Mr Renato Adriao v BlueScope Steel Limited

[2014] FWC 1255

[2014] FWC 1255

FAIR WORK COMMISSION

DECISION

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

Mr Renato Adriao
v
BlueScope Steel Limited
(U2013/1797)

COMMISSIONER RIORDAN SYDNEY, 21 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] This is an unfair dismissal application by Mr Renato Adriao against a decision by Bluescope Steel Limited (Bluescope) to dismiss him on 27 May 2013.

[2] Mr Adriao was employed by Bluescope for 35 years. At the time of his dismissal, he was an Operator in the Roll Shop. He is a member of the Australian Workers Union, Port Kembla Branch (AWU).

[3] Mr Adriao was represented by Mr James Blaxland, a National Industrial Officer of the AWU. Bluescope was represented by Mr Aaron Dearden from Duncan Cotterill Lawyers.

[4] Mr Adriao attested to two witness statements in these proceedings (Exhibits AWU 1 & 2). Bluescope submitted witness statements from Ms Jacqueline Fitzgerald (Exhibit B4) and Mr Keith Stevenson (Exhibit B6).

Background

[5] Mr Adriao had a fairly unremarkable disciplinary record for an employee with 35 years experience until 2013. However, in the space of a few months he received three written warnings, a number of verbal warnings and was ultimately dismissed.

[6] In early 2012, Mr Adriao had a falling out with a fellow employee in the Roll Shop, Mr Popovski. Mr Adriao claimed that Mr Popovski was harassing him which was having an adverse affect on his health. Mr Popovski worked on a different shift to Mr Adriao but they would sometimes work together due to a requirement to work overtime due to production requirements or to cover annual leave.

[7] Bluescope initiated an external mediation between the two employees. Whilst Bluescope did not accept or implement the agreed outcome of the mediation, Mr Adriao and Mr Popovski did not work together for nine months.

[8] Mr Popovski was rostered to work with Mr Adriao on 31 Janaury 2013. Mr Adriao saw Mr Popovski in the car park before this shift. After making appropriate enquiries he was advised that Mr Popovski was working with him on that shift. Mr Adriao then left the workplace without advising his supervisor due to a panic attack. There is some conflict as to the time that Mr Adriao advised Bluescope of his non-attendance. On 4 February 2013 Mr Adriao received a first written warning for leaving the workplace without authorisation or notification. Mr Adriao did not believe this warning was valid and ignored the warning.

[9] On 8 February 2013, Mr Adriao was again rostered to work with Mr Popovski. Mr Adriao suffered another panic attack in the change room. Mr Adriao advised his acting supervisor that he could not work with Mr Popovski and went home. Mr Adriao received a second written warning from Bluescope for refusing to work a rostered shift. Once again Mr Adriao regarded the warning as invalid and ignored the warning.

[10] Mr Adriao then sought medical attention and was diagnosed with Reactive Depression. Mr Adriao lodged a claim for Workers Compensation, which was denied.

[11] Bluescope then sought permission from Mr Adriao to contact his treating doctor to discuss the medical restrictions that were placed on Mr Adriao’s return to work. Mr Adriao initially refused to sign the consent form. When requested on the second occasion to sign the consent form, Mr Adriao wrote that he had signed the form under duress. Consent was only given after Bluescope threatended to dismiss Mr Adriao.

[12] On 24 April 2013, Mr Adriao was issued with a final warning in the following terms;

“Dear Renato

FINAL WARNING LETTER

As you know the Company has been discussing with you your ongoing failure to provide consent to the Company to obtain information from your treating medical practitioners regarding your medical condition.

On 22 April 2013 you were advised that the Company was considering terminating your employment on the basis of your misconduct and inability to perform the inherent requirements of your role. You were invited to raise any matter as to why the Company should not terminate your employment. A meeting took place on Wednesday 24 April 2013 where you raised matters as to why the Company should not terminate your employment. During this meeting you agreed that you would now sign the consent form required, and that you were now willing to cooperate with the Company. The matters raised by you have been considered by Company representatives in arriving at its decision.

Your refusal to provide consent to the Company to obtain the information required from your medical practitioners between 26 March 2013 and 24 April 2013 is considered misconduct. Consequently, the Company has made the decision to issue you with a Final Warning and a four shift unpaid suspension.

