Mr Javed Nishat v Degremont Pty Limited

[2010] FWA 1938

Note: An appeal pursuant to s.604 (C2010/3361) was lodged against this decision.

[2010] FWA 1938

FAIR WORK AUSTRALIA

DECISION

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

Mr Javed Nishat
v
Degremont Pty Limited
(U2009/13328)

VICE PRESIDENT LAWLER MELBOURNE, 17 MARCH 2010

Termination of employment.

[1] This is an application for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (FW Act). At the conclusion of the hearing I delivered ex tempore reasons for decision. As foreshadowed at that time, this is a revised version of those reasons.

[2] The applicant was first employed at the Prospect Water Filtration Plant in February 1996. He was dismissed on 26 October 2009 for misconduct in relation to an incident that occurred on 20 October 2009.

[3] The Prospect plant supplies about 80 per cent of Sydney's drinking water. The respondent operates that plant as a contractor to Sydney Water. The plant normally operates in a fully-automated fashion. Occasionally maintenance or other work needs to occur at the plant that requires it to be operated manually.

[4] On 20 October 2009 a PLC (process logic controller) upgrade was being undertaken in relation to a part of the plant. The nature of that upgrade meant that the plant had to be operated manually while it was being undertaken. Work for the upgrade was scheduled to commence at about 8 am on that day and was expected to finish between 1 and 2 pm. However, as is common with such undertakings, there was a risk that unexpected problems would be encountered while the work was proceeding that would result in the finish being delayed. That is what occurred on this occasion.

[5] The applicant was at this time employed as a day technician. His shift on that day commenced at 6.30 am and was scheduled to conclude at 3 pm. Various staff at the facility had been assigned particular tasks for the purposes of the upgrade. The applicant had been assigned a particular task, namely the manual dosing of ammonia to the water supply. He was working as part of a sub-team of two constituted by a technician in the control room who would monitor the various chemical levels in the water, and the applicant who was working some distance from the control room at a control panel and who would manually increase or decrease the ammonia dosage in order to keep the ratio of chlorine to ammonia within the required range by pressing buttons to increase or decrease the supply of ammonia: it was a “one finger” job.

[6] On the evidence before me, this was a critical task. If the ratio of chlorine to ammonia moved outside the required range to a significant extent, this could result in the plant releasing water that did not meet the quality requirements of Sydney Water (which in turn could have significant adverse consequences for the respondent in relation to its contractual obligations to Sydney Water).

[7] A problem was encountered with software during the upgrade and, in particular, with establishing communications between the new PLC and other pieces of equipment, such that the upgrade had still not been completed by 3 pm. At 3 pm the applicant left the site but did not tell anyone that he was going. In particular, he did not inform his supervisor that he was leaving. The upshot was that nobody took over from the applicant when he left his post controlling the manual dosing of ammonia.

[8] Mr Moodley, the engineering coordinator for the Prospect plant, discovered the absence of the applicant when he was unable to contact him on a two-way radio and soon discovered, by reference to CCTV footage, that the applicant had left the site. The applicant was summonsed to a meeting on Thursday, 22 October 2009 and questioned about the incident. He acknowledged leaving the site at 3 pm; that the status of the manual ammonia dosing was ongoing at that time; that he did not hand over to another technician and did not notify his supervisor or anyone else that he was leaving.

[9] When asked why he left before the upgrade was complete, the applicant indicated that he was tired and, because he was on call that week, he needed to rest. When asked who relieved him to continue the monitoring of manual ammonia dosing he replied with words to the effect: "It's someone else's problem. It's the supervisor's problem."

[10] On Friday, 23 October 2009 the applicant was sent a suspension notification by email suspending him from duty on pay until the morning of 26 October 2009. The reason given for the suspension was:

“Your conduct on Tuesday, 20 October, 2009 when at 03.00 pm, knowing you were involved in a critical task, you abandoned the task allocated to you and left the plant without communicating your departure to your supervisor.”

[11] The Thursday meeting was attended by the applicant, a human resources representative and Mr Moodley. The applicant did not have the assistance of a union or other representative at that meeting. In this regard, however, I note that the applicant endorsed the accuracy of the conversation set out in paragraph 18 of the statement of Mr Lautre, albeit that this conversation was said to have occurred on Thursday, 22 October 2009 and not Monday, 26 October 2009, as deposed to by Mr Lautre.

[12] On Monday, 26 October 2009 there was a further meeting. On this occasion the applicant was accompanied by the union delegate. The meeting was brief. The applicant was asked whether he wished to say anything further and he responded that he did not. Mr Lautre then dismissed him with words to the effect: "You've left me no choice but to terminate you."

