Mr John Dalziel v Bilfinger Berger Services (Australia) Pty Limited
[2010] FWA 1129
•16 FEBRUARY 2010
[2010] FWA 1129 |
|
DECISION |
Fair Work Act 2009
s.394—Application for unfair dismissal remedy
v
Bilfinger Berger Services (Australia) Pty Limited
(U2010/5854)
COMMISSIONER SMITH | MELBOURNE, 16 FEBRUARY 2010 |
Termination of employment; meaning of reinstatement.
INTRODUCTION
[1] Mr J. Dalziel seeks re-instatement in employment with Bilfinger Berger Services (Australia) Pty Limited (BBSA) following his termination of employment for serious and wilful misconduct on 9 February 2010. The termination was said to be based upon an allegation of derogatory language and conduct when addressing Mr J. Karantzis.
[2] Mr Karantzis is employed by Sugar Australia Pty Ltd (Sugar Australia) as the Project Director for the expansion project at its sugar refinery in Yarraville. BBSA is the contractor engaged by Sugar Australia for that project.
[3] In the proceedings, Mr Dalziel was represented by Mr N. Campbell of Counsel and BBSA was represented by Mr P. Wheelahan of Counsel. During the proceedings Mr N. Green QC and with him Mr T. Jacobs of Counsel appeared for Sugar Australia. I shall return later to the involvement of Sugar Australia.
BACKGROUND
[4] Prior to, but associated with, the dismissal of Mr Dalziel there had been disputes with employees of BBSA about:
- Mr Dalziel’s suspension from the site.
- Protocols and procedures for site access for non-employees.
- Occupational health and safety procedures on the site.
- Communication with employees of BBSA by persons not employed by the Company, and
- The application of a recommendation of Senior Deputy President Watson.
[5] It is convenient now to deal with the proceedings on 3 February before Watson SDP. His Honour Senior Deputy President Watson was dealing with an application pursuant to s.418 of the Fair Work Act 2009 (the Act) in relation to industrial action by employees of BBSA. The action was associated with a complaint by employees that Mr Karantzis had entered the work site of BBSA without complying with established occupational health and safety protocols. In the course of his judgement the Senior Deputy President made a number of recommendations. These included:
1. that the attendance on site by Sugar Australia representatives be in accordance with the BBSA site occupational health and safety protocol as it applies to site visitors, and
2. that Sugar Australia representatives, if attending the site, not communicate directly with any employee and if they have any issues they should raise those with BBSA project manager or, in his absence, the most senior BBSA manager on site.
[6] The proceedings before Watson SDP and his recommendations form part of the factual matrix in which I must consider the s.394 application made by Mr Dalziel.
[7] The incident which led to the dismissal of Mr Dalziel occurred on 27 January.
[8] It is alleged by BBSA that on that day Mr Dalziel was abusive to Mr Karantzis while Mr Karantzis was in the BBSA work area. Sugar Australia provided four statements from its employees: Mr J. Karantzis; Mr P. Murray; Mr P. Mantella; and Mr C. Huxley.
[9] From the evidence, those four Sugar Australia employees came into the BBSA worksite without complying with established occupational health and safety protocols. 1
[10] The evidence is clear that a stairwell was barricaded to prevent unauthorised access however the four Sugar Australia employees’ went past these barricades and preceded on site. The access by these persons was also inconsistent with the health and safety co-ordination plan required of BBSA under the Occupational Health and Safety Regulation 2007 (Vic).
[11] Mr Dalziel is the Shop Steward for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Deputy Health and Safety representative on site and, as he should, took this apparent contravention of health and safety protocols very seriously.
[12] The evidence is that he confronted Mr Karantzis about his presence. It is at this point that the versions of events differ. The statement by Mr Karantzis is that Mr Dalziel was abusive. The statement contains what was alleged to have been said.
[13] In his evidence in the proceedings, Mr Dalziel accepted that he swore but denied that he was abusive and that he used some of the words attributed to him.
[14] It is important to pause and note that BBSA sought to require evidence from the four Sugar Australia employees so that it may be put before the Tribunal.
