Mr Kevin Burne v Hanson Constructions Materials Pty Ltd

[2014] FWC 52

[2014] FWC 52

FAIR WORK COMMISSION

DECISION

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

Mr Kevin Burne
v
Hanson Constructions Materials Pty Ltd
(U2013/2287)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 3 JANUARY 2014

Application for relief from unfair dismissal.

[1] Mr Kevin Burne (the applicant) made an application to the Fair Work Commission for an unfair dismissal remedy on 12 July 2013, in relation to the termination of his employment by Hanson Construction Materials Pty Ltd (Hanson, the respondent) on 3 July 2013. At the time of his dismissal the applicant was employed by the respondent as a Batcher at the respondent’s Lawson concrete plant. The application was referred to me for determination. Hearings were conducted on 6 and 25 November 2013. At those hearings the applicant was represented by Mr S Crawford from the Australian Workers Union (AWU) and the respondent by Mr A Powter and Ms F Rodriguez, from the Australian Industry Group (AIG). The applicant gave evidence on his own behalf. The following gave evidence on behalf of the respondent:

● Ms Robyn Bailey (Batcher at the Springwood concrete plant);
● Mr Brett Clifford (Production Manager for Springwood and Lawson concrete plants at the time of the applicant's dismissal);
● Mr Chris Gauci (Concrete Plant Manager); and
● Mr Scott Whittaker (Area Manager for the Blue Mountains and Central West NSW).

The evidence

[2] The applicant commenced permanent employment with Hanson as a concrete truck driver in around 2003. In around 2004 he was promoted to the position of Batcher at the Lawson plant, a position he occupied until his employment was terminated.

[3] The applicant's duties as a Batcher were described by Mr Whittaker as involving:

‘the batching of up to 30 loads of concrete per day, dealing with customers and coordinating loads for up to 12 concrete truck drivers who are based in the yard....

The role of Batcher is central to the Plant’s operation. Batchers need to accurately batch all mix ingredients, maintain quality control of product, display a positive attitude towards work, other employees and customers, check driver dockets correctly to ensure correct load and mix is being delivered to correct customer and to generally ensure the effective running of truck loading in the yard.’ 1

[4] The applicant had no disciplinary issues until 2013. However on 6 February 2013 he received an official warning for three breaches of the respondent's policies and procedures. The first breach related to the respondent's staff purchasing policy. The applicant had arranged for the purchase of two loads of concrete for his brother-in-law under his own name. According to his own statement, he did this because the staff discount policy did not cover brothers-in-law. The applicant accepted that he had breached the policy and ‘had done the wrong thing’ 2. The second breach related to the respondent’s drug and alcohol policy. The applicant had allowed alcohol on site, in breach of the policy, though the applicant considered this was consistent with past practice. The applicant accepted that there was not to be any alcohol on the premises in future.3 Finally the applicant was found not to have complied with Hanson's Zero Harm Initiative. This involved failing to provide any “Take Ones” or “safety observations” in accordance with the policy. The applicant conceded he had ‘not been completing the set amount of paperwork and committed to doing this in the future’.4

[5] The warning letter issued to the applicant, and signed by Brett Clifford, included the following:

‘All three items are a serious breach of Hanson policies and your behaviour displays a disregard for these policies. Therefore, you have been instructed to abide by the following targets immediately:

1. Prior to delivery to any address other than your home, I will require advice and evidence that supply is in accordance with policy.

2. In the event that a customer does gift alcohol to the Hanson Lawson staff, the alcohol must be removed from site immediately. Any further alcohol discovered on site would be deemed a further breach, without written approval of the responsible Hanson Manager.

3. Starting this month February 2013 you will complete 4 Take Ones and 2 Safety Observations. These will be given to myself at the progress meeting on the last Friday of the month. I will provide assistance or instruction if required.

You will be expected to achieve these targets within the next 3 months and we will meet to review your progress on the last Friday of each month at 2 pm. This letter is a formal written warning. Therefore, should you not achieve the required performance improvements, further disciplinary action will be taken that may result in termination of your employment with Hanson.’ 5

[6] According to the applicant, none of the foreshadowed reviews ever took place.

