Mr Paul Bidinost v Orica Australia Pty Ltd

[2013] FWC 3167

[2013] FWC 3167

FAIR WORK COMMISSION

DECISION

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

Mr Paul Bidinost
v
Orica Australia Pty Ltd
(U2012/14640)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 7 JUNE 2013

Termination of employment - arbitration - tampering with blast recording equipment - admissions - deception - employer leniency - contrition - treatment of other employees in comparative circumstances.

[1] On 30 October 2012 Mr Paul Bidinost (“the Applicant”) made application under s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy in relation to the decision by his employer, Orica Australia Pty Ltd (“the Respondent”), to dismiss him from its employment.

[2] The Applicant had been a shotfirer with the Respondent but was dismissed for reasons of misconduct in so far as it is alleged that he wilfully tampered with audio monitoring of air noise during site (quarry) blasts. Audio monitoring is required by the Environmental Protection Authority (“EPA”).

The Claims

[3] The Respondent contracts with its clients on the basis that it will regulate blasting to meet EPA standards in relation to noise levels from blasting. The conditions of a licence being granted to a quarry to operate include that its blasting activities meet EPA standards. This obligation passes from the quarry to the contracted blasting operator - the Respondent. Tampering with the audio monitors therefore, it is claimed by the Respondent, flouted the regulatory environmental conditions and jeopardised the contractual relationship with the client and the conditions of the quarry licence.

[4] The Respondent also contends that tampering with the monitors demonstrated that the Applicant had also failed to comply with:

• Orica Quarry Services Shotfirers Work Instruction (SWI), clause 16, “Blast Monitoring and Airblast”;



• Mining and Quarrying Safety and Health Regulation 2001, Chapter 2, Ways of achieving and acceptable level of risk, Part 7, Hazardous substances and dangerous goods”; and



• Orica Safety, Health and Environmental Policy.

[5] The Applicant commenced employment with the Respondent in May 2008 and was dismissed on 2 October 2012. His application was subject to a determination in respect of s.394(2)(b) of the Act. That determination was the subject of my decision in [2013] FWC 2089.

[6] The Applicant claims never to have been counselled or reprimanded over the course of his employment until such time as the current circumstances (as set out below) arose.

[7] The Respondent’s dismissal letter stated that following an investigation into abnormal blast records in mid August 2012 it was revealed that:

• Blast records confirmed that the Applicant was the shotfirer at the Dundowran site on 4 September 2012 when duct tape was found by a Supervisor to have been placed over three audio monitors prior to the blast proceeding;



• The Applicant admitted tampering with the monitors by placing duct tape over the microphones of each monitor on that day;



• Blast monitoring records show that the three monitors first commenced recording results below the normal range on 22 June 2012, and thereafter on each of the six occasions they were used in July and August 2012, until the duct tape was discovered by an employee of the Respondent on 16 August 2012;



• Blast monitoring records confirmed that the Applicant had been the shotfirer at the Dundowran site on 22 June 2012 and had been responsible for the blast monitors.

[8] The dismissal letter went on to contend that the Applicant denied tampering with the monitors on 22 June 2012 but it was the Respondent’s view, on the balance of probability, that he did so. Thus the Applicant’s conduct had compromised the quality of service provided by the Respondent for the subsequent 8 weeks and put the Respondent at risk of sanction by the EPA.

[9] Implicit in the Applicant’s conduct, the dismissal letter suggests, was the objective to conceal instances when blast noise limits were exceeded.

[10] The dismissal letter stated further that the Applicant had breached safety regulations and protocols “on two separate occasions” and the Applicant had “affected your customer’s and Orica’s abilities to operate safely and within environmental constraints”.

Background

[11] Blast noise levels result from the manner of packing and placing the blast charges and form part of the quality of service the Respondent offers its clients (as mentioned above).

[12] The Applicant was said to have been trained and licensed as a shotfirer since May 2010. He had also passed a safety audit in May 2011 and completed retraining (“Conduct Surface Shotfiring Operations”) in May 2012.

[13] The Respondent took the Applicant’s non compliance “very seriously” and decided to terminate the Applicant’s employment.

[14] Generally, the Respondent dismissed the Applicant for misconduct and failing to comply with its company-specific procedures and its regulatory obligations.

