Mr Robert Van Den Enden v Bechtel Construction (Australia) Pty Ltd

[2013] FWC 4377

[2013] FWC 4377 Note: An appeal pursuant to s.604 (C2013/5932) was lodged against this decision - refer to Full Bench decision dated 21 October 2013 for result of appeal.

FAIR WORK COMMISSION

DECISION

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

Mr Robert Van Den Enden
v
Bechtel Construction (Australia) Pty Ltd
(U2013/688)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 26 JULY 2013

Summary: permission to appear - s.596 - unfair dismissal arbitration - misconduct - allegation of abusive conduct towards a supervisor - blood alcohol testing - unauthorised absence from work area - absence on Melbourne Cup Day etc - challenging medical certificates.

[1] On 7 March 2013, Mr Robert Van Den Enden (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy. The Applicant claims to have been dismissed at the initiative of Bechtel Construction (Australia) Pty Ltd (“the Employer”), which supplies craft labour to the EPC contractor (Bechtel Australia Pty Ltd) and for the construction of the GLNG plant (amongst others) at Curtis Island, Gladstone.

[2] The Applicant had been employed as a rigger up until the time of his dismissal on 21 February 2013.

[3] There is no jurisdictional bar to the application being heard: the Employer is a national system employer; the Applicant has served more than six months employment; the Applicant is covered by an industrial instrument of the requisite kind; the Applicant lodged his application in compliance with s.394(2)(a) of the Act; and he is otherwise afforded protection from unfair dismissal in accordance with s.382 of the Act.

[4] In the week prior to the proceedings commencing, the CFMEU, as the Applicant’s representative, indicated in writing that it objected to the Respondent being represented by a legally qualified representative or paid agent for the purposes of s.596 of the Act. Quite extensive written submissions were made by both sides in this regard.

[5] I subsequently determined the matter of permission to appear prior to the hearing and off the documents to avoid additional costs and delays beyond those already incurred. The reasons I gave, based upon the materials before me (and which I communicated to the parties prior to the hearing) were as follows:

I have taken into account the submissions of each of the parties in relation to the requirements for permission to appear in this matter under s.596 of the Fair Work Act 2009 (“the Act”). I have decided to grant permission to appear for the Respondent’s representative on the basis that:

• the matter requires cross examination and an experienced person who is a paid agent or solicitor would assist in the efficient conduct of the matter: and



• it would be fair, assist in the efficient conduct of the matter, and allow the Respondent to represent itself effectively to extend permission to appear to the Respondent’s representative. This is because (amongst other reasons), the Respondent itself does not have an employee at its disposal or who is available and who has experience in conducting tribunal hearings at this level (including - as may be required - the overall conduct of the matter, the marshalling of the evidence, making reference to authorities and commentating on the same, carrying out of closing submissions and/or the conduct of cross examination).

This decision will be read into transcript at the commencement of the proceedings on Wednesday, 17 July 2013.

Background

[6] The Applicant was dismissed by the Employer on 21 February 2013. He subsequently was given a dismissal letter (“the dismissal letter”), which was dated 4 March 2013, confirming the dismissal of 21 February 2013. The dismissal letter communicated as follows (in summary) to the Applicant:

● His employment had been terminated (principally) for two reasons: one being for unauthorised absence from work (“the 19 February incident”); and the second being for serious misconduct (“the 21 February 2013”);

● Following the 19 February incident, the Employer attempted (on 20 February 2013) to have the Applicant complete an incident report;

● The Applicant refused to acknowledge malingering and his unauthorised absence were unacceptable behaviour;

● In the course of the investigation the Applicant refused to complete an incident statement;

● The Applicant misconducted himself in the course of the investigation and was stood down on full pay (and asked to stay in the camp accommodation) pending the investigation being completed;

● On the morning of 21 February 2013, the Applicant was advised that he ignored an instruction to remain on stand down and instead attended at pre-start meeting;

● At the pre-start meeting the Applicant is said to have disrupted the meeting by conducting himself abusively towards his Supervisor (Mr Brendan Manley) and questioning his abilities in front of the crew;

● Discussions were held (with the Applicant) and an investigation into the two incidents was carried out;

● The conclusion of this investigation “together with prior warnings” was said to warrant the dismissal of the Applicant.

[7] As the dismissal letter suggests, “prior warnings” were taken into account along with the two incidents referred to earlier.

Discussion of the evidence

The BAC Incident

Final Written warning 11 February 2013: breach of fitness for duty procedure

[8] One “prior warning” referred to in the letter of dismissal appears to relate to an incident that arose on 9 February 2013.

[9] Mr Manley gave evidence that the Applicant had not attended the pre-start meeting on 9 February 2013 and had arrived at site, in fact, one hour late.

[10] In such circumstances, Mr Manley directed that the Applicant undertake blood alcohol content (“BAC”) testing. Mr Manley said it was customary for employees who arrived late to work to undergo BAC testing as presenting late for a shift was sometimes used as a means of avoiding the testing team.

[11] The Applicant returned a positive result (0.057%) on his initial test (and 0.054% on his second test - which the Respondent contends he initially refused to take).

[12] When the Applicant was informed he was to be tested, he replied (according to Mr Manley) by saying “You can’t do that”.

[13] The Applicant was asked why he had not self tested that morning before entering the site and he was said to have replied, “I thought about it”.

[14] When the Applicant was informed he would be required to undergo a BAC test that morning, he replied, “Well, I’m sick then, I’m sick so I’ve got to go back to my room.”

[15] The Applicant then said that “no-one will know” if he went back to his room, but Mr Manley indicated he had already signed in for work and the paramedic was waiting.

[16] Though the Applicant was in an agitated state and insisted on claiming he was “sick”, Mr Manley says that he eventually undertook the BAC testing, which yielded the above results. The Applicant denied he had sought to represent himself in this manner to his supervisor.

[17] The Applicant was later questioned by Mr Adam Edwards, a Workforce Services Representative, as to the amount of alcohol he had consumed the night before. Mr Edwards recounted that the Applicant had stated “dismissively” that “I blew over mate, what more do you want to know?”

[18] Mr Edwards then advise the Applicant that he had been stood down from work for the remainder of the day effective immediately and that he would require that the Applicant record a negative BAC test result before resuming work. Mr Edwards claims that he also indicated that there would be a disciplinary meeting held in the near future and that the Applicant would be provided with a first and final warning in accordance with the fitness for duty policy.

The 11 February 2013 disciplinary meeting

[19] The Applicant claims that on 11 February 2013, he attended a meeting (along with a support person by the name of Mr Paul Hulbert) with the Respondent (represented by Mr Manley, Mr Edwards and Mr Jason Trickey, the Superintendent of Area 9).

[20] The Applicant states the purpose of this meeting was to enable him to offer his apologies for returning a blood alcohol reading in excess of the zero tolerance reading required by the Respondent’s relevant policies. Neither Mr Manley nor Mr Edwards, for their part, has recollection of the Applicant apologising for returning a positive BAC test at any time.

[21] The Applicant states that he acknowledged that he should have self tested that morning before coming onsite, but stated that there were no straws at the breathalyser station for him to do so. Mr Manley and Mr Edwards, for their part, only recall the Applicant saying that he did not self test because “sometimes there are no straws available” at the testing station (not that there were none available that day). Mr Edwards recalled that the Applicant had said further that he had not bothered to check to see whether straws were available that particular morning.

[22] Mr Edwards explained that the purpose of the meeting (of 11 February 2013) had been to solicit the views of the Applicant in relation to his conduct in breaching the fitness for work policy and not self testing.

