Mr Kevin Greene v Wesfarmers Kleenheat Gas Pty Ltd
[2015] FWC 256
•26 FEBRUARY 2015
| [2015] FWC 256 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Kevin Greene
v
Wesfarmers Kleenheat Gas Pty Ltd
(U2014/1914)
COMMISSIONER CLOGHAN | PERTH, 26 FEBRUARY 2015 |
Application for relief from unfair dismissal.
[1] This is an application by Mr Kevin Greene (Mr Greene or Applicant) seeking a remedy for alleged unfair dismissal from his former employer, Wesfarmers Kleenheat Gas Pty Ltd T/A Kleenheat Gas (Employer or Kleenheat Gas).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] At the hearing, Mr Greene was represented by Ms E Douglas, Legal and Industrial Officer, Australian Workers’ Union, Western Australian Branch (AWU). Mr Greene gave evidence on his own behalf. Mr Thomson, a former Operations Supervisor, also gave evidence on behalf of the Applicant.
[4] The Employer was represented by Mr W Milward, Consultant. Evidence was given on behalf of the Employer by:
- Mr M Cox, Production Manager;
- Mr C Reynolds, Emergency Response Advisor;
- Mr D Davies, Process Controller;
- Mr B Tardrew, Panel Operator;
- Mr D Illath, Principal Process Engineer;
- Mr B Fernando, Operations and Training Specialist; and
- Ms M Georgiou, Senior Human Resources Consultant.
[5] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.
RELEVANT LEGISLATIVE FRAMEWORK
[6] There is no dispute between the parties that Mr Greene has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework for consideration is ss.385 and 387 of the FW Act.
[7] 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) ...”
[8] The criteria for whether a dismissal is harsh, unjust or unreasonable can be found in 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.”
RELEVANT BACKGROUND
[9] On 9 May 2014, Mr Greene’s employment was terminated, with notice, by correspondence in the following terms:
“We confirm that we have now completed our investigation into the events of that day [22 March 2014], including a review of the issues which you raised in explanation of the events and your management of them.
The conclusions which have been reached in relation to that investigations are as follows:
- You made a decision to close a valve (SDV 6212) for the purposes of undertaking a training exercise with an operator, without consideration of the impact that might have on the rest of the plant. Your action resulted in the plant operating unsafely for in excess of 4 hours.
- You took incorrect action to resolve the issues which presented from your decision to close the valve.
- You failed to correctly interpret the severity of the warning signs, which included excessive black smoke, flaring, and out of specification pressure levels and temperatures.
- You failed to manage the shift as you are employed to, namely as a shift controller.
- You attempted to manage the situation for 4 hours before calling for help, during which time you allowed the plant to operate unsafely putting the plant and people at risk.
- You inadequately reported the severity of the incident when speaking with me [Mr D Moore, Operations Superintendent] later that day.
The above conclusions are of grave concern to the company due to the fact that:
- Your conduct gave rise to the potential for a catastrophic outcome.
- You demonstrated a complete lack of operational awareness at the level required from a person in your position.
- Your actions have shown poor judgement, a lack of capability and competency and inadequate reporting and escalation of the event.
The company has therefore lost faith and trust in your ability to operate competently as a shift controller.
Having considered all of the above, the company considers that it has no other choice than to terminate your employment with Wesfarmers Kleenheat Gas Pty Ltd with notice. Your termination is effective from 8 May 2014.”
[10] The Employer operates the Kleenheat Production Facility (KPF).
[11] The KPF comprises of a Liquefied Natural Gas (LNG) and Liquefied Petroleum Gas (LPG) plant.
[12] The Applicant commenced employment or about 7 December 2009 as a Level 1 Process Operator.
[13] Between 7 December 2009 and 18 April 2013, Mr Greene progressed through the various classification levels until he reached the position of Level 3B LPG/LNG Panel Operator on 28 August 2011. Promotion from Level 1 to Level 2A, 2B, 3A and 3B is by automatic progression based on skill development.
[14] The parties agree that Mr Greene was a trained and competent Level 3B operator prior to his promotion to Shift Supervisor on 19 April 2013.
[15] Promotion to a Shift Supervisor Level 4 is subject to the position being available and appointment, on merit, by management.
[16] The LPG “Expander” receives natural gas from the north-west shelf pipeline and through a process of condensing and expanding, reduces the gas to a liquid form. The liquid which leaves the Expander for refining is at approximately minus 74oC temperature.
[17] The LPG “Absorber” is designed to facilitate the removal of ethane and methane from the liquid gas.
[18] The De-Ethaniser receives the liquid gas from the Absorber and is designed to further separate ethane and methane from propane and butane.
[19] The De-Ethaniser and its Re-Boiler are a common unit, that is, the pressure and liquid level in both vessels is the same.
[20] Liquid flows from the De-Ethaniser into the Re-Boiler where it is heated to boil off the ethane and methane. The Re-Boiler’s usual operating temperature is between 89oC and 94oC.
[21] LPG trains 1 and 2 operate independently until the liquid comes together and is subject to a fractionation process which involves a De-Propaniser which separates out propane and a De-Butaniser which separates out butane.