[7] On 27 March 2013, Mr Clifford and Mr Whittaker conducted a ‘tier assessment’ of the applicant. This was an annual performance assessment conducted with all Hanson Batchers. According to Mr Clifford, the applicant did not co-operate throughout the process once he had been told that he would not be progressing from a Tier 3 Batcher (his level at the time) to a Tier 4 Batcher, which would have involved a pay rise. Indeed he was told that he was actually getting close to a Tier 2 Batcher based on the score of the assessment. Mr Whittaker said in his statement that Mr Burne was negative throughout the discussion and wanted to sign the assessment without discussing it so as to complete the process quickly and without addressing the issues in any real detail. Mr Whittaker asked throughout the assessment if there was anything they could do to limit his frustration. The applicant said it was all talk and no action. ‘In the end he couldn't tell me one reason for his frustration and poor attitude at the time.’ 6

[8] Mr Clifford noted in his statement that:

‘The aim of the assessment is to communicate feedback to Kevin, both positive and where improvement is required. While Kevin received positive feedback for truck allocations and compliance to the Zero Harm safety initiative, it was also made clear that his attitude and frustrations was affecting his relationship with his fellow employees as well as myself... several of his colleagues had approached me in the weeks prior to this assessment as they were becoming concerned that his behaviour was becoming intolerable and disrespectful.’ 7

[9] The Tier Classification Assessment Form signed by Mr Clifford and Mr Whittaker provided the following overall comments:

‘Kevin is coming across increasingly frustrated which impacts his interactions with fellow staff members. To his credit this does not impact his dealings with those outside the company. Kevin has demonstrated some very good allocating skills this period but I would like to see more in regards to bringing trucks in later and knocking off earlier in order to improve management of the costs to the business. Following our discussion Kevin has achieved his personal zero harm targets and adhered to company policy which has shown a big improvement. Kevin should be commended on how he received the information and has taken the big steps forward.’ 8

[10] On 7 June 2013, the applicant received a phone call from a man named Mohsan who worked for Abigroup, a major customer of Hanson. Mohsan was inquiring where his next load of concrete was coming from. According to the applicant’s oral evidence, he explained that the plant was extremely busy. When Mohsan said it was holding up their project, the applicant told him he could not do anything about that and added ‘it’s not my problem’. 9

[11] According to Mr Clifford he received a call from Mohsan complaining about Mr Burne’s attitude and response to his inquiry. In his oral evidence he said Mohsan was ‘very irate and very disappointed because he believed as one of our big customers he should be treated with respect and ... because they are our customer that it was my problem as the manager and it’s Kevin’s problem as the batcher.’ 10 In his statement he said:

‘That call triggered a conversation between me and Kevin that quickly escalated after I asked Kevin why he had responded to the customer in that way. I also queried why our customer was receiving poor service and why we had not availed the Springwood plant to assist. Kevin responded with his usual answer, "it's my plant; I'm looking out for my plant and my drivers". I also asked why he had supplied 2 smaller jobs to Blackheath when they did not appear on our system the previous day, considering we were having difficulty servicing our major customer today. Kevin explained that the Blackheath job had been booked the previous day. However, Kevin had failed to enter them into the system. I questioned why this was the case. Kevin just stormed out of the office. I followed him out to resolve the issue. Kevin appeared quite agitated. I saw him climb into the loader and was driving it aggressively. I considered the manner of operation to be dangerous. I also considered that Kevin was not in a fit state of mind. I told him to stop and exit the loader. Kevin was shortly afterwards stood down. I explained to Kevin that he was to go home and return when a meeting could be held with myself, Kevin and Scott Whittaker. Kevin was informed that he could bring any representative he liked to that meeting.’ 11

[12] During his oral evidence, the applicant denied that he was driving recklessly or dangerously on 7 June 2013. 12 The applicant said that on the day in question he was under particular pressure because the plant had to close by 11 am for scheduled maintenance.13

[13] At the subsequent meeting, held on 11 June 2013, Mr Clifford and Mr Whittaker raised issues of concern with Mr Burne’s behaviour ‘as his poor attitude was now affecting customers.’ According to Mr Clifford, when the applicant referred to the increased work load, he and Mr Whittaker ‘explained that we offered to relieve the work load several times by sharing the work and/or trucks with the Springwood plant. Kevin attempted to explain that it was too confusing. Note that on several occasions in recent months, Kevin had previously responded with ‘it's my plant and I'm not sharing the work with that bitch’. Scott explained that sharing the work between the two plants had been very effective whenever Kevin was on leave. Scott and I also explained that we had people available that could act as relief batchers to allow Kevin to take leave.’ 14