Renato, the Company considers any future failure to participate in the process of providing to the Company the medical information required to be misconduct.

As this is a final warning letter, should any other misconduct occur, it will most likely result in the termination of your employment.

As explained to you in the meeting that took place at 3pm on 24 April 2013, should the Company fail to receive all the necessary information from your treating practitioners by close of business Monday 13 May 2013, we will make a decision based on the information available to us. The information provided to us to date has you unable to perform all of your pre injury/illness duties (which includes the requirement to work with all CPCM employees). This cannot be reasonably accommodated moving forward, given there is no finite timeframe. If the Company does not receive the information required by 13 May 2013, the Company will have no choice but to terminate your employment because of your inability to perform the inherent requirements of your role.

The Company requires you to provide this medical advice by Monday 13 May 2013. This advice must answer the questions put to your medical practitioners in the Company’s correspondence to them. Failure to do so will leave the Company no option but to progress the termination of your employment.

I would like to encourage you to utilise the Employee Assistance Program (EAP) should you think that appropriate. You can access the service by calling 02 4226 1099 to make an appointment.

If you have any questions in relation to this letter please contact myself on 02 4275 6844.

Yours sincerely

Keith Stevenson” 1

[13] During this time, Mr Adriao had also raised a complaint in relation to a substantial underpayment issue due to an alleged misinterpretation of the Enterprise Agreement by Bluescope.

[14] This matter was investigated by Ms Jacqueline Fitzgerald who is an Employee Relations Manager of Bluescope. At a meeting on 17 April 2013 between Mr Adriao, Ms Fitzgerald and Mr Stevenson (who is the Operations Manager responsible for the Roll Mill), Mr Adriao allegedly became agitated and abusive. It is alleged that he continually showed Ms Fitzgerald no respect, repeatedly talking over the top of her whilst she was explaining the outcome of her investigation. At one point he is alleged to have yelled at Ms Fitzgerald to stop talking.

[15] Mr Adriao was advised by Mr Stevenson and Ms Fitzgerald that his behaviour was unacceptable. He subsequently apologised at the “final warning” meeting held on 24 April 2013.

[16] At a further meeting to discuss the underpayment claim, Mr Adriao allegedly repeated his behaviour of showing no respect or courtesy to Ms Fitzgerald whilst yelling and belittling her. Mr Stevenson once again told Mr Adriao that this type of behaviour would not be tolerated.

[17] On 22 May 2013, Mr Stevenson and Ms Fitzgerald met with Mr Adriao to discuss the information received from Mr Adriao’s medical practitioners. During this meeting, Mr Adriao again allegedly acted very aggressively towards Ms Fitzgerald, continuously banging the table with clenched fists, repeatedly yelling at her and staring at her in an enraged manner.

[18] Apparently Ms Fitzgerald was visibly shaken and distressed by the behaviour of Mr Adriao, resulting in concerned enquiries from her Supervisor and Mr Stevenson as to her wellbeing after the meeting.

[19] Mr Adriao was asked to show cause why his services should not be terminated on 23 May 2013.

“Dear Renato

As you know, I met with you yesterday in order to discuss recent medical advice the Company had received from your treating practitioners. Present at this meeting were Jacqueline Fitzgerald, Senior Human Resources Advisor, and Rebecca Nasta, Human Resources Cadet.

During this meeting you yelled at both Ms Fitzgerald and me. When told by Ms Fitzgerald to stop yelling at her your response was to yell at her words to the effect of “don’t tell me to stop yelling. I’ll talk to you”. I then asked you to calm down. Despite these directions, you then continued to yell at me. You also banged your fist on the table a number of times. Because of your behaviour, the meeting was ended. Your behaviour in this meeting was aggressive and intimidating.

This behaviour is completely unacceptable to the Company, and we regard it as misconduct, in breach of the Workplace Bullying Policy, the EEO Policy, and Our Bond.

You have also been reminded by Ms Fitzgerald in email on 22 April 2013, and myself in person on 10 May 2013, that you are required to treat Ms Fitzgerald respectfully. Despite this direction, you have again behaved in a manner that was not only disrespectful, but was also inappropriate, aggressive and intimidating.

As a result of your misconduct, and considering your employment record which includes the Final Warning Letter for misconduct given to you on 24 April 2013, the Company is considering terminating your employment.

