Mr Daryl Pearce v Nyrstar Hobart Pty Ltd

[2011] FWA 1541

[2011] FWA 1541

FAIR WORK AUSTRALIA

DECISION

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

Mr Daryl Pearce
v
Nyrstar Hobart Pty Ltd
(U2010/1549)

COMMISSIONER DEEGAN CANBERRA, 10 MARCH 2011

Termination of employment - summary dismissal for misuse of carer’s leave - whether harsh, unjust or unreasonable - history of absenteeism.

[1] This matter arises from an application for unfair dismissal remedy filed at Fair Work Australia’s Hobart registry on 23 September 2010 by Mr Daryl Pearce (the applicant) in respect of the termination of his employment on 9 September 2010 by Nyrstar Hobart Pty Ltd (the respondent). The application is made under s.394 of the Fair Work Act 2009 (the Act).

[2] On 19 October 2010 an unsuccessful conciliation was conducted. On 25 October 2010 the matter was listed for arbitration and directions were issued in respect of the filing of submissions, witness statements and documentary material.

[3] Before the hearing certain medical records relating to the applicant and members of the applicant’s immediate family were produced pursuant to orders I issued on 22 November 2010 requiring the production of specific documents.

[4] The matter was arbitrated in Hobart on 29 and 30 November 2010 in accordance with the original notice of listing. At hearing the applicant was represented by Mr Borg of the CFMEU (with him Mr Reeves also of the CFMEU). The respondent was represented by Ms Zeitz (with her Ms Newton an employee of Nyrstar).

Background

[5] The applicant was employed by the respondent from around October 2007 as a contractor and then on a permanent full-time basis from September 2009.

[6] The applicant was dismissed with immediate effect on 9 September 2010. He received four weeks pay in lieu of notice consistent with the termination provisions of the appropriate industrial instrument – the Zinifex Hobart Smelter Enterprise Agreement 2004 (the Agreement).

[7] The letter of termination 1 dated 9 September 2010 stated as the reason for termination the utilisation of carer’s leave under false pretences. The termination letter also claimed that the applicant had “consciously taken a decision to defraud the company”.

The applicant’s evidence

[8] The applicant gave evidence in support of his case and called as a witness Mr Marshall Reeves, an honorary organiser for the CFMEU, who had filed a witness statement. 2

Mr Marshall Reeves

[9] Prior to becoming an honorary organiser for the CFMEU Mr Reeves had worked at the smelter for 19 years. His evidence was that the applicant had contacted him in his capacity as union organiser and complained of discriminatory treatment from Nyrstar management. Mr Reeves claimed that the applicant had been “quite agitated” that other staff members were getting treated more favourably with regards to accessing leave.

[10] Mr Reeves described an “equal opportunity process” initiated by the applicant in March 2010, which was overseen by Nyrstar Equal Opportunity Officer Mr Andrew Viney. In particular, Mr Reeves gave evidence about a conference attended by himself, the applicant, Mr Rainbird (Electrolysis Department Team Leader), Mr Wells (Electrolysis Department Operations Superintendent), and Ms Victoria Newton of Nyrstar Human Resources.

[11] Under cross-examination, Mr Reeves agreed that four separate complaints were identified at that meeting of 22 March 2010:

• Denial of leave over Christmas;



• Inadequate access to training;



• The conduct of a formal counselling session about absenteeism; and



• Not granting emergency leisure leave.

[12] Mr Reeves distinguished ‘emergency leisure leave’ from other forms of leave like annual leave, and agreed that it was “a way of taking accrued leisure leave at short notice”. 3 According to Mr Reeves, it was the practice at the smelter for operators to approach their immediate supervisor and ask to have a ‘leisure day’. Mr Reeves’ statement of evidence indicated that this arrangement was possible because the cell room was run on a ratio of 7:1 which allowed up to 3 workers to be absent from duty at any one time.

[13] According to Mr Reeves, Ms Newton had brought the meeting of 22 March 2010 to an abrupt end when the applicant produced a photocopy of the ‘holiday book’ 4 where electrolysis operators recorded their leave applications. It was asserted that the holiday book showed that on 31 January 2010 another operator had been granted (by Mr Wells) ‘emergency leisure leave’, a type of leave the existence of which had earlier been denied by the respondent on 19 October 2009.

[14] It was Mr Reeves’ recollection that after the meeting he had agreed to the retention of an independent investigator to conduct an investigation “without fear or favour”. 5 It was his evidence that little came out of that report from the applicant’s point of view and that the applicant was reluctant to pursue the claim as he had applied for a job in the roasting division of the smelter, which he was hoping would enable him to leave the cell room.

[15] Mr Reeves was cross-examined about the applicant’s reasons for not pursuing the equal opportunity claim. He conceded that the applicant was informed by Mr Wilson-Haffenden of the outcome of the independent investigation on 10 June 2010, and that the applicant was advised by letter dated 16 July 2010 that he had been unsuccessful in his application for the position in the roasting division. Mr Reeves stated that another reason the claim had not been pursued at the time was the unavailability of a particular workplace relations consultant who was a specialist in the area.

[16] Mr Reeves also conceded that had the applicant’s application for leave over the weekend of 4 and 5 September 2010 been granted he would have been the fifth person away from the cell room at that time.

Mr Daryl Pearce

[17] The applicant’s evidence was that while there were “no hassles” when he first started to work for the respondent, towards the end of 2009 his requests for leave were continually getting knocked back whereas other employees’ requests were getting granted:

“There were times, on probably three or four occasions I know, where people came in at short notice, they'd sort of said, "I know it's short notice, but there's a spare spot in the holiday book, can I have our first nightshift or our last nightshift off?" and that was granted. And I know of times, like, I'd come into work and people would say, "Where's so-and-so?" and they'd say, "They've got an emergency leisure day". 6

[18] The applicant’s witness statement noted the troubled personal relationship between himself and his team leader Mr Rainbird. In particular:

• On 19 October 2009 the applicant phoned work at 5:15 am and asked Mr Rainbird for an ‘emergency leisure day’ because his daughter was ill. According to the applicant he was told by Mr Rainbird that there was no such thing as emergency leisure leave.