[22] A flare is essential when gas needs to be exited from the production process. The gas is burned rather than released to the atmosphere.
[23] The LPG plant has a series of built in safety measures so that if the process moves outside specified parameters, it begins to close down.
[24] While the Applicant’s employment was terminated only in relation to the incident on 22 March 2014, Mr Greene was involved in two previous events in August and December 2013, in which he was not formally disciplined.
[25] On Saturday 22 March 2014, Mr Greene was the nominated Shift Supervisor for the KPF.
[26] The other employees on the relevant shift were Mr Tardrew, Mr Davies and Mr Darkon. During the shift, Mr Greene asserts he conducted a training exercise with Mr Davies.
[27] Following the incident on 22 March 2014, the Applicant:
- participated in an investigation into the incident on 27 March 2014;
- was stood down on pay on 28 March 2014, pending further investigation into the incident;
- was interviewed on 22 April 2014, by the Employer and provided a written statement of his account of the incident on 22 March 2014. A representative from the AWU attended the interview with Mr Greene;
- attended a second interview on 29 April 2014 accompanied by a representative of the AWU; and
- attended a meeting on 8 May 2014 with the Employer to discuss the outcome of the investigation and that a decision had been made to terminate his employment. Mr Greene was accompanied by an AWU representative. The termination of employment was reduced to writing and forwarded to the Applicant on 9 May 2014.
SUBMISSIONS
Applicant
[28] The Applicant submits that, in context, his conduct during the incident does not amount to a valid reason for dismissal.
[29] The Applicant acknowledges, for the purposes of whether there was a valid reason to terminate his employment, it is necessary to consider the context of his behaviour and the gravity of the conduct itself.
[30] The Applicant’s behaviour on 22 March 2014 was based on personal experience and motivated by a concern to improve the skills of a relatively inexperienced work team.
[31] The Applicant submits that he abandoned the training exercise when the valve closure (which was the originating action) reacted differently to his own personal experience.
[32] The Applicant contends that he referred to and applied the appropriate operating procedure. Further, at the appropriate time, Mr Greene called the appropriate supervisor for help. And, in any event, the Applicant succeeded in preventing a release of gas to the atmosphere, and ultimately, re-stabilised the KPF.
[33] The Applicant submits that the Employer has not terminated other employees when other flare incidents have occurred at KPF - even when a more serious event of gas release to atmosphere has occurred.
[34] The Applicant submits that he was unable to properly respond at the meetings on 22 and 29 April 2014.
[35] Finally, the Applicant submits that his dismissal was harsh in view of the fact that his employment record was unblemished.
[36] The Applicant is not seeking reinstatement but compensation in lieu of reinstatement.
Employer
[37] The Employer submits that Mr Greene was in a leadership role with significant responsibility at the time of the incident.
[38] The context to Mr Greene’s employment is the dangers associated with highly flammable materials which are under immense pressure and potentially explosive.
[39] The KPF operators under a license from the Department of Environment Regulator (DER).
[40] There are a range of environmental risks associated with KPF which include leaks of gas, or various associated products, such as odorants and excessive flaring. Where there is a gas leak, leaks of various products or excessive flaring, the Employer must report the instances to DER.
[41] The KPF is a major hazard facility as defined by the Department of Mines and Petroleum (DMP).
[42] KPF is located near to other major hazard facilities such as the BP oil refinery, CSBP, Coogee Chemicals and BHP Nickel refinery 1.
[43] The Employer’s objective is to ensure that the KPF is kept stable in order to maximise safety and production, and eliminate, as far as practicable, any risk of an environmental incident.
[44] Mr Greene was trained and competent as a Shift Supervisor.
[45] The Employer submits that training “does not involve deliberate plant interruptions”.
[46] The Employer has in existence Control Bulletins, which are a means to inform staff, particularly Process Operators, on how to deal with certain issues within KPF.
[47] All Control Bulletins are issued to Shift Supervisors.
[48] Shift Supervisors are expected to review, understand and relay all Control Bulletins to members of their team. Mr Greene was aware of Control Bulletin 189 which is relevant to the incident on 22 March 2014.
[49] The actions of the Applicant on 22 March 2014 were inconsistent with Control Bulletin 189, his training and the competent performance of a Level 3A Operator.
[50] The Applicant, instead of applying the obvious remedy, persisted in manipulating the plant’s processes and overrode the automatic shutdown responses.
[51] The Applicant’s actions led to lost production in the order of $20 000, excess flaring of at least 4 hours which had to be reported to DER and the plant coming very close to the limits of its design parameters, which if exceeded, could have had catastrophic consequences.
[52] The Employer submitted that Mr Greene, when finally seeking assistance, contacted the wrong person for advice.
[53] When seeking assistance of the wrong person, failed to disclose certain information and misrepresented other matters. Simply put, in the discussion Mr Greene was dishonest with a superior.
[54] Following the discussion where he sought advice, Mr Greene failed to comply with two express instructions to shut down the Expander. Further, at a later time, misrepresented the state of the processing plant to the Operations Supervisor.