[15] The Applicant contends that he learned how to tamper with monitors by observing the actions of other Orica employees. Since commencing his employment the Applicant had seen employees place monitors in cases, buffer them, pick low readings from selected monitors, fill out non-trigger reports. The Applicant claims that he discovered the technique of taping the monitor when a monitor he was to use already had duct tape on it when he went to set it up.

[16] On 10 September 2012 the Applicant claims that he was interviewed by Mr Ray Whackett (Operations Superintendent).

[17] Mr Whackett asked him, so the Applicant says, whether he recognised a monitor he was shown which had duct tape over it. The Applicant said that he was asked if he knew anything about the monitor and he replied “yes”. When asked how many times, the Applicant says that he replied “a couple”. The Applicant was asked whether he used the taped monitor at the Dundrowran site, and the Applicant says he replied, “Yes, that was one”. When asked who else was involved the Applicant stated “I don’t know”. The Applicant states that he was not asked exactly on which site or sites he had used the taped monitors.

[18] The Applicant made clear under cross examination that he had taped all three sound monitors on 4 September 2012 and had conceded in the interview he had tampered with the monitors on a “a couple” of occasions.

[19] During the 10 September interview the Applicant was also shown a monitor over which a piece of moulded plastic had been placed over the microphone head. He said he knew nothing about that item.

[20] The Applicant was thereafter suspended from shotfiring until an investigation had been completed.

[21] The following day the Applicant sent an email to the Respondent expressing his remorse at his conduct and seeking an opportunity to rededicate himself to proper conduct in his position as a shotfirer.

[22] The Applicant claims a number of other employees were interviewed subsequently. These included Mr Robert Shaw, Mr Matthew Harrex and Mr Calum Wilson, who were all shotfirers. Of the three, Mr Wilson admitted to tampering, on the Applicant’s evidence. Mr Wilson (according to the Applicant) was stood down from shotfiring for six months and his remuneration was reduced for that period as a disciplinary measure.

[23] A junior shotfirer, Mr Jeremy Newton, was also interviewed and denied tampering, so the Applicant claims. Mr Newton, it was alleged, had spoken openly at a prior time about tampering (so at least the Applicant was told by Mr Calum Wilson, who claimed Mr Newton had informed him at a prior point in time of an intention to tamper with the monitors).

[24] The Applicant claims that on 2 October 2012 he was called into a meeting in which an HR Officer informed him he was being dismissed, and he was handed the dismissal letter referred to above. He was dismissed immediately.

[25] The Applicant states that he made an effort to respond to the decision but was given no opportunity to make comment as the decision “was not negotiable”.

[26] The Applicant claims that the allegations made against him in the letter of dismissal are incorrect. In this regard, he argues as follows:

• He did not admit to tampering with a monitor at Dundowran on 22 June 2012 when he fired a shot.



• He does admit to tampering with a shot at the same location on 4 September 2012.

[27] The Applicant also argues that the allegations concerning the 22 June 2012 incident had not previously been put to him and had not been mentioned specifically at the meeting of 10 September 2012.

[28] He claims that the monitors he used that day were likely to have been tampered with by another shotfirer, and in any event this was his last day before going on annual leave (so he could not have been responsible for subsequent low readings at 6 shots for the period of that 7 week leave period).

[29] In respect of the shot fired on 22 June 2012, the Applicant also states that as he had varied the firing procedure that day the low reading may have reasonably arisen from that circumstance, and not from tampering with the monitors.

[30] Readings are also affected by atmospheric circumstances such as wind, temperature, low cloud, rain and rock fissures.

[31] The Applicant also claims that he and other shotfirers were under pressure to keep noise readings below the required limits and to complete work quickly.

[32] The Respondent’s claims, unsurprisingly, are somewhat different.

[33] As mentioned above, the Respondent – through Mr Hammond, a Technical Services Engineer – discovered on 16 August 2012 that a microphone head had been taped over. This was discovered only because Mr Hammond had recorded a shot result on two monitors set up side by side and whilst analysing the results found one of the two monitors gave a significantly lower noise reading than the other.

[34] Upon the wind sock being removed, it was uncovered that the microphone head had been taped over.

