Mr Michael O'Brien v J Smith and Son Pty Ltd T/A Smiths Engineering Services - [2011] FWA 8554

[2011] FWA 8554

FAIR WORK AUSTRALIA

DECISION

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

Mr Michael O’Brien
v
J Smith and Son Pty Ltd T/A Smiths Engineering Services
(U2011/8550)

COMMISSIONER SPENCER

BRISBANE, 7 DECEMBER 2011

Termination of employment- whether harsh, unjust or unreasonable.

[1] This Decision relates to an application made pursuant to s394 of the Fair Work Act 2009 (Cth) (the Act), by Mr Michael O’Brien (the Applicant) claiming he was unfairly dismissed for serious misconduct from his employment with J Smith and Son Pty Ltd T/A Smiths Engineering Services (the Respondent).

[2] The matter was listed for a conciliation conference before Fair Work Australia (FWA). The conciliation conference was not successful in resolving the matter. The matter was allocated for arbitration before FWA, as currently constituted. Directions were set for the filing of evidence and submissions.

[3] Whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.

Legislation

[4] This application was made pursuant to s394 of the Act. Section 387 of the Act specifies the criteria that FWA must take into account when considering whether a dismissal was harsh, unjust or unreasonable. These sections are set out.

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

...

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.

[5] The Applicant was dismissed for ‘serious misconduct’, the legislative definition is set out below.

Fair Work Regulations 2009

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.

Background

[6] The Applicant was employed by the Respondent as an electrician from 26 April 2006 until his employment was terminated on 24 May 2011. The Respondent dismissed the Applicant for reasons relating to a dishonest back injury claim (for which it was alleged he entered the workplace at a later date to complete the related reports), his conduct at the workplace (in exposing his genitals to a female colleague), and work performance issues relating to incomplete testing and tagging of electrical equipment. The Applicant refuted all of these reasons.

Summary of Submissions of the Applicant

[7] The Applicant submitted that on 20 December 2010, he was injured at work. The Applicant stated that while he was packing components in the store packing area, he fell backwards and landed on a steel packing crate. The Applicant explained that the injury did not seem too serious at that time, and he continued to work. On 26 December 2010, the Applicant set out, that he attended hospital and subsequently received surgery on his spinal cord. The Applicant submitted he was discharged from hospital on 31 December 2010.

[8] When the accident occurred, on 20 December 2010, the Applicant submitted he completed an incident report and sent a copy to Ms Deb Crichton, Human Resources Coordinator, of the Respondent.

[9] The Applicant explained the nature of his spinal condition as “his spine had blown up.” 1

[10] The Applicant stated that, he telephoned Ms Crichton on 1 January 2011, to inform her of his state of health and discuss his expected return to work. The Applicant stated that the Respondent’s factory was closed for the Christmas/New Years shut down and Ms Crichton had assured the Applicant not to worry, as the company would “look after him”. 2 The Applicant submitted, it was agreed that the Applicant would return to work on 10 January 2011.

[11] The Applicant submitted that he returned to work as planned on 10 January 2011. The Applicant stated that although he was employed as the factory electrician, upon his return he was placed in the store’s packing component area. The Applicant submitted that he had reported to Mr James Hertherington, Purchasing/Procurement Officer, at the workplace, and stated that he would pack car carrier components, but would not pack export orders, because he considered the Respondent did not have adequate lifting equipment. He stated the export components were very heavy, given that he had just had surgery, on his spinal cord. The Applicant stated that he continued doing this work until 21 February 2011.

[12] The Applicant submitted that the health of his back deteriorated and he again was admitted to hospital, on 21 February 2011, to have further surgery on his back. The Applicant stated he was discharged from hospital on 4 April 2011. The Applicant said he returned to work at 7.00am, 19 April 2011, and at 7.30am he was approached by Mr Kerren Smith, Company Director, who informed him that he was no longer the company electrician and that he would be employed packing components. The Applicant stated that Mr Smith also said, that the Applicant was to go home, until he had an appointment with the Respondent’s doctor and received a ‘fit for work’ medical clearance. The Applicant stated that he was also informed, he would not be paid until he attended the doctor. The Applicant submitted that he had already given the Respondent, a medical certificate for the time taken off up to 18 April 2011.

[13] The Applicant submitted he had a conversation with Ms Crichton at approximately 8.30am on 19 April 2011 and they discussed the Applicant’s demotion and general treatment. The Applicant submitted that, Ms Crichton had agreed the situation was unfair, but it was Mr Smith’s decision. The Applicant stated he again spoke with Mr Smith and told him that he thought it was unfair that he was stood down without pay until he attended their doctor and that he was being demoted. The Applicant stated that Mr Smith said, a medical certificate that said “fit for duty” was required.

[14] The Applicant submitted that he provided a medical certificate that stated he was “fit for duty”. 3 The Applicant claimed he had supplied it to the Respondent on 29 April 2011. The Applicant stated that Mr Smith did not accept the certificate and said that until he attended the company’s choice of doctor he remained stood down without pay. The Applicant submitted that he told Mr Smith he thought he was being unfairly treated and he stated Mr Smith had replied that if the Applicant did not like it he could take him to court.4 The Applicant at this point left.5

[15] The Applicant stated that he attended the Respondent’s preferred medical centre on 6 May 2011. The Applicant re-counted that in the following weeks he had telephoned Mr Smith for an update regarding his employment. He stated; Mr Smith had replied to him, that he should come in to work and resign and accept 10 weeks pay in agreement, to resolve all matters with the company. 6 The Applicant said that he refused this offer.

[16] The Applicant submitted that on 16 May 2011, he received a letter from the Respondent (the letter is dated, 24 May 2011) in which he was informed that his employment was terminated. 7 The letter cited the reasons for the termination, as being concerns about the legitimacy of the Applicant’s injury, conduct and performance issues.