[23] The Applicant, who was said by Mr Edwards to be in an agitated state at the time, appears to have contended that had been concerned that he was being singled out for treatment by Mr Manley. He was counselled that reasonable suspicion was a basis for directing an employee to BAC testing, and as the Applicant had been late for work, such a basis for a referral existed at the time.

[24] The Applicant was also required to attend the “Breakfast Club” for two weeks. That is, for at least two weeks he would be required to present for a BAC test each morning before he presented for work on site. This was to ensure all risks were managed and that the Applicant was given ongoing support.

[25] The Applicant was informed verbally, he says, that he would be given a first and final warning, which accords with the Respondent’s procedure in the fitness for duty policy, but that no written warning as such ever materialised.

[26] Mr Edwards contended that the Applicant was informed at the 11 February 2013 meeting that a written warning would be served on him subsequently (either by Mr Trickey or Mr Manley).

[27] Mr Manley for his part recalled that the Applicant was advised he was being given a first and final warning in respect of the BAC incident on two occasions - on 9 February 2013 when he first recorded a positive result; and the second occasion being the meeting of 11 February 2013.

[28] That warning was subsequently put in writing on 12 February 2013 and Mr Manley was asked to hand deliver it to the Applicant. Mr Manley did so but the Applicant was said to have replied, “Na, I don’t want that thing, I don’t want it, you keep it.” Mr Manley stated that the Applicant was dismissive of his efforts to provide him with a copy of the written warning and “walked away without accepting the written warning”. The Applicant denied that any such effort had been made to provide him with a written warning (and therefore that he had made any such comments to Mr Manley).

Summary conclusion in relation to BAC incident

[29] I have no reason to disbelieve the evidence of the Respondent that following its meeting with the Applicant in respect of the positive BAC test it indicated to the Applicant that a first and final warning would be issued to him. The first and final warning, however, is only a step along the disciplinary pathway in relation to the fitness for work procedure, with further discretionary-based sanctions applicable in the event of a subsequent breach.

[30] I do not disbelieve the evidence of Mr Manley that he attempted to serve that first and final warning upon the Applicant but the Applicant resisted receipt thereof, in the terms as set out by Mr Manley. Mr Manley’s evidence in this regard was presented forthrightly and gave no suggestion that he was disposed not to follow through with Mr Edwards’ direction and hand the letter of warning as generated (by Mr Edwards) to the Applicant. Mr Manley’s recollection of the incident was also quite dense and showed no hallmarks of fabrication.

[31] Yet having found as much, the very fact that the Applicant informed Mr Manley that he did not wish to take receipt of the written warning at the time is in itself only to be characterised as a low-level insubordinate act. The Applicant’s language at the time was indicative of a dismissive attitude towards an important site-wide safety matter, but it was not in any way abusive or aggressive. Moreover, whilst there might be good reasons for an employee to receive and acknowledge a letter of warning, there is no policy or procedural obligation I am aware of that an employee must do so.

[32] The Applicant also appears to have sought to utilise sick leave rather than be exposed to the BAC test. Mr Manley’s evidence in this regard was clearly stepped and detailed, and I accept it as being persuasive, noting as well that its substance went unchallenged in the course of his cross examination. It was not appropriate for the Applicant to construe the circumstances in the manner he did and to seek to avail himself of an entitlement for an inappropriate reason. He was on-site, had been prepared to perform his duties in a crane crew, and was therefore subject to the fitness for work procedure.

[33] But in the end, the Applicant's request to access sick leave was refused and he was subject to the required fitness for work procedure. There mere fact that the Applicant sought to induce a favourable outcome for himself from his supervisor brings his judgment into question and gives rise to issues of confidence, but it is not in itself an act of serious misconduct.

[34] I do add to my findings, however, that having heard the evidence I consider that the Applicant has attempted in these proceedings to alter the explanation for his failure not to self test prior to attending for work. The evidence of Mr Edwards is persuasive as to the Applicant’s actual statement to the meeting in explanation for his conduct. That is, the Applicant merely stated at the time that he did not self test on the morning of 9 February 2013 for reasons that sometimes there were no straws at the testing station. The Applicant sought to claim in these proceedings that he explained that he did not self test for reason there were as a fact no straws at the testing station (and presumably any others) at the time.

[35] I have found the Applicant’s evidence in this regard difficult to accept. This is because he admitted under cross examination that he did not give much thought to the issue of his blood alcohol level on the morning of 9 February 2013, but nonetheless insists that he attempted to self test but could not do so because no straws were available at the testing stations:

You accept, Mr Van Den Enden, you are aware it's a zero tolerance your blood alcohol, do you accept that? --- Yes

On the morning of 9 February you were aware of that? --- I don't believe I thought about it too hard, but.

[36] I find it difficult to believe that an employee who gives little thought to his blood alcohol level (in an expressly zero tolerance environment) or the zero tolerance environment itself, would have endeavoured to self test nonetheless. The evidence of Mr Edwards, as corroborated by Mr Manley, is by far more persuasive than that of the Applicant.

[37] Ultimately, the Applicant was given a BAC test and found to have exceeded the 0.00% tolerance requirement as set out above. He should have self tested as he must have had a reasonable apprehension of being in excess of the zero tolerance blood alcohol level. But he did not do so.

[38] But such conduct does not fall within the fitness for work procedure, which is based upon responses to known and proven infractions. The conduct demonstrates that the Applicant was careless in respect of an important workplace safety issue. But the Respondent's policies do not expressly target such conduct. The Respondent’s policies capture conduct whilst on-site.

[39] I note one other matter arising from the evidence. The Applicant claimed, in challenging Mr Edwards’ evidence that he (the Applicant) had sought to access sick leave instead of undertaking a BAC test, that:

If I didn’t want to take the test I wouldn’t have taken it, that’s [it] quite simply.

[40] The Applicant’s disposition in respect of the fitness for work procedure brings into question his willingness to comply with the procedure in the future. I will return to matters such as this generally in my discussions in relation to remedy below.

19 February incident: unauthorised departure from work area

[41] The Applicant contended in his oral evidence that he had returned to the crib hut to obtain further instructions from Mr Manley, and had been informed that Mr Trickey had an expectation that the crew would have relocated the crane. In his oral evidence, the Applicant stated that when told this by Mr Manley he had said words to the effect of, “Why tell us now?” He then claimed Mr Manley gave no direction to complete that task other than to indicate that the Applicant best “hide” under a train for the remainder of the shift. The Applicant conceded he made no reference to not having packed the crane up because it was too wet.

[42] Mr Manley, the Applicant's supervisor, for his part contended that he queried his (the Applicant’s) presence at the crib huts prior to the end of the shift. The Applicant states that he replied (when asked what he was doing at the crib hut) that he was “putting batteries [for his digital radio] on the charger” (which was a sign that duties had ceased for the day).

[43] The Applicant presented at the crib hut a little more than one hour before finishing time. Mr Manley simply contended that when he inquired of the Applicant as to why he had left work early, the Applicant stated that “we are finished for the day.”

[44] Mr Manley stated that he indicated it was still a few minutes before 3.00pm and that “you guys know you can’t leave work early”.

[45] The Applicant was said to have replied, “oh well we fucked up then”.

[46] Mr Manley indicated in his evidence that it was not the custom for employees to leave their work area and return by a shuttle bus to the crib huts to access further instructions from a supervisor in respect of a certain crane operation (at the site the crew had left).

