Mr Jesse Baker v Patrick Projects Pty Ltd

[2014] FWC 328

[2014] FWC 328

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Jesse Baker
v
Patrick Projects Pty Ltd
(U2013/8040)

COMMISSIONER CLOGHAN PERTH, 16 JANUARY 2014

Unfair dismissal.

[1] This is an application by Mr Jesse Baker who alleges that he was unfairly dismissed from his employment with Patrick Projects Pty Ltd.

[2] Mr Baker contends that he was unfairly dismissed on a number of grounds but primarily that he was unfit for work, in receipt of workers’ compensation payments and engaged in a return to work programme. Patrick Projects Pty Ltd contends that Mr Baker was essentially dismissed for his poor attendance at work and failing to respond to communication regarding his non-attendance.

PROCEDURAL BACKGROUND

[3] On 28 March 2013, Mr Jesse Baker (Mr Baker or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with Patrick Projects Pty Ltd (Patrick Projects or 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 was referred to me for arbitration on 30 May 2013.

[6] The application was the subject of a conference on 25 June 2013. At the conference both parties agreed to provide documentation relating to particular facts which were in dispute, pursuant to s.397 of the FW Act. The Employer provided its response on 28 June 2013. The Applicant provided his response on 8 August 2013.

[7] Procedural directions were issued on 13 August 2013.

[8] At the hearing on 28 October 2013, the Applicant was represented by Mr G Stubbs of counsel and he gave evidence on his own behalf. In addition, the following gave evidence on behalf of Mr Baker:

● Mr M Baker, Applicant’s father
● Mr C Cain, Secretary, Maritime Union of Australia (MUA) Western Australian Branch
● Mr D Heath, Assistant Secretary, MUA, Western Australian Branch
● Mr M Canning, employee and MUA workplace delegate
● Mr T Climo, Exercise Psychologist and Rehabilitation Provider to Applicant.

[9] The Employer was represented by Ms A De Boos of counsel and evidence given on behalf of the Employer by:

● Mr D Burton, Business Manager
● Mr M Bennetto, Operations Manager
● Mr A Howard, General Manager, Business Development and Commercial
● Ms K Fisher, Human Resources Manager
● Ms M Storey, Human Resources Advisor.

[10] At the conclusion of the hearing, I reserved my decision. Having considered the evidence, submissions, statutory framework and case law, this is my decision and reasons for decision.

RELEVANT STATUTORY FRAMEWORK

[11] 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) ...”

[12] 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.”

AGREED STATEMENT OF FACTS

[13] The agreed statement of facts is short and as follows:

“1. The applicant was born on 21 November 1989.

2. The respondent is a constitutional corporation engaged to perform stevedoring services at the Australian Marine Complex, Western Australia (AMC).

3. The applicant was employed by the Offshore Marine Service Alliance (OMSA) until 29 April 2012.

4. The applicant commenced employment with Patrick Projects Pty Ltd (“the employer”) on 29 April 2012 as a Stevedore at the AMC site in Henderson, WA”. 1

RELEVANT BACKGROUND

[14] On 17 September 2011, Mr Baker sustained an injury at work while employed by OMSA.

[15] On 29 April 2012, contractual services, to the extent they related to Mr Baker, were transferred from OMSA to Patrick Projects.

[16] On 28 April 2012, the Employer forwarded to Mr Baker an offer of employment which superseded a previous offer on 20 April 2012. The 28 April 2012 offer of employment enclosed a document containing the terms and conditions of his employment. The document is entitled “Terms and conditions of casual employment” and the Applicant’s name.

[17] The parties agree that Mr Baker commenced employment with Patrick Projects on 29 April 2012.

[18] On 4 May 2012, Dr Veeraputhran set out programme details for Mr Baker’s Return to Work Programme (RTWP). They are as follows:

[19] The RTWP did not materially change until the four (4) week period commencing 20 August 2012. In the four weeks following 20 August 2012, the scope of duties widened and the “Special Conditions” increased. The remaining provisions of the RTWP agreement were unaltered.

[20] The modified conditions of the RTWP commencing 20 August 2012 did not materially change again up until 15 February 2013. 2

[21] Mr Baker finalised his workers’ compensation informally on 13 March 2013 and formally on 19 March 2013. The agreement was subsequently formally recorded pursuant to the WC Act on 26 April 2013.

