Mr Jason Prestedge v Boart Longyear Australia Pty Ltd

[2013] FWC 8430

[2013] FWC 8430

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Jason Prestedge
v
Boart Longyear Australia Pty Ltd
(U2013/9003)

COMMISSIONER CLOGHAN PERTH, 7 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] This is an application by Mr Prestedge alleging that he was unfairly dismissed from his employment with Boart Longyear Australia Pty Ltd.

[2] Mr Prestedge is an Underground Driller. On 31 March 2013, Mr Prestedge was involved in a safety incident with the Driller’s Assistant at an underground drilling rig located at a mine in Kalgoorlie, Western Australia. The employer conducted an investigation. At the conclusion of the investigation, Mr Prestedge was invited to respond to the investigation report. Following his responses, Mr Prestedge was dismissed from his employment.

PROCEDURAL BACKGROUND

[3] On 29 April 2013, Mr Jason Prestedge (Mr Prestedge or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Boart Longyear Australia Pty Ltd (Employer).

[4] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[5] The application was not resolved at conciliation and referred to me for arbitration on 26 June 2013.

[6] On 1 July 2013, I issued procedural directions for an arbitral hearing on 26 August 2013.

[7] At the arbitral hearing on 26 August 2013, the Applicant was represented by Ms E Douglas, Solicitor, Australian Workers’ Union, Western Australian Branch. Mr Prestedge gave evidence on his own behalf. Mr Prestedge’s wife, Ms N Prestedge, gave evidence on behalf of the Applicant.

[8] Mr Bowler of counsel represented the Employer. Evidence was given on behalf of the Employer by:

● Mr G Rush, Underground Operations Manager;
● Mr O Krcoski, Environmental Health and Safety Zone Manager; and
● Ms D Charen, Human Resources Advisor.

[9] At the conclusion of the hearing, I reserved my decision. Having considered the evidence provided as a result of the procedural directions, submissions, oral evidence and the authorities cited, this is my decision and reasons for decision.

RELEVANT BACKGROUND

[10] The Employer is a drilling company. Mr Prestedge is an Underground Driller and was first employed by the Employer from February 2003 to February 2008. After ceasing employment, Mr Prestedge relocated to Perth.

[11] Mr Prestedge was engaged by the Employer on a labour hire basis in August 2009. On 5 October 2009, Mr Prestedge was directly employed by the Employer.

[12] From 5 October 2009 to an incident on 31 March 2013, Mr Prestedge was employed by the Employer at an underground drilling rig located at the Lighting Nickel Mine in Kalgoorlie, Western Australia.

[13] On 31 March 2013, the Applicant was working underground with his Driller’s Assistant, Mr Wagland. Mr Wagland was injured and received two (2) stitches on his chin.

[14] The Employer conducted an investigation. Following the investigation, Mr Prestedge was dismissed at a meeting on 8 April 2013 and subsequently by correspondence dated 18 April 2013. Mr Rush is the author of the termination letter. The termination letter advises Mr Prestedge that the final date of his employment was Monday 8 April 2013.

[15] The Applicant, prior to his dismissal, has never been disciplined or warned by the Employer about his work performance, conduct or any safety breaches 1.

RELEVANT STATUTORY FRAMEWORK

[16] It is not in dispute that Mr Prestedge is protected from unfair dismissal pursuant to s.382 of the FW Act and that the application was made within the statutory timeframe in paragraph 394(2)(a) of the FW Act.

[17] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) ...

(d) ...”

[18] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

APPLICANT’S CASE

[19] The Applicant submits:

● with respect to the incident on 31 March 2013, Mr Wagland approached the drilling rig without informing him of his approach, and further, he did not notice that Mr Wagland had approached the drilling rig;

● the Employer failed to outline in writing the reasons for his dismissal;

● it is now understood that the reason for dismissal was for serious misconduct due to his breach of the Employer’s safety procedures. The serious misconduct is alleged to be that the Applicant did not confirm that Mr Wagland was clear of the kelly rod when he was at the control panel of the drilling rig and rotated the kelly rod (omission);

● the omission was not wilful or deliberate behaviour inconsistent with the continuation of the Applicant’s employment, nor was it conduct that caused serious or imminent risk to a person’s health and safety in accordance with Regulation 1.07(2)(b) of the Fair Work Regulations 2009 (FW Regulations);