• The applicant claimed that in March 2010 while he was off-duty Mr Rainbird had spoken to a number of operators and told them that he felt that the applicant was “gunning for him” and “trying to take him to the cleaners”. The applicant inferred from this that Mr Rainbird was feeling anxious about rejecting the applicant’s emergency leave request. 7

[19] A photocopy of the relevant pages of the holiday book had been obtained by the applicant and was tendered. 8 In the book it appeared that Mr Wells had granted another employee, Mr Holmes, leave on the basis of an ‘emergency leisure day’ on 31 January 2010. The applicant also claimed that the holiday book showed that he had been treated less favourably with regard to Christmas leave.

[20] The applicant was asked about the conduct of the independent investigation carried out by Mr Farmer and expressed disappointment with the outcome of the investigation. He was also questioned about remarks that had been made about his absenteeism and responded that any type of leave, other than annual leave, was counted by the company towards absenteeism. When asked about an unplanned absence he had had around Christmas 2009 at a time when other workers were taking industrial action, the applicant indicated that he had had gastritis at that time. 9

[21] It was the applicant’s evidence that he originally applied for ‘accrued leave’ (i.e. annual or leisure leave) for the weekend of 4 and 5 September 2010 as he was concerned about taking any kind of leave that might count towards his absenteeism, given that he had been formally counselled by Mr Rainbird about absenteeism on 8 January 2010. The applicant gave evidence that, prior to his formal counselling session, no one had explained to him what levels of absenteeism were unacceptable to the company. He claimed that at the counselling session Mr Rainbird had told him that anything over 144 hours in a 12 month period was excessive. 10 By that time the applicant had worked 15 months and been absent for 159 hours.

[22] The applicant was then asked about the circumstances surrounding the denial of the application he made on 19 August 2010 for accrued leave for 4 and 5 September 2010. The applicant stated that he had explained that he had wanted the leave:

“To care for my daughter as my wife was going away, and she'd injured her leg, which I'd also - round that time I'd had other carer's leave for that, which certificates should have been provided - and just said to my team leader that my wife was going away. Obviously my daughter was on crutches and I was required to stay at home and care for her”. 11

[23] It was the applicant’s evidence that he sought to access carer’s leave for the weekend of 4 and 5 September 2010 because he did not receive a response to his accrued leave application. 12 He stated that he had submitted a medical certificate, which verified the need for him to care for his daughter, on Monday 30 August 2010. A doctor’s certificate issued by Dr Roland Watzl of the Brighton Doctors Clinic on 30 August 2010 was tendered by the applicant.13 The certificate provided as follows:

“This is to certify that Darryl Pearce has to attend appointments with his daughter Samantha on the 4^th and 5^th of September 2010 and thus requires carer’s leave.

Regards,

Dr Roland Watzl MBBS FACRRM

MBBS FACRRM – Brighton Doctors

Brighton Doctors and Travel Clinic

[24] It was the applicant’s evidence that the medical certificate was given in respect of appointments “generally defined”. 14 The ‘appointments’ to which the certificate referred were not necessarily confined to leave in respect of ‘medical’ appointments, but also extended to ‘recreational’ appointments associated with his daughter’s physiotherapy rehabilitation program, such as bike riding and swimming.15

[25] According to the applicant he attended an appointment with his daughter on 2 September 2010 during which the physiotherapist recommended his daughter cease using crutches in order to build up strength in her injured leg. The applicant’s evidence was that, despite receiving this ‘clearance’ from the physiotherapist, his daughter still required care. He explained what was required as follows:

“Just being around her. Obviously through that week and through probably another two to three weeks after that, my daughter went through a lot of pain, tears, sleepless nights due to the fact that, you know, you've just come off crutches for four to five weeks and a splint and you've had no mobility in that leg and through using that - she had to swim and bike-ride between those two exercises up to five times a week. So there was only two days a week that she couldn't exercise. And through that she suffered a lot of pain and aching of that knee. As you can appreciate, there was still bruising in the bone”. 16

[26] According to the applicant the removal of the need for his daughter to use crutches did not eliminate the need for him to take the carer’s leave he had applied for on 30 August 2010.

[27] The applicant’s evidence also concerned medical conditions affecting his wife. It was his evidence that

• He had taken leave in April 2010 to be with his wife while she underwent certain medical tests;



• Mrs Pearce’s health prevented her from giving sworn evidence during the hearing concerning her son’s soccer trip to Northern Tasmania; 17



• it was the applicant’s claim that his wife’s wellbeing was such that she felt insecure looking after their daughter on her own; 18



• around the time of the applicant’s dismissal he had made it known to his employer that he was experiencing marital problems; 19 and



• he considered himself to be exercising a simultaneous carer’s function for his wife in relation to her depressive illness while in Northern Tasmania. 20

[28] The applicant’s witness statement asserted that, “it was simply not an option for me to hand over the carer’s function to my wife at the time”.

[29] Documents were produced under summons by the Tamar Valley Resort, 21 the destination to which the applicant’s family travelled on the weekend of 4 and 5 September 2010. According to the applicant the Tamar Valley Resort booking, which was originally made by his wife in May 2010, was for his wife, her sister and three children (aged 14, 12 and 10).

[30] A performance review conducted on Tuesday, 31 August 2010 by Mr Warren Hayes, a team leader in the electrolysis area of the smelter, was tendered on the applicant’s behalf. 22 The applicant’s evidence was that he scored an average of 10.5 across the ten areas employees were assessed against. It was his understanding that 10 represented a “good score” and that 15 was “exceptional”. The applicant referred to comments appearing at the end of the Performance Review Report which read: “Well done, Daryl, on a good year. You have been flexible this year and have recently become a valued member of SM1 machine crew. Keep up the good work”.

