter before a disciplinary meeting does not, in the circumstances of this case, mean the decision to dismiss had already been made and therefore my finding that Mr Smith was provided with an opportunity to respond is not negated.
[92] I am satisfied that Mr Smith was notified of the reasons why SafeRAD was considering terminating his employment and was given an opportunity to respond to those reasons. I am not satisfied that the decision to dismiss the Applicant was made before notification of a valid reason or providing the opportunity to respond.
Unreasonable refusal of a support person – ss.387(d)
[93] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.
Consideration
[94] It was not clear on the evidence before me whether Mr Smith had requested to have a support person present albeit that there was no evidence to suggest that one had been denied.
Warnings regarding unsatisfactory performance – ss.387(e)
[95] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.
[96] Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct 72. The Commission must take into account whether there was a period between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period gives the employee the opportunity to understand their employment is at risk and to try to improve their performance73.
Consideration
[97] This is a neutral factor in light of the finding that the reason for dismissal was the misconduct of the Applicant rather than his performance. Mr Smith questioned why it was the case that he was not provided with an opportunity to respond to the performance issues that had been raised in the First Warning Letter and that of the Second Warning Letter. However, having considered the incidents that were raised and relied upon to dismiss Mr Smith, I am of the view that they sat squarely as misconduct issues.
Impact of the size of the respondent on procedures followed and absence of dedicated human resources management specialist/expertise on procedures followed – ss.387(f)-(g)
[98] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which: (a) the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (b) the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Consideration
[99] SafeRad is a small company employing approximately 22 employees and does not have a dedicated Employee Relations or Human Resources function. However, it enquired into the incidents before making a decision and allowed Mr Smith to respond to what had been alleged. Further, there was documentation including the First Written Warning, the Second Written Warning and the Termination Letter that outlined what SafeRad considered to be the legitimacy of the reasons relied upon for Mr Smith’s dismissal.
Other relevant matters – ss.387(h)
Inconsistent treatment of employees
[100] A relevant matter to whether Mr Smith’s dismissal was harsh, unjust or unreasonable is whether Mr Smith was unfairly afforded inconsistent treatment by SafeRad in relation to his dismissal when compared to other employees who had been involved in Village or other traffic infringements.
[101] Mr Smith submitted that on the same day the Village Access Notice was received for vehicle S602-BAA, it was reported by the company JKC to Downer that vehicle CB-32-CA, a Downer Engineering vehicle allocated to SafeRad, had been involved in an unreported collision therefore triggering an investigation. Mr Smith’s submission was that the employee who had been involved in an unreported collision had not had his employment terminated and therefore it followed that SafeRad had afforded inconsistent treatment toward its employees.
[102] The evidence of Mr Buttery was that two employees had been issued warnings with regard to the collision of vehicle CB-32-CA. One employee failed to report the collision in circumstances where he was aware the collision had occurred and the other was the driver of the vehicle and similarly did not report the collision 74. Mr Buttery’s evidence was that the driver of the relevant vehicle was removed from Project Ichthys but remained employed.
[103] In Darvell v Australian Postal Corporation 75, the Full Bench made the following comments in relation to the question of differential treatment between employees (references omitted):
[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton’s case, his Honour said:
“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …
[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”
[22] Subsection 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to ss.387(h) of the FW Act.
[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:
“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]
[24] We respectfully concur with their Honours.
[104] Differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable. There is simply insufficient evidence to enable a proper comparison to be made between the circumstances of Mr Smith and the aforementioned SafeRad employees.
Serious misconduct
[105] There was no evidence before me in relation to what contributed to the collision and the failure to report the collision, the training provided, the circumstances of the employees, or mitigating facts, save that which has been written of in this decision. In the absence of evidence, I am not positioned to make a proper comparison. It is on that basis I find myself unprepared to find that Mr Smith’s dismissal was harsh, unjust or unreasonable because the employment of the other two SafeRad employees was not terminated.
[106] It was submitted that Mr Smith was dismissed on the basis of serious misconduct. However, it is the case that he was paid out his notice period 76. Having considered the conduct of Mr Smith, I am unpersuaded that his dismissal was a disproportionate response to such conduct.
Conclusion
[107] I have taken into account each of the matters specified in s.387 of the Act and have considered Mr Smith’s conduct. I am satisfied that SafeRad had a valid reason for Mr Smith’s dismissal and that his dismissal was not unjust, unreasonable, or harsh.
[108] Accordingly, I am obliged to dismiss this Application and an order 77 to that effect is being issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
Mr D Smith, on his own behalf.
Mr D Singh, of Counsel, for the Respondent.
Hearing details:
2018
March
6
Final written submissions:
27 March 2018
1 Exhibit R3.
2 [2017] FWCA 614.
3 Exhibit A5
4 Ibid.
5 Exhibit R12 [8].
6 Exhibit R2.
7 Exhibit R3.
8 Exhibit A4.
9 Ibid.
10 Ibid.
11 Ibid.
12 Exhibit R12 [10].
13 Ibid [11].
14 Ibid.
15 Ibid [13] – [14].
16 Exhibit A7.
17 Exhibit R4.
18 Ibid.
19 Exhibit A4.
20 Ibid.
21 Ibid.
22 Ibid.
23 Ibid.
24 Ibid.
25 Ibid.
26 Exhibit R9 [6].
27 Ibid [7].
28 Ibid [8].
29 Ibid [10].
30 Ibid [11].
31 Ibid [11].
32 Exhibit A4.
33 Exhibit A11.
34 Ibid Attachment A.
35 Ibid.
36 Ibid Attachment B.
37 Exhibit A12.
38 Ibid.
39 Ibid.
40 Exhibit A8.
41 Exhibit R13 [33].
42 Ibid [34].
43 Ibid [35].
44 [2017] FWCA 614.
45 [2015] FWCA 3278 [3], [12.3].
46 s.382 of the Act.
47 ss.385(a) of the Act.
48 ss.385(c) of the Act.
49 ss.385(d) of the Act.
50 ss.394(2) of the Act.
51 ss.387(a) of the Act.
52 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
53 Owen Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 [25].
54 [2013] FWCFB 6191 [34].
55 Ibid [34] – [36].
56 King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 [24]; B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191 [34].
57 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 377-8.
58 Ibid.
59 Ibid as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17 [36].
60 Ms Lillian Lampton v Ferdy’s Haven Alcohol Rehabilitation Aboriginal Corporation T/A Ferdy’s Haven [2013] FWC 1769 [74].
61 Ibid.
62 SafeRad SE Asia Pty Ltd Enterprise Agreement 2016 [2017] FWCA 614 [5.14].
63 Exhibit R12 [13] – [14].
64 Exhibit A4.
65 Exhibit R13 [27].
66 Trimatic Management Services Pty Ltd v Daniel Bowley[2013] FWCFB 5160; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 151.
67 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151; Previsic v Australian Quarantine Inspection Services Print Q3730.
68 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1 14-15.
69 Exhibit R13 [37].
70 Ibid [39].
71 Exhibit A4.
72 Annetta v Ansett Australia Ltd (2000) 98 IR 233 237.
73 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
74 Exhibit R13 [31].
75 [2010] FWAFB 4082.
76 Exhibit A10.
77 PR601948.
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