[22] In and around November 2012, Mr Baker was contacted by Ms Storey regarding his failure to report to work (FTR) and book offs. It was part of Ms Storey’s role to monitor attendance of employees and contact them if necessary.

[23] Ms Storey gave untested written evidence of her difficulty to contact Mr Baker either by telephone or in writing from November 2012. On the occasions she did make contact with Mr Baker, he stated that his reasons for poor attendance related to family relationship issues and car problems.

[24] When contacted by Ms Storey on 20 December 2012 about his work attendance, Mr Baker repeated the reasons outlined in the paragraph immediately above. Ms Storey advised Mr Baker to make use of the Employer’s Employee Assistance Programme. The Applicant indicated to Ms Storey words to the effect that he would try harder to attend work when allocated.

[25] At the direction of Ms Fisher, Ms Storey forwarded to Mr Baker correspondence dated 14 February 2013 requiring him to attend a meeting scheduled for 19 February 2013. The correspondence related to the Employer’s records which indicated that the Applicant booked off “7 times and had 15 FTR’s for the period December 15 2012 to February 13 2013 (please refer to attached)”. Mr Baker was advised that he could have a support person in attendance and it was emphasised that “no view has yet been formed on this issue and that you will be provided full opportunity to discuss the reasons for your absences from work during this time”. 3

[26] Mr Baker failed to attend the meeting on 19 February 2013. Mr Baker gave evidence that he did not receive the Employer’s correspondence of 14 February 2013 and that is why he did not attend the meeting.

[27] The Employer forwarded to Mr Baker correspondence dated 1 March 2013 which referred to the correspondence dated 14 February 2013 and that he had not attended the scheduled meeting on 19 February 2013.

[28] The Employer’s correspondence dated 1 March 2013 sets out that “since 13 February 2013, you have had a further 7 FTR’s”. The correspondence also indicates that “to our knowledge you have made no contact with any member of Patrick Projects Management team since prior to Christmas 2012 to discuss any difficulties you may be having, or your reasons for your unavailability, book offs or FTR’s.” 4

[29] The correspondence of 1 March 2013 was entitled “Show Cause”. Mr Baker was advised that he could bring a support person to attend the meeting scheduled for 6 March 2013. Further, prior to the meeting, Mr Baker was able to provide a response as to why his employment should not be terminated. 5

[30] Mr Baker did not attend the meeting nor provide a written response. Mr Baker gave evidence that he did not receive the Employer’s correspondence of 1 March 2013.

[31] On 7 March 2013, Mr Burton forwarded to Mr Baker correspondence terminating his employment effective from 11 March 2013 without the requirement to work the notice period. Mr Burton’s correspondence travails the recent history of the matter, his non attendance at the meeting on 6 March 2013, lack of response to the show cause letter and the multiple unsuccessful attempts by the Employer to contact Mr Baker when he failed to attend meetings.

[32] From March 2012, Mr Baker was at the same address to which all employer correspondence was forwarded to. Mr Baker gave evidence that, with the exception of the relevant correspondence from the Employer, he could not recall any other non-receipt of postage which stood out 6. Mr Baker did not have an explanation as to why he did not receive the Employer’s correspondence7. Notwithstanding this lack of explanation, I am satisfied that the relevant Employer correspondence was forwarded to Mr Baker.

[33] A meeting was held on 22 March 2013 in which Mr Baker’s termination of employment was discussed. The Employer considered the representations made by Mr Baker and his father, who was also in attendance. The Employer’s position remained unchanged. Mr Baker’s employment was terminated with effect from 11 March 2013.

APPLICANT’S CASE

[34] The Applicant submits that:

● he was unfit and in receipt of workers’ compensation payments and/or engaged in a RTWP pursuant to the Workers’ Compensation and Injury Management Act 1981 (WA) (WC Act);

● the Employer’s record of absences, book offs and FTRs are inaccurate;

● the Employer, in relation to other employees in similar classifications, has a “flexible policy in relation to absences, book offs and FTRs which was not applied to the Applicant and hence he was treated unfairly;

● the termination was unfair because the Employer, at all times, was aware of the locations and activities of the Applicant.