[31] According to the applicant during the performance review Mr Hayes asked him a series of questions about his leave application for 4 and 5 September 2010. He claimed he was asked: "Why did you initially ask for annual leave or leisure leave, rather than carer's leave?" to which he replied that since he had been counselled about his absenteeism he wanted to use up his accumulated leave. The applicant was also asked why he had to be the primary carer for his daughter over the weekend and had responded that “…my wife was going away with my son to a football trip in northern Tasmania, and I was staying home with my daughter to care for her”. 23

[32] The applicant also gave evidence about the manner in which he was dismissed. He stated that he was stood down by Mr Wilson-Haffenden during a phone conversation on 6 September 2010. It was his evidence that Mr Wilson-Haffenden had said that “We have reason to believe that you weren't home on the weekend like you stated”. 24

[33] At a meeting with company representatives on Tuesday 7 September 2010 the applicant had admitted that he travelled to Northern Tasmania on the weekend. He claimed that he had apologised for ‘causing grief on both sides’ by not sharing enough information about his marital problems but that he did not, by this apology, intend to convey any admission of wrongdoing. 25

[34] The applicant’s evidence was that his decision to accompany his wife on the trip to Northern Tasmania on the weekend of 4 and 5 September 2010 was made on impulse on the morning of 4 September 2010. 26 When cross-examined the applicant denied having always planned to go from the moment his wife made the Tamar Valley booking.27 He claimed that it did not matter where he was as he was still legitimately utilising carer’s leave to exercise the carer’s function for his daughter. It was the applicant’s position that he had been required to make a choice between his job and his family.

[35] During cross-examination of the applicant Ms Zeitz played a 6 minute-long DVD containing surveillance footage showing the Pearce family travelling to Northern Tasmania on Saturday 4 September 2010. Mr Borg objected to the DVD being shown and relied upon, 28 and claimed that the footage was ‘degrading’.29 It was Ms Zeitz’ contention that the video simply showed people in a public place. The video was not marked as an exhibit.

[36] A statutory declaration by the applicant’s wife dated 29 November 2010 was accepted as evidence of the fact that she had no documentary evidence relating to her son’s soccer trip. 30 So far as other matters included in that statutory declaration were concerned, I indicated that I would give them the weight I considered they deserved given the prejudice to the respondent of admitting the untested declaration into evidence at such late notice.

[37] The statutory declaration contained details about the resort booking, the applicant’s decision to join his family in Northern Tasmania, a claim that the applicant’s wife suffers from and is being treated for a depressive illness, and the couple’s marital difficulties

The respondent’s evidence

[38] A number of the items were tendered in evidence at the commencement of the respondent’s case including medical histories for the applicant’s wife (1 March 2010 – 30 April 2010) 31 and daughter (1 June 2010 – 10 September 2010)32 obtained from the Brighton Doctor’s Clinic pursuant to orders for the production of documents granted on 22 November 2010.

[39] Pharmacy records supplied by Allied Health Professional and Pharmacy Services, 33 and receipts and booking information forwarded by the General Manager of the Tamar Valley (Grindelwald) Resort,34 were also tendered.

[40] There were four witnesses for the respondent.

Mr Warren Hayes

[41] A witness statement was lodged for Mr Hayes. 35 Mr Hayes is the A panel team leader in the electrolysis division of the smelter. At the time of the applicant’s dismissal he was the process leader on C panel and the applicant’s supervisor. His responsibilities included being the ‘first port of call’ for performance management issues and leave requests.

[42] Mr Hayes gave evidence about the applicant’s leave request of 20 August 2010. He stated that he told the applicant that he would have to refer his leave request to a more senior manager, Mr Steve Crack, as three other people had already had leave approved for the same period. It was also his evidence that, later on 20 August 2010, the applicant said words to the effect “if I can’t have annual leave I need carer’s leave instead”. 36 According to Mr Hayes’ thereafter he treated the applicant’s leave request with a great deal of suspicion.

[43] It was the evidence of Mr Hayes that on 30 August 2010 while conducting the applicant’s performance review he had, at the request of Mr Wilson-Haffenden, asked the applicant particular questions about his leave application. Mr Hayes stated that the applicant had told him that he needed to take carer’s leave on the weekend of 4 and 5 September 2010 as his wife was going away with his son and he was required to care for his daughter, who had injured her knee.

[44] At the time Mr Hayes conducted a performance review of the applicant he had been team leader of the relevant shift for only two months. He admitted to encountering some difficulty in evaluating the performance of employees who had not long been under his supervision:

“I didn't have enough evidence to really mark people highly or to mark them, you know, at less than average if you like. So I tried to keep it - let - like uniform without any - if people - if there were specific things that you're aware of and you would mark people down for that, but if you don't have the evidence to support that then I just tried to keep it as - I guess level so that you weren't really discriminating against any one person and trying to keep people I guess encouraged about their performance and stuff like that”. 37

[45] When asked how he would feel about Mr Pearce coming back into the team, Mr Hayes said that he would ‘struggle with that’ as a result of what had happened in the past couple of months. 38

Mr Craig Rainbird

[46] Mr Craig Rainbird, Operations Team Leader at Nyrstar’s Hobart smelter operation, also lodged a witness statement. 39 Mr Rainbird described his primary role as “managing between 18 and 21 operators. Leave and performance management et cetera”.40 Mr Rainbird was the applicant’s team leader until March 2010 when the applicant made a complaint against him. Mr Hayes became the applicant’s new team leader.