● the incident was caused by Mr Wagland approaching the rig without confirming his presence with the Applicant. Further, the Applicant was not aware nor could have reasonably anticipated that he would need to check for Mr Wagland’s presence near the drilling rig, or the kelly rod, at the time of the incident;

● Ms Charen failed to identify the precise reasons in plain and clear terms why he was being dismissed;

● the Applicant was not made aware prior to a meeting on 8 April 2013 that his employment was at risk or that it was a disciplinary meeting. In view of not being aware of the true purpose of the meeting, any replies given at that meeting do not amount to considered responses. Further, in view of 8 April 2013 being the effective date of termination, any responses after that date are not responses in view of the fact that a decision had already been made to terminate the Applicant from that date;

● the Employer allowed the Applicant to have a support person. However, the support person had already conducted the investigation, made adverse findings against the Applicant and recommended that he be disciplined. For these reasons, the support person had a conflict of interest. Secondly, the support person was informed by the Employer that he could not actively participate in the meeting or make comment. In these circumstances, the Employer unreasonably refused a support person to assist the Applicant;

● the dismissal was disproportionate in all the circumstances;

● there is a familial relationship between Mr Wagland and Mr Rush which gives rise to a potential conflict of interest and questions the impartiality of the decision maker in terminating the Applicant’s employment;

● the Applicant’s blemish free record for more than eight (8) years with the Employer ought to be taken into account; and

● in the event that the Commission finds that the Applicant was unfairly dismissed, he is seeking compensation, having found alternative employment.

EMPLOYER’S CASE

[20] The Employer submits that:

● it has a prescribed Standard Work Procedure entitled “Working Beside An Energised Drill Rig” (Procedure);

● the Procedure imposed a requirement on all Drillers and Driller’s Assistants to confirm a method of communications between them while working near a drill rig in order to ensure that the drill rig is not energised when someone is standing in the vicinity of the moving parts of the drill rig;

● on 31 March 2013, the Applicant energised the drill rig which caused a Stilson Wrench which Mr Wagland had attached to the drill rig, to spin around striking Mr Wagland under the chin;

● it conducted an investigation which found that the Applicant had seriously breached a number of the Employer’s safety policies and procedures, including the Procedure;

● on 8 April 2013, after discussing the findings of the investigation with the Applicant, and considering his responses, Mr Prestedge’s employment was terminated;

● it had valid reasons to terminate the Applicant’s employment, as the Applicant was senior to Mr Wagland and responsible for ensuring that both employees complied with the Procedure;

● the Applicant was well aware of the Procedure and its requirements;

● in energising the drill rig without establishing a communication method and not verifying that Mr Wagland was not standing near the rig at the relevant time, the Applicant put Mr Wagland’s safety at serious risk and seriously breached the Employer’s safety policy and procedures;

● the Applicant’s actions in failing to establish a method of communications to ensure that Mr Wagland was not in the vicinity of the moving kelly rod, caused a serious and imminent risk to Mr Wagland’s health and safety and constituted serious misconduct for the purposes of the FW Regulations;

● the Applicant was verbally notified of the reasons for his dismissal;

● on 8 April 2013, the Applicant was expressly asked to respond to the findings of the investigation and the allegations regarding his breach of safety procedures;

● it did not, at any time, refuse the Applicant to have a support person present with him during discussions related to his dismissal;

● in the event that the Commission finds that there are procedural deficiencies, they should not be considered substantive enough to alter the seriousness of Mr Prestedge’s conduct or the outcome following the incident;

● it takes its safety obligations seriously and expects its employees to do likewise;

● the Applicant has failed to acknowledge that his actions were a serious breach of the safety procedures; and

● in the event the Commission finds that the Applicant was unfairly dismissed, the relationship of trust and confidence has irrevocably broken down and reinstatement is not appropriate.

CONSIDERATION

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[21] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[22] The Applicant’s evidence is that he and Mr Wagland were working on drilling the last hole of the shift.

[23] Ordinarily Mr Wagland, as the Driller’s Assistant, would attach the kelly rod to the barrel with a stilsons wrench and put the barricade and sign up. However, on this occasion, Mr Wagland was undertaking another job 12 metres away which normally would take five (5) to seven (7) minutes.