[55] The Employer concluded its submission by submitting that the dismissal was for a valid reason and that it was not harsh, unjust or unreasonable. The Employer seeks that the application be dismissed.
CONSIDERATION
[56] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
[57] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:
“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’.”
[58] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.
[59] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 2.
[60] Mr Cox is the Production Manager for the KPF. Mr Cox is responsible for the overall operation of KPF. Mr Cox was the Employer’s first witness at the hearing and gave his evidence in a succinct and non-technical way.
[61] Mr Cox’s evidence was that Mr Greene, as Shift Supervisor, on a Saturday had ultimate responsibility for the KPF. Following the incident on Saturday 22 March 2014, Mr Cox had the following concerns regarding Mr Greene’s actions, and they were:
- his decision to deliberately upset a plant that was operating with stability;
- having put the plant into an unstable condition, failed to take the appropriate remedial action;
- he failed to telephone for assistance within an appropriate time; and
- the under-reporting of the incident which had occurred. 3
[62] Mr Cox was aware that Mr Greene had deliberately made a decision to destabilise the plant to undertake a training exercise 4. When Mr Cox was asked in cross examination, was he aware of why Mr Greene chose to close Valve SDV 6212 on that day - he replied “no”5.
[63] When asked in cross examination, was he aware that Mr Greene had particular concerns with Valve SDV 6212, the importance of resetting it quickly and trying to pass that knowledge to his team members - he also replied, “no” 6.
[64] Mr Greene’s evidence was that, notwithstanding his “grave concerns regarding this piece of equipment [SDV 6212]”, he did not discuss these concerns with Mr Fernando, the Operations and Training Specialist 7.
[65] I now turn to Mr Greene’s decision to deliberately upset a stable plant for the purpose of a training exercise.
[66] Mr Greene gave evidence that he is a qualified Certificate IV Trainer both in Australia and the United Kingdom (UK). Further, the “conducting of process upset scenarios in a controlled environment is common practice in the UK and a learning technique that has been applied to my own training” 8.
[67] Mr Cox’s untested evidence was that:
“in all my time, I have never experienced someone deliberately upsetting a plant to undertake training. That is not how training is done in production plants like this” 9.
[68] In addition, Mr Fernando’s evidence was that:
“Interrupting a live plant to conduct training is completely inconsistent with the way in which training at Kleenheat is undertaken.
I have never experienced or heard of anyone undertaking training like this at my time at Kleenheat or when I worked at oil refineries”. 10
[69] Mr Illath gave written evidence that:
“I have never heard of people deliberating interrupting a live stabled plant, especially just for training reasons”. 11
[70] Mr Davies gave evidence that, for approximately five (5) years, working in an oil refinery in the UK prior to being employed at the KPF, he had never received training “on a live system” 12. Mr Tardrew gave similar evidence13.
[71] Mr Fernando agreed that the Employer carried out practical training but his essential point was that training does not include upsetting live production 14.
[72] In Mr Greene’s own words:
The idea of shutting the valve on a Saturday morning just for the sake of a training exercise is not something I would do normally”. 15 (my emphasis)
[73] I find that Mr Greene, of his own volition, destabilised the live production plant for the alleged purposes of training, which was contrary to the Employer’s training practices.
[74] Having made a decision to do something abnormal, and inconsistent with the Employer’s practices, Mr Greene attempted to transfer his misjudgement onto a number of management factors such as having an inexperience crew, short staffing, a reluctance to undertake the position of Supervisor, his own training and even his own competence.
[75] Mr Thomson, who gave evidence for the Applicant stated that, while employed at the KPF, he conducted training and assessed Mr Greene as competent in those training modules he was involved in. 16 Mr Thomson was unsure if he was involved in all of the training modules17.
[76] Mr Thomson’s evidence was that the position of Shift Supervisor is a responsible position and a key part of the role is to ensure that the plant operates safely and efficiently. Further, that it is important to report incidents and report them in a timely manner 18.
[77] Mr Greene has attempted to import a number of factors to give context, or support, as to why he upset the production process for training purposes. I am satisfied that those ingredients do not detract from the plain fact that he carried out the asserted training exercise, completely at odds with the Employer’s training practices, and his decision has to be judged in that context, and not adjusted or repackaged, and lain at the Employer’s door.
[78] Finally, I make the observation that Mr Greene carried out this training exercise, and upsetting the production process, in circumstances in which he considered himself not a competent Level 4 Supervisor.
[79] The Employer’s next concern is that, having put the plant into an unstable condition, the Applicant failed to take the appropriate remedial action.
[80] Mr Greene’s witness statement indicates that “...immediately, it became apparent that the plant was reacting to the closure of SDV 6212 in an unanticipated way and the situation developing was different to what I had experienced before...John’s [Mr Davies] training was abandoned, and focus shifted to ensuring measures were taken to secure the safety of the plant and correct the production upset”. 19
[81] I now turn to the competing views of what was the appropriate response following the shutdown of SDV 6212.