[47] Mr Rainbird denied that emergency leisure leave still operates within the electrolysis area. 41 He explained the circumstances which lead to the applicant being allocated less leave over Christmas 2009 than he had requested. It was his evidence that due to other leave requests being approved without his knowledge access to leave was decided on seniority, with those employees with longer service getting priority.42

[48] It was Mr Rainbird’s evidence that he had counselled the applicant about absenteeism. He stated that he had conducted ‘informal coaching’ on 28 April 2009 and ‘formal counselling’ on 8 January 2010, 43 as the applicant had taken a large amount of leave. According to Mr Rainbird the object behind the initial coaching session was to offer support to the applicant (including access to the EAP) to try and get him headed in the right direction.44

[49] Mr Rainbird also gave evidence about the change that took place with regards to the applicant’s work arrangements in July 2009. By July 2009 he had grown concerned that the applicant’s work was slipping. It was around this time that Mr Rainbird became the supervisor of C panel as well as D panel. He felt the applicant’s performance might improve if he were moved to a new team. Attachment 3 to Mr Rainbird’s statement was a letter dated 22 July 2010 signed by Mr Wells which outlined the applicant’s move to C panel with effect from 31 July 2009.

Mr Craig Wells

[50] Mr Wells, Nyrstar Electrolysis Department Operations Superintendent, described the circumstances in which the company hired the applicant in 2008. 45 It was Mr Wells’ recollection that the applicant was among 30 or so people engaged by the company with a view to developing potential leaders.

[51] Mr Wells recalled that there was such a thing as ‘emergency leisure leave’ in existence when he transferred to the electrolysis department. Until late 2009 electrolysis operators could phone their supervisor at any point prior to the start of their shift and request an ‘emergency leisure day’. It was Mr Wells’ evidence that he put a stop to this towards the end of 2009 by sending a communication to all team leaders stating that there was no such thing as emergency leisure leave. 46

[52] Mr Wells testified that his first dealings on a personal level with the applicant took place in March 2010 when the applicant made a discrimination and harassment complaint against Mr Wells and his team leader, Mr Rainbird. Mr Well’s recollection of the conference of 22 March 2010 differed from that of the applicant’s witness, Mr Reeves. It was Mr Wells’ understanding that all the complaints made by the applicant under this process were found to be unsubstantiated.

[53] Mr Wells gave evidence that Mr Hayes had to consult with him about the applicant’s leave application of 19 August 2010 because there were already too many leave applications for the weekend of 4 and 5 September 2010. According to Mr Wells, in such situations he exercised the final decision about whether or not to approve leave. He instructed Mr Hayes to inform the applicant that it was not possible to approve his leave request in the circumstances, as to do so would result in five people being absent on the relevant days.

[54] Mr Wells’ evidence was that Mr Hayes came back to him because the applicant had then requested permission to access carer’s leave in respect of the same dates (4 and 5 September 2010). Mr Wells gave evidence that he consulted with the HR Manager, Mr Wilson-Haffenden, who instructed him to have someone ask the applicant certain questions in respect of this most recent leave application. It was Mr Wells’ evidence that he in turn directed Mr Hayes to ask the applicant the questions.

[55] According to Mr Wells he was prepared to accept that the applicant’s application for carer’s leave was genuine after the applicant provided the medical certificate on 30 August 2010. He accepted that the applicant might be required to take his daughter to medical appointments while his wife was away. The applicant’s carer’s leave request was approved prior to the weekend of 4 and 5 September 2010. Mr Wells stated that the respondent was able to obtain cover for the applicant’s absence by the use of labour hire. 47

[56] It was the evidence of Mr Wells that rumours that the applicant was in fact attending an ‘end of season football trip’ on the relevant weekend had aroused his suspicion, which he ultimately passed on to Mr Wilson-Haffenden. Under cross-examination Mr Wells conceded that he did not take up the subject matter of the rumours with the applicant before taking them to Mr Wilson-Haffenden. 48 After some additional detail was given Mr Wells was eventually able to recall the case of another employee at the smelter who applied for sick leave in order to play football.49

[57] According to the evidence of Mr Wells he and Mr Wilson-Haffenden had taken the decision to obtain surveillance of the applicant over the weekend “to make sure he was actually taking his daughter to medical appointments as he said he would be”. Further it was his evidence that sometime on 4 September 2010 the investigator had contacted him by telephone to inform him that he had observed the Pearce family travel to the Tamar Valley Resort in Northern Tasmania. 50

[58] Mr Wells stated that he and Mr Wilson-Haffenden had discussed the surveillance footage obtained by the investigator on Monday morning, 6 September 2010. A decision was then made to stand the applicant down before his next shift, scheduled for that night. Mr Wells was unable to give any direct evidence as to the meeting which took place on 7 September 2010 as the applicant had requested that he leave the room so that he could divulge personal matters to Mr Wilson-Haffenden.

[59] When shown the photocopies of the holiday book obtained by the applicant, 51 Mr Wells denied approving the ‘emergence leisure day’ for another employee, Mr Holmes, on 31 January 2010. It was his evidence that a Mr Bester wrote the words "Emergency LD granted by C. Wells" and that he had never seen the relevant page of the holiday book before.52

Mr Timothy Wilson-Haffenden

[60] Mr Wilson-Haffenden, Nyrstar HR Manager, gave his account of the events which culminated in the applicant’s dismissal. 53 He stated that his first personal contact with the applicant came as a result of the complaint lodged by the applicant in March 2010. Mr Wilson-Haffenden gave evidence that upon receiving the complaint he made arrangements for an independent investigator, Mr Farmer, to conduct an investigation into the applicant’s allegations of harassment.

[61] Mr Wilson-Haffenden was requested to explain the carer’s leave entitlements of employees at the smelter. Mr Wilson-Haffenden described the respondent’s leave system which included a broader category of ‘personal leave’ (encompassing carer’s leave) as a “no debit / no credit” system in the sense that if an employee is sick then, providing they supply the appropriate documentation, they are entitled to paid sick leave. 54

[62] It was Mr Wilson-Haffenden’s opinion that the system was treated with a fair degree of trust, and that relations between management and employees were such that there was no systemic absenteeism. 55

[63] Mr Wilson-Haffenden explained that the applicant had previously directly sought from him access to carer’s leave while the harassment investigation was ongoing. Mr Wilson-Haffenden recalled the applicant confiding in him about his wife’s health problems on that occasion.