[35] Mr Hammond traced back what he said were consistently unusually low monitor readings from that particular microphone to a blast at Dundowran on 22 June 2012, some seven weeks prior. Two other microphones used on that day also recorded low readings. One of these was located and it too had been taped.

[36] The Applicant fell under suspicion at that time for interfering with the sound monitors.

[37] On the evening of 2 September 2012 Mr Hammond claims that he checked all the monitors stored at the plant to ensure that none were taped. On the morning of 3 September 2012, the Applicant collected three monitors and took them to the Dundowran quarry site in preparation for a shot. Mr Hammond accompanied the shortfirers. He had dinner and breakfast with the Applicant. Presumably following breakfast on 4 September 2012, Mr Hammond asked whether the Applicant would like him to set up the monitors that day. The Applicant acceded to this approach.

[38] Mr Hammond thereafter collected the monitors from the Applicant’s vehicle. It was subsequently discovered that all three of the monitors had been taped.

[39] The Applicant was interviewed on 10 September 2012 about his conduct in relation to the three taped monitor microphones. The Applicant was also asked, according to Mr Hammond (and as corroborated by Mr Whackett, who was also in attendance at the interview), about the unusually low noise readings at the same site on 22 June 2012 and further unusually low readings on 27 February 2012. The Applicant admitted, according to Mr Hammond, that he had placed the tape over the three monitors at Dundowran on 4 September 2012. According to both Mr Whackett and Mr Hammond the Applicant denied responsibility for the taping of the sound recording equipment other than on 4 September 2012.

[40] Mr Calum Wilson, who is referred to above, was also interviewed and he admitted to tampering with the monitors (according to Mr Whackett, who was best placed to know amongst the witnesses) on 22 February 2012. This was in relation to a shot that had not hitherto been identified as having given rise to a questionable noise recording result.

[41] Mr Hammond contended that whilst there was on-the-job training, a significant amount of the training the Applicant was provided is through a Safe and Efficient Blasting course and an Initiation Systems course. The former course has a component on environmental impacts and monitoring of blasts. Neither of the courses suggest that placing tape over sound monitors is an acceptable practice. Mr Hammond claimed further that there is no encouragement for interfering with the monitors either.

[42] Mr Hammond agreed with the Applicant that certain environmental conditions can interfere with sound levels. But he disagrees (on the basis of the atmospheric data provided) that those environmental factors could account for the low readings in the three separate monitored locations that are used at Dundowran for the shot in question.

[43] On 22 June 2012 the blast report indicates, Mr Hammond contended, that there was 100% cloud cover that day, some very small amount of rain, and very little wind (which was evident from the video of the shot, he claimed). In such conditions, it would ordinarily be expected that higher air blast readings would be recorded. But as set out above, this was not the case and very low level sound recordings were achieved. This data was not challenged.

Legislative Provisions

[44] Section 387 of the Act provides 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.

(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)

[45] The Applicant admitted to tampering with sound recording devices on “a couple” of occasions.

[46] The Applicant admitted to one instance on 4 September 2012 in which he tampered with three sound monitors by placing tape over them to reduce noise readings at a shot at Dundowran, when that shot was raised with him.

[47] The Applicant was fully aware that interfering with the sound monitors in this way was contrary to his responsibilities and training.

[48] The Applicant was also aware that others employed by the Respondent were interfering with the sound monitoring equipment. He had known about these practices amongst his work colleagues for some four years (or for 18 months in his role as a qualified shotfirer). He took no steps to alert his employer to these practices.

[49] There is no evidence the Respondent tolerated or encouraged such practices amongst its employees with responsibilities for shot firing. Why else would the Respondent periodically audit its noise recording data, or bother to record noise levels at all if it was not concerned about such matters? Monitoring noise levels was part of Mr Hammond’s recognised role, and was known to be so by the Applicant.

[50] It would be unlikely that the Respondent would cultivate or tolerate dishonesty in such matters given the implications of it being found to have evaded its statutory and contractual obligations.

[51] The Applicant had acted knowingly and willingly to cause the sound recording equipment to provide understated noise readings contrary to his role and known responsibilities, and had failed in addition to inform his employer of practices he had observed amongst his co-workers that undermined its contractual and environmental obligations. Both these matters go critically to trust and fidelity.