[14] In his statement, Mr Burne denied that the Springwood plant could have been utilised more regularly to assist with his workload. ‘I was usually utilising trucks from the Springwood site to transport concrete from the Lawson site. It would have not made logistical sense to send my trucks to the Springwood site....In addition, some customers would not accept concrete from the Springwood site because of supply problems that had arisen in the past.’ He denied that he refused to communicate with Ms Bailey and spoke to her around 10 times a day to plan and coordinate the workload and truck movements. 15

[15] Ms Bailey’s statement included the following:

‘On occasions, I need to speak with Kevin about using one of his trucks from Lawson to assist Springwood. He would not be forthcoming in letting me know if I could get one of his trucks. He would be evasive about how many trucks he needed for the day or how much work he had on.

His alternative suggestion was to do a load for me if required. I would argue that this was counter-productive as he would have trucks queued up the road as his raw materials are manually loaded with a Front end Loader whereas mine is automated.

I considered Kevin to be erratic in his demeanour with me on occasions. Sometimes he would be polite and on other occasions he would be cranky or have neither time nor assistance offered.

Kevin would on occasions try and bait me. If he had my trucks he'd call and say "sorry to wake you". Sometimes I needed to call him and ask for one of my trucks back to do a load and he'd say "why's that" and if he was in a good mood he'd say "I'll see what I can do" or if he was in a bad mood he'd say "I'm too busy" so I'd say I will tell the customer we can't do the load. To which he'd say "You can't do that. Do you want me to do their load”. He was difficult to work with when it was busy and he definitely wasn't team player....

When I first started as the Batcher at Springwood I made a batching error and I believe Kevin used to this excuse for not letting me batch the bigger jobs. However since Kevin has left I have been batching many more loads per day and there have been no complaints or loads rejected. In fact I have had compliments from the customers via other drivers....

Since Kevin has left, the working relationship between the Springwood and Lawson plants is a lot more amicable. Springwood has been far more utilised since Kevin left. The batcher at Lawson, Mark and I talk a lot more and work in together with sharing trucks to assist our customer service. Even when Kevin was the batcher and was on leave, the two plants worked a lot better together.’ 16

[16] During his cross-examination, the applicant agreed that Mr Clifford had spoken to him on a number of occasions about the need to utilise the Springwood plant more often, particularly during busier periods. 17 In response to a question from the Bench, Mr Clifford explained that by failing to share the work with the Springwood plant, Mr Burne would create more overtime for himself and his drivers.18

[17] On 12 June 2013, Mr Clifford attempted to issue the applicant with a warning letter. However the applicant would not accept it until he had received advice from his union. On 13 June 2013, Mr Clifford asked him if he had received advice in relation to the letter. He said that he had not and he would not accept the letter. On 14 June 2013, Mr Clifford advised the applicant that the letter was a final warning and that he should read it as any further breaches could result in the termination of his employment. He left the letter on Mr Burne’s desk. 19 The letter, signed by Mr Whittaker, included the following:

‘On Friday you were stood down for consistent inappropriate behaviour. This includes but is not limited to swearing, slamming phones after a call and acting disrespectful to your colleagues, manager and customers. Note that on several occasions we have been approached by your colleagues as they were concerned about your behaviour.

As your direct manager, Brett Clifford has raised this issue with yourself several times. This issue was again raised during your Batcher Tier Assessment dated 27th March 2013 - “Kevin is coming across increasingly frustrated, which impacts his interactions with fellow staff members".

It was also noted during this assessment that your frustration "does not impact those outside the company". However, your attitude has deteriorated since this assessment and our customers are now complaining about your inappropriate behaviour. For example, on the Friday that you were stood down an Abigroup employee asked when he'd be receiving his next load and he replied "it's not my problem."

I have personally witnessed your poor attitude and behaviour. During the Batcher Tier Assessment, you displayed a complete disregard for this procedure. You continuously questioned the validity of the process once you were informed that you would not be promoted to Tier 4. At this point your tone and behaviour became aggressive and disrespectful towards both Brett and I.

On the 6th of February you were issued with a warning letter for several performance issues - the failure to participate in Zero Harm, the misuse of your staff account and the presence of alcohol on site. Therefore, this letter will constitute a second and final warning. Failure to resolve your inappropriate behaviour or not following reasonable management directions may lead to further disciplinary action including termination of your employment. This includes future disregard for Hanson policies and procedures and your obligations as a company employee.