[64] Mr Wilson-Haffenden professed to have assumed that the applicant was seeking leave to enable him to take his daughter to medical appointments. Mr Wilson-Haffenden’s evidence was that he and Mr Wells had arranged for surveillance after ‘word from the floor’ that the applicant was, in fact, going away for the weekend. 56

[65] It was Mr Wilson-Haffenden’s evidence that on Monday 6 September 2010 a representative of the surveillance company attended his office and presented him with a report and a video of the surveillance footage obtained by the investigator. Mr Wilson-Haffenden stated that after watching the video he had formed the conclusion that the applicant was not at home caring for his daughter and that he went to Launceston for the weekend. 57

[66] Mr Wilson-Haffenden stated that during the phone call with the applicant that afternoon he had asked the applicant some pre-prepared questions:

“I said to the applicant that it's a serious matter I need to talk to him about, and he said - I said, "You claimed carer's leave for the weekend?" He responded, "Yes." I said, "You were at home looking after your daughter who was ill?" He said, "Yes." I said, "You did that because your wife was away?" and he said, "Yes." I said, "I have reason to believe that's not the case," and that I would be standing him down. I wanted to meet with him the following morning and he suggested he have representation there”. 58

[67] The notes Mr Wilson-Haffenden used for the purposes of the conversation appeared as attachment 9 to his witness statement. It was his evidence that he did not deviate from these notes. 59

[68] Mr Wilson-Haffenden also stated that he had spoken with the Tasmanian State Secretary of the CFMEU, Mr Benson, later that day and that Mr Benson told him that he had informed the applicant, who was a member of the CFMEU, that he “didn’t want any bullshit”. 60

[69] Mr Wilson-Haffenden’s recollection of the meeting of 7 September 2010 was that the applicant had requested that Mr Wells leave the room. The applicant then proceeded to talk about the real reason for his going to Launceston, namely his marital difficulties, and that his wife had eventually given him an ultimatum - either his job or his marriage. Mr Wilson-Haffenden claimed that the applicant had admitted during that meeting that his doctor had given his daughter a clearance on the preceding Thursday, and had apologised for his actions. 61

[70] Mr Wilson-Haffenden gave evidence that the meeting was the first occasion on which the applicant had raised the matter of his marital difficulties. He also testified that the applicant did not, at that time, raise any issues about his wife suffering from medical conditions or that she was facing any other difficulties. Mr Wilson-Haffenden had explained to the applicant that if his daughter had received a clearance from her doctor then the applicant was not entitled to carer’s leave and should have presented himself for work on 4 and 5 September 2010.

[71] Ms Newton, the respondent’s Human Resources Superintendent, took notes during the meeting of 7 September 2010. The notes appeared as attachment 10 to Mr Wilson-Haffenden’s statement. 62 Mr Wilson-Haffenden was asked to explain his decision making process following the 7 September 2010 meeting. Mr Wilson-Haffenden summarised this process as follows:

“I took into consideration Mr Benson's view around the applicant not - potentially not being able to access leave. I looked at his leave record for the past 12 months and saw that out of about 180 shifts he'd worked 135, so he'd had significant planned and unplanned leave during the last 12-month period. I really made a number of views and I believe that the applicant contrived to take the weekend to go to Launceston with his family. I viewed his previous length of service. I reviewed his unplanned leave record for the - since his employment. I viewed that he had said that he no longer - his daughter had received a clearance and we talked about him no longer having an entitlement to carer's leave”. 63

[72] Mr Wilson-Haffenden concluded that the applicant had lied to him when they had spoken on the phone on the afternoon of 6 September 2010. By the meeting of 7 September the applicant’s story had changed and, on Mr Wilson-Haffenden’s account, he didn’t know whether his latest explanation of events was truthful or not. 64

[73] At the meeting on 9 September 2010 Mr Wilson-Haffenden simply ‘walked through’ the contents of the letter of termination and, at some point, the applicant got up and left the room.

[74] Mr Wilson-Haffenden was asked whether it would be an option for the applicant to return to work at the smelter. He replied:

“I'm extremely uncomfortable about that. I think he lied to me blatantly when I spoke to him on Monday 7 September (sic), and during these proceedings since we've since received information around the claim for unfair dismissal - the claim has changed again to be saying he was now caring for his daughter, which is again a different version of events than he'd presented to me during the investigation. So unfortunately I don't trust the applicant”. 65

[75] Mr Wilson-Haffenden was cross-examined on the relationship between his actions (particularly in ordering surveillance) and the clause in the applicable enterprise agreement permitting the employer to require employees to present sick certificates. It was put to him that he was playing ‘fast and loose’ with the terms of the enterprise agreement. Mr Wilson-Haffenden, while admitting having authorised surveillance on four other occasions in the previous 12 months, denied the accusation, commenting that it was unfortunately necessary to deploy surveillance if he suspected the company was being defrauded. 66

[76] Mr Wilson-Haffenden was subject to lengthy cross-examination on the various instances of leave taken by the applicant over the course of his employment, in some of which Mr Wilson-Haffenden had become involved. In particular, Mr Wilson-Haffenden denied offering the applicant leisure leave in April 2010 around the time of his wife’s medical scare. 67 When re-examined Mr Wilson-Haffenden confirmed that the reason the applicant was moved into a different department (casting) was to get him out of electrolysis while his complaint against Mr Rainbird and Mr Wells was on foot.68

The applicant’s submissions

[77] It was put for the applicant that the case turned on whether he had utilised carer’s leave on 4 and 5 September 2010 under false pretences, thereby ‘defrauding’ the respondent. If he did not, it was submitted that there was no ‘valid reason’ for the dismissal.