[17] In the Respondent’s submissions: it was claimed that the Applicant had exposed himself to Ms Crichton when entering the office to provide his medical certificate.

[18] The Applicant in his submissions in response, stated that, that was the first time the Respondent had raised the allegations that he had exposed ‘himself’ and he vehemently denied the allegations. He stated he had 3 daughters and that the allegations were offensive to him.

Summary of Submissions of the Respondent

[19] The Respondent submitted that J Smith & Sons Pty Ltd was not the employer of the Applicant, but that Smith's Engineering Services Pty Ltd, a separate legal entity, was the employer of the Applicant. Additional information was sought to clarify this issue as the Applicant’s payslips and contract were not in this different corporate name. No further material was provided. Accordingly the employing entity has not been altered.

[20] The Respondent alleged the dismissal was not unfair for the 3 reasons which they submitted were outlined in the “notice of dismissal” dated 24 May 2011. The dismissal letter stated:

“The letter is notification that, effective the date of this letter, you have terminated from your position with Smith Engineering Services Pty Ltd.

There are several reasons that contribute to your termination.

Concerns exist regarding the authenticity, accuracy and timing of an incident involving your back. This is contrary to Items 6.3 (a) and (b) of your Employment Agreement dated 31 January 2008.

Additionally, your treatment of staff members during this matter has not been acceptable leading to complaints being made regarding your conduct.

In your absence it has become apparent that a number of your responsibilities were not carried out in a professional manner. Schedule 2 of your employment agreement lists a number of Key Responsibilities that have not been followed consistently or comprehensively...”

[21] The Respondent submitted that the Applicant was dishonest and claimed that that the Applicant invented the incident alleged to have caused his back injury. The Respondent argued that the incident did not occur and the Applicant had not injured his back, during a fall at work on 20 December 2010, which he claimed caused the subsequent hospitalisation and surgery.

[22] In regard to the entry about the incident in the Respondent’s First Aid book, the Respondent alleged that the Applicant had deceptively gained access to the Respondent’s business premises on a day when they were not open for business, namely, during the Easter break of 2011.

[23] The Respondent alleged the Applicant then made false entries in the First Aid book. The Respondent claimed that the entry in the First Aid book was not made by the Applicant at the time when the injury occurred.

[24] Mr Peter Hendrikx, First Aid Officer and Leading Hand of the Respondent, gave evidence that the entry in the First Aid book made by the Applicant was unusual. Mr Hendrikx’s evidence was that it was the usual practice for any injury to be reported to him and he would make the entry and sign the book. The entry in the First Aid book about the Applicant’s injury dated 20 December 2010, is instead made by the Applicant. All prior entries to this, are made by Mr Hendrikx. The subsequent entry (to the Applicant’s) in the book, is made by Mr Hendrikx on 10 March 2011. Mr Hendrikx gave evidence that at the time he made the entry on 10 March 2011, he did not see the Applicant’s entry of 20 December 2011.

[25] Mr Hendrikx also provided evidence that he did not recall the Applicant’s entry of 20 December 2010 being in the First Aid book, when he made the entry of March 2011. Mr Hendrikx considered that most employees were aware of the procedure with the First Aid book. He stated in relation to the copies of the pages in First Aid book (attached to his statement) for period 1 March 2010, 20 April 2011:

“...All of the entries with the exception of one are in my handwriting and are signed underneath by me.

The only entry which is not in my handwriting and signed by me appears to the entry on December, 20th , 2010 placed between two other of my entries relating to an alleged incident involving Michael O'Brien.

This entry is highly unusual and it is certainly not in accordance with practice and procedure which had been followed up to and after the time in question

The entry of 20 December 2011 is not in my handwriting or signed by myself. I did not and do not recall seeing it there when the subsequent entry dated 10 March 2011 was entered by me and signed by me...” 8

[26] The Respondent submitted that they formed the view that the entry made by the Applicant in the First Aid book was dishonestly made and constituted serious misconduct, and that this conduct was enough to summarily dismiss the Applicant’s employment; as follows:

“.....

2.1 Dishonest Behaviour and Misconduct

The respondent submits that the employee was dishonest and possibly fraudulent in that the employee invented an incident which the respondent says did not occur (namely that the respondent injured his back during a fall at work on 20 December 2010 which caused injury and subsequent hospitalisation and operation) and deceptively gained access to the employer's premises on a day when such premises were not open for business (namely the Easter break of 2011) and inserted false entries into the employer's first aid book and thereafter sought to rely on such entries including that they were made at the time written in the book.

The honesty of an employee who is an electrician on who other employees rely in respect of occupational workplace health and safety is paramount as otherwise it can lead to devastating consequences for such employees including major injury and death.

.....” 9

[27] The Respondent’s “Employee Collective Agreement”, “Smiths Engineering Services Pty Ltd”, contains the following provision relating to misconduct:

“12. Summary dismissal

Examples of conduct that may constitute serious misconduct include, but are not limited to, the following:

....

Offensive, intimidating or violent behaviour in any form regardless of how or why it was initiated.” 10

[28] The Respondent considered the Applicant’s dishonest act was serious misconduct in accordance with the Agreement provision.

[29] The Respondent referred to the additional reasons in the dismissal letter, that formed the basis for the termination of the Applicant’s employment; including ‘unacceptable treatment of other employees’. The Respondent alleged in its submissions that:

“It is submitted that the applicant was guilty of misconduct in that he engaged in unacceptable treatment of other employees of the employer are [sic] in that:

(a) he wilfully exposed his genitalia namely his penis, testicles and scrotum to other employees of the employer including a female employee; and

(b) he was on many occasions are [sic] abusive to staff (as recorded in incident reports) and in the course of his time off was verbally abusive and yelling in an unacceptable manner to other employees.” 11

[30] This allegation at the hearing was amended; in that ‘scrotum’ was removed from the allegation and it was only alleged he exposed himself to Ms Crichton.