[13] The tribunal is concerned with whether the applicant was unfairly dismissed. Relevantly, for present purposes, that question turns on whether the dismissal was "harsh, unjust or unreasonable". Section 387 of the FW Act specifies criteria that the tribunal must take into account in considering whether it is satisfied the dismissal was harsh, unjust or unreasonable. I turn to consider each of those criteria.

Section 387(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).

[14] The applicant acted on the basis that he had a legal entitlement to leave the site at the conclusion of his regular shift time (that is, 3 pm) notwithstanding that the manual ammonia dosing was continuing. The applicant acknowledged in cross-examination that the task he was performing was "critical" and, indeed, advanced this as a reason why he did not take a lunch break on that day, despite being invited by Mr Moodley to do so. Further, the applicant acknowledged in cross-examination that it was a "unwritten rule" that employees would work past the nominal end point of their shift in order to complete critical tasks of the sort that were occurring during the upgrade on 20 October 2009.

[15] I am satisfied that the applicant's conduct in leaving the site at 3 pm on 20 October 2009 abandoning a critical task without informing his supervisor or anyone else that he was leaving the site was a dereliction of duty and amounted to misconduct constituting a valid reason for the dismissal.

[16] The applicant's dereliction of duty was not so much in leaving the site because, contrary to the "unwritten rule", he was unprepared to work past the rostered end of his shift but, rather, in doing so without first informing his supervisor or at least some other technician that he was leaving so that steps could be taken to have another technician take over the critical task of manual ammonia dosing.

[17] The applicant conducted himself in this fashion pursuant to what seems to me to be a wrong headed notion that it was the responsibility of management to ensure that someone was available to replace him at 3 o'clock, even though he had not indicated that he would leave the site at that time and notwithstanding the custom and practice - the "unwritten rule" - that employees would continue working past the conclusion of their regular shift time in order to ensure that critical tasks were completed.

[18] In this context, I note that the workplace agreement in place at the Prospect plant provides for a salary for classification in which the applicant was employed that includes a 26 per cent loading as an allowance for:

“- On call

- 12 hours per month overtime if required, for after-hour

- breakdowns and call-outs,”

[19] The approach to the construction of such industrial agreements is well established and I have summarised the relevant principles in Watson v ACT Department of Disability Housing and Community Services 1. Applying those principles to the construction of the enterprise agreement in this case, I am satisfied that, objectively determined, it was the intention of the parties to the agreement that the salary paid to persons in the classification of the applicant would comprehend work beyond the end of a shift time in circumstances such as those that obtained on 20 October 2009.

[20] The respondent, in reaching a decision to dismiss the applicant, placed reliance upon a "first and final" warning given to the applicant by letter dated 30 December 2008 in relation to noncompliance with security procedures. In November 2008, a new security protocol, PC-17, was introduced. That protocol reinforced a requirement for shift technicians and security patrol officers employed by the respondent's security contractor to use passwords when security patrol officers were being admitted to the site. The applicant objected to this procedure at the time. I am satisfied that management considered those objections but nevertheless determined that the new protocol was appropriate to introduce.

[21] On a couple of occasions, the applicant deliberately chose not to comply with the security protocol and this came to the attention of management through a report from the security contractor. The applicant apparently took the view that he was entitled to refuse to follow this security policy. The applicant was, in my view, wrong-headed in adopting that approach. Generally speaking, employers are entitled to introduce policies and require employees to observe them. In the absence of some provision in a collective agreement or other legally binding instrument that limits the employer's discretion in that regard, an employer is entitled to introduce a policy and require employees to comply it them unless the policy is wholly irrational or perverse or introduced in bad faith for some ulterior purpose. The policy in this case was entirely rational even if, as the applicant appears to have believed, a better policy could have been introduced. I am satisfied that the first and final warning was appropriately issued in response to deliberate misconduct by the applicant.

[22] An issue arose in the cross examination of Mr Moodley as to whether the applicant, while working as a shift technician, had been warned on occasions about leaving at shift changeover before the relieving shift workers had arrived, a circumstance closely analogous to the incident that occurred on 20 October 2009. The applicant seemed to dispute Mr Moodley's evidence to this effect and three documents were subsequently extracted from the applicant's personnel file which demonstrates the correctness of Mr Moodley's evidence. 2

[23] I have found that there was a valid reason for the dismissal of the applicant. It is well established that there may be a valid reason for a dismissal and yet the dismissal may still be found to be harsh. I will return to a consideration of whether the dismissal in this case was harsh, unjust or unreasonable after considering the other criteria specified in section 387:

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

[24] I am satisfied that the applicant was notified of the reason for his dismissal. He was notified in the meeting on 22 October 2009.