As discussed during the meeting, you are a valuable Hanson employee who we want to see perform to your full potential. Please feel free to talk to Brett or myself at any time.’ 20

[18] On 2 July 2013, the applicant returned to work after he had been away for four days. According to his statement, when he arrived at work he found that the password on his computer had been changed. Mr Wilson (the yardman and - in effect - his deputy at the plant) told him that he had asked the IT staff to change the password. The applicant obtained the new password, logged on and found - according to his statement - that some of his personal emails had been opened. Mr Lawson told him he had done this by mistake. 21

[19] Mr Clifford gave evidence that it was necessary to access the applicant’s computer account while he was away on leave because some customers had been emailing their orders directly to him. 22 After the applicant complained to him about what had occurred he took steps to ensure the situation would not recur.23

[20] Later that day, Mr Chris Gauci attended the Lawson concrete plant at the request of Mr Whittaker to conduct an isolation audit. This audit was a regional safety initiative for all Hanson sites. Typically managers would conduct the audit of a site not under their supervision and confirm that effective isolation tools, systems and implementation were on site to ensure that positive isolation of equipment, such as conveyor belts, was being carried out safely. This audit process was carried out with the assistance of the relevant batcher on each concrete plant site. Typically the batcher would be familiar with the systems on their site and could offer clarification of any issues arising as a result of this audit. 24

[21] Upon arrival at the Lawson concrete plant, Mr Gauci met with the applicant and informed him of the purpose of his visit. Mr Gauci's written evidence included the following:

‘From the commencement of the audit, Kevin displayed a negative approach to the process and any questions I asked of him. Kevin offered little assistance in the process. An example of this was when I asked Kevin to demonstrate the isolation process for the sites’ compressor. During the demonstration I said to Kevin, "what is a danger tag". I was quizzing to ensure he was aware of the purpose of the two tags we use, danger and out of service. Kevin replied, "A piece of paper". There was no further information offered.

During the audit, I informed Kevin that his non-co-operation and lack of participation could result in him and the Lawson plant failing the audit. This had no effect on Kevin and his attitude remained the same.’ 25

[22] The applicant agreed during his cross-examination that he was uncooperative with Mr Gauci because he was ‘still fuming’ about the incident involving the change to his computer password and accessing his emails 26.

[23] Mr Gauci reported his concerns with the attitude of the applicant to the audit to Mr Whittaker. 27 Mr Whittaker considered this non-compliance in a safety audit as a serious matter and scheduled a meeting with the applicant for the following day (3 July 2013). Present at the meeting were the applicant, Mr Mark Wilson (whose presence was requested by the applicant), Mr Clifford and Mr Whittaker.28

[24] According to his statement, Mr Whittaker indicated to the applicant at the beginning of the meeting that it had been prompted in response to Mr Gauci's concerns in relation to the safety audit. He also explained to the applicant that isolation was one of the company’s most serious and strict safety procedures which he had to follow, and that he had been spoken to before about inappropriate behaviour, disregard for managerial direction and disregard towards policies and procedures. He asked the applicant for an explanation of his behaviour and why, given this most recent incident, he should remain employed by Hanson. According to Mr Whittaker the applicant sought to raise his concerns in relation to changes that had been made to his password access to his personal e-mails. Mr Whittaker told the applicant that his conduct during the audit was not dissimilar to previous conduct for which he had received a warning and that the significance of his conduct on 2 July 2013 was that it appeared very deliberate and purposeful. When asked why his employment should continue, the applicant said that he was a good batcher and always did his best. Mr Whittaker again explained to him that his attitude and behaviour had shown no real signs of improvement. He was told that his actions at the audit were improper; therefore his employment was to be terminated.

[25] On 4 July 2013 a termination letter was sent to the applicant. The letter included the following:

‘The purpose of this letter is to formalise discussions held between yourself, Brett Clifford and myself at the Lawson plant on 3rd of July 2013. Mark Wilson was also present as your employee representative. The purpose of this meeting was to discuss the events on Tuesday the 2nd of July, which ultimately led to the decision to terminate your employment on Wednesday, the 3rd of July.

Since February this year, Brett and I have made every effort to improve your performance. On the 6th February 2013 you were issued with a warning letter titled "Breaching Hanson Policies and Procedures". The items discussed were:

- Breaching the Staff Purchasing Policy,

- Breaching the Drug and Alcohol Policy,

- Non--compliance with the Zero Harm Initiative.