[52] The surrounding circumstances of the Applicant’s conduct are also important. The Applicant knowingly on 3/4 September 2012 (when he had travelled to the Dundowran site the night before the 4 September shot) permitted Mr Hammond, his senior within the company structure, with whom he had dinner and breakfast, to go about his business in full knowledge that the noise results he (Mr Hammond) would record and subsequently analyse would be tainted (by the Applicant’s own hand).

[53] The Applicant took no steps to intervene to remove the tape on the three devices after Mr Hammond had asked if the Applicant would prefer him to set up the equipment and before Mr Hammond had control over the devices, which he could have done. Nor did the Applicant inform Mr Hammond of his actions in order to remediate the situation:

You arrived there at - you were staying at a hotel in Urangan overnight on the Monday night to set up the blast on the Monday for the shots on Tuesday, 4 September, weren't you?---That's true.

Mr Hammond was with you on the Monday, 3 September, and stayed in the motel with you and actually had dinner with you on the night of Monday, 3 September?

---Yes, he did.

He also had breakfast with you and others on the morning of 4 September?---Yes. Correct.

Mr Hammond offered to take the monitors from the back of your utility and take them to the site and set them up to record the noises?---That's correct.

You didn't prevent Mr Hammond from taking faulty monitors out to site, did you?

---No, I didn't.

You could have declined his offer to take those monitors out and quickly remove the tape and taken them out yourself without anyone knowing that you'd tampered with the monitors?---Yes, that's correct.

You knew that Mr Hammond was relying on the results of those monitors to do his duties?---By duties - I'm not sure what you mean by duties.

You've just told us you're aware that he's an engineer and he does noise analysis of results of monitors?---Yes.

So the results of those monitors that he'd offered to set up for you, you knew he was going to use the results in his work as an engineer for your employer?---Yes, but it's not very often that they actually come out to site or bring matters to our attention unless they've actually gone over the decibel readings for that site.

So you knew that his whole day's work would have been wasted taking out three taped monitors so that - taped such that the results would be artificially low?

---That hadn't crossed my mind at the time.

[54] This context serves to further characterise the nature of the Applicant’s misconduct.

[55] If the Applicant had not been caught out, the Applicant would have been content to deceive Mr Hammond in a personal sense. Deceiving Mr Hammond in the manner set out above was an irresponsible act on the Applicant’s part. The Respondent contended the Applicant’s conduct was “brazen”. I am not inclined to characterise his conduct in the same manner as the term implies a degree of awareness of the deception being wrought. The Applicant’s response under cross examination (that “that hadn’t crossed my mind” to intervene to remove the tape or advise Mr Hammond of his misconduct) simply reveals an absence of awareness of or insensitivity at the time to his obligations to his employer as an employee.

[56] A reasonable person in the Applicant’s position and who was aware of his duty as an employee, may have hesitated, confessed his misconduct before it escalated into a still more serious issue, or taken steps to remove the tape so Mr Hammond’s work was not compromised. The Applicant did none of these things.

[57] The Respondent, on these grounds alone, had a valid reason for the dismissal of the Applicant because the Applicant’s conduct caused the Respondent to question the trust and confidence it could place in him as an employee.

[58] I acknowledge that the Applicant was also accused of having mis-conducted himself on 22 June 2012, by tampering with another shot.

[59] I concede that I have not found this a contradiction in the evidentiary cases that is easily resolved.

[60] There is a strong tendency in the evidence, when viewed as a whole however, towards a finding that the Applicant did tamper with the sound monitors at this time. The following facts, as they came to be in the evidence, must be taken into account:

• the Applicant had admitted to tampering with three monitors for the shot on 4 September 2012;



• he had admitted to tampering with monitors on “a couple” of occasions;



• the two taped sound monitors found on 16 August 2012 were two of the three monitors used on 22 June 2012;



• noise levels were abnormally low for the shot on 22 June 2012 across the three monitors used;



• the Applicant was in charge of that shot;



• environmental factors on that day do not support a claim that noise levels may have been muted for any shots on that day;



• the same three monitors used recorded abnormally low noise levels from that day onwards;



• the Applicant argued he had set up the shot differently and this had resulted in a muted noise result; but



• despite this the devices as used by other shotfirers in the next six shots (even in configurations with other sound recording devices) all recorded abnormally low results as well (as mentioned above);



• the set up suggested by the Applicant does not result in noise reduction to level recorded; and



• the duct tape remained on two of the sound monitors used on 22 June 2012 for the period of the Applicant’s absence until it was discovered on 16 August 2012.