[24] Mr Prestedge attached the kelly rod to the barrel with the stilsons. Mr Prestedge then put up the barricade and sign and went back to the rig controls. After drilling the first run, Mr Prestedge put the kelly rod in position for breaking. Mr Prestedge then performed a number of functions at the rig. The next step would have been to break thread and Mr Wagland would have been given the “all clear” to go to the rig and finish unscrewing and removing the kelly rod. Mr Prestedge was focused on the foot clamp end when:

“from the corner of my eye, I noticed Nathan [Mr Wagland] at the end of the rig about 5-6 metres from me. Nathan was standing with the stilsons at the end of the rig where the end of the kelly rod and water swivel are.” 2

[25] Mr Prestedge’s evidence was that Mr Wagland should have completed emptying the tubes and hosing them down and stood beside or behind him waiting for the next task 3.

[26] Mr Prestedge asserts in his evidence that Mr Wagland should have waited for the “all clear” or another form of acknowledgement before crossing the barricade and approaching the rig 4.

[27] Mr Prestedge does not downplay or attempt to minimise what happened. The stilsons hit Mr Wagland and “lifted him off the ground a bit”. If it was not for Mr Prestedge letting go of the lever, the accident could have been much worse. Mr Prestedge attended to Mr Wagland, obtained a clean rag to stop the bleeding, asked Mr Wagland to contact the supervisor while he shut down the rig and then drove Mr Wagland to the surface 5.

[28] In his oral evidence, Mr Prestedge agreed that the outcome of the incident would have been more serious than it was and had the potential to be a fatal accident 6.

[29] Employees have an obligation under legislation to ensure that they take reasonable care of their own health and those who may be affected by their acts or omissions 7.

[30] While the letter of termination of employment does not outline the reasons for dismissal, the Employer in its response to Mr Prestedge’s application sets out the following:

“The employee was terminated for his failure to comply with the Respondent’s policies and procedures, breach of the terms and conditions of the Enterprise Bargaining Agreement and for providing false and misleading information to the Respondent.”

[31] I will deal with the policies and procedures first.

[32] Mr Prestedge was aware of and understood the Employer’s policies and procedures relating to Golden Rules of Safety, Environmental Health and Safety Policy and Workplace Standards and also gave evidence that they were explained to him and came up regularly 8. Further, the Applicant had trained others in the safety procedures9.

[33] As a witness, whether in examination-in-chief, cross-examination or re-examination, Mr Prestedge did not look to his witness statement but answered questions readily and directly. With the exception of whether he was given the Golden Rules Safety notebook in 2009, there was little or no hesitation in his answers. Mr Prestedge very rarely attempted to downplay or give gloss to his evidence. In its totality, I am satisfied that he was telling the truth.

[34] With respect to the incident on 31 March 2013, the Standard Work Procedure has the following “Points to Note”:

1 Clear communication between drill crew is vital for safe working operations;

2 driller and drill assistant must confirm communication methods before working near energised drill rigs;

3 never assume, always know what your driller or drill assistant will do next.

[35] Mr Prestedge did not prevaricate in his evidence - he understood each of the Points to Note in paragraph [36].

[36] Mr Prestedge’s evidence was that both he and Mr Wagland entered into an arrangement whereby communications were verbal or physical gestures such as a thumbs up 10.

[37] With respect to “never assume” in Point 3 above, Mr Prestedge’s evidence in relation to the incident is as follows:

“Okay?---And number 3, never assume. You always never assume, always know what your driller or drill assistant will do next. I mean, like, you can only know what they’re going to do next to a reasonable point. If you have, like in this instance, a barricade is up, my not assuming that he wasn’t going to go through there. I know that he should not have gone through there. He knows that he should not have gone through there. There’s no assumption that he would have gone through there at all. He’s down emptying core. He’s cleaning his tube.” 11 (my emphasis)

“Well, if you had that sort of method in place, how do you actually explain the incident?---I can’t.” 12

“Okay?---I have no idea what he was thinking about. As I said, like speculation to him, thinking that he had to take off the water swivel. It’s the only thing I can come up with but that’s what I think so, as I said, yes.” 13 (my emphasis)

[38] In the investigation, Mr Wagland stated that a method of communication had not been established under the procedure. In cross-examination, Mr Prestedge responded:

“Well, we may not have sat down and had a full-on detailed in-depth conversation of what the actual communication of like, “Yeah, I’m going to go like this,” or, “I’m going to go like this,” or, “I’m going to go, yes, like that,” or whatever. You go, “Yeah, you’re right to go.” It is a thumbs up, that’s what you’re told, and to say that we’d not been using the procedure, yes, I totally, totally, totally object to that straightaway.” 14 (my emphasis)

“Did you discuss with Nathan, “This is the system we’re going to use,” or not?