[47] When he met the crew approaching the crib huts, Mr Manley requested that the Applicant and the rest of the crew “get back out there”. Mr Manley’s oral evidence however was that whilst he indicated to the crew that it was intended that they pack up the crane and relocate it, he did not direct them to return to site for that purpose. Instead, it appears Mr Manley directed the crew to carry out cleanup duties in the adjacent train area. He did so for reason that there was not sufficient time left to summons the transportation to return the crew to the site to resume duties. But even when so directed to conduct clean up duties, Mr Manley gave evidence that the Applicant did not make any substantive efforts to this end and sat around talking instead. It does not appear that Mr Manley took any further actions himself once he made these observations about the response to his direction.

[48] Mr Manley acknowledges that he became aware the following day that it had been asserted that the mud around the crane was such that it could not be moved, but was of the strong view that the conditions were not such as to cause the crane to be unable to be moved, or for preparations for a move to be made. Mr Manley said the “mud and water present was only minor”. Mr Manley’s observations on 19 February 2013 were that the crane was situated on concrete blocks and the mud levels were of about “1 inch deep”. Mr Manley claimed the rainfall recordings for the immediately prior period were “minimal”. Mr Manley had also taken steps that morning to ensure the dewatering activities on an adjacent concrete slab (which was being dewatered in all directions across the slab) were not affecting the crane operations. In any event, I note that neither of the signed statements by the other members of the crane crew - as tendered in evidence - sought to excuse their behaviour on the basis of the environmental conditions at the work site. Additionally, the Applicant conceded under cross examination that he made no relevant references to the wet conditions at the crane site in his interaction with Mr Manley upon his return to the crib hut on 19 February 2013.

[49] There was some discussion in the evidence that the Applicant had been motivated to return to the crib hut for the purpose of obtaining further work directions. This is difficult to believe. Mr Manley said it was not customary to do so. I also note that the Applicant had access to a means of communication with supervisors through the UHF radio network. This radio network appears not to have been utilised in the situation the crew faced that afternoon. The Applicant, for his part appears to have had a ready means to have contacted Mr Manley earlier that morning on 19 February 2013 to complain about dewatering activities adjacent to the crane (as referred to immediately above). This facility, and the motivation to contact his supervisor, appears to have deserted him later that day. I also note that another crane crew was operating in the adjacent area and the Applicant and the other members of the crew could have assisted that crane operation, had they been motivated.

Summary conclusion in respect of the 19 February incident

[50] It was within the Applicant’s prerogative to not simply join the others and walk off from the immediate work area more than an hour from the ordinary cessation of work. I strongly doubt the crew left the immediate work area and caught a shuttle bus to the crib huts, put their radios in the rechargers, all with the actual intention of seeking further instructions about their further duties. If the Applicant and the other members of the crew were motivated to seek further instructions they could readily have done so through the UHF radio network or by utilising the same means the Applicant had used earlier in the morning to contact Mr Manley to complain about activities on an adjacent concrete slab.

[51] I note in passing that I found the evidence of both Mr Manley and the Applicant to be less than compelling as to the structure of the exchanges that occurred on 19 February 2013. Mr Manley’s statement was confused as to its chronology, which was a matter that I raised with him during the examination of his evidence.

[52] It appears to me that overall the Applicant’s conduct in removing himself (along with others in his crew) from the immediate work site on the presumption that there were no further duties for them to perform demonstrated that he was not an employee who could be trusted necessarily to act without specific direction at all times to ensure a sustained commitment to his duties. It would have been preferable for the Applicant to have remained at the work site and sought further instructions (and if there had been concerns about the ground conditions affecting the crane’s mobility, to have sought a resolution through discussion with supervisory staff).

[53] But I put the matter no higher than that: the Applicant had demonstrated the kind of conduct issue that warrants correction through counselling or directed guidance and a specific warning. And it appears the other members of the crew were sanctioned in just this way at the time.

[54] In saying as much, I point out that the Applicant should have been sensitive to any issues whatsoever about his attendance at a work area. This is because on 18 May 2012 he was directed by his employer (in respect of his unauthorised attendance at a camp accommodation meeting the previous day) to seek his supervisors consent before leaving to work area. The Applicant conceded in his evidence that he had been so directed:

At that meeting on 18 May 2012 with Ms Steen, Mr Hulbert and Mr Webb you were told that you needed to speak to a supervisor before leaving your work area, especially during work time, weren't you? --Yes

You were told that leaving the work area without telling your supervisor would not be tolerated and you should not do it again, weren't you? -- Yes, Mr Strain.

[55] I will return to this matter generally below, in respect of my comments about remedy.

[56] I now turn to the Applicant’s response to Mr Manley’s direction to pursue clean up duties in the interim period before the cessation of work. The Applicant appears not to have taken the direction seriously in the context in which he found himself. I cannot seriously accept that Mr Manley told the crane crew to hide in the train area. I prefer Mr Manley’s evidence that he directed them to look busy and clean up in the train area. This explains why the Applicant’s evidence included a reference to carrying out menial tasks whilst awaiting transportation to the accommodation at the end of the shift. If nothing had been said to the Applicant about carrying out further cleaning duties the Applicant’s reference to having completed menial duties would have arisen unnaturally in his evidence. Because the Applicant’s evidence seeks to obscure the direction given to him by Mr Manley I accept Mr Manley’s evidence as to the nature of the direction as given as well as his observation of the crane crew’s subsequent conduct.

[57] Again, the Applicant did little by way of his conduct to build confidence in his employer of his commitment to work goals. But equally this is the kind of conduct which is on a scale that warrants correction by way counselling and a (re)articulation of workplace expectations (as it appears was comprehended in the warning given to the other crew members). I say this because the Applicant’s conduct in this instance could only be characterised as low level insubordination. This is because the purpose of the direction (to perform cleaning duties) was to ensure the crew avoided observation by more senior supervisory staff rather than to carry out a specific task for reason that it was important in its own right. It is little wonder the crew took little interest in attempting to ‘look busy’.

20 February incident: request to fill out incident form

[58] The following day, the Applicant claims to have been directed by Mr Manley to complete a written statement about the preceding day’s events. To this end, he was required to complete an incident notification form. It seems that the Respondent’s Workforce Services Supervisor (Ms Sarah Steen) had requested Mr Manley to furnish statements from the crane crew.

[59] The Applicant was confused by this request and claims that he did not believe an incident had occurred and suggested that his supervisor (Mr Manley) should gather some further advice before requesting such a statement.

[60] The Applicant held that an incident notification was only used for near hits or misses in respect of safety issues, to his mind, and he therefore declined (in animated terms) to complete such a statement in respect of the previous day’s events.

[61] Mr Manley’s view of events was somewhat different. Mr Manley gave evidence that the Applicant, rather than decline to complete the required form when requested, “became extremely argumentative and started swearing and saying words to the effect of “that’s fucking bullshit”.” Mr Manley requested the Applicant stop swearing. As it was evident that the Applicant was not going to fill out a report, Mr Manley walked away seeking to avoid a confrontation.

20 February Incident: Meeting with Ms Steen

[62] The Applicant subsequently met with Mr Manley, Mr Trickey and Ms Steen. The Applicant was supported in the meeting by his work colleague, Mr Hulbert.

[63] The Applicant stated that he was admonished in the meeting about not being cooperative and writing out a statement as requested about the events of the previous day. Mr Manley denied that any admonishment occurred at the meeting, and so too did Ms Steen.