[82] Mr Illath is the Principal Process Engineer at the KPF. Mr Illath has approximately 20 years experience in the gas processing industry. Mr Illath is responsible for ensuring that the plant is operating within its design specifications and that process safety incidents do not occur. Mr Illath’s summary was that:
- Mr Greene deliberately shutdown SDV 6212;
- closure of SDV 6212 prevented the flow of liquid from the De-Ethaniser to the Re-Boiler to the De-Propaniser;
- as a result of closing SDV 6212 liquid volumes and therefore pressure increased in the De-Ethaniser;
- with the Expander operating at its usual rate and SDV 6212 closed, the Re-Boiler can fill in as little as four (4) minutes;
- manual control of the Re-Boiler is between 17% and 70%. Beyond those levels, automatic shutdowns occur to certain components of the process to protect the plant;
- one of the effects of the automatic shutdown is that the hot oil which is used to heat the Re-Boiler was turned off;
- with the Expander still running, the temperature in the De-Ethaniser drops because cold liquid is flowing from the Expander without heat being applied;
- as a result of the drop in temperature within the re-Boiler, the ethane and methane were not being separated from the liquid that was being sent to the De-Propaniser;
- the temperature in the Re-Boiler dropped to -31%;
- the levels of methane and ethane in the liquid leaving the Re-Boiler should be 0% and 2% respectively;
- at its maximum, the levels of methane and ethane in the liquid leaving the Re-Boiler were 56.1% and 16.6% respectively; this had subsequent adverse impacts on subsequent steps in the production proceed;
- the De-Propaniser is not designed to cope with high levels of ethane and methane because the pressure at which it operates will not keep them as liquid.
[83] Mr Illath was also responsible for investigating the incident on 22 March 2014. Mr Illath requested a team of three (3) process engineers to collect information from the Digital Control System (DCS). The DCS essentially collects data from plant processes. From this data, Mr Illath was able to examine and compare normal processing indicators against any abnormalities which occurred on 22 March 2014.
[84] The three (3) process engineers prepared an incident summary regarding the relevant processes. The summary commences at 8:00 am and ceases at 5:00 pm.
[85] There is a temptation to set out in detail the abnormalities which occurred on 22 March 2014; however, in my view, all that is necessary is as follows:
“Even if Kevin [Mr Greene] missed the cue at 9:01am, as soon as the excessive flaring commenced, it again should have been obvious to him that his only option was to slow down or shut down the Expander because the problems were now not just limited to the De-Ethaniser but had spread to the Fractionation unit and were adversely affecting production.
From this point on the plant was highly unstable and was not operating well at all.
Any suggestion that it was appropriate to try and continue production whilst resolving the problem is not viable because any production which was being maintained was highly out of specification.
In my view, the only step which could have been taken by this stage would have involved either taking the Expander offline or at least significantly slowing it down.
At 11:34 am the temperature in the Reboiler reached -31oc, which is within 6 degrees of the temperature rating for that vessel.
If the temperature had reached -37oc...
...the potential for an explosion would have been high...as a result of Kevin’s actions the plant was ostensibly offline for almost 9 hours.” 20
[86] This material evidence was not disturbed. The evidence was given from the person in charge of ensuring that production occurs within specifications.
[87] Mr Illath reduced the complexity of the technical issues to the following:
“But on 22 March we had instability without it being classified as unsafe?---It was classified as unsafe because the plant was not running as per how it was supposed to safely run.
So it wasn't operating at the spec arrangement?---No, it was not.
And you're saying that therefore it means it was unsafe?---It was unsafe because the plant was operating by the protection systems. It was running outside its design limits. So the process systems or layers of protection which is set in by design, they were not in place, they were overridden.” 21 (my emphasis)
[88] Mr Illath agreed that the plant has a range of levels of instability before it reaches a state of being unsafe The plant has an internal system of safety or protection mechanisms:
“...the alarms alert the operator that something is not accurately correct or it is not as per the design (indistinct) plan. If the alarms are not responded to or it's responded incorrectly, then there's another set of protection built for - like the safety controls and the interlocks, other trip systems which are put in place which brings the plant to its safe state.
Yes?---Even if that gets overridden and that is not acting correctly, which can happen, then finally there is the safety valves or the pressure release valves which releases this stuff to the atmosphere before damaging the containment.
And where in the scheme of that system of safety mechanisms are the valves that release to the flare?---Yes, it is in the penultimate one.
Penultimate?---Yeah.
Am I right in understanding you that the purpose of those valves that release to the flare is to avoid the pressure release valves being activated?---Correct.
From your review of the incident that occurred, is it your view that the various steps that were being taken by Mr Greene on the day to activate the various valves to release more gas to the flare were designed to prevent a release to atmosphere?
---That's a difficult question because the actions taken by him didn't help because of containing the pressure in the system (indistinct) in place. The pressure control that was there are not supposed to be opened in normal operations. So those were called into action because of the wrong way the plant was operated at that point of time.” 22
[89] During the hearing, the words “unsafe” and “unstable” were used repeatedly. My understanding is that operationally the plant can, at times, be unstable, but it is manageable. However, there are occasions when, because of excess temperatures or pressure, the plant moves from being unstable to an unsafe condition. The Employer’s evidence is that after reviewing the data after the incident on 22 March 2014, the plant was operating at “really unsafe operating conditions”. 23
[90] There is no dispute between the parties that, as part of the plant returning to a stable position, flaring occurred. Flaring is a safety mechanism. Flaring is the penultimate safety mechanism and releases gases to the atmosphere by burning it off rather than gases being released to the atmosphere without being burnt off which is the ultimate, but not preferred, safety mechanism.