---You sort of talked about it but you sort of know at the same time. Like it’s not an in-depth, like sit-down with the kids, discuss what’s going on or with your partner. It’s not an in-depth conversation. He’s been working for three, four years as a drill assistant, trainee driller as well. The system in place is the same for everyone. It is thumbs up, get the - you do not do anything without the confirmation from the drill assistant or the driller.” 15 (my emphasis)

“But did you specifically discuss the method of communication you were going to use - - -?---I can’t say that we specifically discussed.” 16

“But just to be clear, you didn’t sit down with him and establish what that method was?---I didn’t have a 20-minute conversation with him like, “This is what exactly we’re going to do.” I always tell my offsiders that, “All right, I’ll give you the go-ahead when you’re right to go, you know to go.” It’s a - yes, “I will let you know and you can go.” 17

[39] At paragraph 32 of Ms Charen’s written evidence, she states that at the meeting on 8 April 2013 she explained to Mr Prestedge that his actions relating to the safety incident on 31 March 2013 were considered by the Employer to constitute serious misconduct as defined in Regulation 1.07(2)(a) and (b) of the FW Regulations.

[40] Regulation 1.07(2)(a) of the FW Regulations states that serious misconduct is conduct that is:

“Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.”

[41] Notwithstanding this evidence, Mr Bowler submitted, correctly in my view, that there was no evidence to suggest that Mr Prestedge set out wilfully or deliberately to cause injury to Mr Wagland 18.

[42] Regulation 1.07(2)(b) of the FW Regulations also states that serious misconduct is:

“Conduct that causes serious and imminent risk to

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.”

[43] With respect to 1.07(2)(b)(i), there was no suggestion that Mr Prestedge’s conduct actually resulted in serious injury to Mr Wagland. However, I apprehend the Employer’s submission is that Mr Prestedge’s conduct was antecedent behaviour which had the potential to cause serious and imminent risk to the health and safety of Mr Wagland.

[44] The definition of serious misconduct in Regulation 1.07(2) of the FW Regulations is inclusive of both meanings in 1.07(2)(a) and (b). While both meanings are different, I do not consider it unreasonable to state that they are both connected. If they are connected, it is reasonable to consider whether the conduct referred to, in either 1.07(2)(a) and (b), has to be wilful and deliberate. If, as conceded by the Employer, Mr Prestedge’s conduct was not wilful or deliberate, then he could not have engaged in conduct which was serious misconduct pursuant to Regulation 1.07.

[45] If I am wrong in reaching this conclusion and the meaning in Regulation 1.07(2)(b)(i) is any conduct, irrespective of whether it is wilful or deliberate, it is necessary to consider the words “Conduct that causes...” and the circumstances of the incident which occurred on 31 March 2013.

[46] The safety incident on 31 March 2013 involved two employees, Mr Prestedge and Mr Wagland.

[47] It is generally held that “every event has a cause”. Mr Prestedge and Mr Wagland are the “agents” of the events on 31 March 2013.

[48] Mr Bowler in his closing submission summarised Mr Wagland’s behaviour, in my view, accurately when he submitted in relation to the events on 31 March 2013 as follows:

“THE COMMISSIONER: Isn’t that the key issue here? How did it happen?

MR BOWLER: That’s correct, Commissioner, but we would say that the obligation to communicate was a reciprocal one, and certainly Mr Wagland needed to communicate that he was going to approach the drill rig, but we’d also submit that Mr Prestedge needed to communicate to Mr Wagland before he activated the moving parts of the drill rig to make sure that he wasn’t standing near it. Now, look, a lot has been made of the fact that Mr Wagland was at fault for the incident and that he acted recklessly and dangerously when he approached the rig without informing Mr Prestedge. We’re not disputing that. Mr Wagland definitely breached the policy. There’s no dispute of that fact. There’s no doubt he shouldn’t have approached the rig and he should have told Mr Prestedge what he was doing before he did it.”

THE COMMISSIONER: And you would say, likewise, Mr Prestedge should have looked up.