[64] The Applicant argued that the events of the prior day did not constitute the kinds of matters that should be dealt with in an incident report and he had not otherwise been requested to make a written statement of any other form. Ms Steen was said to have advised the Applicant that the incident form was used in contexts other than safety-related incidents, and that she was only seeking to ascertain his views to ensure she was properly informed about the incident.

[65] The Applicant states that he then set about providing examples of actual safety incidents that warranted an incident report that had not been acted upon by the Respondent.

[66] Ms Steen stated that the Applicant in refusing to fill out an incident form had commented with words to the effect that, “This is fucking bullshit, it’s not a safety incident”.

[67] The Applicant claims to have again explained that the crew the previous day was justified in its actions because their tasks had been completed and the next day’s lifting could be completed from the same location (and that it was therefore unnecessary to move the crane).

[68] Ms Steen, in the face of the Applicant’s apparent obduracy on the point of the incident form, was said to have then removed three pages from an exercise book which she handed the Applicant and requested that he provided a written statement concerning the events of the prior day. In his witness statement the Applicant said that “under duress I provided a written statement” as he was requested.

[69] Upon completing his statement, the Applicant was said to have again presented to Ms Steen in an elevated emotional state.

[70] The Applicant was deemed by Ms Steen to not be in a state of mind to perform duties safely in the workplace and was stood down on full pay pending her further notice.

[71] Ms Steen was said to have used the following words, in effect:

“I think you are too agitated to go back to work. I’m going to stand you down on full pay. I’ll call you when you can come back to the workplace. You should hear from me by tomorrow afternoon.”

[72] The Applicant was also informed he would be contacted once an investigation into the incident the prior day had been completed.

[73] The Applicant was said by Mr Manley to have answered “OK”, or “Good”, before leaving the meeting.

Summary conclusion in relation to the incident’s of 19 and 20 February 2013

[74] I have no doubt on the basis of the evidence that I have heard that the Applicant was angered by the circumstances in which he found himself and spoke in intemperate terms to his employer (as represented by both Mr Manley and Ms Steen). The Applicant admitted to being angry and his mood fluctuating severely, and the evidence of both Ms Steen and Mr Manley, none of which appeared to me to be concocted, corroborates the finding in this regard. I do not come to the view however, that the Applicant spoke in personally abusive terms to either Mr Manley or Ms Steen, though they were both demonstrably not prepared to tolerate his aggressive use of language.

[75] The Applicant’s action in refusing to complete an incident form was an exaggerated response to the situation in which he found himself. He could have readily acted in a cooperative manner but was inclined to argue his point, even though Ms Steen had conveyed to him perfectly succinctly the purposes of the exercise in garnering his views of the incident.

[76] I note that the incident form (formally, the “Employee Incident Statement”) itself is essentially a blank document providing an opportunity (being a number of ruled lines) for a written statement (under a heading “Reconciliation of Events”). The form makes no reference at all to safety issues or issues of any other kind.

[77] In the end, the Applicant provided his written statement (albeit it on another piece of paper and not an incident form).

[78] What is to be made of the Applicant's conduct? Properly characterised, the Applicant was less than cooperative with his employer, and intemperate. But the evidence - in this confined context - does not demonstrate that the Applicant has engaged in serious misconduct. If the Applicant had personally abused either Mr Manley or Ms Steen the situation would be different altogether.

[79] I add further, however, that the Applicant’s evidence in these proceedings in respect of what Ms Steen had informed him about why she needed his statement was evasive and unhelpful, and did not reflect at all well upon him:

Ms Steen told you, "Robert, you're overreacting. You need to calm down. Robert, you need to understand that when these things happen, in my role as a company representative we only hear one side of the story, Brendo's side. It's only fair that we hear yours, which is fair before we make any judgments, decisions or anything." Do you recollect her telling you that?---If she wanted to hear it, I could have told her, and I did tell her what happened.

Mr Van Den Enden, listen to the question I'm asking you. Did Ms Steen say to you, "Robert, you're overreacting. You need to calm down. Robert, you need to understand that when these things happen, in my role as a company representative we only hear one side of the story, Brendo's side. It's only fair that we hear yours, which is fair before we make any judgments, decisions or anything." Do you recall her telling you that?---I can't recall her exact words, no.

So she may have said that or words to that effect?---Yeah.

21 February 2013

[80] The Applicant claims that he attended the pre-start meeting as he was required to do at 5.30 am on 21 February 2013. He agrees there was an interaction with Mr Manley, but not one that was abusive.

[81] The Applicant claims that another rigger raised a query as to the events of the previous day concerning the Applicant (and the other members of the crane crew).

[82] Mr Manley was said to have replied that there were problems with the crane not been packed up on Tuesday and that an incident form had been completed in respect of that matter.

[83] Mr Manley said that he noticed the Applicant in attendance at the pre-start meeting that morning and he noted that he appeared “agitated, emotional and angry as he was red in the face, sweaty and spoke in abrupt turns”.

[84] The Applicant was said to have interrupted Mr Manley and spoken to him words to the effect of:

“oh and while everyone is here, I would just like to say that I wish you weren't fucking there yesterday as you didn't do fuck all for me.”

[85] It was said by Mr Manley that the Applicant went on to interrupt the pre-start again a little later by stating that:

“I just want to thank you to your fucking efforts yesterday.”

[86] Mr Manley says that he responded by saying “thanks for that input Rob”.

[87] Mr Manley subsequently complained to Ms Steen that he had been embarrassed and abused in the pre-start meeting by the Applicant who had interrupted him and others.

[88] The Respondent was concerned that the Applicant had turned up at the pre-start when he had been stood down the prior day and had not been authorised to recommence duties.

Summary findings in relation to Applicant’s conduct at pre-start

[89] Having heard the evidence, I am persuaded by Mr Manley’s evidence that the Applicant did attack him in an uncivil manner at the pre-start meeting on 21 February 2013. It is most unlikely that Mr Manley fabricated his claims and instigated a disciplinary process (requiring multiple interactions with others) against the Applicant as a mere act of apparent retribution. Indeed, Mr Manley had taken steps (on either his own or the Applicant’s evidence) to (attempt to) ensure the Applicant was protected from disciplinary sanctions when he had returned from the work site to the crib hut on 19 February 2013. It would seem most unrealistic, therefore, that he would adopt a different and hostile disposition towards the Applicant only some short period of time later. I have also found Mr Manley’s evidence in relation to the events of 21 February 2013 to comprise a coherent narrative of interlocking developments.

[90] Equally, I accept Ms Steen’s evidence as she expressly recalled in her written evidence that when she put to the Applicant the question as to whether he had abused his supervisor at the pre-start meeting that the Applicant had replied with words to the effect of “yeah, well, people wanted to know what was going on, so I told them.” I make further mention of this evidence below.

[91] The evidence as given by Ms Steen arises naturally and was not contrived to meet an express purpose. That is, Ms Steen states that she had to imply the concession from the Applicant’s words, as it was not expressly made. The upshot of this evidence is that the Applicant was aware of the confrontation with the supervisor on the morning of 21 February 2013, even though he was reluctant to make such an admission in his oral evidence.

[92] Having said as much, I do not think that the Applicant’s conduct could be described as being at the extreme. The Applicant’s conduct must be objectively characterised. Though his language was aggressive because it included profanities, conveyed in an intemperate tone, those profanities themselves were not personally directed at Mr Manley. The exchanges were uncivil and disrespectful, but they were not personally abusive or threatening.

Dismissal meeting

[93] In view of this conduct, the Applicant was invited to attend a meeting with Ms Steen. The meeting appears to have commenced around 9.45 am or 10.00 am on 21 February 2013.