[15] I considered it appropriate to provide Sugar Australia with the opportunity to be heard on the application for a summons to be issued to the four Sugar Australia employees involved. The application to have its employees called to give evidence of the incident which led Mr Karantzis to issue a contractual direction that Mr Dalziel be removed from the site, was strongly resisted. To begin, I was satisfied that Sugar Australia was aware of the details of the case and the impact of it resisting its employees supporting their statements by providing evidence before the Tribunal. Further, I was aware that BBSA was denied access to these persons when it reached its conclusion to terminate Mr Dalziel. In the result a decision was made not to compel the attendance of Sugar Australia employees.
[16] Mr M. Rath, the BBSA Construction Manager of the project 2 who dismissed Mr Dalziel also gave evidence. I note in passing that Mr Karantzis has also given a contractual direction that Mr Rath be removed from the site.3 It was the evidence of Mr Rath that it would not be a problem for the work site if Mr Dalziel was reinstated.4 Indeed a petition was tendered on Mr Dalziel’s behalf5 from the BBSA workforce supporting his return to work.
WAS THERE A VALID REASON?
[17] Section 385 of the Act provides:
“A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[18] To begin, there is no suggestion that Mr Dalziel has not been dismissed or that s.385(c) and (d) applies.
[19] Section 387 directs FWA to the criteria which it must take into account.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[20] In this matter the issue is whether or not there was a valid reason for the dismissal of Mr Dalziel having regard to his conduct on 27 January in his exchange with Mr Karantzis.
[21] The evidence of Mr Dalziel was that he saw the four Sugar Australia employees come up the main stairwell which was the one barricaded due to scaffolding work. His evidence was that he shouted words to the effect that they should not be there. He said that the reason he shouted was that it was a noisy site. Mr Dalziel said that the group came closer to him up the stairs and that Mr Karantzis pointed his finger at him and said words to the effect that he had had enough of him. There was an exchange and Mr Dalziel left the area and reported the incident to his Supervisor, Mr P. O’Nial. Mr O’Nial advised Mr Dalziel to go to the office and write down everything that was said.
[22] The language used, which was admitted by Mr Dalziel, was the word fuck/ing on a number of occasions. This does not fully accord with the statements of the witnesses from Sugar Australia which said there were other words used.
[23] To varying degrees the evidence of Mr Dalziel is supported by other evidence called in support of his application.
[24] In the absence of evidence to the contrary I accept the evidence of Mr Dalziel. Although, I add that had the statements of the four Sugar Australia employees been supported by direct evidence, and resolved in their favour it may not have been sufficient to warrant the dismissal of Mr Dalziel for serious and wilful misconduct. This is particularly so when all the circumstances of the case are taken into consideration.
[25] It follows that the next matter is whether or not the admitted language used by Mr Dalziel was of a character to warrant his dismissal. In this connection a number of factors are relevant. The first is, as one of the witnesses (Mr A. Baily) put it, “it’s a construction site mate. Swearing is everyday language. It’s not language I would use at home but….. 6”. It was also the evidence of Mr Rath that swearing was commonplace on worksites.7 Everything must be looked at in context. The use of such language on a construction site is not surprising, but the way in which it is used may well be relevant. It is not surprising because another relevant factor is that it was also the evidence of Mr Rath that Mr Karantzis had used similar language towards him when referring to the contractual terms between Sugar Australia and BBSA.8
[26] The next relevant factor is that the employees of Sugar Australia did not respect the occupational health and safety plan put in place by BBSA. The evidence of Mr Rath was that he would expect Mr Dalziel to take a strong position on occupational health and safety. As mentioned earlier, the language that was said to have been used in the statements provided by Sugar Australia, and attributed to Mr Dalziel (with its urgency) may not have sufficient justification for his termination for misconduct. Mr Rath’s evidence was also that Sugar Australia had, on a number of occasions, not respected BBSA’s health and safety protocols. I also note that the recommendations of His Honour SDP Watson sought to overcome conduct of Sugar Australia which was not consistent with BBSA’s occupational health and safety plan as well as normal industrial relationships. It was the evidence of Mr Rath that His Honour’s recommendations were not accepted by Sugar Australia. 9
[27] There is one other relevant factor which I must take into account. When BBSA received the contractual direction to remove Mr Dalziel from the site he was given the option of working at another site. Mr Dalziel rejected this option. This alternative put to Mr Dalziel is a factor in his favour that there was not a valid reason, although it appears that the offer was made prior to a finalisation of the investigation by BBSA. Following the investigation no such offer was put to Mr Dalziel. In any event, it should not be necessary for him to be transferred against his will in circumstances where he asserts that he has not been involved in any wrong-doing which is said to be the reason for the transfer.