MR BOWLER: Yes, Commissioner. I would say that Mr Wagland’s breach of the procedure doesn’t absolve Mr Prestedge of his own obligation to comply with the Standard Work Procedure. Now, certainly Mr Wagland contributed to the incident by approaching the drill rig without communicating with Mr Prestedge, but the bottom line is the incident couldn’t happen unless the rig was energised, you know, while someone was standing next to it, and the person in control of the drill rig, in terms of activating it and energising it, was Mr Prestedge.” 19

[49] Consequently, in the search for causation, I can either take the view that Mr Wagland chose, without communicating with Mr Prestedge, to go beyond the barricade and attach stilsons to the kelly rod which ultimately spun around and hit him on the chin requiring two stitches. Alternatively, I can find that notwithstanding these circumstances, Mr Prestedge should have looked up before energising the rig and preventing the stilsons from spinning around and hitting Mr Wagland’s chin.

[50] In the above circumstances, I consider it untenable to conclude that Mr Prestedge’s conduct alone produced the effect of Mr Wagland being injured and, furthermore, “causes...” the potential exposure of Mr Wagland to serious and imminent risk to his health and safety.

[51] Approaching the meaning of serious conduct in either way as I have suggested, I am not persuaded that Mr Prestedge’s conduct meets the definition of serious misconduct pursuant to Regulation 1.07(2) of the FW Regulations.

[52] Where two people are intimately involved in the cause of an event, in this case the safety incident, in my view it would be incorrect and unreasonable to lay the cause of the outcome at the feet of one party because they energised the rig, were the senior person at the time of the incident and consequently committed an act of serious misconduct.

[53] Mr Krcoski accurately summed up the situation in re-examination as follows:

“So his approaching the rig without communicating with Jason – that certainly was a contributing factor?---Yes.

You said that communication is reciprocal so if either one of them at that moment had used a communication method, would the accident have happened?---No.” 20

[54] The Standard Work Procedures “Points to Note” do not designate who is responsible for establishing clear methods of communication for safe working operations. Further, the requirement not to assume what the other person will do next is a reciprocal arrangement. While contrary to the Standard Work Procedure, it may be reasonable to assume, as Mr Prestedge did, that a Driller’s Assistant would not pass a barricade which has a sign on it to the effect of “No entry whilst drilling in progress,” “Obtain driller [permission] before entering” 21.

[55] With respect to “breach of the terms and conditions of the enterprise bargaining agreement”, Ms Charen is referring to subclauses 7.1.3 and 7.1.5 of the Boart Longyear Australia Drilling Services Collective Workplace Agreement 2008 which, shortly put, are that employees observe lawful directions, orders, instructions and policies, and that the employee is “jointly [with the employer]...responsible for his own safety”.

[56] I do not propose to traverse the incident on 31 March 2013 again but this is, in my view, an example of “throwing the book” approach. For eight (8) years Mr Prestedge has accepted and acknowledged his duties and responsibilities without blemish. This application is concerned with what happened on 31 March 2013 and the surrounding circumstances, and not whether Mr Prestedge has allegedly breached the enterprise agreement.

[57] I now turn to the question of whether Mr Prestedge provided false and misleading information to the Employer. There is no doubt that the information in the initial statement which was given at the end of the shift on 31 March 2013 22 and the second statement provided some three to four days later differ23. Mr Prestedge explained at the meeting on 8 April 2013 that he found the process “nerve racking and that it was not his intention to provide false and misleading information”24. The issue was not pressed forcefully in cross-examination or submissions by the Employer.

[58] Determining what exactly happened at the safety incident on 31 March 2013 is not assisted by the fact that Mr Wagland did not give evidence nor was I provided with his statement concerning the incident. Mr Wagland resigned from his employment some time before the hearing and it would appear, for reasons unrelated to the incident on 31 March 2013.

[59] Finally, I turn to the report into the investigation. The report was provided by Mr Krcoski. Mr Krcoski gave evidence that in conducting the investigation he did not advise any of the parties that his investigation may lead to disciplinary action 25. Further, the “thumbs up” is a process of communication Mr Krcoski has seen underground26.