[94] Ms Steen initially contacted the Applicant by mobile phone to invite him to attend the meeting to discuss the “incident” earlier that morning. The Applicant was said to have again challenged the use of the term “incident”, claiming it referred only to safety incidents.

[95] The Applicant was informed that the meeting concerned his attendance at pre-start in defiance of his stand down. He was requested to bring a support person as the matter was serious.

[96] The Applicant and his support person, Mr Hulbert, along with Ms Steen, Mr Manley and Mr Trickey were in attendance at the meeting. The meeting commenced as a disciplinary meeting and it was explained to the Applicant - on Ms Steen’s evidence - that he had misconducted himself by leaving work early on 19 February 2013, and again acted improperly in attending the pre-start that morning and speaking disrespectfully to Mr Manley.

[97] It was explained by Mr Trickey that employees should not leave their work areas without approval (as the Applicant had done) and should seek out new duties if work is completed ahead of schedule. The Applicant was said by Ms Steen to have provided minimal responses to these issues.

[98] Ms Steen raised the issue as to why the Applicant had attended the pre-start meeting that morning when stood down. The Applicant claimed it was because he had been required to provide a BAC reading each day before commencing work as a result of his earlier breach of the Respondent's fitness for duty policy. Ms Steen had not accepted this argument on the basis that providing a BAC reading was only required when attending for work, not when there was no requirement to attend for work (and the Applicant’s prior conduct had shown this to be so).

[99] Ms Steen then inquired into the Applicant’s conduct that morning in respect of Mr Manley and asked if the Applicant had abused his supervisor.

[100] The Applicant was said to have replied that:

“Yeah, well, people wanted to know what was going on, so I told them.”

[101] When he was asked whether he swore or otherwise questioned Mr Manley’s abilities or character at the meeting, the Applicant was said by Ms Steen to have smirked and shrugged his shoulders.

[102] Ms Steen stated that she then informed the Applicant that his “behaviour at the pre-start this morning, coupled with your unauthorised absence and malingering from Tuesday is not acceptable.”

[103] Ms Steen also mentioned the Applicant’s first and final warning for his late start and the breach of the fitness for duties policy on 11 February 2013 (as set out above).

[104] Ms Steen’s further evidence was that over the course of the meeting the Applicant was appeared to laugh to himself as if the meeting “was funny”.

[105] Ms Steen then stated that the Respondent would now need to consider whether to continue with the Applicant’s employment. At this stage, Ms Steen stated the Applicant adopted a more active participation in the meeting and defended himself against the claims.

[106] The Applicant for his part contended that he merely was summonsed to a meeting with Ms Steen and informed at the commencement of the meeting that his employment had been terminated. The explanations for why this course of action had occurred were only provided in response to him having queried why he had been dismissed.

[107] The Applicant claimed that he had not been disrespectful towards his supervisor that morning and had not used expletives at the meeting but merely expressed his opinion about a “misconceived point”.

[108] The Applicant also maintained that he was rarely late to work and always rang to ask someone trustworthy to convey a message if he was going to be late.

[109] The Applicant claimed that though he had returned a positive blood alcohol reading he had nonetheless sought counselling and had self tested in the mornings before presenting to work on site.

[110] He also claimed that he had supplied medical certificates for any sick leave taken and his so-called unauthorised leave occurred in July of 2012 at a time when one of his twin daughters had died at birth, and as such it was compassionate leave. At that time the Applicant had been absent on authorised leave for some two months or more. This was a matter that Ms Steen said was irrelevant to her decision making and she did not encourage discussion of these matters as a consequence.

[111] The Applicant was said by Ms Steen to have provided no mitigating circumstances for his conduct and she therefore took the decision that his employment would be terminated without further need for internal consultation.

Summary conclusions concerning dismissal meeting

[112] On Ms Steen’s written evidence the meeting of 21 February 2013 did not commence as a meeting for the purpose of the consideration of the Applicant’s dismissal. The meeting was a “disciplinary meeting to discuss and close out the incident of unauthorised absence from work area and malingering on Tuesday, 19 February, and also has to discuss the incident that occurred at pre-start that morning, which was also considered potential serious misconduct.” (sic)

[113] It is only part way through the meeting and once the above matters had been dealt with, that the Applicant was informed that a decision may be made as to whether or not to continue with his employment.

[114] It appears at that point the Applicant had fallen into some confusion as to the precise meaning of the reference to unauthorised absence from work. The Applicant appears to have believed this to have been a reference to other unrelated leave issues. Further discussion appears to have occurred in relation to BAC testing and safety issues, before such time as Ms Steen took the view that the Applicant should be dismissed from the Respondent’s employment. I also see nothing in Ms Steen’s evidence that expressly referred to the alleged language or comments made to Mr Manley by the Applicant. Nor did Ms Steen detail the unauthorised absence issues to which she was referring. That is, the nature of the Respondent’s concerns were not fully disclosed to the Applicant (which may explain why he responded by reference to irrelevant matters).

[115] I accept Ms Steen’s evidence as to the nature of the events and the construction of the discussion on 21 February 2013. This is largely because her evidence, which was particularly detailed, was in no way self-serving and did not in all respects assist her cause. I discuss Ms Steen’s evidence in a little more detail below, particularly in the context as to whether the Applicant was notified of the reason for his prospective dismissal and given an opportunity to respond thereto.

Unauthorised leave issues

[116] Melbourne Cup Day was 6 November 2012. The Applicant was said to have informed Mr Manley at the commencement of his shift that he was leaving early that day to join other employees at the races in Gladstone. When he was informed by Mr Manley that his absence would be unauthorised he was said to have indicated to Mr Manley that “oh well I’m just sick then” and left the workplace. The Applicant, it appears, exited the site at 11.55 am and did not return to the ferry terminal until 4.46 am the following morning. The Applicant presented at work at a later date, with a medical certificate stating that he was unfit to perform his duties on 6 November 2012 (Melbourne Cup Day).

[117] Under cross examination, the Applicant put the relevant interaction with his supervisor this way:

Had you booked leave on 6 November 2012?---I had discussed it with Brendan Manley, yes.

Mr Manley did not allow you to have leave to go to watch the Melbourne Cup at Gladstone on that day, did he?---No, he claimed that he forgot that I told him.

Is it not also the case that when you were refused leave you said, "Well, I guess I'm going sick then."?---I may have said I guess I'm going anyway because I always take Melbourne Cup off, I'm from Victoria originally, that's a public holiday there.

Did you say to him, "Well I guess I'm going sick then."?---I can't recall.

Do you recall providing a sick (indistinct) for your absence on 6 November 2012?---Yes.

Summary conclusion in relation to unauthorised leave

[118] The Applicant’s absence on 6 November 2012 was subject to a medical certificate provided by a medical practitioner. As a consequence, it cannot constitute unauthorised leave.

[119] I reach this conclusion because there is no (medical) evidence that challenges the medical certificate - the evidence is all one way. I can understand that the Respondent was particularly sceptical of the genuineness of the Applicant’s claims to have been medically unfit in circumstances in which he had given a prior indication that he was going to Melbourne Cup celebrations in Gladstone. There have been cases in which the Court has made findings against the authenticity of medical certificates, where an employee has sought to rely upon them to sustain a claim for damages. In a proceeding under former section 659 of the Workplace Relations Act 1996 (“the WRA”), in the Federal Magistrates Court (then) Federal Magistrate Burchardt, dismissed an application alleging a dismissal for reasons of temporary absence from work because of illness or injury (s.659(2)(a) of the WRA), which had been attested to by the terms of a medical certificate. The (then) Federal Magistrate found the medical practitioner who issued the medical certificate had no reasonable basis to reach the conclusion he did about the particular employee’s fitness for work. 1

[120] It was open in these proceedings for the Respondent to call evidence from the medical practitioner who provided the certificate to the Applicant.