[91] Mr Greene appears to infer that, because he did not release gases to the atmosphere without flaring, his response to the unstable plant was acceptable. I am unable to agree that such an inference is valid.
[92] A second inference by the Applicant appears to be that because flaring is an inherent safety mechanism, and flaring occurred, his actions in re-stabilising the production process were acceptable. I am also unable to agree that is also a valid inference in view of the evidence.
[93] In his written witness evidence, Mr Illath states:
“The flare forms part of the safe release system for the plant.
The flare is essential to ensure that when upsets occur and gas needs to be exited from the production process, it is burned rather than released to the atmosphere”
In my view, excessive flaring commenced at about 10:10am when the first of the pressure release valves on the De-propaniser opened.
In my view, it is inconceivable that Kevin could not have known what was happening with the flare because there is a screen in the control room which has a picture from a camera which is trained on the flare tip.
As part of the investigation I saw the pictures which were taken of the flare by Craig Reynolds.
I have not seen the flare like that during my time with Kleenheat or in any other gas processing facilities which I have worked at.” 24
[94] Mr Illath also gave the following evidence:
“And although there was flaring for a period of time, we didn't get to the stage on 22 March that there was a release to atmosphere that occurred, did we?---Yeah, we - well, that's difficult way of putting it, I guess. He did manage to flare the gas but whether the composition of the gas was good enough to flare, no, it was not, because the flare is designed for a particular case and if we are operating the plant in an off-design case, the flare will still try to burn it but it's not the efficient way of burning, and that's the reason why we had the soot in the flare, which becomes a reportable incident for us. The reason being that if - - -“ 25
“If you could just confirm this: the mechanisms involved with the incident on the 22nd, they are not constructed in such a way that there is the ability to have a release to atmosphere. Is that what you're saying?---What I'm saying or trying to say, sir, is although it relieved the pressure in the system to the flare but the flare is not designed to handle the composition of the gas which was released to the flare because the composition was so different than what the flare is designed for that it will burn with a sooty flame.” 26
[95] Mr Reynolds in his evidence stated that he had worked at the plant for nearly eight (8) years and is currently the Emergency Response (ER) Advisor.
[96] On 22 March 2014, he was off duty but noticed huge clouds of black smoke coming from a flare, which he assumed was the KPF. Mr Reynolds was aware that there is usually a very “low smoke emission from the flare and the risk of the Employer breaching environmental obligations if black smoke exists for more than three (3) minutes”. 27
[97] Mr Reynolds noticed an “enormous fireball at the time of the flare”, “it appeared to be getting worse”, and consequently telephoned the plant’s control room because of his “deep concerns” 28. Mr Reynolds took a number of photographs with his mobile telephone which were tendered in evidence.
[98] Following cross-examination, I have no hesitation in concluding that Mr Reynolds’ evidence is truthful and a simple account of what he saw and photographed on 22 March 2014. In particular, he was not challenged on the fact that there was an “enormous fireball” on top of the flare and he had never seen a flare like it while at the KPF.
[99] In response to the Employer’s summary of the processing data (DSC), the Applicant responded to certain elements of the assessment. Mr Greene includes such comments as “I was unaware”, “in hindsight”, “I am uncertain”, “I believe”, “there is an understanding”, “there was an understanding on my behalf”. 29
[100] Mr Greene’s response, at the time of the disciplinary explanation and when giving oral evidence, did not convey to the Commission that, on 22 March 2014, he was on top of what was happening at the time. The Applicant uses the expression to describe his response as a “juggling act” - this is most probably an apt description, but it is not one that inspires confidence that Mr Greene was working systematically through his difficulties. I am reminded of jugglers who balance china plates on long sticks and the audience expecting one to fall at any moment. This was best illustrated in the following exchange in cross examination:
“Let me make it simple: you decided not to follow that procedure? [Control Bulletin 189]---That's correct.
You decided not to follow any other procedure. There was no other procedure you were following?---That's correct.
You decided what it is that you thought you should do to solve the problem?
---That's correct.” 30
“And you'd also note from the Skill Standards that excessive flaring is a breach of our licence?---I wasn't aware of that.
The Skill Standards in relation to flaring?---I wasn't aware of that, sorry.
But you were a competent level 3A operator?---I'm a competent level 3B operator.
...
So you're saying that a year after being appointed you weren't competent at doing your job?---I'm still learning the role. I had done no actual paper training as such. I hadn't been passed out in any form of literature in terms of being a shift controller.
...you'd been trained by Mr Thomson. He gave evidence to that effect?---Mr Thomson had trained me in various parts of my level 3 and 3B training. I - - -
And in your level 4. He gave evidence to that effect; you heard him?---That's not correct. Maybe he - - -
So you're disagreeing with the evidence of Mr Thomson?---I am.
