Mr Palesetina Milovale Masoe v MMA Vessel Operations Pty Ltd

[2015] FWC 7805

[2015] FWC 7805

FAIR WORK COMMISSION

DECISION

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

Mr Palesetina Milovale Masoe
v
MMA Vessel Operations Pty Ltd
(U2015/2732)

COMMISSIONER CLOGHAN PERTH, 13 NOVEMBER 2015

Application for relief from unfair dismissal - production of documents.

[1] This is an application by Mr Palestina Masoe (Mr Masoe or Applicant) seeking a remedy for alleged unfair dismissal from his former employer, MMA Vessel Operations Pty Ltd (MMA or Employer).

[2] On 24 September 2015, I issued a Decision in relation to three (3) matters [2015] FWC 5454. One of those matters related to an order for the production of documents (paragraphs [9] to [44]) by the Applicant.

[3] Following the Decision, I held a conference of the parties in an endeavour to resolve the matter. Subsequent to the conference, I issued, pursuant to paragraph 590(2)(c) of the Fair Work Act 2009 (FW Act), a requirement the Employer provide to the Fair Work Commission (Commission), extracts (if any) of the Price Waterhouse Coopers (PWC) Report referred to by Ms Harrison in her witness statement as it related to the Applicant and Mr Patterson.

[4] The Employer indicated in conference that it would claim legal privilege in relation to the report.

[5] At this point, I consider it useful to observe that one of the objectives of the Unfair Dismissal provisions of the FW Act, is to establish procedures that are quick, flexible and informal. These provisions are consistent with the Commission performing its functions and exercising its powers in a manner that is quick, informal and avoids unnecessary technicalities (s.577(b) of the FW Act).

[6] The Employer provided, on 10 November 2015, the only document in its possession which is a draft PWC Report and referred to in Ms Harrison’s witness statement. The Employer again claimed legal privilege in relation to the report and the extracts provided to the Commission.

[7] The covering letter accompanying the PWC Report is dated 15 January 2015 and is from the PWC “Partner Consulting”. The correspondence is addressed to a Partner, Ashurst Australia. Prior to the addressee’s title is the following “Strictly Confidential and Subject to Legal Professional Privilege”.

[8] The PWC Report is divided into a “Background” of four (4) paragraphs: “Summary of Findings”, “Scope and Methodology”, “Investigation” and “Appendices”. The “Investigation” part is divided into two categories: “Interviews” and “Physical Evidence”.

[9] It is not in dispute that the Applicant was interviewed on 8 and 9 January 2015 in the presence of representatives of the MUA. It is also not in dispute that this interview was recorded. The PWC Report devotes three (3) paragraphs to the interview of Mr Masoe.

[10] In terminating Mr Masoe’s employment, the Employer sets out two reasons:

• his response to the Event Statement Form (ESF); and



• threatening behaviour towards a fellow employee.

[11] Mr Masoe had previously responded to the Employer’s concerns and denied the allegations.

[12] With respect to Mr Masoe’s conduct regarding the ESF, I repeat my earlier statements in the Decision at paragraphs [18] to [20]:

“[18] The Applicant’s representative states that, “the contest between the parties can be summarised as whether or not the Applicant’s conduct with regard to the Event Statement Form, justified his dismissal”. I agree.

[19] It is reasonably clear to me that the Applicant’s case is not one that relies entirely on documentary evidence. The contest between the parties is, in the first instance, what transpired between Mr Masoe and Mr McAllister when Mr Masoe was asked to complete the ESF. Related, but separately, will be a second issue concerning the Applicant’s state of mind. The Applicant’s pleadings in relation to his state of mind are expressed in a number of ways such as Mr Masoe being “confused”, “did not know”, “I got the impression”, “the picture was meant to be humorous”, “there was nothing to indicate”, “I believe”, “if I had understood”, “it was certainly not my intention”, “meant to express” and “this was my honest and genuine reaction to the situation”.

[20] The “contest” regarding the Applicant’s state of mind set out above will be crucial to my determination of whether his conduct justified, in part, his dismissal. This “contest” together with other matters set out in the letter of termination will determine whether the dismissal was unfair.”

[13] Mr McAllister has provided his proposed witness statement to Mr Masoe’s representative, and presumably, will give evidence at the hearing. Mr McAllister’s proposed evidence will be similar to Mr Masoe; they spoke one-on-one with no other persons present. This discussion and Mr Masoe’s state of mind will command “centre stage” on whether his conduct, if established, was sufficient, in part, to justify his dismissal.

[14] The PWC Report acknowledges that Mr Masoe was provided with the ESF to which he responded. The Report continues that this issue was the subject of an interview on 8 January 2015.

[15] At the interview on 8 January 2015, Ms Harrison was in attendance, and has provided a proposed witness statement. Presumably, she will give evidence at the hearing which will be subject to cross examination.

[16] At the hearing, I expect to receive competing evidence; it is a process which the Commission faces on a daily basis. An assessment of the evidence will be necessary and findings made. That evidence and findings will, for obvious reasons, not be founded on the PWC Report “into alleged intimidation of an employee by co-workers” at the DSB.

[17] Mr Masoe was the crane driver on the day an employee took offence to the drawing of a penis on a sea container. Mr Masoe was asked to complete an ESF because he happened to be present, and for no other reason.

[18] How Mr Masoe responded to completion of the ESF formed part of the reason why the Employer dismissed him and not pursuant to the investigation into the allegations of intimidation of an employee by co-workers.

[19] The PWC Report does not determine the findings of fact; that is a matter for the Commission. The “Summary of Findings” as it relates to Mr Masoe, goes no further than to say that Mr Masoe was interviewed and that he did not see anyone draw anything on the container. From the material provided to the Commission by the parties, those matters are not in dispute.