[31] Ms Crichton gave the following evidence in relation to the alleged incident of the Applicant exposing his genitals:

“During the second week of April 2011, Michael O'Brien rode his motorbike to the Smith St premises and came to my office to give me a medical certificate.

When Michael O'Brien approached the office to give me the medical certificate his penis was outside of his trousers. Michael O’Brien was approximately 3 metres away, walking towards the office door. I looked up through the glass sliding door and Mr O’Brien had his trouser fly undone and his penis exposed. I groaned as I was shocked and lowered my eyes. Ms Loretta Mills asked if I was alright. I looked up as he entered the door to the office. Michael O’Brien upon seeing Loretta cupped his hand over his trouser fly and half turned to tuck himself in and do up his trouser fly.I'm not sure why Mr O'Brien presented himself in such a manner as I had never previously seen him present himself in such a manner and can only assume it was an attempt to upset or intimidate me.

I tried to ignore Mr O'Brien's manner of presentation, photocopied the medical certificate he gave me and gave him back the original and advised him that it was not what we required and that we needed a statement from the treating specialist that he is fit for duty. If he could not manage this then we could arrange for an appropriate medical provider to carry out an examination and provide a report.” 12

[32] The Respondent submitted that the other reasons relied on to terminate the Applicant’s employment included that he was a danger to the safety and welfare of other employees. The Respondent cited:

“(a) the applicant was employed as an electrician;

(b) part of the applicants job was the responsibility of maintaining factory electrical systems and test and tag procedures of electrical equipment used by other employees in the conduct and course of their employment;

(c) the applicant made representations to the employer that he had completed testing of electrical equipment, that the testing results were satisfactory and that the relevant tags had been placed on items of electrical equipment as required by law;

(d) the representations made by the applicant were false and were misrepresentations in that the electrical equipment had not been tested and had not been tagged as required by law; and

(e) the failure by the applicant to test and tag electrical equipment and the misrepresentation that he had completed such testing and tagging was not only misconduct but also posed a serious threat to the safety and welfare of other employees in that it could lead to the electrocution, injury and possible death of such other employees.”

[33] The Applicant stated he had raised safety issues with the Respondent. Mr Hendrikx, the Respondent’s First Aid officer and Leading Hand, agreed with the Applicant’s questioning that, there were some safety issues that the Applicant had raised with him. 13

[34] In relation to some of the performance issues raised by the Respondent, Mr Luke Jolly, Electrician, said he found 4 out of date ‘tags’ when he started, in the electricians role. He stated:

“if equipment is not tagged and tested correctly this could lead to injury or death”

[35] Mr Jolly said he couldn’t provide specific evidence about the particular tools that had the out of date tags. He also stated he could not find any test and tag logbooks from the Applicant’s time and that he did not wish to be responsible for these safety issues.

[36] The Applicant in response stated a number of the logbook entries had been converted onto computer discs but he was unsure where these were stored.

[37] In relation to the allegation that the Applicant had exposed himself to Ms Crichton, a series of 9 photos of the location of the incident were introduced into evidence through Ms Crichton. She stated she took the photos from her desk; to demonstrate how she saw the Applicant coming down the alleyway and appearing at the door (where he had exposed himself).

[38] Mr Peter Birch, Financial Controller (and Human Resource Supervisor to Ms Crichton), provided evidence that he received a phone call from Ms Crichton, and she was in a distressed state. She stated the Applicant had presented at her office, exposing his penis. Mr Birch stated Ms Crichton was shocked.

[39] Mr Birch said, in more than 30 years of employment he had never experienced the situation, and he provided supportive counselling to Ms Crichton. Mr Birch considered it was serious behaviour, but agreed he had not questioned or disciplined the Applicant on it; as the Applicant was not at work at the time and he did not call him back to question him.

[40] Ms Crichton said the Applicant had been away from work for 2 months. When he returned to provide his medical certificate, Ms Crichton informed the Applicant that the medical certificate did not contain the required information. Ms Crichton stated she was shaken by the Applicant’s presentation at the door with his penis out of his trousers.

[41] Ms Crichton stated she told the Applicant, she required a medical assessment stating he was fit to return to work without any limitations, particularly as he’d been away from work for 8 weeks, and he had had 2 surgeries on his back.

[42] Ms Crichton’s evidence regarding the Applicant’s medical condition was:

“The only thing that I knew, Mick, was that you'd rang me and you had a hole in your spine, and that you said that they'd used some sort of glue to fix it up, then you had a relapse, and then you were off for a period of two months.”

[43] She said in summary of the situation, she was managing with the Applicant, she had a lack of information on the Applicant’s injury and he had been away from work for 8 weeks, with significant surgical intervention. She was concerned to have the information to appropriately manage his return to work.

[44] She stated that, she needed to know his limitations; so they could provide suitable duties. She had no knowledge of his condition and further information was needed. Ms Crichton stated:

“He was required to give more information because he presented a discharge form back in January from the hospital, with a medical condition which I knew nothing about. He'd presented again to hospital in February and he told me about that because he rang me on the 21st, and he'd been subsequently off work for over two months, and I had no idea what his capabilities were, or what he could perform and what he couldn't. When he did return to work on 14 January, he did have a discussion with Kerren to say he had some limited capabilities and the fact that he couldn't climb a ladder, which told me as return-to-work that his coordination skills or things like that, weren't necessarily, perhaps, a hundred percent. So I wasn't sure what he was capable of performing. Electricians get up and down forklifts, we have got high wiring on the factory floor. It's not just test and tag on the floor, we've got main boxes, and I had no idea what he was and was not capable of doing. Whether he could get up those forklifts or not, whether he could use a ladder again or not, I didn't know. So I needed to have an assessment done so I knew what his capabilities were, and/or if any limitations so I could place him. Part of that HR role is suitable duties, and we have staff that, you know, have motorbike accidents and they come back to work on suitable duties, out of the goodness of our heart, not because he have to have them there. But because, you know, we try and help them as much as possible...”