All three of these items can be viewed as performance issues that relate to your attitude and behaviour. You were informed that should you fail to achieve the required performance improvements then you may be subject to further disciplinary action will be taken (sic) that may result in termination of your employment with Hanson.

On Friday the 7th of June 2013 you were stood down for persistent inappropriate behaviour. This included but was not limited to swearing, slamming phones after a call and acting disrespectful to your colleagues, manager and customers. As your direct manager, Brett Clifford had raised this issue with yourself several times.

The issue was again raised during your Batcher Assessment dated 27th March 2013 - "Kevin is coming across increasingly frustrated, which impacts his interactions with fellow staff members". However, your attitude deteriorated since this assessment, which was emphasised by customer complaints regarding your inappropriate behaviour. For example, on the Friday that you were stood down an Abigroup employee asked when he’d be receiving his next load and you replied "it's not my problem." I personally witnessed your poor attitude and behaviour during the Batcher Tier Assessment in which you displayed a complete disregard for the procedure and you became aggressive and disrespectful towards both Brett and I.

In response to these performance issues, a meeting was held between yourself, Brett Clifford and myself at the Lawson plant on the 11th of June 2013. Also present were Mark Wilson (employee representative) and Cherie Ambrose (AWU Organiser). Following this meeting you were issued with a final warning letter dated 12th of June 2013. It stated that if you failed to resolve your inappropriate behaviour or follow reasonable management directions then you may be subject to further disciplinary action including termination of your employment. This included future disregard for Hanson policies and procedures and your obligations as a company employee.

On Tuesday the 3rd of July 2013, Chris Gauci (Hanson Plant Manager from Bathurst and Lithgow) was conducting an isolation audit with yourself at Lawson. Chris explained that the purpose of this audit was to ensure your competence in this core safety procedure. Chris provided the following feedback about your behaviour:

- Chris was asking the audit questions but Kevin would not cooperate or participate,

- Kevin's attitude was negative throughout the process,

- At this point Chris explained to Kevin that he was at risk of failing to participate,

- Kevin was later demonstrating how to isolate the compressor. When Chris started to ask more questions, again Kevin would not cooperate. For example, when Chris asked "What is a danger tag?" Kevin responded "A piece of paper."

In response, a meeting was held between yourself, Brett Clifford and I at the Lawson plant yesterday. Mark Wilson was also present as your employee representative. I explained that your behaviour has emphasised previous concerns that you do not take our policies and procedures seriously and you do not take our management team seriously. Despite all of the meetings and warnings above this latest incident has proven that you have failed to take us seriously and make any improvements. After several attempts at performance management and setting clear expectations, I have now lost all confidence that you are capable of resolving these issues. Therefore, the purpose of this letter is to formalise the termination of your employment effective immediately.’ 29

[26] The applicant was paid five weeks in lieu of notice.

Consideration

[27] I am satisfied, that the application was made within the period required in subsection 394(2) of the Fair Work Act (2007) (the Act), the applicant was protected from unfair dismissal, the respondent was not a small business and the dismissal was not a case of genuine redundancy. The issue to be determined therefore is whether the dismissal was harsh, unjust or unreasonable. In accordance with section 387 of the Act, I am required, in considering this issue, to 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.’

[28] I will consider each of these criteria in turn.

Valid Reason

[29] I am satisfied that there was a valid reason for the applicant’s dismissal by the respondent, related to the applicant’s conduct. The applicant repeatedly showed a lack of respect for the respondent’s procedures and policies in a manner that undermined efficiency, and had a detrimental effect on customer service and relationships with other employees of the respondent. Moreover I am satisfied that his negative attitude had the potential to create a safety risk. This is because his uncooperative approach had the potential to undermine the proper implementation of the respondent’s safety policies - rather than because the applicant had a negative attitude to safety as such.

[30] The applicant repeatedly failed to cooperate with management initiatives. This included his behaviour in relation to the tier assessment on 27 March 2013, and the safety audit on 2 July 2013. Such behaviour would be unacceptable from any employee, but as a Batcher, the applicant had a leadership role in relation to other employees at the Lawson plant. His poor attitude could be expected to have a detrimental effect on the morale of the other employees who had to work with him. The applicant’s behaviour on 7 June 2013 was particularly egregious. Not only was he rude and uncooperative with a customer, but when the issue was raised with him, he responded in a totally unacceptable manner. The way in which he interacted with the Batcher at the Springwood depot was also quite inappropriate, and would have had a detrimental effect on the efficient operation of the respondent’s business.