PATRICK PROJECTS’ CASE

[35] The Employer submits that:

● the termination of the Applicant’s employment was on the basis of a valid reason and was not harsh, unjust or unreasonable in the circumstances.

[36] Patrick Projects set out the facts and supporting evidence for its submissions.

CONSIDERATION

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

[37] 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’.”

[38] I turn first to the issue of Mr Baker’s workers’ compensation claim and the provisions of the WC Act.

[39] Mr Baker’s workplace injury occurred on 17 September 2011 and his Workers’ Compensation First Medical Certificate (First Certificate) is dated 18 September 2011. The First Certificate states that Mr Baker is totally unfit for work from 18 September 2011 to 23 September 2011. Further, progress medical certificates certified Mr Baker as totally unfit for work, it appears, until 17 October 2011. From 18 October 2011, Mr Baker’s progress medical certificates state that he was fit to return to work on a restricted basis until 1 November 2011. This return to work on a restricted basis was extended on a monthly basis until April 2012.

[40] On 13 April 2012, Mr Baker was certified as totally unfit for work from 3 April 2012 to 27 April 2012.

[41] Subsequently, Mr Baker was certified, on a periodic basis, as fit for a restricted return to work from 4 May 2012 to 30 January 2013. On 31 January 2013, Mr Baker was certified fit to return to his pre-disability duties.

[42] On 13 February 2013, OMSA, who was Mr Baker’s employer at the time of the injury, made application, pursuant to sections 61 and 62 of the WC Act to discontinue his weekly payments as he was fit to pursue his pre-injury duties following discussions with Mr Baker’s legal representatives on 8 February 2013.

[43] Accordingly, I am satisfied that, save periodic instances where Mr Baker was totally unfit for work, from 18 October 2011 until 30 January 2013, he was fit to return to work on a restricted basis. From 31 January 2013 until the date of his dismissal, Mr Baker was able to perform his pre-disability duties.

[44] I now turn to Mr Baker’s period of employment with the Employer between 29 April 2012 to the termination of his employment.

[45] Firstly, Mr Stubbs submits that the purported offers of employment made to Mr Baker by the Employer “were not communicated to the Applicant nor accepted by the Applicant”. However, Mr Baker’s witness statement reads:

“I commenced employment with Patrick Projects Pty Ltd on 29 April 2012 as a Stevedore at the Henderson site.

I was required by the employer to work 3, 10-hour shifts each week to be paid superannuation and also entitled to accrue all forms of leave.”

[46] I am satisfied that Mr Baker, by his witness statement, and his conduct, elected to affirm the conditions of employment as set out in the Employer’s offer of employment dated 28 April 2012.

[47] Mr Baker asserts that, at the time of commencing employment with Patrick Projects, he was engaged on a RTWP in accordance with s.155C(1) of the WC Act.

[48] On 4 May 2012, at a case conference attended by Mr Baker, Dr Veeraputhran and Mr Climo, a medically approved RTWP was developed and forwarded to all parties.

[49] As part of that RTWP, Mr Baker was, put shortly, required to attend for work. If Mr Baker was unable to attend work he was to advise the Employer and his rehabilitation provider. Further, if Mr Baker was unable to attend for work, he was also required, where practicable, to attend a medical centre and obtain medical certification.

[50] Importantly, as part of the RTWP, Mr Baker was required to adhere to the normal obligations of any employee of the Employer.

[51] Mr Baker commenced employment with the Employer on 29 April 2012. The first shift Mr Baker worked was 16 July 2012.

[52] Mr Climo’s Rehabilitation Progress Report of 17 July 2012 advises the insurer that he had contacted Mr Baker on 6 July 2012 and encouraged him to “keep open lines of communication with all parties”. Further, on 13 July 2012, Mr Baker advised Mr Climo that he had liaised with the Employer “who indicated they would be able to roster him as per his medical certificate”. 8

[53] In a further Rehabilitation Progress Report to the insurer, Mr Climo advised that he had contacted Mr Baker on 1 August 2012. Mr Baker had advised him that “he was maintaining his current duties without significant aggravation - however he was continuing to experience some discomfort when standing for long periods”. 9

[54] On 1 August 2012, Dr McLaren, Consultant Orthopaedic Surgeon, provided the insurer with a report in which Mr Baker had advised him that:

“[He had] started back at work about two weeks ago working 3-4 days a week undertaking light duties. The first week he was doing predominately paper work and the second week was doing paper work and driving machinery. The plan for this week is to work as a ‘peggie’.” 10

[55] I am satisfied on the evidence that Mr Baker was being rostered to attend work in accordance with a RTWP. Further, the responsibility for his attendance in accordance with the roster was a matter for him. Finally and in accordance with the RTWP, he was required to:

“...advise the Employer and Freshstart if unable to attend any days of the programme, prior to shift commencement on that day. If Mr Baker is unable to attend any days of the programme, he should attend the medical centre.