[61] Further, the Applicant complained of the pressure to conduct shots quickly and the culture of tampering which he had witnessed over time, and he admitted having been affected by this culture “a couple” of times over the course of the 18 month period he worked as a shotfirer. Apart from 4 September 2012 (when he was effectively caught in the act of tampering with the devices), the other occasion(s) may have included the 22 June 2012 shot (though of course the Applicant denies that this occasion was included in the “couple” of interventions - as he put it - referred to during the interview on 10 September 2012) for which he was responsible.

[62] Against this evidence is the fact that there was at least one other person other than the Applicant who was motivated to interfere with the microphones used on 22 June 2012. This is reasonably the case because the tape had been removed from one of the three microphones used on 22 June 2012 and which had all recorded abnormally low noise levels that day. That tape must have been removed (and no one suggested it could have accidentally fallen off given it was covered by a sock) by a person other than the Applicant because the Applicant was on holiday for an extended time after the 22 June 2012 shot and had no opportunity to interfere with those recording devices until they were found in August 2012.

[63] Thus, another employee may have taped the recording equipment on 22 June 2012.

[64] But even here the question that is left begging is that such a person was not in charge of the shot on 22 June 2012. Hence the motivation of another person to interfere with the sound recording devices on that day is not reasonably discernible.

[65] Only the Applicant, who was in charge of the shot, would have had the motivation to mute the sound levels by taping over the microphones (or to cause the tape to be placed over the microphones by a co-worker).

[66] When all these circumstances are considered, I find the evidence compels me, on the balance of probabilities, to conclude that the Applicant was responsible for taping the three microphones on 22 June 2012. This was therefore in addition to the other incident he raised in his cross examination - but not at the 10 September 2012 meeting - as constituting the only other occasion he had interfered with the recording equipment.

[67] In the end, even if the Applicant had not interfered with the sound devices for the 22 June 2012 shot, he had admitted further misconduct other than in relation to that shot.

[68] The fact is that the Applicant by his own admission had interfered with the sound equipment on a “couple” of occasions. That is his evidence as to what he put to the Respondent in his interview of 10 September 2012.

[69] Thus, even if I were mistaken in relation to the Applicant’s responsibility for the 22 June 2012 shot, I would find (and it would be unavoidable to find otherwise) that the Applicant’s further responsibility for at least another tampering incident would have provided a further basis on which to reach a finding that the Applicant had been dismissed for a valid reason.

[70] Again, following these considerations above, I find that the Applicant had a further valid reason for the Applicant’s dismissal.

[71] I do make one other observation about the Applicant’s evidence in passing, which goes to his credibility as a witness.

[72] The Applicant informed the Respondent at the interview of 10 September 2012, when asked how many times he had interfered with the sound equipment, that he had interfered with the sound recording equipment on “a couple” of occasions.

[73] The Applicant provided no further specificity than that at the interview. In his email the following day he did not provide any further detail, either, about the number of occasions on which he interfered with the sound recording equipment in order to contextualise the limits of his misconduct; he simply apologised to Mr Whackett for his actions.

[74] In the Applicant’s evidence under cross examination the Applicant, however, stated his misconduct extended only so far as he had interfered with the sound equipment on one occasion other than Dundowran on 4 September 2012, and that was at another named site not hitherto raised.

How did the conversation go then? You say you were asked have you ever - - - ?---When I walked into the room, Ray Whackett sat down behind his table. He lifted a monitor box and showed me a microphone that had tape on it. He then asked me if I knew anything about it and I told him yes and he asked me where and that's when I said to him, "The last time at Dundowran," which was 4 September.

So when did you say "a couple of times" then?---After he asked me, "How many times?"