[121] Further, a medical practitioner who deliberately issues a false, misleading or inaccurate medical certificate is exposed to disciplinary action under the Australian Medical Association’s ‘Guidelines for Medical Certificates Certifying Illness - 2011’ and the Health Practitioner Regulation National Law Act 2009 (Qld). Misuse of medical certificates may constitute notifiable conduct or else professional misconduct under that Act.

[122] Employees who incite a medical practitioner to act unprofessionally may also be exposed to the legislation. This is because the Act as referred to also has the effect of affixing a penalty to conduct by a person who incites a medical practitioner to conduct him or herself unprofessionally:

136 Directing or inciting unprofessional conduct or professional misconduct

(1) A person must not direct or incite a registered health practitioner to do anything, in the course of the practitioner’s practice of the health profession, that amounts to unprofessional conduct or professional misconduct.

Maximum penalty—

(a) in the case of an individual—$30,000; or

(b) in the case of a body corporate—$60,000.

(2) Subsection (1) does not apply to a person who is the owner or operator of a public health facility.

[123] An employer, therefore, is not without avenues to challenge the basis on which a medical certificate has been issued.

[124] That all said, the issue here is not so much in relation to the leave issue itself but the manner in which the Applicant went about representing himself and his intentions to his employer. The Applicant even admits that when he was told he was unable to take leave he stated in reply that he was going on leave anyway.

[125] Here, as I have mentioned elsewhere, the Applicant (on his own evidence alone) had made little effort to ensure his employer retained confidence in his commitment to the workplace and to his disposition in respect of his obligations, or even his willingness to exhibit some basic courtesies.

Legislative provisions

[126] 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.

Consideration

[127] For the purposes of my considerations, I rely also upon my various findings above.

(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)

[128] The Applicant had demonstrated a propensity to become angered when subject to a disciplinary process with his employer. I accept that he in all likelihood used aggressive language in exchanges with the Respondent. I am also of the view that Mr Manley’s evidence that the Applicant spoke in such aggressive terms to him at the pre-start on 21 February 2013 is true. I have dealt with these matters above.

[129] But I do not consider that the extreme to which the Applicant’s conduct reached to be such that it warranted dismissal. The Applicant’s language was used in an aggressive context in response to the matters about which he disagreed. The use of such language can be unsettling and unnerving to others. But the language used by the Applicant was not personally abusive and may have some likely currency in the construction industry environment (though not generally in an aggressive context as it was here).

[130] The Applicant’s ability to control or manage his temper is a matter of concern. An employer has a right to expect to be treated with civility in dealing with its employees, as much as employees expect the same from their employers. Mr Manley as the Applicant’s supervisor had a reasonable expectation that the Applicant would address him in civil and reasonable terms especially in a public context. That did not happen, and Mr Manley and the Respondent are rightly concerned by the Applicant’s conduct. The same conduct was manifest in the meeting with Ms Steen on 20 February 2013.

[131] Again, however, the Applicant’s conduct was uncivil but it was not personally abusive (the Applicant’s language was aggressively descriptive but not personally directed), nor was it conduct at the extremes. The Applicant’s conduct warranted reprimand and counselling, but it was not in its own right the basis of a dismissal.

[132] Further, I am not of the view that the Applicant’s appearance at the pre-start meeting of 21 February 2013 was in its own right a matter of serious misconduct. There is a reasonable probability that having been in an intemperate frame of mind the previous day, the Applicant had misheard or not fully processed Ms Steen’s direction for him not to return to work until she so indicated. Indeed, it is also reasonable that the Applicant may have assumed the period of the stand down to have been for the single day only, given the stand down related to an emotional or agitated state of mind and not some more chronic or sustained issue. This is even more so the case given that the direction given by Ms Steen was not placed in writing, at the time or shortly thereafter.

[133] The situation would have been very much different had the direction been documented and given to the Applicant. The Applicant’s conduct would then have demonstrably contradicted a reasonable direction from his employer. But the evidence, in all, is uncertain as to whether or not in the circumstances the Applicant reasonably understood the scope of Ms Steen’s direction. I am not inclined to make an adverse finding against the Applicant in such a context.

[134] Generally, however, the Applicant presented to the employer as an employee who required a high degree of directive management and in whom it would be difficult to assume confidence.

[135] Some of the examples of this arose from the evidence:

● The unprofessional nature of the exchange with Mr Manley over the Applicant’s intentions and absence on 6 November 2012 (Melbourne Cup Day);

● Proposing that he utilise his accrued sick leave rather than undergo BAC testing when he was onsite;

● Not self testing when he should have reasonably apprehended (particularly as a crane crew member) that he was over the zero (tolerance) blood alcohol limit;

● Refusing to accept a letter of warning in relation to BAC testing;

● Giving evidence that he would refuse to undergo BAC testing (in a zero tolerance work environment) at his discretion;

● Returning early to the crib hut, instead of seeking instructions from the immediate work area;

● Leaving the work area when he had been warned at a prior date not to do so without speaking to a supervisor;

● Refusing to cooperate to complete an “incident form” when reasonably requested to do so;

● Using aggressive language and displaying ill temper in discipline-related interactions with his employer; and

● Acting in an uncivil manner (in relation to complaining about Mr Manley’s lack of support for him at the pre-start meeting on 21 February 2013) and causing embarrassment to Mr Manley.

[136] But these matters, in my view (even when taken together) were not at a sufficient extreme, when put in their appropriate contexts, to warrant the dismissal of the Applicant. At least at this particular juncture. Some of the matters above only arose in the evidence in these proceedings, as well.

[137] I have set out above my views about each of the relevant incidents in their particular context. I concede I have not reached this view without some anxiety as demonstrably on the evidence the Applicant, at a behavioural level, was at the very least a difficult employee to manage, possessed an abrasive nature in his interactions with management, and required some persistent oversight and supervision over the course of his relatively short period of employment.

[138] The employer may well wonder how much of a particular type of conduct it must tolerate before that conduct provides grounds for a dismissal. But some fine judgement is needed in such matters, and in my view, on a contextualised, objective evaluation, the conduct evinced by the Applicant fell a little short of the critical point at which a summary dismissal was warranted, at least at that particular juncture.

[139] As a consequence of my findings, there was at the time no valid reason for the dismissal of the Applicant.

(b) whether the person was notified of that reason

[140] It appears to me that the dismissal meeting became a confused event in the Applicant’s mind. It appears the matter commenced as a disciplinary interview but then turned into a dismissal meeting. The evidence of Ms Steen in my view is sufficiently well stepped and articulated as to her comments to the Applicant. I have earlier indicated that Ms Steen’s evidence is not self serving either. I accept her evidence that she made reference to the conduct at the pre-start meeting and the unauthorised absence on 19 February 2013.

[141] But the evidence is sufficient to demonstrate that the Applicant appeared to be in a confused state of mind as to the precise reasons about which he was being notified as providing a basis for his dismissal. His mind appears to have seized on the BAC testing and unrelated leave issues.