[78] It was the applicant’s case that he simply did not commit the misconduct on which the employer’s decision to terminate his employment was based. Rather, the condition of the applicant’s daughter’s leg injury was such that the applicant was still exercising the carer’s function over that weekend.

[79] It was the applicant’s case that, notwithstanding the improvement in his daughter’s condition on or about 2 September 2010, he still exercised the carer’s function over the weekend of 4 and 5 September 2010 in relation to his daughter’s leg injury. That function was able to be exercised regardless of his geographic location. The basis of the doctor’s certificate dated 30 August 2010 was not that the applicant had to attend ‘medical’ appointments, rather the certificate verified that the applicant was required to assist his daughter to perform certain exercises as part of her rehabilitation program. Assisting her with these activities was within the meaning of ‘appointments’ as that word was used in the certificate. Thus it was argued that the applicant’s decision to travel to the Tamar Valley with his family did not constitute the use of carer’s leave under false pretences, nor did the applicant defraud the respondent as was alleged by the employer in its termination letter of 9 September 2010. Therefore, there was no valid reason for the dismissal (s.387(a)).

[80] According to his representative the applicant had validly exercised carer’s leave under the terms of the Agreement, which provided for such leave to be taken in ‘extenuating circumstances’. The medical certificate dated 30 August 2010 was presented in accordance with clause 5.10 of the Agreement, and certified that the applicant was required to attend ‘appointments’, generally understood, with his daughter which might include outings for the purposes of performing exercise prescribed for the purposes of rehabilitation.

[81] The applicant’s final performance review for the period ending September 2010 recorded positive findings. He had never received a ‘final warning’ in respect of his unplanned absences and the three-monthly reviews that were supposed to take place as part of the formal counselling process never materialised. His previous instances of unplanned leave were explicable by reference to his wife’s medical condition (April 2009), illness (December 2009) and marital problems (September 2010).

[82] It was submitted by the applicant that Fair Work Australia should exclude the DVD of the surveillance footage obtained by Nyrstar on the basis that it was improperly / illegally obtained, or alternatively, that the terms of the Agreement simply did not authorise the collection of any further evidence of carer’s leave beyond requiring the production of a doctor’s certificate.

[83] While maintaining that the DVD footage was of no probative value, in reply to the respondent’s written submissions the applicant’s representative claimed that the footage was obtained in an “intrusive way”, in breach of anti-harassment and privacy laws. The CFMEU also denied the existence of an agreement or understanding between itself and the respondent as to the appropriateness of the practice of obtaining video surveillance footage in cases of suspected misuse of leave. On this basis the applicant submitted that the footage should not be admitted into evidence at all.

[84] It was put on the applicant’s behalf that the company gave insufficient consideration to the marital problems the applicant was experiencing. In addition it was argued that, in light of an earlier case involving another smelter worker who took leave under false pretences, the decision to subject the applicant and his family to video surveillance and to terminate his employment without a final warning, was heavy handed. 69

The respondent’s submissions

[85] The respondent objected to several matters included in the applicant’s final submissions on the basis that they were not put to the test at hearing.

[86] It was the respondent’s submission that the evidence of Mr Wilson-Haffenden, Mr Wells, Mr Rainbird and Mr Hayes should be preferred to the evidence of the applicant and his witness. In particular, the respondent submitted that an adverse inference should be drawn in relation to the applicant’s failure to call Mr Tony Benson of the CFMEU, who was present at the meeting between the applicant and Mr Wilson-Haffenden of 7 September 2010. In response to this submission, it was put by the applicant’s representative that Mr Benson was not called as a witness because he does not ordinarily deal with individual CFMEU members at the smelter and, accordingly, Mr Reeves was the most appropriate witness to be called.

[87] The respondent submitted, contrary to the applicant’s submissions, that the case turns entirely upon whether the applicant utilised carer’s leave under false pretences, and that the company’s reason for terminating the applicant’s employment related to more general matters going to the truthfulness and frankness of his dealings with the employer.

[88] The respondent submitted that the applicant’s argument that he was actually still providing care to his daughter when he took his family to the Tamar Valley on 4 and 5 September 2010 was an artificial construction, which was inconsistent with the explanation the applicant originally provided to Mr Wilson-Haffenden at the meeting of 7 September 2010.

[89] At that meeting the applicant had confessed to Mr Wilson-Haffenden that the real reason he needed the leave was that his wife had given him an ultimatum that he accompany her on a family holiday to the Tamar Valley Resort or she would get a divorce. The respondent submits that the applicant’s subsequent departure from this version of events evidences a lack of truthfulness in the applicant’s dealings with the respondent.

[90] According to the respondent it was entitled to subject the applicant to surveillance on the weekend he claimed to be exercising carer’s leave since a medical certificate, while required by the agreement, is not evidence which is incapable of further investigation by the employer.

[91] The footage obtained by the private investigator was not unlawfully obtained or otherwise degrading. Moreover, the CFMEU had previously condoned the use of surveillance in cases of misuse of sick leave.

[92] The respondent submitted that its termination of the applicant’s employment was not harsh, unjust or unreasonable as it was justified by:

• the applicant’s history of excessive absenteeism;



• the applicant’s failure to respond positively to informal and formal processes delivered by the employer specifically to alert him to the issue of his absenteeism;



• dubious use of sick or carer’s leave in the past at times when the applicant had been denied access to annual leave (particularly in December 2009 and April 2010); and



• the applicant’s changing and inconsistent explanations as to the reason for his need to take leave on 4 and 5 September 2010.

[93] It was the respondent’s submission that the combination of these factors entitled it to conclude that the applicant’s conduct in taking leave on 4 and 5 September 2011 was fraudulent, amounted to misconduct, and thus justified the termination of his employment. The decision to dismiss the applicant was sound, defensible and justifiable on an objective analysis of the available facts. 70

Consideration of the issues

[94] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied that the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code and was not a case of genuine redundancy.