---I stated we need a medical assessment or statement that lists your tasks and capabilities so we would know if there was any limitations because you've been off work for over two months.” 14... Mick, you had a condition which I knew nothing about. I had no knowledge, I'm not a doctor, I don't profess to be, and your position was one that could endanger a lot of lives.”15

[45] The Applicant put to Ms Crichton that due to his age and injury that Mr Smith was going to demote him to Storeperson and see how long he lasted. Ms Crichton stated in response to the Applicant’s question on this:

“I put it to you, that Kerren Smith has decided that due to my age and the fact that I did have a medical condition of some type, and the fact that you had a younger person there as an electrician, that I put it to you, and I also state to you that you stated that, "Due to your age and the condition, Kerren Smith's going to demote you and see how long you last as a storeman." I put it to you, that it was an attempt to purposely force me out of the company - force me to resign?---That's not true. I wouldn't know what Mr Smith thought. Secondly, I have a policy where I like to have all positions covered, so if one's away on annual leave we have somebody else there, and because we're required - we're not actually required but we do have electricians on-site to help with any sort of shutdown work et cetera, maintenance work - I like to have backup. I don't have to have a first aid officer in every crew, but I do it so we've got backup of staff, and I try to cover all those positions, and I never stated anything like that in my life, because it would be discrimination. 16”

[46] The Respondent’s submissions referred to a previous warning given to the Applicant. The “employee discussion” with the Applicant and another employee; was presented as a first warning. Ms Crichton conceded that it was a verbal warning as part of an “employee discussion” and that as part of the outcome the Applicant had been removed from his work bay as the situation had become tense between the employees in question. This matter has not been attributed any weight in the consideration of the dismissal.

Evidence and Considerations

[47] By agreement with the parties other witness evidence was interposed prior to the completion of the Applicant’s evidence, to accommodate the availability of other witness evidence, that was required to be taken by phone. This was done by consent.

Performance Issues: Test and Tagging

[48] The Applicant was employed as a qualified electrician and stated he was aware of his legislative electrical obligations.

[49] The Applicant agreed that the electrical safety testing and tagging of equipment and electrical maintenance was often late, as he was also employed to do packing as there was no storeperson employed.

[50] Mr Smith put to the Applicant that entries in the Electrical Equipment ‘Test and Tag’ booklets found on site, demonstrated the test and tags were out of date. The Applicant stated the booklets were superseded by a computer-based system. Mr Smith put to the Applicant that he had discussions with him between 9 and 17 May 2011, regarding electrical safety issues. The Applicant denied any deficiencies with this work, but referred to computer difficulties he was experiencing with the new test program.

[51] Mr Smith put to the Applicant that the test and tagging process of electrical equipment, he was responsible for, was overdue. Mr Smith specifically referred to 4 test and tags that were out of date.

[52] Evidence was also provided by Mr Jolly, the current electrician for the Respondent, who referred to another set of 20 test and tags for in-use plant that were significantly overdue, when he took over the role from the Applicant. Mr Jolly could not provide specific evidence on the pieces of equipment, that he stated had outdated tags.

First Aid and Incident Reports

[53] Mr John Tomasini, Maintenance Contractor provided evidence that on Tuesday 26 April 2011, an Easter Public Holiday, he was working in the Respondent’s premises; and he let the Applicant into the premises. Mr Tomasini stated:

“On Tuesday the 26th April I notified an employee of Smiths, in the engineering department, I think It was Brett Best that I would be working at the Pronger Parade premises to perform maintenance work on an air conditioner and some store duties. I opened the premises at 7.05 am as I have a security key. During this time I had relocked the gate for security reasons as I was working alone. I unlocked the gate to go to town at approximately 2pm and noticed that Mlck O'Brien was approaching the gate on his motortlike and said that he was coming to pick up a diary. I let him In and went back to the store to work. The workshop was unlocked as I had been working In there. Mlck would have been on the premises for approximately twenty minutes or so. He came to say that he wasn't coming back and that he had a medical appointment next month. Mlck left on his motortlike and I then went to the Calt.x service station locking the premises behind me at approximately 2.30pm. I returned to the Pronger Pde premises at approximately 2.50pm and continued in my duties.” 17

[54] The Applicant put to Mr Tomasini that he had accompanied the Applicant to get the diary and went with him to photocopy the diary. Mr Tomasini couldn’t be sure of the exact events involving the Applicant with the diary. Mr Tomasini was questioned by the Applicant:

“During that discussion I put it to you that I stated to you that I came in to grab my diary, I spoke about an incident of a fall, and I also spoke to you about that I wanted to get a copy of the incident report, and as such you came with me and unlocked the office and I took a photocopy of that incident report. Isn't that the events that occurred?---I cannot be a hundred per cent sure about that, no, I can't. I know you did mention that you had to get the diary. I cannot - I know that at some stage someone mentioned that you had had a fall. I cannot recall whether it was you at that time or someone else mentioned that. As I didn't see the fall I did not know about the fall at that time. I only went to town after you had left.

Didn't you unlock the office and come in with me and stand beside me as I photocopied an incident report?---I may have unlocked the office, but I did not, or was not, standing next to you when - if you were doing that. I certainly was not doing that.

I put it to you that I stated quite clearly that I was photocopying the incident report because the actual words I used, that I remember quite clearly, was, "I felt that Kerren Smith was going to shaft me"?---That, I cannot recall, Mick. I really can't remember that - to that exact detail. I cannot remember that.” 18

[55] Mr Tomasini also couldn’t be sure about how he came to know about the Applicant’s fall incident, whether it was via a discussion with the Applicant that day or from later discussions with the Respondent.