And your reply was, "The last time." Your answer to that question was, "The last time was"?---No. He asked me - when he lifted the microphone box and he asked me do I know anything about it and I said to him yes and he asked me where and that's when I said, "Dundowran, the last time," and he asked me, "How many times?" and I said, "A couple," and I was never asked where the other time was.

[75] It strikes me as particularly unusual that a person who possesses concrete knowledge (evidenced in the cross examination during these proceedings about events around 12 months prior) that there were only two instances on which he interfered with the sound equipment would have given a response as generalised and casual as “a couple” when asked about how many times he had interfered with the equipment at the initial interview.

[76] Ordinarily one would have expected the Applicant - who now long after recalls the specific instances evidencing the scope of his misconduct - to have set out (in response to the question “how many times?” at the initial interview) to have answered “Twice only!”, and by so stating have limited the scale of his misconduct. But the Applicant did not do so, and answered generally and casually (“a couple” of times). And in the email sent to Mr Whackett the next day, no further effort was made to limit the scope of his misconduct either (though he well understood the ramifications of the interview for his employment at that time).

[77] These are matters that affect the credibility of the Applicant as a witness and attack the reliability of his evidence as given in these proceedings.

(b) whether the person was notified of that reason

[78] As I have said above, the Applicant was interviewed on 10 September 2012 about the Respondent’s concerns, and admitted to tampering with the monitors at the Dundowran site earlier that week. But the Applicant knew nothing, so he claims, of the allegation that he had tampered with monitors on 22 June 2012 and thereafter (during his period of leave) until the day of his dismissal, on 2 October 2012.

[79] I do not accept that the Applicant was not informed of the Respondent’s concerns about the 22 June 2012 shot. Both Mr Hammond and Mr Whackett gave evidence that the issue of the 22 June 2012 shot had been raised with the Applicant, and that he denied tampering with the sound recording monitors at that time. And why would it not have been? The investigation by Mr Hammond after the discovery on 16 August of the taped microphone had led him back to the 22 June 2012 shot, where the same microphones that he had found taped, had produced abnormally low noise recordings.

[80] It seems to me on the balance of probability that Mr Hammond would not have merely forgotten to raise the scope of his findings to the Applicant; they were central to his concerns. Further, Mr Hammond and Mr Whackett were both unmoved under cross-examination in relation to their claim that they raised the 22 June 2012 shot with the Applicant. Mr Hammond in particular, who was responsible for the investigation, recalled expressly that the circumstances of the 22 June 2012 shot had been raised with the Applicant and the Applicant had denied culpability.

[81] I prefer the evidence of the Respondent’s witnesses in these respects and believe it to be reliable.

[82] I have found above that one of the further reasons making for the valid reason for the Applicant’s dismissal was that he had not informed his employer of his co-workers’ practices, as observed by him, of tampering with sound monitoring equipment. This was not a matter that was put to the Applicant expressly at the meeting of 10 September 2012, nor, as will be seen below, was it a matter about which he was provided an opportunity to respond before his dismissal. Similarly, I have made findings in relation to the Applicant’s conduct in deceiving Mr Hammond, and these were not matters, of course, about which he was notified or provided an opportunity to which to respond.

[83] I have made these latter findings in the context of determining whether there were valid reasons for the dismissal as an objective consideration of the factual matrix (not solely on what the Respondent claims to have been the valid reason(s)).

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

[84] It follows from my reasoning above that the Applicant was given an opportunity to respond to the claim that he tampered with sound monitors on 22 June 2012.

[85] I do note that the Applicant made it clear under cross examination that had the 22 June 2012 incident been raised with him (a fact that he had denied) he would not have accepted responsibility for the abnormal sound recordings in any event.

[86] The Applicant was also given an opportunity to respond to the circumstances of 4 September 2012. His response in that context was that he was responsible for tampering with three sound monitoring devices at the Dundowran quarry site.

[87] These opportunities may not have been contextualised expressly within an inquiry that had ramifications for his employment, but it is clear that the Applicant understood the import of the inquiries that were being made of him. He was stood down thereafter whilst the Respondent completed its investigations. The Applicant also provided an email to the Respondent the next day apologising for his conduct. He would not have done so had he not believed the inquiries made of him had implications for his employment.