[95] In this matter it is not in contention that the applicant’s employment was terminated at the initiative of the respondent 71. Similarly there was no argument put that the termination of the applicant’s employment was for reasons of genuine redundancy or that the employer was subject to the Small Business Fair Dismissal Code (the respondent is a multi-national corporation). This leaves me to consider whether the dismissal was harsh, unjust or unreasonable.

[96] The criteria which FWA must take into account when considering whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act. I have considered this question in the context of those criteria.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) (s.387(a))

[97] The letter of termination sets out the employer’s reason for terminating the applicant’s employment.

[98] I accept Mr Wilson-Haffenden’s evidence that, when asked direct questions during the telephone call of 6 September 2010, the applicant stated that he had applied for carer’s leave for the weekend and that he had been at home caring for his daughter during that period. At the meeting on 7 September 2010 the applicant admitted that he had gone away for the weekend with his family, that his daughter had received a clearance from the doctor the previous Thursday and that he had decided to accompany his wife on the weekend trip as she had given him an ultimatum. As he and his wife had been having problems he had decided to go on the trip. According to the respondent’s evidence the applicant had also apologised for his actions.

[99] The respondent’s evidence was that the applicant initially applied for annual leave for the relevant weekend and when this was refused applied for carer’s leave. The respondent took the decision to investigate the applicant’s need for carer’s leave as a result of the applicant’s previous leave pattern and rumours that the applicant intended to go on an end of season football trip that weekend. I accept the respondent’s evidence in this respect. I am also satisfied that the applicant intended to take the trip when he applied for carer’s leave, and that travelling to the Tamar Valley Resort while on carer’s leave, supported as it was by a medical certificate claiming that he had to take his daughter to “appointments”, was at no time a legitimate use of that leave.

[100] I am satisfied that there was a valid reason for the dismissal. The applicant applied for carer’s leave and was granted that leave by the respondent. He proceeded to absent himself from work on the leave days despite being aware, on his own evidence more than 24 hours prior to the start of his leave, that there was no requirement for him to care for his daughter on those days. I am also satisfied that the applicant was aware that by taking the leave which he did not require he had acted in a manner inconsistent with his obligations to his employer. The applicant was dishonest when asked direct questions by Mr Wilson-Haffenden about his activities over the weekend. I do not accept that those lies should be excused because he was taken by surprise by Mr Wilson-Haffenden. The fact that at the meeting on 7 September 2010 the applicant apologised for his conduct is a clear indication that he knew that it was wrong to have taken the leave. In this respect, so far as the statements made by the applicant at the meeting on 7 September 2010 are concerned, I prefer the evidence given for the respondent. Had the applicant wished to challenge the account given on behalf of the respondent it was open to him to call as a witness the CFMEU official (Mr Benson) who was present at the meeting. That official was not called. Instead, another official (Mr Reeves) who had had no role in the dismissal process was called. I assume that Mr Benson was not called as his evidence would not have assisted the applicant’s case. 72

Whether the person was notified of that reason (s.387(b))

[101] On the evidence it appears that the applicant initially became aware that the respondent had concerns about the legitimacy of his claim for carer’s leave when he was telephoned by Mr Wilson-Haffenden on Monday 6 September 2010 and asked some questions about his leave and his activities over the period of his leave. On 7 September 2010 the employer’s concerns about his use of carer’s leave were directly put to the applicant at a meeting held for that purpose.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person (s.387(c))

[102] Clearly the applicant was given, and took, the opportunity to respond at the meeting on 7 September 2010 to the employer’s allegations concerning the illegitimate use of carer’s leave. He had explained at that time that he knew that he should not have taken the leave and then gone away with his family, as he was not required to care for his daughter given that she was no longer on crutches. He explained that it had been a last minute decision made largely as a consequence of his wife’s ultimatum that it was “the family or the job”. Although this was not the explanation the applicant gave during the hearing I am satisfied that this was closer to the truth than the position adopted by him at the hearing.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s.387(d))

[103] The only discussion relating to the dismissal at which the applicant was not accompanied by his union representative was the telephone call between the applicant and Mr Wilson-Haffenden on 6 September 2010. There was no suggestion that the applicant had asked for a support person to be present during that discussion and was unreasonably refused. Although the applicant’s representative attempted to make something of the fact that the applicant was taken unawares by that telephone call, I do not consider that the phone call constituted any failure to provide the applicant with procedural fairness. The phone call was brief, the applicant was asked about the leave he had applied for and the manner in which he had spent the leave. He then was requested to attend a meeting the following day. He was advised to bring his union representative.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal (s.387(e))

[104] At no time was it put for the respondent that the dismissal was in any way related to the applicant’s unsatisfactory performance. A performance review carried out only days before the dismissal took effect provided no ground for an assumption that there was any deficiency in the applicant’s performance.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f))

[105] The respondent is a multi-national enterprise. It is unlikely that the size of the enterprise impacted in any manner, other than to the benefit of all concerned, on the procedures followed in effecting the dismissal. The respondent has policies and procedures in place for such eventualities and these would appear to have been adhered to.

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(g))

[106] As noted above the respondent is a multi-national company with dedicated human resource specialists and expertise. The absence of such expertise therefore could not have been a factor which impacted on the procedures followed in effecting the dismissal.

Any other matters that FWA considers relevant (s.387(h))

[107] A relevant matter to which I have had regard is the fact that the applicant gave different accounts for his use of the carer’s leave he accessed on 4 and 5 September during the meeting on 7 September 2010 and at the hearing of his application. I am satisfied that the explanation given by the applicant at the meeting was closer to the truth than the account given at the hearing. Before that meeting the applicant had been advised by his union representative to tell the truth. I accept the respondent’s account of the applicant’s explanation of 7 September 2010.

[108] I accept the respondent’s position that the decision to dismiss the applicant was taken because the respondent took the view that there was no longer any trust in the relationship. No doubt the respondent’s lack of trust in the applicant would have been confirmed when the applicant’s explanation for his actions differed markedly between the meeting on 7 September 2010 and the hearing less than three months later.