Accordingly, the Company invites you to raise any matters as to why the Company should not terminate your employment. The Company invites you to attend a meeting with company officers in order to do this on Monday 27 May 2013 at 9am at the Springhill Administrative building. You are welcome to bring a support person to this meeting. After this time your response and all of the evidence available to the Company will be given careful consideration and a final decision will be made regarding your ongoing employment with the Company.

If you have any questions in relation to this letter, please contact me on 02 4275 6844.

Yours sincerely

Keith Stevenson” 2

[20] Mr Adriao was terminated on 27 May 2013;

“Dear Renato

Termination of your employment

I refer to my letter dated 23 May 2013 and our meeting on 27 May 2013.

As you are aware my letter dated 23 May 2013 confirmed the Company’s position in relation to your aggressive, intimidating and inappropriate behaviour on 23 May 2013. In this letter you were advised that as a result of your misconduct, and considering your employment record which includes the Final Warning Letter for misconduct given to you on 24 April 2013, the Company was considering terminating your employment. You were invited to raise any matters as to why the Company should not terminate your employment.

Today Jacqueline Fitzgerald and I met with you. During the meeting you raised matters as to why the Company should not terminate your employment. I have taken time to consider the matter raised by you in coming to my decision regarding appropriate disciplinary action to take. It was particularly concerning to the Company that during this meeting you did not accept that your behaviour was inappropriate and that you showed no remorse for your behaviour. Your behaviour in this meeting has given the Company no confidence that your behaviour will improve in the future.

The Company has determined that your aggressive, intimidating and inappropriate behaviour are unacceptable and that your ongoing employment with the Company has become untenable. Your employment will be terminated effective as of today’s date.

Based on your length of service, your notice period is five weeks. In lieu of receiving that notice, you will be paid five weeks pay in lieu of notice. Details of your final payment will be sent to you.

Please arrange for all company property to be immediately returned to me.

Yours sincerely

Keith Stevenson” 3

Legal Framework

[21] In considering whether the dismissal of Mr Adriao was harsh, unjust or unreasonable, I am required to take into account the relevant provisions of the Fair Work Act, 2009 (the Act).

Part 3-2 Unfair Dismissal

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”

“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,”

[22] In determining this application I have taken into account all of the submissions of the parties.

s.387 (a) - valid reason

[23] Bluescope have alleged that the on-going inappropriate conduct of Mr Adriao is a valid reason for dismissal. Bluescope claim that Mr Adriao’s lack of compliance in relation to their policies, values etc give rise to the conclusion that Mr Adriao is not prepared to conform or act in accordance with any number of Bluescope core principles and policies.

[24] The conduct of Mr Adriao is of principal concern in this matter. The role of The Fair Work Commission (FWC) in these types of matters is to initially determine whether the conduct actually occurred. In Edwards v Giudice, Moore J made the following observation;

“The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s.170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”⁴

[25] When considering whether the termination was harsh, unjust and unreasonable, the joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines is of significance:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. ...

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable...”⁵

[26] The evidence of Mr Adriao in this case was both confusing and unconvincing. Mr Adriao advised both his immediate supervisors and his medical practitioners that the reasons for his panic attacks in January/February 2013 were due to his pending shifts working alongside Mr Popovski. Yet, Mr Adriao told his Operations Manager, Mr Stevenson, and gave evidence in these proceedings, that his problems were not with Mr Popovski but with the Roll Shop Supervisor, Mr Constantine. On the basis that Mr Adriao worked with Mr Constantine on a daily basis, without issue, renders such a proposition as ridiculous.

[27] I accept that English is Mr Adriao’s second language. By his own definition, he is a passionate man of “Latino” heritage. However, I do not accept the proposition that Mr Adriao was simply “talking with his hands” in his meetings with Mr Stevenson and Ms Fitzgerald and simply brushed the table.

[28] Respect can on occasions become a rare commodity between the parties during a tense industrial conflict. The accepted cut and thrust of the industrial process should never descend into the depths of bullying or assault. Verbal or physical intimidation is never justifiable from any quarter of the industrial landscape at any time. Employers, employer representatives, employees and employee representatives all have an obligation to ensure that the industrial relationship is enacted with mutual respect and courtesy.