[56] The Applicant could not recall with any detail the timing of the fall he experienced on 20 December 2010. He then however, was specifically able to recall the actions he said he undertook in completing the ‘incident report’ and the entry he made in the First Aid book on the day of the incident. The Applicant stated that he only completed the incident report and first aid entry to let Mr Smith know additional lifting was required. He stated he never mentioned them again until at least 4 months later.

[57] The evidence of Mr Edgar Brus, Factory Manager, was that:

“I was not aware of any workplace incident involving injury to Michael O’Brien on 20 December 2010 until the 27 April 2011 when Michael O’Brien rang me at work requesting a reference and stating that he didn’t want to come back to work...

On the 27 April 2011 I was shown a work incident report a true copy which is attached hereto and marked with the letter “A”.

On that form my signature is purportedly written.

I can say that I have never signed that form, the writing which purports to be my signature is not my signature and my surname is spelt incorrectly as “Bruce” rather than its correct spelling “Brus”...

I note that in Mr O’Brien’s affidavit of 16 August 2011 he spells my surname as “Bruce” which is the same spelling as appears on the incident form.” 19

[58] He stated that the Applicant had not followed the normal process for reporting an incident and further, it was odd that the Applicant had not told him that day or after that he had sustained a fall.

[59] The evidence of Mr Peter Hendrikx was:

“I am a leading hand and first aid officer working for Smiths Engineering Services Pty Ltd which company has a process for reporting any incident or injury.

This process is to notify the first aid officer and supervisor. I use the first aid register for minor injuries, any major injuries require a company incident report...

I am aware that Michael O'Brien has alleged that a work related injury or incident occurred on 20 December 2010. No notification to me was given, recorded or noted. I was not aware of such incident occurring.

On the date of 20 December 2010 I was working for SES on a project in Western Australia and I returned on the 23 December 2010 and then the factory was closed for two weeks.

The first aid register book is kept in lunchroom of the Pronger Parade factory.

My next entry into the first aid register after 18 November 2010 was on 10 March 2011. I do not check the first aid register, I only access the register when I need to write an entry. The first aid register was kept in the lunchroom along with looseleaf incident forms.

To my knowledge I was unaware that any incident or situation had occurred whilst I was away regarding Mister Michael O'Brien. 20

[60] Mr Smith put to the Applicant that he went to the site, not to get his personal diary but to make the incident report and the entry in the first aid book. The Applicant’s evidence; regarding his reason for his entry to the workplace when it was closed on a public holiday, in order to collect his personal diary and tools, when he had not required such for 2 months, is not persuasive.

[61] The Applicant stated that he became aware from Mr Luke Jolly, when he went to his home for drinks, that Mr Jolly had been placed in the Respondent’s Electrician position; in lieu of the Applicant. The Applicant stated he considered he was going to be ‘shafted’ by the Respondent. It can be inferred from the evidence that this motivated the Applicant to complete the reports to impede the termination and/or access WorkCover payments.

The Medical Certificates

[62] The Applicant argued that it was unfair that he was stood down without normal pay until he produced the medical certificate providing suitable information about his fitness for duty to the Respondent.

[63] The Applicant stated he provided a replacement medical certificate on 20 April 2011. This medical certificate was deemed to provide insufficient information. This medical certificate dated 20 April 2011, had an initial only on it, from a medical practitioner, with no indication of the name or their capacity. The medical certificate produced, had “Royal Brisbane Hospital” written on it and stated “Mr O’Brien was admitted to RBWH as an in-patient on 22 February 2011, suffering from ‘a surgical condition’, the patient was totally incapacitated for work and was discharged on 4 March 2011, the patient is to attend the Out-Patient department and, I anticipate, will be unfit for duty up to and including 18 April 2011”. It also stated that the certificate was issued for the information of the employer. 21

[64] The certificate provided no information about the Applicant’s ‘fitness for duty’ and the only information that could be taken from it is that the Applicant was unfit for duty up to 18 April 2011; after a surgical condition.

[65] The Applicant was frustrated at Ms Crichton’s response to him regarding the certificate, and that she needed further information from his treating doctor to organise his return to work. The Respondent stated he requested a ‘fit for duty’ statement; with information to enable appropriate return to work decisions to be made. The Applicant was frustrated in having to secure detailed medical information. Given the exchanges, on the basis, it is considered that the Applicant’s conduct in attending on the site and exposing himself, was aimed at intimidating Ms Crichton.

[66] The Applicant provided a second certificate 22 on 29 April 2011. By this time the Respondent had already commenced the process of getting an assessment of the Applicant done by Kinetic. The certificate the Applicant provided was noted as being from the ‘Gympie’ Hospital. The certificate indicated the Applicant was an in-patient on 21 February 2011.

[67] The certificate stated “Now fit to return to work” and was signed by C. Woods (Health Practitioner). The Applicant stated this was all he could get and that the Respondent had no basis to “stand him down” without normal pay whilst further details, regarding his fitness for work were sought.

[68] The Respondent requested the Applicant, to attend a doctor to obtain the suitable information regarding his ‘fitness for work’. The Applicant stated, that he said to the Respondent, that if he was required to attend a medical assessment in Brisbane, the Respondent would need to get him there. The Respondent provided a vehicle and driver to take the Applicant to Brisbane.

[69] The Respondent provided the Kinetic Health report by Dr Robert McCartney, Occupational Physician; the report indicated that, based on the history related by the Applicant, he had major issues with his back and spine; and that he had developed some symptoms on 21 December 2010 that led to the surgical treatment. He was “diagnosed with abnormal connectional fistula between arteries and veins in the covering of the brain or spinal cord.” 23

[70] The Applicant had returned to work on 14 January 2011 and informed Mr Smith that he could not climb up or down ladders. In accordance with this, Mr Smith stated he formed a view that the Applicant could not perform his electrician duties; therefore he arranged for the Applicant to work full time in the stores area sorting components into tubs and also doing light electrical repair work, for example on hand tools. The Applicant worked doing this up to and including 19 February 2011. 24 In contrast to the Applicant’s submissions, the directive was not a demotion, but aimed at accommodating his back condition.