You're saying that even though you got your letter of appointment appointing you to level 4, you didn't think that that was right. You didn't think that you were a level 4 shift controller?---I believe in time I would have been a competent level 4. At that time I was not - - -
Yes or no, did you agree that you were a level 4 shift controller at the time you received your letter of appointment?---I wasn't a competent level 4 shift controller, no.” 31
[101] Firstly, Mr Greene’s evidence contradicts his submission in which he states “[I] applied the appropriate operating procedure, being the Control Bulletin for Dealing with High Pressure in the Train 2 De-ethaniser Re-boiler [and]...After progressing through the relevant operating procedure, the Applicant called the appropriate supervisor for help...” 32
[102] Secondly, it is difficult to accept the Applicant’s contention that he took appropriate remedial action to remedy the unstable plant conditions when he questions his own competence, and more importantly, a fireball and huge clouds of black smoke were being emitted from the plant.
[103] I prefer the material evidence of the Employer’s witnesses as to the appropriate response to the de-stabilised production process. I find that Mr Greene did not respond appropriately. In reaching this finding, I cannot come to the conclusion that because the plant ultimately became stable, his responses were appropriate. Such a deduction is not well founded on the evidence provided in the proceedings.
[104] I now turn to the issue of whether the Applicant failed to telephone for assistance within an appropriate time.
[105] Mr Fernando is the Operations and Training Specialist at KPF. Mr Fernando has worked at KPF for six (6) years, and prior to that, he worked for 21 years at oil refineries.
[106] At the commencement of his written evidence, he states:
“Dave Moore, the Operations Superintendent is the primary point of contact for Shift Supervisors. They should only contact me if they can’t reach Dave”.
[107] Mr Fernando was not challenged on this evidence. Mr Greene concurred that he should have contacted Mr Moore as the Operations Superintendent. Accordingly, without the evidence of Mr Moore, it appears that, in the first instance, Mr Greene did not contact the appropriate person.
[108] Mr Greene undertook his own steps to stabilise the plant between 8:30 am and 12:30 pm 33. During this period, Mr Greene gave evidence that he had the plant under control34. I am unable to accept that evidence and it leads to the conclusion that he should have made contact with a more senior person earlier. The evidence is:
- the flaring was excessive and unusual in both time and content;
- a telephone call had been received from BP as a result of the unusual flaring;
- the employees in the control room had received a telephone call from an off duty employee who was fishing, it appears off Garden Island, querying the unusual flaring.
[109] When asked why he did not seek assistance earlier, Mr Greene’s evidence was:
“Why didn't you call Mr Fernando earlier?---Just purely because of the hands-on - I needed to address - it was a situation where if I'd left it long enough for a phone call - geographically the phone is probably five, 10 metres that way and my desk phone is behind me. I wasn't in a situation of stability enough that I could leave it to make that phone call.
And there were other people around. Why didn't you get somebody else to call Mr Fernando or Mr Moore?---I guess I just missed out at the time. I was just so concentrating on that particular problem and the issue of the high pressure, which I knew was getting better. I felt at that time the situation was improving. By ringing Brian, which would be more for reassurance at that point because of the fact that everything was coming back and the improvements were happening, I didn't feel it was necessary at that time.” 35
[110] I find that despite being faced with excessive flaring and abnormal pressure problems, Mr Greene did not contact his superiors at the appropriate time. I am not satisfied that his reason for not contacting his superiors was due to time pressures or that the plant was returning to a stable situation. On the balance of probabilities, it would appear that the reason for not contacting somebody earlier was due to the fact that he would have had to reveal his own actions in deliberately de-stabilising the plant.
[111] I now turn to the issue of whether Mr Greene under reported the incident which had occurred.
[112] Mr Greene agreed, in his evidence, that it is important to be honest when talking to supervisors about problems at the plant 36. However, when cross examined concerning his conversation with Mr Fernando, Mr Greene cannot “recollect”, “is unsure” or simply didn’t advise Mr Fernando on certain matters of what had happened37. Mr Greene’s evidence on what he said or did not say was very non-committal.
[113] In his written witness statement, Mr Greene does not set out what he said to Mr Fernando 38. Whereas, Mr Fernando’s evidence is clear and unambiguous as to what the Applicant raised with him; why he should have telephoned earlier for assistance and why he considered Mr Greene was not honest in terms of revealing what had actually happened39.
[114] Despite Mr Greene’s representative suggesting that the Applicant may have raised issues with Mr Fernando but he could not recall them, I am satisfied that Mr Fernando’s specificity is to be preferred to Mr Greene’s reticence. In summary, I am satisfied that Mr Greene under-reported the nature of the problems being experienced at the plant.
[115] Finally, Mr Fernando gave evidence that his advice to Mr Greene was to back off the expander as that was the easiest way to resolve difficulties at the plant. This evidence was not followed to the extent required to resolve the instability with the plant’s production process.
[116] The thrust of the Applicant’s submission is for the Commission to examine the dismissal within the context of his behaviour and the gravity of the conduct itself. I agree.
[117] Without intending to be unkind, it appears that the Applicant has pursued a series of “own goals”.