[28] Against this background I find that, in the circumstances, the use of language of the character admitted to was:
• Not unusual on building sites; and
• Must be seen against the background of the breach by Sugar Australia of BBSAs occupational health and safety protocols.
[29] Accordingly, I find that there was not a valid reason for BBSA to terminate the employment of Mr Dalziel and that his dismissal was harsh.
REMEDY
[30] The next matter I then turn to is remedy.
[31] Section 390 of the Act provides:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA 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) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA 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.”
[32] Mr Dalziel seeks reinstatement, continuity of service and an order to restore lost pay. Section 390(3) of the Act provides that FWA must not order compensation unless FWA is satisfied that reinstatement of the person is inappropriate. In this connection BBSA submit that it has a contractual direction not to have Mr Dalziel on the site and that such a direction goes to the appropriateness or otherwise of reinstatement. It again sought evidence from Mr Karantzis about this matter but subsequently did not press its application.
[33] Section 391(1) provides an option to reinstate to the position in which the person was employed prior to the dismissal or to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal. Given my concern to explore both options I invited BBSA to make submissions on the effect of any order if one was made reinstating Mr Dalziel to the BBSA worksite at Sugar Australia. BBSA submitted that given the contractual direction it believed that Sugar Australia should be given the opportunity to make submissions on the appropriateness of reinstatement to that site.
[34] The Solicitors for Sugar Australia were advised if they wanted to be heard on this aspect then they should attend and bring with them Mr Karantzis who made the direction under the contract. When the matter resumed, Sugar Australia tendered an affidavit from its Human Resources Manager, Mr Christensen.
[35] Relevantly it was the evidence of Mr Christensen that:
• He was aware that Mr Dalziel was seeking reinstatement to employment with BBSA; and
• If Mr Dalziel was reinstated in his employment he would not be permitted to access the site. 10
[36] The person who would have been in a position to give the best evidence on the appropriateness or otherwise of Mr Dalziel returning to the site was not made available and Mr Christensen had no direct knowledge of reasons why Mr Dalziel was considered inappropriate to remain on site.
[37] I am, of course, troubled that Sugar Australia should say in advance of any decision that it will not permit Mr Dalziel to return to his worksite. As Mr Campbell said this is a serious issue for the operation of Chapter 3 Part 3—2 of the Act.
[38] In my view, subject to a jurisdictional argument raised, nothing has been put which would make reinstatement to the BBSA site at Sugar Australia inappropriate. Sugar Australia has not sought to make any submissions as to why it took the view that it should exercise a power under its contract which, in this case, has led to a termination of employment. It simply relies upon the ability to give contractual directions and no other evidence is proffered.
[39] However, Sugar Australia argues that the Tribunal lacks jurisdiction to reinstate Mr Dalziel at the Sugar Australia site. It is to that matter that I now turn.
[40] Section 391(1)(a) of the Act provides:
“(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal.”
[41] Sugar Australia submit:
“Mr Dalziel’s position or “job” was not to perform duties for BBSA on the site, but rather to perform his duties on any site BBSA required him to work on. If an order be made, consistently with Blackadder, Mr Dalziel should be provided with the same kind and volume of duties as he previously performed. Blackadder does not require BBSA to ensure that Mr Dalziel performs precisely the same work in exactly the same way at the same site. Otherwise absurd consequences would arise. For example, work is due to cease on the site shortly so Mr Dalziel would, if an order for reinstatement be made, need to work on another site in any event.” 11
[42] What is squarely before me is whether or not the power in s.391, with a reference to the position in which the person was employed immediately before the dismissal, can include a worksite. Mr Dalziel seeks reinstatement to the worksite arguing that this was his position and Sugar Australia state it will not permit him to enter that site which is on its property. It would not be appropriate to let this question hang in the air by simply using the language of the statute without seeking to resolve its application.
[43] Should an order be given to reinstate Mr Dalziel, and Sugar Australia maintain its stated view about denying him access to his worksite, then that will be a matter for a court, but it is important that the direct controversy as to the nature and intent of any order be properly addressed.