[142] I do not see in Ms Steen’s evidence, which is otherwise detailed, a sufficient point at which she clearly articulated that she was considering dismissing the Applicant for certain specific reasons. Her evidence is sufficient to demonstrate that the Applicant was forewarned that his termination was under consideration, but he was not expressly told that he was under threat of dismissal for specific reasons. The words Mr Manley said were used against him by the Applicant appear not to have been put to the Applicant on Ms Steen’s evidence. Ms Steen merely stated that she said words to the effect of:

“the Company needs to review your performance, and as an employee, review the incident that had occurred, to make a decision about whether or not to continue with your employment on the project.”

[143] The language used by Ms Steen was indirect. It was not expressly related back to the prior discussions.

[144] It appears to me that it would have been more appropriate for Ms Steen to have at that juncture - when it became evident the Applicant was raising unrelated issues - redirected the Applicant’s attention to the precise reasons about which she had notified him as being relevant to her decision as to whether or not to continue his employment on the project.

[145] It seems abundantly clear to me that the Applicant had misconstrued the direction of the discussion and the precise issues of causality to which Ms Steen had attempted to direct his attention. I suspect this may have been, as mentioned above, because the Applicant was not fully attentive or engaged in the subject matter under discussion during the period prior to Ms Steen indicating that his employment was in jeopardy. But equally, Ms Steen’s language did not focus the Applicant’s attention sufficiently on her intentions or her reasons for prospectively dismissing him. The Applicant went on to comment on BAC testing, leave and safety issues, but did not turn to address the specific incidents that were in Ms Steen’s mind at the time.

[146] Ms Steen subsequently made her decision to dismiss the Applicant given that he had presented no mitigating reasons or circumstances in relation to the conduct about which the Respondent complained.

[147] It is not incumbent upon the employer to impose understanding upon an employee who is being notified of the reasons for dismissal. But it is incumbent upon the employer to clearly state that it intends to dismiss the employee and to do so for reasons of sufficient particularity in the circumstances. Only by doing this can it be said that the employee was notified of the reason for dismissal in advance of the dismissal decision being concluded.

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

[148] As I have said above, the Applicant appears to have fallen into confusion as to the precise reasons about which he was notified for his dismissal, and as a consequence did not avail himself of the opportunity to address the relevant issues directly. Some of this confusion may be attributed to the indirect language used by Ms Steen. Generally, I do not think that the Applicant had an uncompromised opportunity to respond to the reasons for his pending or provisional 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

[149] The Applicant was at all times able to have access to a support person of his choice at the various meetings that took place across February 2013. There was no evidence that went directly to there being any breach of this provision.

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

[150] This is not a matter that concerned unsatisfactory performance on the part of the Applicant. The proceedings concerned the Applicant’s conduct.

(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

[151] There is no issue in these proceedings as to the extent to which the size of the Respondent’s enterprise affected the dismissal procedure.

(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

[152] Neither side agitated, nor would they reasonably be expected to do so, any issue regarding the absence of dedicated human resource management specialists available to the Respondent.

(h) any other matters that the FWC considers relevant.

[153] The Applicant was employed for little more than 12 months which is not a long period of time in its own right, but employment profiles on major projects often vary greatly from those in the general workforce.

Conclusion

[154] For the reasons given above, the Applicant was harshly, unjustly or unreasonably dismissed. The circumstances as evidenced demonstrate that a summary dismissal was not warranted and was disproportionate to the Respondent’s concerns, as objectively considered, about the Applicant’s conduct (as it had manifested itself to that time).

[155] Because I have so found, the application before me must now be considered for purposes of remedy.

REMEDY

[156] Section 390 of the Act reads as follows:

Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division (2)) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[157] The Applicant is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise a discretion as to whether the Applicant can be reinstated. Section 391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[158] I would neither reinstate (by re-appointing) the Applicant to his former position nor order that he be appointed to another equivalent position with the Respondent, or any associated entity of the Respondent, on the same or any other site.

[159] This is because I have no confidence that such an outcome will give rise to a cooperative or harmonious, and productive relationship between the Applicant and his employer. Consequently, it would not be appropriate to reinstate/reappoint the Applicant or appoint him to a commensurate position.

[160] I have set out above various findings about the Applicant’s conduct. The Applicant made it clear in his evidence that he was ill-disposed towards Mr Manley personally. More generally, the Applicant does not manifest appropriate behaviours to give any confidence that reappointment or otherwise would yield a productive or harmonious outcome. The Applicant was uncooperative, intemperate and insensitive to workplace disciplines. I have cited numerous examples of this in my substantive decision.

[161] I add further that the Applicant revealed very little self understanding in relation to his conduct overall over the course of the proceedings and I am of the view that he would be likely to continue to conduct himself generally as he had previously in his relations with his employer, and particularly with Mr Manley (for whom he admitted he had no personal respect).

[162] The Applicant seemed unwilling to try to form a cooperative relationship with his employer, and I think he would be unwilling to do so (in any capacity on any site). I have set out examples of tension in his relationship with his employer above. I add to this further evidence adduced over the course of the proceedings.

[163] The Applicant faced difficulties in reaching his home base in Forster, in New South Wales, on the last day of his swing. The Respondent offered to provide him with overnight accommodation (in Newcastle) to spare him having to travel further (on to Forster) upon his return flight to Newcastle. The Applicant, for his own reason, refused this offer. Following a series of meetings, the Respondent ultimately allowed the Applicant to leave work two hours earlier than other employees rostered in order to facilitate his return to his home base directly and within the same day.

[164] In these proceedings the Applicant simply bemoaned the fact that it took the Respondent a long time to afford him this option and indicated no regard for his employer’s tolerance or responsiveness to his particular personal circumstances:

Did Ms Steen on behalf of Bechtel offer to accommodate your circumstances to pay to put you up in a hotel in Newcastle overnight at the end of your roster cycle?---Yes.

Did you refuse that?---Yes.

Did, as a consequence of that, Bechtel through Ms Steen subsequently agree that you would only work two hours instead of four on your last day on the roster cycle?---No.

So you weren't (indistinct) early so you could get home, is that your evidence?

---My evidence is that Sarah Steen did not make that decision, that decision was made through approximately - after eight meetings and finally made by Rod Beach. (Indistinct) Sarah Steen, the other ER person and quite a bit of to-ing and fro-ing, and it was also made for another lad that also lived in Foster.

The bottom line is, is it not, Mr Van Den Enden, Bechtel agreed to accommodate your particular personal circumstances to help you, is that not the case?---I don't understand the question.

You have put a specific request to Bechtel where (indistinct) was made to accommodate you in a hotel, to assist you getting home at night, given your particular personal circumstances. You refused that. Ultimately what they agreed was on your last day in your roster cycle you only need to work two hours instead of four and this allows you to get home and accommodates your personal circumstances?---Yes.

That's quite a supportive and accommodating approach from Bechtel, was it not, towards you?---I think after eight meetings of having to get them to show some commonsense, well it is but it took a long time to get there, Mr Strain.

[165] The Applicant’s disposition towards the Respondent in this regard is not a ground for dismissal, of course. But the Applicant’s disposition is further indicative, nonetheless, of the continuing, unhealthy tension in the employment relationship which was felt at numerous points and for numerous reasons (as I have set out earlier in this decision).

392 Remedy — compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

[166] In respect of the above matters that I must take into account I find as follows:

(a) the effect of the order on the viability of the employer’s enterprise

[167] There is no evidence that any order I might make for compensation would in some manner affect the Respondent’s viability.