[71] Within eight weeks the Applicant had further back surgery on 21 February 2011. The Applicant was asked (in the first week of April 2011) to obtain a fit for duty clearance. The proforma medical certificates provided were inadequate to make the necessary decisions regarding the Applicant’s return to work. The Respondent recounted that in regard to the requests for the medical information the Applicant was ‘belligerent, inflexible and unreasonable.’

[72] The Applicant had received the Kinetic report prior to the Respondent. Mr Smith requested that he bring it in so they could consider it together. 25

[73] The evidence of the Respondent is preferred as follows; the Respondent stated that the Applicant refused to meet with him to discuss the report. At this same time the Respondent stated that the Applicant had requested the Respondent to ‘sack’ him and make him redundant. In addition the Applicant had also requested a reference from the Respondent’s factory manager. 26

[74] The Applicant refused to meet with the Respondent to discuss the report and which duties he was capable of undertaking. This impacted on the Respondent’s ability to discharge their duty of care obligations to the Applicant and the other employees and led to the Applicant’s dismissal.

[75] The Applicant’s dishonest behaviour amounted to serious misconduct. I concur with the Respondent’s case, that the Applicant inserted false entries and sought to rely on these entries to assert that the alleged injury sustained on 20 December 2010, had led to the need for surgery. The case is reinforced by the Applicant’s conduct in making as follows:

“1 no mention of the alleged incident was made in a telephone conversation between the Applicant and Ms Crichton on 1 January 2011(see paragraph 6 of exhibit 5 and PN 1013 & 1014 evidence of Ms Crichton)

2 in fact the Applicant told Ms Crichton that the back injury was not work-related(paragraph 5 of exhibit 5); and this is confirmed in the Kinetic Health report of Dr Robert McCartney (annexure F1 &F2 to exhibit 9)

3 the Applicant was vague as to when the accident occurred – see PN 133 "I can't really – through the day. Just through the day" (although he did finally settle that it was some time before lunch on 20 December 2011)

4 he says that he completed both an incident report and put an entry in the first aid book used by Peter Hendrikx.

5 he not report the alleged incident to any of the Respondents first aid officers as was procedure

6 the procedure for reporting incidents was well known to employees of the Respondent and the Applicant had worked for the Respondent for approximately 5 years

7 the procedure relating to completion of incident reports was that it was practice that they be completed by a first aid officer

8 the Applicant says that contrary to such well-known procedure – he completed the incident report himself and put it in an into factory satchel

9 the Applicant says that prior to putting it into the satchel he went into the procurement office and used the photocopier and that despite there being a number of personnel seated near the photocopier he did not tell or mention to anyone that he had had a fall

10 in fact he did not mention to anyone at that time that he had had a fall or a workplace incident

11 he first mentioned it on the 27th April 2011 being the day after he obtained unauthorised access to the factory on 26 April 2011

12 the Respondent says that the entry in the first aid book and completion of the incident report occurred on 26 April 2011 when the Applicant gained unauthorised access to that part of the factory where the first aid book an incident reports were kept

13 the Respondent told Mr Smith that he had reported it to the first aid officer Peter Hendrikx but when confronted with the fact that Mr Hendrikx was in Western Australia at the time he changed his story to (PN 130) "it must have been someone else".

14 the Applicant says at PN 152 "my back didn't – it hurt but it stopped hurting quite quickly and within five minutes didn't hurt at all"

15 the Applicant admitted that the real reason he completed the incident report was because he wanted materials handling equipment – refer to the telling exchange between the Commissioner and the Applicant at PN 3301

16 the Applicant put forward that there was "no materials handling equipment" (see PN 319) however when taken through the materials handling equipment which the Respondent did have the Applicant said that what he wanted was "wheeled shelving" (see PN 334)

17 at PN 346 in response to the Commissioner's question – "so that's the reason why you filled out the incident report?" The Applicant responded "I just lost me balance"

18 at PN 349 the Applicant agreed that previously when he had an issue about work conditions he either complained to Mr Smith or talked to the factory manager

19 at PN 351 in response to the Commissioner's question "but on this occasion you went out of your way, you filled out an incident report, you filled out a first aid report and you say to demonstrate "Here. This is why we need the equipment?" – The Applicant's only response was "Mm".

20 at PN 353 the Applicant admitted that he did not discuss the incident report or first aid report until 29 April 2011 –( see also exchanges at PN 354 – 358).” 27

[76] Further the Respondent was concerned about the Applicant’s conduct in dealing with Ms Crichton about the falsified entries as follows:

“2 the Applicant telephoned Ms Crichton on the 27th April 2011 and started yelling at her demanding to know why she had not notified WorkCover of an incident on 20 December 2011, as he had been on the premises over Easter and taken copies and passed on to WorkCover and that she was "in deep shit" and despite her saying she had no record of any incident the Applicant issued an ultimatum that she had until 3 PM that day to let him know what was doing what he would institute legal proceedings(see paragraph 6 of exhibit 5).

At PN 894 Ms Crichton in her evidence states "and Mr O'Brien never lodged his claim with WorkCover Queensland until 2 June, after he'd been yelling and abusing me on the phone since 27 April for a WorkCover claim he never had even lodged until 2 June.