[109] I also take into account that the misuse of leave entitlements by an employee, in circumstances where these are largely not subject to limits if the leave is legitimate, could have the effect of bringing about a change in policy and lead to greater restrictions on the availability of leave for other employees in the future. For this reason I think it is understandable that an employer treat very seriously any circumstances in which such entitlements are abused.

Other matters

[110] A number of peripheral matters were raised both during the hearing of the matter and in the submissions of the parties. I deal with a number of them only for completeness as none of them could or did affect my determination of the matter. I have not dealt with other submissions which I did not consider relevant to the determination of this matter.

[111] So far as the matter of the video surveillance is concerned, I do not rely on that evidence in determining the matter. The applicant admitted that he was in Northern Tasmania with his family during the weekend of 4 and 5 September and admitted that his daughter was no longer dependent on the use of crutches at that time. In my view the video evidence was superfluous. I make no further findings about the use of video surveillance except to note that I accept the truth of Mr Wilson-Haffenden’s claim that a CFMEU representative had advised him that he would need such proof if he wished to challenge an employee’s use of leave.

[112] In relation to the matter of the statutory declaration completed by the applicant’s wife, I reiterate that I accept it as proof that she held no other documentation about the trip to Northern Tasmania. 73 I am not prepared to accept it as evidence of any of the other matters contained therein. The declaration was submitted at the hearing and no earlier notice was given of the intention to attempt to rely on it, despite directions being given to the parties to identify evidentiary material at a much earlier date. Given my findings about the applicant’s motivations for claiming carer’s leave, and the actual use of that period of leave, I do not consider the matter of his wife’s health particularly relevant. While I do not accept the statements in the statutory declaration as evidence, I have no reason to doubt their veracity.

[113] I do not accept the applicant’s submission that I not accept the respondent’s written submission as they failed to meet the time imposed for their lodgement by a little over an hour. The timetable for the lodgement of submissions was largely set by the parties and I was of the view at the time that given the intervening holiday period the respondent may need more time. The very slight delay did not prejudice the applicant.

Conclusion

[114] In all the circumstances of this matter I do not consider the termination of the applicant’s employment to be harsh, unjust or unreasonable. The respondent had a valid reason for the termination and the process by which the decision was taken to dismiss the applicant was fair.

[115] The dismissal was not unfair. The application is dismissed.

COMMISSIONER

Appearances:

Mr Ashley Borg (CFMEU) for the applicant.

Ms Susan Zeitz (Zeitz Workplace Lawyers) for the respondent.

Hearing details:

29-30 November 2010

Commonwealth Law Courts, Hobart.

Final written submissions:

For the applicant: 20 December 2010 and 12 January 2010.

For the respondent: 10 January 2011 and 17 January 2010.

 1   Attachment 11 to Exhibit N8.

 2   Exhibit B1.

 3   Transcript Reference PN370.

 4   Exhibit B3.

 5   Transcript Reference PN373.

 6   Transcript Reference PN588.

 7   Transcript Reference PN592-PN593.

 8   Exhibit B3.

 9   Transcript Reference PN1111.

 10   Transcript Reference PN674.

 11   Transcript Reference PN684.

 12   Transcript Reference PN740.

 13   Exhibit B5.

 14   Transcript Reference PN783.

 15   Transcript Reference PN781

 16   Transcript Reference PN700.

 17   Transcript Reference PN839. See Exhibit B6 Statutory Declaration of Mrs Pearce dated 29 November 2010. See also PN1689 where a medical certificate issued by a General Practitioner in respect of Mrs Pearce’s depression was noted but not admitted into evidence.

 18   Transcript Reference PN733.

 19   Transcript Reference PN789.

 20   Transcript Reference PN817-PN818.

 21   Exhibit N1.

 22   Exhibit B4.

 23   Transcript Reference PN772.

 24   Transcript Reference PN803.

 25   Transcript Reference PN815.

 26   Transcript Reference PN779.

 27   Transcript Reference PN1533.

 28   Transcript Reference PN1441.

 29   Transcript Reference PN1483

 30   Exhibit B6.

 31   Exhibit N2.

 32   Exhibit N4.

 33   Exhibit N3.

 34   Exhibit N1.

 35   Exhibit N5.

 36   Transcript Reference PN1798

 37   Transcript Reference PN1803.

 38   Transcript Reference PN1804.

 39   Exhibit N6.

 40   Transcript Reference PN1870.

 41   Transcript Reference PN1890.

 42   Transcript Reference PN1899.

 43   Exhibit N6 at paragraphs 3-8 and 20-24.

 44   Transcript Reference PN2023.

 45   Exhibit N7.

 46   Transcript Reference PN2047.

 47   Transcript Reference PN2320-PN2321.

 48   Transcript Reference PN2093.

 49   See Transcript Reference PN2105-PN2142.

 50   Transcript Reference PN2196.

 51   Exhibit B3.

 52   Transcript Reference PN2380-PN2392.

 53   Exhibit N8.

 54   Transcript Reference PN2481.

 55   Transcript Reference PN2485.

 56   Transcript Reference PN2502.

 57   Transcript Reference PN2506.

 58   Transcript Reference PN2563.

 59   Transcript Reference PN2566.

 60   Transcript Reference PN2573.

 61   Transcript Reference PN2579.

 62   Transcript Reference PN2600.

 63   Transcript Reference PN2607.

 64   Transcript Reference PN2608.

 65   Transcript Reference PN2620.

 66   Transcript Reference PN2667-PN2668.

 67   Transcript Reference PN2827.

 68   Transcript Reference PN2849

 69   Transcript Reference PN2101.

 70   Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 (Lee J).

 71   Fair Work Act 2009 (Cth) s.386(1)(a)

 72   Jones v Dunkel (1959) 101 CLR 298.

 73   Transcript Reference PN1766. See also PN1703 and 1718.

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