[60] I now turn to the documentary evidence. The incident report indicates that the incident was “not notifiable”. I am not exactly sure what this means. In terms of “risk evaluation”, it was considered “2 moderate” and Risk Level at “Low”. In the final report of Mr Krcoski, he states that Mr Prestedge “momentarily took his eyes off the rig to write on the core blocks when D [Mr Prestedge] commenced the task of breaking the joint with the head using the reverse rotation he was not aware that DA [Mr Wagland] had commenced the task of undoing the water swivel.” Mr Krcoski goes on the report “it is evident that neither of them were aware of each other’s actions” 27 (my emphasis).

[61] Mr Krcoski concludes his report, “personnel who are found to have not followed standard procedures when they ought to...should be held accountable by appropriate disciplinary action” 28. The question is whether the immediate dismissal of Mr Prestedge on 8 April 2013 for serious misconduct was “appropriate”.

[62] In an application such as this, it is necessary for the Commission to consider the substantive conduct, the Employer’s investigation and the appropriateness of the sanction imposed. I find that Mr Prestedge momentarily did take his eyes off the rig. However, for the reasons outlined above, I am unable to come to the conclusion that it was serious misconduct. I also agree with Mr Krcoski, that notwithstanding the circumstances, Mr Prestedge has to be accountable for momentary non compliance of not being aware of where Mr Wagland was before energising the rig. However, having considered all the circumstances, I cannot conclude that dismissal was appropriate or reasonable. Simply put, the facts and evidence in total, do not justify serious misconduct or misconduct justifying dismissal.

[63] With respect to the Employer’s investigation, it was sufficiently sound (like the Curate’s egg) in part but has a number of defects which were acknowledged and conceded by the Employer’s counsel.

[64] In summary, I find the facts and evidence not supportable of a sound defensible or well founded reason to terminate Mr Prestedge’s employment either for serious misconduct or termination pursuant to notice.

387(b) - notification of the reasons for termination of employment

[65] Mr Prestedge’s letter of termination of employment does not contain the reason or reasons for termination of employment. The correspondence refers to a meeting on 8 April 2013.

[66] Mr Krcoski gave evidence that the meeting on 8 April 2013 was “to advise him [Mr Prestedge] of the findings made in the investigation and allow him to respond” 29.

[67] Towards the end of the discussion, Ms Charen advised Mr Prestedge that the Employer would consider his responses, however, his conduct was in breach of a number of the Employer’s policies and procedures. One of the actions being considered by the Employer in response to the incident was termination of employment.

[68] The meeting was adjourned to consider Mr Prestedge’s responses to the findings of the investigation report. The meeting was reconvened and Mr Prestedge was advised that his employment was terminated. “The decision was made that his employment would be terminated for serious misconduct, specifically being a serious breach of Boart Longyear’s safety and procedures” 30.

[69] Shortly after the conclusion of the meeting Mr and Mrs Prestedge telephoned the Employer. Mrs Prestedge “demanded answers as to why Mr Prestedge’s employment had been terminated...” 31. A further meeting was arranged with the Applicant, however, “it was made clear to Mr Prestedge that the decision to terminate his employment would stand unless he could provide information that had not been considered”32.

[70] Mr Rush and Ms Charen’s evidence regarding the meeting on 8 April 2013 is similar to that given by Mr Krcoski.

[71] Significantly, all three of the Employer’s witnesses gave evidence that Mr Prestedge did not clearly understand what was being put to him in relation to seriously breaching the Employer’s policies and procedures. In my view, this is understandable given that Ms Charen referred to and put to Mr Prestedge the following:

● Safe Work Procedure UND3.120-Working Beside an Energised Drill Rig

● Clauses 7.1.3 and 7.1.5 of the Boart Longyear Drilling Services Collective Workplace Agreement 2008

● EHS-10-System Procedure-EHS Responsibilities and Authorities

● Boart Longyear’s Golden Rules of Safety

● Risk Management Standard EHS S002

● Boart Longyear’s Corporate Health and Safety Policy

● Boart Longyear’s Global Workplace Standards

● Boart Longyear’s values of safety first, mutual trust and respect; and

● Regulation 1.07 of the Fair Work Regulations 2009

[72] It is also understandable, given that there are nine (9) documents, that Mr Prestedge asked Ms Charen to repeat again what Ms Charen had read to him regarding a breach of the policies and procedures in paragraph [71].