At PN 895 the Applicant responds "I don't dispute that. I didn't lodge it until 2 June.” 28

[77] The Respondent had cross examined the Applicant on his back injury and whether it was related to the fall as follows:

“Mr O'Brien, can you please explain your understanding of why WorkCover refused your claim in relation to your alleged back injury?---They stated to me that it wasn't possible for the condition to exist from a fall or because of my fall. On their - they stated when they - they have checked with other doctors and this condition is not possible from a fall. It has been in my some time apparently.” 29

The incident of the Applicant exposing himself

[78] Ms Crichton stated the incident occurred; when the Applicant was bringing in his requested medical certificate after the second major operation and he had been away from the workplace for over two months. She stated:

“.... I looked up from my work when I was working and here you were walking down the passageway, you had your trouser fly undone, your genitals sticking out. I actually groaned in shock; I had never experienced anything like that before. I put my eyes down and then I thought, "God, get yourself together, get yourself together." So I pulled myself together and at that stage I looked up again and you were at the front door and that's when I saw you turn to fix yourself up and then you proceeded to come in with your medical certificate that you had been off work and that's exactly what happened...

.... Well, I'm just trying to understand why a person could wilfully expose himself and nothing is even said to that person, not a thing by anybody in the company that I'm aware of?---You were only in the office for a short period of time where we discussed the fact you didn't have a doctor, we couldn't arrange for any assessment with the doctor because you said you didn't have a GP and then I tried to arrange it with your treating medical specialist and then you said, "They only see you as a private patient," and you went public. Then I said, "Well, perhaps we'll have to arrange an assessment for you," and that you would try and find out the specialist's name and get back to me with that. Then you left the office and I rang Peter Birch.

THE COMMISSIONER: Why, Ms Crichton, did you not say anything at the time to Mr O'Brien?---I had never dealt with a situation like that before. In all my experiences, even working down a retirement village I had never been in a situation like that. All I could remember thinking was get yourself together to deal with what was needed for him at the time, that's all I can remember thinking.

Did you, on considering the situation, did you come to any reasoning as to why you thought Mr O'Brien - - -?---I didn't know why he would present himself that way. I didn't know if it was to upset me, or why anybody would even come onto the work premises like that, you know? We work with a lot of male staff and not one of them has ever, ever even done anything. You know?” 30

Section 387

[79] As required of s.387 of the Act, the following matters must be taken into account by FWA when considering whether a dismissal was harsh, unjust or unreasonable:

(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

[80] The Respondent cited serious misconduct as the reason for dismissal. The Applicant’s conduct in falsifying the records was commensurate with an act of serious misconduct. The dishonest behaviour provided a valid reason for the dismissal. The act of exposure, in addition warranted dismissal.

(b) whether the person was notified of that reason; and

[81] The Applicant was notified of the reason for dismissal in the termination letter dated 24 May 2011. The Applicant’s termination was effective from that date.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[82] The Respondent submitted that:

“Given the serious nature of the misconduct, the dishonesty, the unacceptable treatment of other employees and the danger to the safety and welfare of other employees an opportunity to respond to the reasons relating to the conduct of the applicant was not given as might be the case in less serious cases where behaviour could be addressed and remedied.

In this case given the circumstances over a period of time it did not appear that the applicant's behaviour could be addressed and remedied.” 31

[83] The Applicant was denied the opportunity to respond to the allegations. The procedure was deficient in this regard. The Respondent determined the Applicant’s behaviour had compromised the employment relationship and it had become unworkable. On this basis they effected the dismissal.

(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

[84] The Respondent submitted:

“The applicant did not request a support person in respect of the circumstances relating to the dismissal and the dismissal related to far more than unsatisfactory performance where it would be usual to have warnings and the opportunity to address and remedy performance.” 32

[85] The Applicant did not make submissions in relation to this criterion.

[86] The Respondent implemented the dismissal without the normal processes given the events. The process was deficient in terms of the Applicant’s opportunity to respond at a meeting with a support person.

(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

[87] The Applicant submitted that he was never warned in relation to unsatisfactory work performance and he never had any concerns regarding his employment, raised with him. The Applicant submitted that his last performance appraisal from his supervisor, Mr Edgar Brus, Factory Manager, provided contrary outcomes to the Respondent’s allegations.

[88] The Respondent emphasised that the issues with the testing and tagging of electrical equipment was discovered after he had left the workplace. The incident with Ms Crichton also occurred when he was effectively away from the workplace. The Respondent stated the aim had been to resume the workplace relationship and it was only when, based on all of the events it was clear the termination had to be effected, and therefore the normal procedural discussions (regarding electrical performance issues and the incident with Ms Crichton) as would be the normal procedure did not occur.

(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

[89] Neither party made submissions in relation to these criteria. The Respondent is a medium sized employer with human resources staff employed. The issues of providing appropriate opportunity to respond was compromised by the difficulties that arose between the Applicant and Ms Crichton and his refusal to meet with Mr Smith to discuss the report. The Applicant clearly took a belligerent stance that contributed to the end of the relationship. An appropriate meeting, where the Applicant had sufficient notification and an opportunity to respond would have been the appropriate standard. The Applicant’s responses provided during the hearing, would not have changed the outcome.

(h) any other matters that FWA considers relevant.

[90] The Applicant’s frustrations with attaining the appropriate medical information; in the public health system was recognised. The Respondent could not have in the circumstances, of the Applicant returning after his second back surgery, have returned him to duties without appropriate medical information. The medical certificates provided did not contain any relevant information to assist the Respondent with their duty of care obligations, owed to the Applicant; to maintain his health and safety. The Applicant was therefore not able to resume normal duties (he had used his sick and annual leave entitlements), and was therefore not paid his normal pay; except some payments were made to him for public holidays etc as per Annexure B to Ms Crichton’s statement.

[91] The Respondent had submitted that the Applicant was dishonest and possibly fraudulent in that he invented an incident; that is injuring his back in a fall at work on 20 December 2010, which he claimed caused injury and subsequent hospitalisation and was the basis for a WorkCover application.

[92] In this regard the Respondent claimed the Applicant had deceptively gained access to the Respondent’s premises on the ‘Easter’ Tuesday public holiday, a day when the Respondent was not open for business. The purpose of the entry was to create the records as a basis; to claim workcover and or to prevent his potential termination. The Applicant was the Respondent’s electrician, a position with significant health and safety responsibilities. The Respondent must be able to rely on the trust and integrity of this employee. He had breached this.