Mr Baker will undertake to adhere to the normal obligations of any employee of the organisation.

Mr Baker to be covered for wages and workers compensation insurance by the current insurer of his compensation claim for the duration of the programme.

Mr Baker has agreed with the content and conditions of this return to work programme.”

[56] Mr Stubbs submits that the Applicant was placed on a RTWP pursuant to sections 155-155E and 156B of the WC Act.

[57] Section 155 of the WC Act defines a:

“return to work program means a return to work program established under s.155C(1)”.

[58] Section 155C(1) of the WC Act relevantly provides that:

“(1) An employer of a worker who has suffered an injury compensable under this Act must ensure that a return to work program is established for the worker as soon as practicable after either of the following occurs —

(a) the worker’s treating medical practitioner advises the employer in writing that a return to work program should be established for the worker;

(b) worker’s treating medical practitioner signs a medical certificate to the effect that the worker has a total or partial capacity to return to work.

(2) ...

(3) An employer must ensure that the establishment, content and implementation of a return to work program are in accordance with the code.”

[59] It would appear from the documentary material provided to the Commission that the RTWP for Mr Baker was established pursuant to s.155C(1) of the WC Act.

[60] Section 156B of the WC Act provides:

“156B .         Arbitrators’ powers as to return to work programs

(1) The employer of a worker, or a worker, may apply for an order of an arbitrator requiring the worker to participate in a return to work program.

(2) The arbitrator may require the worker to participate in a return to work program if satisfied that —

(a) a return to work program is required under section 155C(1) to be established for the worker; and

(b) the worker, without reasonable excuse, refuses or has failed to participate in a return to work program; and

(c) the establishment, content and implementation of the return to work program are, or will be, in accordance with the code.

(3) The arbitrator may require the worker to participate in a return to work program other than that proposed by or on behalf of a party to the application.”

(my emphasis)

[61] I note, in respect to subsection 156B(1) of the WC Act, an application for an order requiring a party to participate in a RTWP is discretionary - it is not mandatory.

[62] The submission by Mr Baker is that if, as the Employer contends he has not attended work due to FTRs, book offs and absenteeism in accordance with the RTWP, the Employer ought to apply to an Arbitrator, appointed under the WC Act, to make him comply with the RTWP; a RTWP which he has already agreed to.

[63] If, as the Employer asserts, the Applicant has not chosen to comply with his agreed RTWP, Mr Baker submits that the Employer’s only recourse is for it to make application, pursuant to s.156B of the WC Act to make an order requiring him to participate in the RTWP; a RTWP which he has already agreed to participate in. Further, Mr Baker asserts that the Employer, in failing to make application for such an order for him to participate in the agreed RTWP means that his “dismissal was harsh and unfair”. I do not accept such an argument.

[64] Clearly, when the Commission considers the context, the argument is self serving. The argument pre-supposes that because the Employer did not exercise a discretionary provision of the WC Act to seek an order to participate in a RTWP, it is harsh and unfair. Such an argument ignores causation and the obligation of Mr Baker to attend work when required and in accordance with an agreed RTWP.

[65] The second issue raised by the Applicant is that the Employer’s record of absences, book offs and FTRs are inaccurate.

[66] The Employer conceded in evidence that there were inaccuracies, some which relate to where the data was sourced from or the time it was extracted.

[67] Mr Baker appears to be submitting to the Commission that if he is able to demonstrate some inaccuracies in the data, its entirety should cease to have any probative value. The burden of proof lies with the Applicant to persuade the Commission that he was unfairly dismissed. The overall reason for Mr Baker’s dismissal was primarily his absence from work and his non attendance at meetings to discuss these absences.