[20] Simply put, Mr Masoe was not dismissed for alleged intimidation of an employee by co-workers pursuant to the PWC investigation.

[21] I now turn to the second reason stated for Mr Masoe’s dismissal which concerns alleged threatening behaviour towards Mr Patterson.

[22] Mr Masoe’s proposed written evidence will be that he spoke to Mr Patterson privately – person to person. Mr Patterson agrees. In Mr Patterson’s proposed written evidence, he states that no other person was present when the alleged intimidation or threatening behaviour took place. Both parties will have the opportunity to provide oral evidence and have that tested in the hearing. On this occasion, it appears the focus will be on Mr Patterson’s state of mind as he was the party who felt intimidated and threatened.

[23] The Commission will be concerned with primarily the conduct of Mr Masoe and Mr Patterson at that one-on-one meeting.

[24] It needs to be borne in mind that the discussion between Mr Masoe and Mr Patterson took place prior to, and completely unrelated to, the incident of a penis being drawn on the sea container.

[25] The Applicant’s representative, in my view, fairly summarises the contest between the parties as:

“(a) whether or not the Applicant’s conduct with regards to the Event Statement Form justified his dismissal;

(b) whether or not the Applicant threatened Mr Patterson as alleged; and

(c) whether or not the dismissal was a harsh, unjust and unreasonable response to the conduct alleged.”

[26] The Applicant’s representative also asserts that the MMA decision to terminate Mr Masoe “was based at (sic) in significant part on information received during interviews” on 8 and 9 January 2015. I tend to agree with that assertion.

[27] For the Employer to have reached the decision to terminate Mr Masoe, it primarily relied on his response to the ESF, his response to the letter of concern and the interviews on 8 and 9 January 2015. The parties have the relevant documentation but up until the MUA’s request for production of documents, the Applicant did not have either the voice recording or transcript of his interviews on 8 and 9 January 2015.

[28] The Employer has now agreed, without the need for an order to produce documents, to provide the Applicant with a voice recording and transcript of the interviews on 8 and 9 January 2015 involving both himself and Mr Patterson.

[29] In my view, this material will assist the Commission in determining whether:

• the Applicant’s conduct with regard to the ESF justified, in part, his dismissal;



• the Applicant threatened or intimidated Mr Patterson; and



• the dismissal was harsh, unjust or unreasonable response to this alleged conduct.

[30] There is no dispute that the PWC investigation was part of the overall landscape of Mr Masoe’s dismissal, but it is not germane to whether the alleged conduct complained of by the Employer took place, and was sufficiently serious, to warrant his dismissal. The subject matter of the PWC investigation was into the drawing of the penis on the sea container. The investigation was not specifically into Mr Masoe’s response to the ESF. Mr Masoe’s specific conduct in relation to the ESF was peripheral to the PWC investigation.

[31] Put simply, Mr Masoe’s actions in relation to the ESF did not lead to any findings of the PWC investigation only to disciplinary action and these proceedings.

[32] The PWC Report is mentioned by Ms Harrison to give context to the interviews on 8 and 9 January 2015 between the Applicant and others. The interviews are the primary evidence. What essentially will be challenged is the honesty of the principal employee parties and not the veracity of the PWC Report. Whether the PWC Report’s summary of findings, scope, methodology or content is not the issue for determination in these proceedings.

[33] 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 1. Further,

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 2

[34] To be absolutely clear, I repeat that the summary of findings in the PWC Report, as it relates to Mr Masoe, is that he was interviewed and did not see anyone draw a penis on the sea container. There is no “finding” relating to Mr Patterson. Finally, contrary to the MUA inference, the PWC Report contains no recommendations.

[35] The PWC Report is not necessary for the proper consideration of Mr Masoe’s claim that he was unfairly dismissed. While I would not go as far as saying that it would hinder proceedings, it diverts the parties away from the real issues as set out in the documentary evidence so far.

[36] The Commission, like the courts and other tribunals, does not give free and unfettered right to any documents requested by a party. As stated by Greenwood J in Ramsay, they must have some relevance to the pleadings. Mr Masoe’s pleadings are that he denies the allegation made by the Employer. In particular, he explains his conduct with respect to the ESF in terms of what can be described as his “state of mind”. With respect to the allegation of threatening or intimidating behaviour towards Mr Patterson, his belief and pleadings is that, his conduct was not threatening or intimidating. The PWC Report has no relevance to those pleadings.

[37] The Employer has offered to provide the Applicant with a voice recording and transcript of the interviews with Mr Masoe and Mr Patterson, as part of the proceedings.

[38] I am satisfied that the witness evidence of Mr Masoe and Mr McAllister, together with the interview recording and transcription, will be sufficient, along with any other evidence, for the proper consideration of whether the Applicant was unfairly dismissed.

[39] Having been provided with the voice recording and transcript, it is a matter for the parties to determine whether they wish for this material to be incorporated into proceedings. I would see such material as relevant and any omission as unusual; however, that is a matter for the parties.

[40] For the above reasons, I consider an order unnecessary with respect to the voice recording and transcript of the interviews of Mr Masoe and Mr Patterson. On the submissions, I am unable to detect sufficient relevance of the PWC Report to the primary pleadings of the parties to order that it be produced as part of these proceedings.

[41] Finally, while to meet the objectives of the Unfair Dismissal provisions of the FW Act, I have examined the alleged privileged PWC Report, it should go without saying that its content has, and will be, excluded from my further consideration of this matter.

COMMISSIONER

 1   Brink v TWU PR922612 at paragraph [7]

 2   King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]

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