[29] I support the decision of Connor C in Gorman v BHP Integrated Steel Division in relation to an employee’s conduct towards their Supervisor:

“It is trite to say that an employee who threatens or intimidates his supervisor would be guilty of misconduct, justifying dismissal.”  6

[30] I find that Mr Adriao did engage in the intimidating conduct alleged by Bluescope and that this misconduct constituted a valid reason for Mr Adriao’s dismissal.

(b) Notified of the Reason

[31] Mr Adriao was notified of the reason for his dismissal.

(c) Opportunity to Respond

[32] Mr Adriao was given an opportunity to respond to the allegations by way of “show cause” meeting on 23 May 2013.

(d) Attendance of Support Person

[33] Mr Adriao is a long standing member of the AWU. Mr Adriao did not seek the AWU’s involvement in the disciplinary process.

(e) Previous warnings

[34] Under the Act, this item relates to unsatisfactory performance and not misconduct. However, it is worth noting that Mr Adriao had received both verbal and written warnings in relation to his recent conduct.

(f) Size of the Employer

[35] Bluescope is a large employer

(g) Human Resources Management

[36] Bluescope has a large and dedicated Human Resources Department.

(h) Any other matters

[37] Mr Adriao is 60 years of age. His prospects of finding comparable alternative employment in the Illawarra are remote. I have taken this into account.

[38] Mr Adriao is suffering from Reactive Depression. Whilst society has appropriately become more understanding and sympathetic to those amongst us who suffer from depression and anxiety, in Mr Adriao’s case, it is difficult to ascertain its underlying effect on his behaviour due to the conflicting evidence of Mr Adriao as to the underlying cause of the problem. I have taken this into account.

[39] I accept that Mr Adriao was of the view that Bluescope owed him well in excess of $100,000 and that the offer of some $6,000 by Ms Fitzgerald was insulting. That does not excuse his behaviour. I also note that Mr Adriao did not ask his Union to represent him in relation to this underpayment. I have taken this into account.

[40] Mr Adriao sought a transfer, based on medical grounds, to another department within Bluescope. I am disappointed that Bluescope did not do more to accede to this request. To require an employee with a medically diagnosed condition, psychological or otherwise, to only transfer utilizing the normal transfer process is bordering on being inhumane.

[41] An employee with such a condition should not be required to drop back to a base rate of pay in such a circumstance. Such a transfer is not one based on the concept of career enhancement but more upon the lines of career extension. I urge Bluescope to consider the implementation of a new policy in relation to bona fide requests for medically based transfers.

[42] Bluescope have obligations to all employees in relation to the Work, Health and Safety Act 2011 (NSW) to provide a safe place to work. These obligations do not just apply to their blue collar workforce. Ms Fitzgerald was entitled to the protections statutorily provided to her by the Act in exactly the same way as Mr Adriao. I have taken this into account.

Conclusions

[43] Whilst I have concluded that Bluescope should have done more in alleviating the stresses that Mr Adriao was experiencing at the workplace, I find that the attitude, performance and conduct of Mr Adriao to be unsatisfactory and inappropriate.

[44] Foolishly, Mr Adriao treated his disciplinary process as some sort of game or sport. Such ignorance and apathy resulted in his termination because he failed to take notice of the properly instituted warnings and amend his behaviour. Disciplinary processes exist to ensure that employees are treated with procedural fairness - ie, to ensure that they get a fair go.

[45] The principle in Loty v Holloway 7requires the existence of a “fair go all round”. Mr Adriao received his fair go, ignored it and suffered the consequences. Bluescope are also entitled to a fair go. They provided Mr Adriao with numerous verbal and written warnings which did not result in the necessary improvement in conduct or behaviour.

[46] I find that Bluescope had a valid reason to terminate Mr Adriao and that the termination was not harsh, unjust or unreasonable.

[47] Had Mr Adriao been dismissed due to on-going panic attacks or stress associated with his contact with Mr Popovski then I would have been more sympathetic to Mr Adriao’s application. However, his dismissal was caused by his abusive, disrespectful and intimidating conduct towards Ms Fitzgerald.

[48] The application is dismissed.

[49] An Order [PR548066] confirming the dismissal of the application will be issued concurrently with this Decision.

COMMISSIONER

 1   Exhibit RA12

 2   Exhibit RA17

 3   RA18

4 [1999] FCA 1836 at para 6 - 7

5 (1995) 185 CLR 410 at 465 - 468

 6   NSWIRC 4242 of 1999

 7 [1971] AR (NSW) 95

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