[73] Health and safety at work is more important, in my view, than the “gotcha” approach or “throwing the book” at an employee. Mr Prestedge clearly knows there had been a safety incident in which he was involved, an investigation into that incident has been undertaken and that he will be held accountable by the Employer. Mr Prestedge needs to have had explained to him, and be involved, in clear and simple terms why his conduct was unsafe and threatened the safety and health of another employee.

[74] By alleging that Mr Prestedge had breached a long list of policies and procedures, not only confused Mr Prestedge but also, in my view, distracted him from having an understanding of why his conduct potentially jeopardised his employment.

[75] These circumstances lead me to the purpose of the meeting. Ms Charen gave evidence, “the purpose of the meeting was to go through the findings of the investigation with him [Mr Prestedge]...[he] was also told that he was welcome to bring a support person to the meeting” 33. This evidence is corroborated by Mr Rush and Mr Krcoski.

[76] A meeting with the purpose of going through the findings of an investigation is in my view, distinctly different to a meeting to consider what disciplinary action should apply to Mr Prestedge should the Employer find his conduct unsatisfactory.

[77] As the object or intention of the meeting on 8 April 2013 was to discuss the findings of the investigation, it is unjust and unreasonable to “morph” such discussions into a formal disciplinary proceeding and terminate an employee’s employment without giving him or her prior notice.

[78] Having received his responses to the findings of the investigation, it is unreasonable to immediately announce in the meeting that “his actions were in breach of a number of policies and procedures and that one of the actions being considered was the termination of his employment in accordance with the terms and conditions of employment” 34 as described by Ms Charen in her evidence.

[79] With the immediate words above in paragraph [78] the purpose of the meeting changed from a discussion on the findings of the investigation to a disciplinary process. After a 15 minute deliberation by the Employer representatives, Mr Prestedge was told his employment had been terminated with immediate effect - it was not a case of “show cause” why you should not be dismissed - but you are dismissed. Further, approximately 10 minutes later, this decision to dismiss Mr Prestedge was confirmed notwithstanding a telephone call in which Mrs Prestedge sought to understand the reasons for the dismissal of her husband, Mr Prestedge.

[80] I am satisfied, in the broadest sense, that Mr Prestedge knew that the reasons for his dismissal on 8 April 2013 related to the safety incident on 31 March 2013 and a breach of the Employer’s policies and procedures. However, I am not satisfied that he fully understood that the Employer considered his actions serious misconduct because it breached a long list of policies and procedures.

[81] While paragraph 387(b) of the FW Act states whether the person was “notified” of the reasons for the dismissal, it should not be taken to mean that words are sufficient. To “notify” is not just announcing to the employee a set of words hoping that he or she understands why they have been dismissed. For an employee to be notified, it is not merely telling them. An employee should be notified in plain and simple terms why they are dismissed and not in “officialised” assertions that, among others, he or she has breached a “global policy”.

s.387(c) - opportunity to respond

[82] It is not necessary to detail again the process which led to Mr Prestedge being dismissed. On the evidence there is no dispute that Mr Prestedge discussed the findings of the investigation into the safety incident. That discussion transformed itself into a disciplinary meeting in which the Employer asserted Mr Prestedge had committed serious misconduct by breaching a number of the Employer’s policies and procedures. Despite these assertions being read to him on two occasions, when asked whether he wanted to respond, Mr Prestedge stated “not really”, according to Mr Rush’s evidence 35. Mr Krcoski gave evidence that Mr Prestedge said “no”36. Both Employer witnesses gave evidence that Mr Prestedge apologised for providing incorrect information in his initial statement.

[83] I am satisfied from the evidence, that while Mr Prestedge may have been given the opportunity to respond to the Employer’s findings of the investigation, he did not, and could not, respond to the assertions that he had engaged in serious misconduct by breaching the Employer’s policies and procedures. Shortly put, Mr Prestedge did not understand what was being put to him regarding the alleged failure to establish the underground communications procedure and the list of policies and procedures.

s.387(d) - support person

[84] Mr Prestedge does not deny that the Employer informed him that he could bring with him a support person to the meeting on 8 April 2013.

[85] Mr Prestedge did not attend the meeting with a support person, which in my view, is indicative of the fact that he understood the meeting was for the purposes of discussing the findings of the investigation report.

[86] When Mr Prestedge was asked by Ms Charen if he wanted Mr Krcoski to be his support person, he agreed. However, Mr Krcoski was the person who had conducted the investigation and was the author of the investigation report. The investigation report made adverse findings against the Applicant and recommended disciplinary action be taken against Mr Prestedge.