[31] The applicant sought to excuse his behaviour during the isolation audit by saying that he was still angry due to the incident earlier that day over the apparent accessing of his personal emails. Whether his colleagues had acted correctly earlier that day in relation to the computer incident (and I am not satisfied that their behaviour was inappropriate in the circumstances) that could in no way justify his own poor behaviour.

[32] Mr Crawford, in his closing submissions, argued that the perception of a poor attitude had arisen at least partly from the applicant’s personality and sense of humour. I reject this proposition. Other employees should not have had to ‘walk on egg shells’ because the applicant was frequently ‘cranky’ and/or sarcastic. Maybe employees cannot be expected to be cheerful all the time, but they have a duty to act professionally and in a cooperative fashion with their managers and other colleagues.

[33] Mr Crawford also referred to the applicant’s busy workload. It is not in question that the applicant’s job was a busy one. However the evidence did not disclose that the expectations imposed on the applicant were unreasonable. Moreover, the applicant would have found it easier to manage his workload if he had cooperated more with his colleagues, especially Ms Bailey.

Notification of Reason

I am satisfied that the applicant was notified of the reasons for his dismissal. A meeting was held on 3 July 2013 with Mr Whittaker, Mr Clifford, the applicant and Mr Wilson (as the applicant’s representative). Mr Whittaker explained to the applicant that the meeting had been prompted by his failure to participate properly in the audit the day before. The applicant was reminded that he had been spoken to before about inappropriate behaviour, and his lack of regard for managerial direction and policies and procedures. Indeed, he had only received a final written warning about these types of behaviour a few weeks earlier.

Opportunity to Respond

[34] The applicant was told at the meeting on 2 July 2013 that his actions at the audit fell within the same category of behaviour that he had been warned about before, and he was given an opportunity to explain why, given this most recent incident, he should not be dismissed. This was in a context where the respondent’s concerns with the applicant’s poor attitude had been raised with him on a number of occasions in the previous months, and he had failed in any consistent fashion to improve his behaviour.

Presence of Support Person

[35] According to his own evidence 30, the applicant was asked whether he wanted to have a witness present at the meeting on 3 July 2013. He asked that Mr Wilson attend the meeting and this request was granted.

Prior Warnings

[36] The applicant had been alerted to the respondent’s concerns with his poor behaviour on a number of occasions during 2013. In particular, he had been given a final written warning as recently as 14 June 2013. He could hardly have failed to have been aware of those concerns when Mr Gauci arrived to conduct the isolation audit. This makes his lack of cooperation on that day even more inexcusable.

The Size of the Respondent and access to Specialised Human Resources Expertise

[37] The procedures followed by the respondent were consistent with those to be expected of an employer of its size band access to specialised expertise.

Other Relevant Matters

[38] I have had regard to the length of the applicant’s service with the respondent.

Conclusion

[39] I am satisfied that that the termination of Mr Burne’s employment by Hanson was not harsh, unjust or unreasonable. His repeatedly poor behaviour over the previous months constituted a valid reason for his dismissal. He was given ample opportunity to improve his behaviour but failed to do so. He was the author of his own misfortune. The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

S Crawford for the applicant

A Powter and F Rodriguez for the respondent

Hearing details:

2013

Sydney

6, 25 November

 1   Exhibit H4, paragraphs 5-6

 2   Exhibit B1, paragraph 48

 3   Exhibit B1, paragraphs 49-54

 4   Exhibit B1, paragraph 56

 5   Exhibit B1, attachment KB1

 6   Exhibit H4, paragraph 9

 7   Exhibit H2, paragraph 10

 8   Exhibit H2, attachment B

 9   PN37

 10   PN693

 11   Exhibit H2, paragraph 12

 12   PN42

 13   PN43

 14   Exhibit H2, paragraph 13

 15   Exhibit H2, paragraphs 34-37

 16   Exhibit H1, paragraphs 4-12

 17   PN137

 18   PN699

 19   Exhibit H2, paragraph 14

 20   Exhibit H2, attachment KB3

 21   Exhibit B1, paragraph 87-93

 22   PN798

 23   PN801

 24   Exhibit H3, paragraph 4

 25   Exhibit H3, paragraphs 6-7

 26   PN330-1

 27   Exhibit H3, paragraph 8

 28   Exhibit H4, paragraph 27

 29   Exhibit H4, attachment L

 30   Exhibit B1, paragraph 103

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