Conclusion

[93] On the basis of the evidence before me I find that on the balance of probabilities 33 that the Applicant sought entry to the workplace on the public holiday when the business was closed, for the purpose of making an entry after the fact in the First Aid book and completing an incident report on the alleged falling incident.

[94] The evidence supports a determination that the Applicant falsely completed the incident report and the entry in the First Aid book and this provided a valid reason for the dismissal. Therefore on this basis it is not necessary to determine whether the alleged incident, that the Applicant exposed his genitals to Ms Crichton actually occurred. The evidence of the falsification of the records is commensurate with a valid reason for the dismissal. However (in the alternative) having heard Ms Crichton’s evidence; and the genuine manner in which she addressed her aim of endeavouring to assist the Applicant with his rehabilitation and return to the workplace, it seems unlikely that she would fabricate such an embarrassing scenario for both her and the Applicant. She also provided frank evidence about the impact of the exposure incident on her. She also tendered photographs of her office demonstrating how the Applicant had approached. It has been considered that the Applicant claimed that the photographs, were not taken from her chair and provided a skewed presentation.

[95] The Applicant’s denials of the conduct are recognised, as is his insistence that he wore stretch work jeans that would have prevented the act of exposure. He also was very concerned at the allegations given he is a parent.

[96] The Applicant’s submission has been taken into account, that is, that the allegation was manufactured by Mr Smith, to deter the Applicant from proceeding with his application. The Applicant; submitted that Mr Smith invented this allegation, that he had exposed himself; after the Applicant would not accept 10 weeks wages to resolve the matter. However; it was clear from Mr Smith’s evidence that he found the Applicant’s conduct, concerning, but he was mindful of the Applicant’s time away from the workplace; his surgeries, the fact that there had been difficult exchanges, to get the necessary medical information from him and he had hoped to get the Applicant back to work. With regard to the offer to finalise matters by the payment; the Respondent had explained the difficulties that had arisen in the employment relationship with the Applicant. The Respondent stated this was an approach to resolve a situation, where the Applicant had become belligerent and was unwilling and possibly unable to resume his duties.

[97] The actions of the Applicant in regard to making the false entries about the alleged injury meet the definition of misconduct and warranted the dismissal of the Applicant. However had the Respondent wanted to act decisively and not address the matters related to the alleged injury and deceit, he could have acted on the issue of the self-exposure; however unpalatable to the Director and his HR Coordinator the Respondent found the behaviour to deal with. The conduct occurred and appropriately contributed to the reasons for the dismissal.

[98] However, it is noted that in regard to these matters, the Applicant was not provided with an opportunity to respond to the allegations made against him regarding the falsification of the accident documentation, the allegation of exposure or the performance issues relating to the alleged deficiencies with his work, in maintaining the testing and the tagging of electrical equipment. The case relating to the issue of electrical duties performance was not discharged with sufficient clarity on the records provided. This does not detract from the validity of the dismissal on the basis of the falsification of records alone, but also the act of exposure.

[99] The conduct of the Applicant in making the dishonest entries is commensurate with definition of serious misconduct in the Act. That is, his actions are considered to be “(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.” 34

[100] It is concluded that the procedures used in effecting the Applicant’s dismissal were deficient in terms of addressing the issues of conduct and performance with him (as related to the alleged exposure and electrical work). The Applicant’s actions regarding the falsification of the records with improper intent, provided a valid reason for the dismissal for serious misconduct, as did the incident of exposure. Having regard to the valid reason, and other relevant matters, the deficiencies in the procedure, are insufficient to conclude that the dismissal was harsh, unjust or unreasonable. The application made pursuant to s.394 is therefore dismissed. I Order accordingly.

COMMISSIONER

1 Transcript, 19 September 2011 PN61.

2 Submissions of the Applicant (*No page numbers or paragraph number provided in the Applicant’s Submissions and Witness Statement).

3 Witness Affidavit of the Applicant.

4 Submissions of the Applicant.

5 Submissions of the Applicant.

6 Submissions of the Applicant.

7 Submissions of the Applicant, Attachment 3.

8 Witness Affidavit of Mr Peter Hendrikx, [9-12].

9 Amended Submissions of the Respondent [2.1]

10 Employee Collective Agreement - Smiths Engineering Services Pty Ltd, Clause 12.

11 Submissions of the Respondent, [2.3].

12 Witness Affidavit of Ms Deborah Crichton, [9-11].

13 Transcript, 19 September 2011 PN561.

14 Transcript, 19 September 2011 PN883.

15 Transcript, 19 September 2011 PN901 and PN906.

16 Transcript, 19 September 2011 PN907.

17 Witness Affidavit of Mr John Tomasini, Attachment A.

18 Transcript, 20 September 2011 PN1259-PN1261.

19 Witness Affidavit of Edgar Brus, [5-9].

20 Witness Affidavit of Mr Peter Hendrikx, [1-8].

21 Exhibit 1 - Applicant’s Affidavit

22 Exhibit 1- Applicant’s Affidavit, Attachment 2

23 Final submissions of the Respondent, page 3.

24 Final submissions of the Respondent, page 3.

25 Transcript, 20 September 2011 PN1540.

26 Transcript, 20 September 2011 PN1587-PN1589.

27 Final submissions of the Respondent, pages 6-8.

28 Final submissions of the Respondent, page 10.

29 Transcript, 19 September 2011 PN58.

30 Transcript, 19 September 2011 PN772, PN840-PN842.

31 Submissions of the Respondent, [3].

32 Submissions of the Respondent, [3].

33 Brigginshaw v Brigginshaw (1938) 60 CLR 336.

34 Fair Work Regulations 2009, Reg 1.07.

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