(b) the length of the person’s service with the employer

[168] The Applicant was employed with the Respondent for a period of a little over a year, and as such would not be taken to have begun to consolidate his employment. But this is a matter that should be balanced carefully in the context of project-based employment predicated on intensive rostered shift work. As I mentioned above, project-based work is very different to conventional, permanent work configured within standard hours.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[169] On the evidence available to me, the Applicant would have been likely to have remained in employment for a period of a further 12 weeks. I base this assessment on the wide range of issues that had come to taint the employment relationship in the Applicant’s period of employment on what is a project site, and the Applicant’s general disposition as an employee and in respect of the kind of disciplines that need to be exercised in the modern workplace.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[170] The Applicant claims to have taken steps through SEEK to obtain further employment, and to have relied on word of mouth otherwise.

THE SENIOR DEPUTY PRESIDENT: Is there any evidence to be led about precisely what effort has been made to obtain employment and what income that's been generated as a consequence? I presume there have been efforts, so we best hear about what those efforts have been and I presume there hasn't been any income generated but perhaps you can adduce that through the evidence.

MR COUSNER: Thank you, your Honour. Mr Van Den Enden, would you mind describing for his Honour what efforts you've made to attempt to gain employment since being dismissed by Bechtel?---I've made some inquiries through word of mouth which most of my employment has always - is how I've found it. I've also made inquiries through Job Search networks on the computer, Seek and - - -

Have you been successful in earning any income since the end of February this year?---No.

[171] The evidence was particularly thin as to efforts in mitigation. The Applicant’s responses under cross examination were not helpful in this regard either, notably as the Applicant could not recall making any written applications for new employment:

Just dealing with the last matter first since we're dealing with your attempts to secure alternative employment, Mr Van Den Enden. You said you've applied through Job Search, have you made any written applications for jobs?---I can't recall.

Have you received any responses by email or inviting from any potential employer?---No.

Where have you been looking for jobs, is it New South Wales or further afield?

---A lot of my employment for work has been through word of mouth, as I said through colleagues and contemporaries in the industry.

[172] It is within my contemplation not to make an order for compensation or to reduce the order for compensation I might make because of the Applicant’s evidence in this regard.

[173] The decision of a Full Bench of the Australian Industrial Relations Commission (as it then was) in PR915963 2 surveyed the principles that apply in respect of the so-called duty of mitigation. I set them out here:

[52] The following general observations may be made on the basis of the decided cases:

• The principle of mitigation operates as a conditional bar to the recovery of damages.



• To avoid a reduction in damages a plaintiff must take reasonable steps to minimise the effect of a termination of contract.



• The issue of what steps are reasonable in the mitigation of loss is a question of facts to be determined having regard to the particular circumstances.



• A party is not required to take unreasonable steps to mitigate their loss. For example, they are not required to

expend money;or

destroy or sacrifice their property rights.

• In employment cases the question of whether a dismissed employee acted unreasonably in refusing an offer of re-employment depends on the circumstances. Courts have determined that it is not unreasonable to refuse such an offer in circumstances where the level of remuneration or status of the position offered is less than that previously enjoyed by the dismissed employee. But with the passage of time it may be reasonable for the dismissed employee to lower their sights. Even where re-employment is offered on substantially the same terms and status it will not be unreasonable to refuse in circumstances where the employee no longer trusts his or her former employer or where there is friction between the two parties.

[53] In our view these observations are relevant to the application of paragraph 170CH(2)(d) in assessing the extent to which an order in respect of lost remuneration is to be adjusted.

[54] It is apparent from the decided cases that the Commission has had regard to the circumstances of each case in determining whether an applicant has acted reasonably to mitigate their loss. In considering mitigation in the context of s.170CH the Commission has held that:

• an applicant may discharge the obligation to take reasonable steps to mitigate loss flowing from termination of employment by establishing a venture on his or her own account. Where this is the case it may be appropriate to make some allowance for deferred income in the calculation of the amount to be ordered pursuant to s.170CH(7), particularly where income is not generated in the early stages of the venture;



• the fact that the applicant is a single parent is a matter which may be taken into account in considering whether the efforts taken to mitigate his or her loss were reasonable;



• it is reasonable for an applicant to undertake a training course to enhance their employment prospects as a means of mitigation; and



• it is not unreasonable for an applicant to refuse re-employment in circumstances where the employment relationship had broken down.

[174] The Full Bench decision is not on point in respect of the circumstances, which I now face, where there is particularly thin evidence as to whether the Applicant took reasonable steps, of any kind, to mitigate his losses. The circumstances before the Full Bench concerned a case in which an employee faced a choice, it seems, of resuming contractual relations on a different and more modest scale and by so doing relinquishing rights in relief on one hand, or not otherwise mitigating his losses, on the other. The decision does not deal with the efforts the Applicant actually took to mitigate his losses, and whether these were reasonable.

[175] Nonetheless, the Full Bench decision attests to the statutory expectation that an employee must demonstrate that reasonable steps had been taken to mitigate losses and reduce the claim against the Respondent.

[176] It may be inferred from the evidence that the Applicant merely sat on his hands in this case and awaited the resolution of this claim. If that were so no order for compensation would issue as a matter of discretion. But in the end, the matter was not sufficiently well explored, by either side (despite my having introduced the issue early in the proceedings). As a consequence, I will not reduce the compensation to be ordered or not make an order for compensation.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation.

[177] The Applicant’s evidence was unchallenged that he had earned no income since his dismissal in February 2013.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[178] This is not a matter that requires any consideration as it is irrelevant to these proceedings.

(g) any other matter that the FWC considers relevant

[179] I indicate that I make no deduction for contingencies as I do not see them as being relevant in these circumstances. There is no evidence that the Applicant was otherwise exposed to loss of income over the period of anticipated employment. Sickness, accident, unemployment and industrial disputes are the main contingencies. I see no reason to apply any discount arising from such contingencies. Some of these apparent contingencies do not necessarily result in lost income in the modern workplace.

[180] Section 392(3) of the Act provides as follows:

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

[181] In my view the Applicant’s misconduct as I have identified it above, though not warranting his dismissal in my view, did nonetheless contribute significantly to the decision on the part of the Respondent to dismiss him from its employment. I will reduce the amount of compensation to be ordered by 50% because of the Applicant’s misconduct. This is an appropriate reduction in view of the wide range of behavioural-related matters to which I have drawn attention in my decision for the purposes of s.387 of the Act above.

[182] Section 392(4) of the Act provides as follows:

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

[183] My order for compensation makes no allowance for the above proscribed matters or considerations.

[184] Section 392(5) of the Act provides as follows:

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

[185] Section 392(6) of the Act provides as follows:

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[186] The order that I propose to make does not need to take into account the statutory cap.

[187] Section 393 of the Act provides as follows:

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[188] The Respondent has made no application in the course of these proceedings to pay any amount I may order to be paid as compensation in instalments.

CONCLUSION IN RELATION TO REMEDY

[189] I order that the Applicant be paid an amount equivalent to six weeks of his usual earnings based on his rostered hours as they operated on the project (for the six weeks following the Applicant’s dismissal). This amount must be inclusive of superannuation.

[190] The amount ordered to be paid must be paid to the Applicant’s usual bank account within 22 calendar days of the date of this decision (26 July 2013).

[191] An order to the above effect will issue along with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr T. O’Brien, CFMEU, for the Applicant

Mr A. Strain, Norton Rose Fulbright, for the Respondent

Hearing details:

Brisbane

2013

17, 18 and 19 July

 1 Anderson v Crown Melbourne Ltd [2008] FMCA 152 (3 March 2008).

 2   Appeal by L.A. Biviano, Ross VP, O’Callaghan SDP, Foggo C. (28 March 2002).

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