[87] While I accept Ms Douglas’ submission that Mr Krcoski had a “clear conflict of interest”, I am satisfied from the evidence that Mr Krcoski did not conduct himself in a way that was prejudicial to Mr Prestedge. I also note that Mr Krcoski was informed by Mr Charen that, as a support person, he “was not allowed to actively participate in the meeting or make comment” 37.

[88] I am prepared to come to a finding that the Employer did not unreasonably deny Mr Prestedge a support person. However, there are aspects of the manner in which the support person came into existence, and the role that he played, which indicates, in my view, a “tick the box” approach rather than assisting in the ultimate merits and responses of Mr Prestedge to his conduct on 31 March 2013.

s.387(e) - unsatisfactory performance

[89] This application is essentially confined to the incident on 31 March 2013. However, there is no dispute that Mr Prestedge had a blemish free record for more than eight (8) years with the Employer.

s.387(f) - size of enterprise

s.387(g) - Human Resources

[90] The Employer is a relatively large employer and has a discrete human resources department.

s.387(h) - other matters

[91] The Applicant’s representative submitted that I should take into account a familial relationship between Mr Rush and Mr Wagland as this may have had an impact on his impartiality in deciding to terminate Mr Prestedge’s employment. I do not propose to do so.

[92] Ms Douglas submitted that the dismissal was disproportionate in all the circumstances and I should take that into account. I agree.

[93] The parties agreed that Mr Prestedge and worked for the Employer for eight (8) of the last 10 years without being disciplined or warned about his work performance, conduct or any safety breaches. I consider it appropriate to take this into account.

[94] Mr Bowler for the Employer concedes that there were procedural deficiencies in the termination of Mr Prestedge’s employment, however, he submits they were not of sufficient magnitude to deny the Applicant natural justice, alter the outcome for Mr Prestedge or outweigh the seriousness of his conduct. I have considered this submission.

CONCLUSION

[95] Having considered the facts, evidence and submissions and for the reasons outlined above, I find that Mr Prestedge’s dismissal was harsh, unjust and unreasonable. Having reached this finding, it is necessary to consider a remedy for Mr Prestedge’s unfair dismissal.

REMEDIES

[96] Section 390 of the FW Act provides as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[97] Mr Prestedge is not seeking an order for reinstatement. The Employer also submitted that reinstatement is not appropriate. Having considered both submissions, I am of the view that reinstatement is not appropriate. Accordingly, I am satisfied that compensation is appropriate in all the circumstances.

[98] Section 392 of the FW Act provides for compensation as follows:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[99] An order for compensation will be made after I have heard from both parties. My Associate will contact both parties regarding the hearing. A hearing does not preclude Mr Prestedge, his representative and the Employer communicating without reference to the Fair Work Commission, on a consent order. In the absence of an agreed position, the Commission will make an appropriate order following further submissions.

COMMISSIONER

Appearances:

E Douglas, of the Australian Workers’ Union, Western Australian Branch for the Applicant

S Bowler of counsel for the Employer.

Hearing details:

2013:

Perth,

26 August.

 1   Exhibit A3 (9)

 2   Exhibit A5

 3   Exhibit A5(24)

 4   Exhibit A5(25)

 5   Exhibit A5

 6   Transcript PN369

 7 Section 20 Occupational Safety and Health Act 1984

 8   Transcript PN304

 9   Transcript PN306

 10   Transcript PN 313 and PN322

 11   Transcript PN315

 12   Transcript PN323

 13   Transcript PN324

 14   Transcript PN327

 15   Transcript PN328

 16   Transcript PN329

 17   Transcript PN345

 18  Transcript PN1384

 19   Transcript PN1379 to PN1382

 20   Transcript PN966 and PN967

 21   Transcript PN92

 22   Exhibit A5-JP1

 23   Exhibit A5-JP3

 24   Exhibit R11

 25   Transcript PN998

 26   Transcript PN1002

 27   Exhibit R8

 28   Exhibit R8

 29   Exhibit R10

 30   Exhibit R10

 31   Exhibit R10

 32   Exhibit R10

 33   Exhibit R11

 34   Exhibit R11

 35   Exhibit R9

 36   Exhibit R10

 37   Exhibit R10

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