[44] It is against that background that I turn to the decision of the High Court in Blackadder v Ramsey Butchering Services Pty Ltd (2005) (“Blackadder”).
[45] The issue in Blackadder was that Mr Stephen Blackadder was reinstated by Redmond C and “in the course of his decision made certain findings which indicate that his order was intended to reinstate the employee to do hindquarter boning work, the work the employee ordinarily did before his employment was terminated.” 12 In response to the decision of Redmond C, Ramsey Butchering Services Pty Ltd (Ramsey) wrote to Mr Blackadder advising him that that he had been reinstated in employment but that he was not required to attend for duty and was required to undergo a medical examination. The requirement to undergo a medical examination was based upon the view that doubt existed over Mr Blackadder’s ability to perform duties as a boner. It was said that those duties included work other than hindquarter boning work.
[46] Mr Blackadder advised that he was ready and willing to perform the boning work he had performed before his termination and did not attend the medical examination. By failing to attend the medical examination Ramsey refused to pay wages. An appeal was lodged by Ramsey in the Australian Industrial Relations Commission and leave to appeal was refused. An application was made to the Federal Court of Australia to enforce the order made by Redmond C which came before Madgwick J. Madgwick J declared that the orders of Redmond C had been breached. Ramsey appealed to the Full Court and by majority the appeal was allowed. An appeal was then made to the High Court of Australia. The point of principle before that High Court was whether an employer reinstates and employee to “the position in which the person was employed immediately before the dismissal”. 13 Given the nature of the proceedings before the Court and language of the provision under the Fair Work Act 2009, the determination of the Court is directly on point.
[47] In his decision McHugh J concluded:
“Paragraph (a) of s.170CH(3) empowers the Commission to order that the employee be re-appointed to the position in which the employee was employed immediately before the termination, that is to say, to do the work on which the employee was engaged when the employment was terminated. If that cannot be achieved, par (b) of the sub-section empowers the Commission to order that the employee be appointed to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination. The term “another position” demonstrates that orders made under sub-s.(3) are concerned with more than reinstating the contract of employment and its terms and conditions. Whether the terms and conditions are “no less favourable” can be determined only by examining what the employee is employed to do in the new position. Paragraph (b) points irresistibly to the term “position” in s.170CH(3) being concerned with the duties and working conditions of the occupation as well as the contractual rights and duties attached to it.
To construe the power “to reinstate” as confined to restoring contractual or other legal rights fails to give full effect to the term “reinstate”. To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his “job” at the same place and with the same duties, remuneration and working conditions as existed before the termination. The Full Court of the Federal Court erred in the present case by holding that “the emphasis on appointing the employee to a “position” demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms”.
Accordingly, the Commission may make orders under s.170CH(3) for the purpose of reinstating the situation that existed immediately before the employer terminated the employment or, where that cannot be achieved, by putting the employee in a close substitute for that situation.
The Order of the Commissioner in the present case must be read against the circumstances of the pre-termination employment and the finding that the employee was not fit to do hot neck boning. When that is done, the direction to reinstate the employee “to the position in which he was employed prior to the termination of his employment” can only mean that the employee had to be given back the job that he had before termination, performing the same duties on the same terms and conditions. He was to be reinstated to do the general boning work and, in particular, the hindquarter boning work that he did before the termination. His reinstatement was not subject to any condition that he was fit to perform his pre-termination duties. An employer cannot evade the operation of a reinstatement order by making it subject to the employer’s satisfaction concerning the fitness of the employee or some other condition formulated by the employer.
The employer’s failure to provide work for the employee was a breach of the order of the Commission, as Madgwick J, the primary judge, found.” (the underlining is mine)
[48] Hayne J concluded:
“The central issue in this appeal is one of statutory construction. What is meant in s 170CH(3)(a) by “an order requiring the employer to reinstate the employee by ... reappointing the employee to the position in which the employee was employed immediately before the termination.” In particular, what is meant in that provision by “position”?