[88] That said, I do not think the Respondent’s processes were particularly generous towards the Applicant. He was not invited to have a representative present when he was interviewed, and the interview was not communicated at first instance as an investigation into a disciplinary issue. The discussion between the Applicant and the Respondent did not proceed on the basis expressly that he was being given an opportunity to respond to an investigatory process, the outcome of which may have ramifications for his employment. In any event, in the end, the investigatory process was completed and the findings were not conveyed to the Applicant, nor was his response sought.

[89] Further, when the Respondent had completed its investigation, it did not seek the Applicant’s further views in relation to its findings and conclusions. The Applicant effectively was dismissed summarily upon the findings being conveyed to him. The Applicant had an argument about his role in the 22 June 2012 shot, but he had no opportunity to put it.

[90] Further, as I said above, the Applicant was not given an opportunity to respond to his failure to inform his employer about the deficient practices of his co-workers in the context of the statutory environmental and contractual circumstances of his employment. Nor was he given an opportunity to respond to concerns about his deception of Mr Hammond. I have mentioned these matters above as being circumstances that provided a valid reason for 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

[91] Given the circumstances of his dismissal, this consideration is not material to the matter at hand.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[92] The Applicant’s dismissal did not focus upon the performance of his duties (although the quality of the delivery of his services was affected by his alleged misconduct because that misconduct was related to the manner in which he performed his duties). The object of these proceedings however is the misconduct as such, and not whether he reliably possessed the capability to perform his duties.

(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

[93] Given the size of the Respondent’s enterprise s.387(f) of the Act is not material to my considerations.

(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

[94] The Respondent at all times had access to effective expertise. Whether it utilised the available resources is a matter for the Respondent and does not bear on my considerations under s.387(g) of the Act.

(h) any other matters that the FWC considers relevant

[95] The Applicant had been an employee of the Respondent for 4 years (“nearly half a decade”, the Applicant’s representative submitted) and had in that time not accumulated any negative or adverse commentary on his employment record.

[96] The Applicant had admitted to misconduct in relation to tampering with the sound recording monitors, on “a couple” of occasions. One of these was 4 September 2012.

[97] It is argued that Mr Calum Wilson was not dismissed when the Applicant was, despite Mr Wilson having been in what were said to be “materially the same circumstances”. Mr Wilson, the Applicant argued, was only given a warning and a temporary suspension (so the Applicant claimed).

[98] The Respondent contends that Mr Wilson was “contrite” for his conduct, and had only been involved in one incident (previously undiscovered) some six months prior. Whereas the Applicant, by comparison, was not treated as leniently despite having written to the Respondent the day after his interview and extended an apology for his conduct.

[99] Nor were others dismissed, such as Mr Adam Logan, Mr Dan Adams, Mr Andrew Bell, or Mr Shane Hookham, all of whom were said to have been involved in “serious infractions” by the Applicant.

[100] It is important not to act precipitously to censure an employer’s conduct where leniency is extended to an employee. This proposition is discussed at some length in the decision of the Full Bench of the NSW Industrial Relations Commission in NSW Electricity Commission v Nieass (Re: Nieass). There is discussion by the Full Bench on evidence of contrition, which is relevant, at pages 69-71 of that Full Bench’s decision in Re: Nieass.

[101] There is also a particularly helpful discussion of some of the Full Bench’s reasoning in the decision by Lawler VP in PR931440. 1

[102] Issues will sometimes arise where an employer might display leniency towards one employee and not another, or else where differential levels of punishment are applied (as in this case). But whether an employer can be found to have acted unreasonably in so doing will turn on the precise nature of the comparative treatment as well as any of the surrounding circumstances.

[103] The Full Bench in Re: Nieass put it this way:

The Commissioner dealt extensively with what he saw as being inconsistent punishment. We have serious doubts whether alleged inconsistency of punishment should form part of the consideration of the reasons for the intervention under s. 246 of the manner in which the Commissioner saw as appropriate. The response to misconduct is a matter of discretion. The time, place and circumstances of one breach, the circumstances of the offender and the implications that adequate administration of an enterprise, will seldom coincide.

[....]