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

[25] I am satisfied that the applicant was given an opportunity to respond to the reason in the meeting of 22 October 2009 and that his response remained essentially the same in the hearing of the present application. The fact that his response remains essentially unchanged detracts from the significance that might otherwise be attached to the absence of a representative for the applicant at the 22 October meeting.

Section 387(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.

[26] The applicant did not have a representative or support person at the meeting of 22 October 2009. There is no evidence that the applicant sought the presence of a representative or support person at that meeting or that the respondent refused any such request. Contrary to the submission of the applicant, generally speaking, it is not the responsibility of an employer to provide a support person or ensure that one is present. The applicant was accompanied by a union delegate at the meeting of 26 October 2009.

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

[27] This dismissal did not relate to unsatisfactory performance.

Section 387(f) and (g): The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting dismissal; and, 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.

[28] The respondent is the subsidiary of a substantial multinational corporation and has a dedicated human resource management specialist. I am not satisfied that there was material unfairness in the procedures followed by the respondent in effecting the dismissal.

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

[29] I have considered all of the circumstances of the case and will advert to other relevant matters in my consideration of whether the dismissal is harsh, unjust or unreasonable.

Harsh, unjust or unreasonable?

[30] The fact that the applicant claims to have been tired on 20 October 2009 does not explain or justify his failure to advise his supervisor or another appropriate person of his departure from the site and abandoning of the critical task that he was undertaking. I do not place substantial weight on the applicant's claims in relation to fatigue. He had been on site on the relevant day for eight and a half hours. The task that he was undertaking, although not being undertaken in ideal conditions, was not a task that was particularly onerous in the grand scheme of things. Moreover, the applicant had for many years worked as a shift technician working 12-hour shifts.

[31] The applicant gave evidence that he took no breaks during the time he was on site on 20 October 2009. I accept the evidence called on behalf of the respondent that it sought and encouraged the applicant to take breaks and that he declined to take a lunch break on 20 October 2009 when it was offered by Mr Moodley (who would have arranged for another employee to take over the manual ammonia dosing while the applicant was having lunch). Whilst I accept that the applicant may have felt tired and wished to leave on the basis that he was on call and may have been required to come back to the site, as I have noted, this does not justify or explain his failure to inform his supervisor or another responsible person of the fact that he was leaving the site and the critical task to which he had been assigned. I am satisfied that this conduct was a deliberate passive/aggressive action. Moreover, as counsel for the respondent notes, the fact that the applicant was on call meant that the respondent would have been within its rights to require the applicant to remain at work or, alternatively, to have required him to return to work as soon as he left the site, a fact the applicant must have appreciated.

[32] Further, I accept the evidence of Mr Moodley that if the applicant had spoken to him and indicated a need to leave for reasons of fatigue, Mr Moodley would have arranged for another employee to take over the task and permitted the applicant to leave the site. I note that the evidence demonstrates that another employee asked to leave the site that day and Mr Moodley granted the request and made arrangements for that employee to be replaced.

[33] I note that the applicant has what I accept to be a genuine belief that he had no legal obligation to remain on the site beyond 3 pm on 20 October 2009. I have taken particular account of the applicant's length of service, his serious health problems and his age (which I accept may lead to him finding it difficult to secure other employment). However, at the end of the day I was faced with an applicant who, even during the hearing, obdurately refused to accept management's prerogative to implement and require observance of policies and to reasonably require additional work in critical circumstances such as those that obtained on 20 October 2009 (which requirement accorded with custom and practice - the "unwritten rule" – known to the applicant and with a proper construction of the relevant workplace agreement). In short, the applicant had during the disciplinary process, and continues to have, no appreciation that he did anything wrong in any respect. In all the circumstances, and according a "fair go all round" (which means according a fair go to employers and not simply to applicants), given the seriousness of the applicant’s misconduct viewed in the context of previous warnings and his lack of capacity to see that anything he did was worthy of criticism, I have come to the conclusion that the respondent was left with no reasonable option but to dismiss the applicant notwithstanding his age, length of service and serious medical problems. For all these reasons I conclude that the dismissal was not harsh, unjust or unreasonable and, accordingly, the application for an unfair dismissal remedy must be dismissed.

VICE PRESIDENT

Appearances:

Mr R Moore, of Counsel, for the respondent.

The applicant appeared in person.

Hearing details:

Sydney.

2010:

1 March

 1   (2008) 171 IR 392

 2   Exhibit E

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