[118] Firstly, the “trigger” to the incident was his decision on 22 March 2014 to deliberately de-stabilise a live production system for training purposes. This action was clearly without the permission of the Training Specialist at KPF. Further, it was contrary to the Employer’s practices and the overwhelming evidence of the Employer’s witnesses, especially those with greater experience in the industry.
[119] This action was taken by the Applicant while in a leadership position of shift supervisor and having, what he describes as, a relatively inexperienced crew.
[120] While the Applicant contends that he deliberately made the plant unstable for training purposes, I have no reason to disbelieve Mr Davies when he gave written and oral evidence that he was:
- not told about the training;
- not told what the training was to comprise of;
- not told what to expect; and
- not told how to prepare for the training.
[121] In my view, events unfolded as described in evidence by Mr Davies that, when the alarms went off, Mr Greene said words to the effect of “Wait. This is a good training for John [Mr Davies]. Need John to find out what's wrong with it” 40
[122] If I am to believe the Applicant, he carried out this training in the context of asserting that he had not been trained fully as a shift supervisor, and secondly, questioned his own competence as a supervisor. In such a context, it is difficult to reconcile the differences in the Applicant’s rationale to undertaking such a training exercise.
[123] Secondly, having triggered the de-stabilisation of the plant, Mr Greene’s response was clearly, on the evidence, not appropriate. The Employer has a range of concerns about the Applicant’s response and some have been set out above.
[124] The Commission need go no further to demonstrate the inadequacy of the response than the flaring. The gravity of the situation was clearly visible and created such a concern that off duty employees either telephoned or took photographs of what was happening. Even an industrial neighbour was sufficiently concerned to telephone the control room. The flaring together with the internal pressures, and other readings, clearly indicate a situation of considerable instabilities in a facility with highly inflammable materials which were under immense pressure, potentially explosive and located near other major hazard operations.
[125] The environment the Applicant was working within could not be described as docile; it was an environment with significant safety matters.
[126] In view of what was happening regarding the flaring and the significant abnormal pressures, Mr Greene should have sought advice earlier. Further, having sought assistance, Mr Greene should have fully disclosed to Mr Fernando the circumstances which existed at KPF. To compound his lateness and under-reporting, Mr Greene did not back off or shut the Expander as advised by Mr Fernando.
[127] Deciding not to follow Mr Fernando’s advice is extraordinary in view of the fact that all persons working at the plant, including the Applicant, agreed that slowing down or stopping the Expander would have the effect of reducing pressures within the plant.
[128] Mr Greene’s evidence unfolds as follows:
“Mr Fernando gives you an instruction, doesn't he?---I'm led to believe that he give me advice regarding I could - could - slow down the expander or stop it if I needed to.
After four hours of problems, you finally ring for help, he listens to what's going on and he tells you to shut down the expander and you take that as a piece of advice for your consideration and action if you feel like it. Is that what you're telling me?---I don't believe that's what Brian told me on the phone.” 41
“And in that second conversation he actually asks you whether or not the expander is now offline?---I don't recollect that, sorry.” 42
“You never shut it down, did you?---No.” 43
[129] At this point, it is useful to remember that Mr Greene was not working to Control Bulletin 189 or taking advice from a supervisor who he had telephoned for assistance.
[130] It is unfair to come to any conclusion without having the full sequence of events. It would be wrong to judge Mr Greene on one part of the incident on 22 March 2015 without considering the whole. However, when considering Mr Greene’s conduct in totality, I have no hesitation in coming to the conclusion that the Employer had a valid reason to terminate his employment. The dismissal was not unjust or unreasonable.
[131] Mr Greene’s evidence was not convincing or satisfactory. The incident occurred in an environment where, as expressed by witnesses, the potential for a catastrophic explosion was possible. In such an environment, open disclosure and shared decision making with supervisors is critical to ensuring a safe working environment. This did not happen. From the beginning, Mr Greene did not share with Mr Fernando or Mr Davies his intention to de-stabilise the plant for training purposes. He did not disclose or fully share the events during 8:30 am and 12:30 pm with Mr Fernando when telephoning him for assistance. He did not act on instructions from his supervisor and kept “doing his own thing”. All this occurred in a designated major hazard facility.
[132] Mr Greene adopted a “himself” centred approach to the events on 22 March 2014; in doing so, he put at risk potentially the safety of the facility and his work colleagues. When considering the environment and his response to a situation which he created, I find that the dismissal was also not harsh.
[133] Mr Cox has speculated that the reason why Mr Greene contacted Mr Fernando and not Mr Moore; it was due to the previous incidents involving the release of gas to the atmosphere and that he had caused the incident on this occasion - it was not referred to in the letter of termination. However, it would not have been unreasonable for the Employer to take these matters into consideration even though they were not of sufficient magnitude to warrant disciplinary action at the particular time.
[134] Finally, I find, on the evidence, that there are no grounds for the comparability argument advanced by the Applicant in his submission.