We have considered the material which the Commissioner relied upon to demonstrate inconsistent punishment. We have been unable to accept the validity of the comparison. To commence with, where an employee whose lack of social or industrial skills causes him to become a poor or very poor timekeeper, a compassionate employer might be prepared to take a lenient view. If the employer does so, in no sense is it down to take the same view of every further case, whether similar or dissimilar. It is desirable that employer's where they can should exercise leniency. Employers should not be discouraged from such a course by labouring under the disability that once a benign view is taken in one case that no other view is available. 2

[104] In these contexts, are the comparisons valid in the current circumstances such they may give rise to a finding of unreasonableness or harshness on the part of the Respondent?

[105] There is no evidence of any substantive kind in relation to Mr Logan, Mr Adams, Mr Ball or Mr Hookham. They cannot be taken to be persons in the same circumstances as the Applicant. That is, there is no case that the circumstances of these individuals have any relevance to the current case as their circumstances were not sufficiently disclosed to enable any meaningful comparisons to be made. Some dealt with safety issues, others with fitness for work. They were not cases which had any evidentiary similarity with the current matter, and nothing was led about any of the circumstances that led to the Respondent’s particular judgment in each situation (let alone any contextualising circumstances (if any)).

[106] Things are somewhat different in respect of the Respondent’s judgment in relation to Mr Wilson. This is because there is some similarity between Mr Wilson’s circumstances and those of the Applicant. Issues of tampering with the sound equipment used to record shots were raised with both employees.

[107] One difference between their circumstances, however is that Mr Wilson’s breach was six months in the past, whereas the Applicant’s breach was contemporaneous with the discovery of the alleged practice.

[108] The fact that a sole infraction was six months in the past and another was contemporaneous does not appear to me necessarily to be a strong consideration for differential treatment. The passage of time does not always mean that the misconduct is any more tolerable.

[109] However, in relation to Mr Wilson:

• time had passed;



• his the misconduct was on a limited scale;



• he had volunteered the information sought (when it was reasonably capable of being concealed as it had not been uncovered); and



• he was contrite and remorseful at the time for the past action.

[110] In such circumstances an employer might reasonably decide that despite the misconduct, no issue of trust and confidence arises.

[111] By contrast, the Respondent did not subjectively react to the Applicant’s admissions with the same generosity of interpretation. The Applicant admitted his misconduct but only in the context of being caught, as the Respondent put it, “red-handed”. The Respondent adjudged the qualitative element of the Applicant’s admission to be of a different kind as that of Mr Wilson (given their different contexts). But why, when the Applicant had sent an email the next day after the interview expressing contrition and remorse for his misconduct?

[112] There are some important differences between Mr Wilson’s circumstances and those of the Applicant.

[113] Mr Wilson admitted freely to one incident when no allegation had been made of him, and he was contrite at the time. The Applicant, however, had been caught in the act, so to speak; had made an expression of contrition the following day by email (though not at the time of the interview or the same day); but had also admitted to “a couple” of instances of tampering (not just one isolated incident).

[114] But even more so, the Applicant had been caught in a situation in which he acted to deceive Mr Hammond personally (as I have discussed above).

[115] Thus, Mr Wilson’s circumstances were different in a number of respects to those of the Applicant. The Respondent therefore could reasonably hold a view that the trust it could place in the Applicant’s future conduct was materially less than that which it could place in Mr Wilson’s

[116] In such comparative circumstances, I do not find that the Respondent acted harshly in dismissing the Applicant.

Conclusion

[117] There are some elements of harshness about the manner in which the Respondent effected the Applicant’s dismissal. I have set these out above. Generally, these issues arise in relation to the full scope the Applicant was given to defend himself against the claims ultimately made and the summary nature of the dismissal. But these matters do not and cannot displace the substance of the Applicant’s misconduct, at multiple levels, which has been made out, and which warranted his dismissal

[118] The Applicant therefore was not harshly, unjustly or unreasonably dismissed.

[119] As a consequence, the Applicant’s application for an unfair dismissal remedy is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr G. Pinchen, for the Applicant

Mr P. Copeland, for the Respondent

Hearing details:

Brisbane

2013

3 June

 1   Sexton, John v Pacific National (ACT) Pty Ltd at [32]-[42].

 2   NSW Electricity Commission v Nieass 81 IR 46 at 66.

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