[68] For the entire period of his employment from 29 April 2012 to 1 March 2013, the Employer states that Mr Baker was required to attend work on 121 occasions. Mr Baker, the Employer submits, worked a total of 44 shifts or 36% of the shifts required. The Applicant failed to report for an allocated shift on 29 occasions or 24%. Mr Baker telephoned the Employer to book off after being allocated a shift to work on 48 occasions or 40%. It is notable that 16 of the 121 occasions of work occurred after 31 January 2013 where Mr Baker was certified to return to his pre-disability duties. Mr Baker failed to report for work on these 16 occasions.

[69] While there may have been some inaccuracies and nomenclature difficulties with Mr Baker’s non attendance at work, I am satisfied that overall Mr Baker approached his attendance at work as discretionary. Any differences between what the Employer alleged and the inaccuracies revealed in cross examination, do not materially detract from the overall reason why Mr Baker was dismissed on 7 March 2013.

[70] I have no probative evidence to demonstrate that Mr Baker was treated unfairly in comparison to other employees in a similar classification. Further, with respect to the submission that the termination of Mr Baker was unfair because the Employer was aware, at all times, of his location and activities, I would observe that the evidence was to the contrary. Irrespective of my observation, I am not persuaded this issue has any relevance to the application.

[71] It is not uncommon in these matters before the Commission for facts to be disputed. Where Mr Baker was cross-examined as to the existence of certain facts, I found his evidence purposely vague and lacking credibility. For example, with respect to the meeting with the Employer on 22 March 2013, I prefer the evidence of Ms Fisher and her notes of the meeting to that of Mr Baker’s evidence. 11

[72] In conclusion, I am satisfied that the Employer had a sound, defensible and well founded reason to dismiss Mr Baker.

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

[73] I am satisfied, that by correspondence from the Employer to the Applicant dated 7 March 2013, Mr Baker was notified of the reasons for the termination of his employment. These reasons were foreshadowed in correspondence from the Employer to Mr Baker on 1 March 2013.

s.387(c) - opportunity to respond

[74] I am satisfied that in correspondence dated 1 March 2013 which is entitled “Show Cause”, Mr Baker was given the opportunity to respond to the reasons why the Employer should not terminate his employment. Mr Baker was given the opportunity to respond both in writing and by attendance at a meeting on 6 March 2013.

[75] Mr Baker was advised that should he decline to attend the meeting on 6 March 2013 or provide a response, the Employer would make a decision regarding his ongoing employment on the information currently available. Mr Baker did not attend the meeting on 6 March 2013 or provide a response.

s.387(d) - support person

[76] The Employer’s correspondence of 1 March 2013 expressly advises Mr Baker that he could bring a support person to the meeting on 6 March 2013 for the purposes described in paragraph [74] above.

s.387(e) - unsatisfactory performance

[77] The reasons for Mr Baker’s termination of employment are essentially confined to: his failure to attend work, failure to contact the Employer when not attending work, inability to meet his employment conditions and failure to attend meetings to discuss these issues. These matters go to Mr Baker’s unsatisfactory work attendance and not actual workplace performance.

s.387(f) - size of enterprise

s.387(g) - Human Resources

[78] The Employer is a relatively large employer and has a discrete human resources department. I find the process adopted by the Employer in effecting Mr Baker’s dismissal satisfactory.

s.387(h) - other matters

[79] I have not taken any further matters into consideration which have not been considered above.

CONCLUSION

[80] Having considered the facts, evidence, submissions, relevant statutory provisions and case law, and for the reasons outlined above, I do not find that Mr Baker’s dismissal was harsh, unjust or unreasonable. Accordingly, an order dismissing the application will be made and issued jointly with this Decision and Reasons for Decision.

COMMISSIONER

Appearances:

G Stubbs of counsel for the Applicant.

A De Boos of counsel for the Respondent.

Hearing details:

2013:

Perth,

28 October.

 1   Exhibit A4

 2   Exhibit A6

 3   Exhibit R6

 4   Exhibit R3

 5   Exhibit R3

 6   Transcript PN370

 7   Transcript PN373

 8   Applicant’s bundle of documents which he relies upon 28 August 2013

 9   Applicant’s bundle of documents which he relies upon 28 August 2013

 10   Applicant’s bundle of documents which he relies upon 28 August 2013

 11   Transcript PN553 to PN601

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<Price code C, PR546765>