“Position”, when used in s 170CH(3)(a), refers to the place in the employer’s commercial structure which the employee occupied before termination. It refers not only to the pay and other benefits which an employee may earn in a position, but also to the work which the person filling that position does. It follows that an employer, ordered to reinstate an employee by reappointing the employee to the position in which the employee was employed immediately before the termination, not only must recommence paying or providing the financial or other benefits attached to the position, but also must put the employee back to the performance of those duties which the employee was fulfilling before termination.
There are two principal reasons to reach this conclusion. First, s.170CH(3) provides for two different kinds of order for reinstatement. It distinguishes between, on the one hand, orders requiring an employer to reinstate an employee by reappointing the employee to the position in which the employee was employed immediately before termination, and, on the other, reinstatement by appointing the employee “to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination”. This distinction between reinstatement by reappointing to the former position and reinstatement by appointing to another position reveals that the concept of “position” is insufficiently described by reference only to the pay or other benefits which an employee is to receive from the employer. Yet in essence the respondent's contention was that the appellant was reinstated to his former position because he was paid the same pay and benefits, and that it did not matter whether he was given any work to do. Secondly, both the drawing of that distinction and the Act’s reference to “position” rather than “employment” or “contract of employment” reveal that more is required by an order of the kind now in question than recreation of the contractual nexus that existed between the parties before the termination of employment or recreation of that nexus to the extent of giving the employee the benefits available under the terms and conditions which previously existed. Rather, reinstatement by reappointing to a former position requires the recreation of the circumstances of employment that preceded the termination. The contractual nexus between the parties must be re-established. The terms and conditions of that contract must be the same. The employer must provide work to be done by the employee of the same kind and volume as was being done before termination. In cases where that last element cannot be achieved (as, for example, where the work formerly done is no longer required) the form of reinstatement for which s.170CH(3)(a) provides would not be appropriate and the question would become whether the alternative form of reinstatement (by appointing to another position) should be made.”(The underlying is mine)
[49] Neither Kirby, Callinan or Haydon JJ suggested anything other than there was power to put back in place a person in his usual situation in the workplace.
[50] It appears to me that the controversy which led to the decision in Blackadder was the difference between recreating the contract of employment only or being more specific about the place, duties, remuneration and conditions of employment. The High Court in Blackadder decided that the later was a proper application of the statute which permitted reinstatement by reappointing the person to the position in which the person was employed immediately before the dismissal.
[51] It appears to me that the position that Mr Dalziel seeks to be reinstated to is not of a generic nature of a trades assistant within the business of BBSA but in his job at the site in which he was employed.
[52] I find that I am unable to agree with Sugar Australia that the Tribunal cannot make an order which has as its meaning a duty to reinstate with some specificity the “job” that Mr Dalziel had to ensure that reinstatement has real meaning. Section 381(1)(c) of the Act provides the objective of giving emphasis to reinstatement. Commissioner Redmond was able to determine the actual tasks to be performed in Blackadder.
[53] It is against the background of the evidence that I am not satisfied that reinstatement is inappropriate and I shall make an order requiring Mr Dalziel be reinstated and he should be appointed to the position he held immediately before his dismissal. I will also make an order for continuity and lost pay. I find it unnecessary to specify the actual workplace in the order because my reading of the decision in Blackadder makes clear that the order means the same place, duties, remuneration and conditions of employment.
COMMISSIONER
Appearances:
N. Campbell of Counsel for Mr J Dalziel.
P. Wheelahan of Counsel on behalf of Bilfinger Berger Services (Australia) Pty Limited.
N. Green QC with T Jacobs of Counsel on behalf of Sugar Australia.
Hearing details:
2010.
Melbourne:
February 11 and 15.
1 See for example transcript PN540—550 and 563—573.
2 Mr Rath is primarily the National Operations Manager for BBBSA.
3 Transcript PN575. It was also the evidence that Mr Karantzis had suspended 10 people from the site.
4 Transcript PN592—596.
5 Exhibit C1.
6 Transcript PN319.
7 Transcript PN582.
8 Transcript PN560, 572 and 573.
9 Transcript PN548.
10 Affidavit of G. Christensen, Exhibit G2.
11 Paragraph 18 of written submissions.
12 Blackadder v Ramsey Butchering Services Pty Ltd [2005] 215 FLR 87 at paragraph 9 on p.89.
13 The language of s.170CH(3) of the Workplace Relations Act 1996 is in identical terms to that contained in the Fair Work Act 2009.
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