[135] As I have already stated, I agree with the Applicant that his conduct, or the gravity of his conduct, should be considered in context. Put shortly, the Applicant was in a senior position working in a safety critical environment. Mr Greene’s attempts to re-argue that what he did on 22 March 2014 was appropriate, was not supported by the evidence. The Applicant did not follow the Employer’s training practices and the obvious obligation to be open and honest with his superiors when a critical event unfolded. As a result, the facts and evidence demonstrate sufficient and valid reasons for Mr Greene’s dismissal.
s.387(b) - notification of the reasons for termination of employment
[136] The Applicant was notified of the reasons for termination of his employment by correspondence of 9 May 2014 as set out in paragraph [9] above. The concerns of the Employer were also set out in correspondence to the Applicant on 11 April 2014, prior to an investigation meeting on 22 April 2014 44. I am satisfied that Mr Greene was notified of the reasons for his dismissal.
s.387(c) - opportunity to respond
[137] Mr Greene claims he was interrupted by Mr Moore when responding to questions at the meeting on 22 April 2014. Further, during the course of the meeting on 29 April 2014, he was interrupted and “spoken over” by Mr Moore 45.
[138] Mr Greene’s written evidence was that, at the meeting on 29 April 2014, he referred to notes that he had prepared as an “aide memoire”. The purpose of the notes was to respond to the Incident Summary that the Employer had provided to the Applicant.
[139] I am satisfied that, when Mr Greene failed to answer directly questions that were being put to him on 22 and 29 April 2014 by Mr Moore, he was interrupted. Mr Greene was specifically asked to respond to questions without reading verbatim what was contained in either his “statement” of response to the incident or what he refers to as “notes” in his witness statement. However, putting aside this understandable friction in the meetings, I am satisfied that the Applicant was given opportunity to respond to his conduct relating to the incident on 22 March 2014.
[140] I note also, in particular, the evidence of Ms Georgiou that a meeting scheduled for 14 April 2014 was postponed to 22 April 2014 to accommodate Mr Greene’s request for more time to prepare a response.
s.387(d) - support person
[141] The Employer did not unreasonably refuse, or refuse at all, Mr Greene having a support person present during discussions. The AWU representative attended the 22 and 29 April and 8 May 2014 meetings to discuss the incident on 22 March 2014 46.
s.387(e) - unsatisfactory performance
[142] The parties agree that the Employer dismissed Mr Greene relating to the incident on 22 March 2014. The parties also agree that Mr Greene was involved in two incidents on 20 August and 25 December 2013 but not formally disciplined for either of these incidents 47.
[143] With the exception of these two incidents which go to the Applicant’s performance, I have no further evidence to demonstrate that his performance was unsatisfactory. I consider it reasonable to infer that Mr Green’s progression through the automatic classification levels and appointment to the position of Shift Supervisor, as reflective of satisfactory performance prior to the incident on 22 March 2014. However, this inference of satisfactory performance is suspect given the Applicant’s own evidence that he was not a competent Level 4 Shift Supervisor 48. Finally, and most probably more important, Mr Greene gave evidence that he had “grave concerns regarding this particular piece of equipment [the valve that was closed on 22 March 2014]” but did not discuss those grave concerns with the Employer49.
s.387(f) - size of enterprise
s.387(g) - Human Resources
[144] The Employer has a dedicated human resources expertise. With the exception of whether the Applicant has the opportunity to properly respond at the meetings on 22 and 29 April 2014, I apprehend that the Applicant is not contesting the procedures followed in effecting his dismissal.
s.387(h) - other matters
[145] I am satisfied that there are no other matters involved in this application which have not been considered above and require my consideration.
CONCLUSION
[146] In conclusion, for the reasons set out above, I am satisfied that Mr Greene’s dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.
COMMISSIONER
Appearances:
E Douglas for the Applicant.
W Milward on behalf of the Employer.
Hearing details:
2014:
Perth,
12 and 13 November.
1 Transcript PN869
2 Brink v TWU PR922612 at paragraph [7]
3 Exhibit R3
4 Transcript PN952
5 Transcript PN953
6 Transcript PN954
7 Transcript PN762 and PN763
8 Exhibit A4
9 Exhibit R4
10 Exhibit R9
11 Exhibit R8
12 Exhibit R6
13 Exhibit R7
14 Transcript PN1705
15 Transcript PN762
16 Transcript PN129
17 Transcript PN128
18 Transcript PN122 and PN123
19 Exhibit A4
20 Exhibit R9
21 Transcript PN1563 to 1565
22 Transcript PN1580 to 1585
23 Transcript PN1833
24 Exhibit R8
25 Transcript PN1465
26 Transcript PN1471
27 Exhibit R5
28 Exhibit R5
29 Exhibit A4
30 Transcript PN347 to 349
31 Transcript PN352 to 362
32 Applicant’s outline of submissions
33 Transcript PN526
34 Transcript PN604
35 Transcript PN279 and 280
36 Transcript PN668
37 Transcript PN688 to 699
38 Exhibit A4
39 Exhibit R9
40 Transcript PN1120
41 Transcript PN700 & 701
42 Transcript PN704
43 Transcript PN708
44 Exhibit R2 and Transcript PN749
45 Exhibit A4
46 Exhibit A2
47 Exhibit A2
48 Exhibit A2
49 Transcript PN762 and PN763
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