Mr Sasa Bolta v Veem Ltd T/A Veem
[2018] FWC 2019
•6 APRIL 2018
| [2018] FWC 2019 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Sasa Bolta
v
Veem LTD T/A Veem
(U2017/11630)
DEPUTY PRESIDENT BEAUMONT | PERTH, 6 APRIL 2018 |
Application for an unfair dismissal remedy – serious misconduct – application dismissed.
[1] On 20 October 2017, Veem Ltd T/A Veem (Veem) dismissed Mr Sasa Bolta (Mr Bolta) for serious misconduct. Subsequently on 1 November 2017, Mr Bolta made an application to the Fair Work Commission (the Commission) for a remedy in respect of his dismissal (the Application).
[2] Mr Bolta was employed as an Inspector /Technician on a full-time basis. His primary responsibility was to inspect products manufactured by his employer Veem for faults and defects. Veem dismissed Mr Bolta because it said he had not followed inspection procedure, had misrepresented facts when he signed internal documentation, and had issued a NATA (National Association of Testing Authorities) certificate for inspections he had not performed, on two T-Foils.
[3] I have taken into account each of the matters specified in s.387 of the Fair Work Act 2009 (Cth) (the Act) and I am satisfied that based on the Mr Bolta’s conduct, Veem had a valid reason for dismissing Mr Bolta. I have not found that Mr Bolta’s dismissal was unjust, unreasonable or harsh. Therefore, the Application for unfair dismissal remedy in the matter U2017/11630 is dismissed. My reasons for dismissing the Application are as follows.
BACKGROUND
[4] NATA certified Inspectors at Veem conduct a form of testing referred to as Non-Destructive Testing (NDT). The inspection seeks to detect casing, forging and welding surface defects such as cracks and leaks in new products.
[5] Veem operates four NATA accredited laboratories to perform testing and certification functions. The laboratories are said to provide an in-house solution regarding compliance testing for Veem clients or customers. The accreditation with NATA allows Veem to utilise the NATA endorsement on certificates that represents that a relevant Australian Standard has been complied with regarding the product. To ensure the test or inspection is valid, the inspection must be undertaken with technical independence to, in the words of Veem ‘create a competent and trustworthy result’ 1.
[6] The role of the NATA certified Inspector is to determine compliance or non-compliance with product specifications. It is only when the product is fully compliant with relevant specifications that a NATA accredited certificate is issued. At times in this decision the NATA accredited certificate is also referred to as a report or NATA endorsed Penetrant Inspection Report.
[7] In this case the new products in question were two T-Foils that Veem had manufactured for a client in the Philippines. It was uncontested that the T-Foils were large components cast from a nickel aluminium bronze alloy. In simple terms, they were made for the purpose of being bolted to the bottom of a ship, in this case a passenger ferry, and were designed to create hydrodynamic lift. I was informed that the hydrodynamic lift neutralises unwanted vessel movement.
[8] It was said that a defect in the strut of the T-Foil can create a loss of section modulus which in turn can reduce the load capacity for the section. The presence of a defect may increase the likelihood of failure of an underwater structure at high speed, which could in turn result in impact on the hull.
The production process
Inspection and Test Plan
[9] Veem’s production process is said to begin by reviewing a purchase order for a product or its contractual requirements, and thereafter generating a job package containing an inspection and test plan (ITP) 2. The ITP details the operations and requirements of the work.
[10] Mr Dawson, Production Manager and employee with Veem for some 17 years (Mr Dawson), explained that the ITP sets out in specific detail the method that enables Veem to meet the contractual requirements or specifications of the product 3. It provides the scope of work for each operation and the acceptance criteria. This enables Veem employees to observe when the product has reached compliance with the acceptance criteria4. An ITP may include anywhere between 1-96 operations5. It was apparent at the hearing that an ‘operation’ was a discrete task or aspect of work.
[11] Mr Dawson said that the Job Card or ITP usually sat outside his office window within the factory 6. However, he acknowledged that in some cases when working parallel with welders the ITP may be located in the vicinity of where the work is being carried out. This may include in an employee’s pigeon hole7. Further, all Inspectors could access the ITP via an electronic system.
[12] Each product manufactured at Veem has its own ITP which is tailored accordingly with its own acceptance criteria 8. The absence of an ITP, or not being able to access the ITP, would, according to Mr Dawson, mean that the employee would not know what would be acceptable regarding compliance9.
[13] When producing certain components it was said to be typical that some would typically have defects which would in turn require weld repair. It was only where the defect was excessive; say exceeding a quarter of the section thickness that a non-compliance report would be generated 10.
Non-Destructive Testing
[14] Included in the ITP is NDT. NDT was said to identify any detrimental material condition that can be a source of component failure. By way of example, it was explained that Veem manufactured submarine valves and welded structures such as fans and rotating elements. A material defect in a submarine valve could result in flooding and in a structure such as a rotating element it could cause the element to fail resulting in machine damage.
[15] NDT was said to include techniques used to assess a product for a defect or fault without causing any damage to it 11. It included visual inspection, an in-house liquid penetration test, also called a Dye Penetrant Inspection (DPI) or a Penetrant Test (PT)12. These forms of testing were used on metals, plastics, or ceramics.
[16] A visual inspection was used to make sure the product was free of surface defects and could be used on rolled products, welded joints, castings and forgings 13. It involved an overall general inspection for major defects as well as a detailed inspection as the ‘Job Card’ required14. I will traverse the concept of a ‘Job Card’ shortly.
[17] A DPI required the test surface to be cleaned, a penetrant applied and after the penetrant has soaked in, excess penetrant is removed and a developer applied. When the powder developer is applied over the penetrant, any defects, for example cracks or holes, show up in red.
[18] In summary the DPI involves: (1) pre-cleaning the product; (2) application of a penetrant; (3) excess penetrant removal; (4) application of developer; (5) inspection; and (6) post cleaning 15.
[19] If the product is free from defects the surface of the product will be cleaned. The Inspector will sign the ITP, at times referred to as the ‘Job Card’. Further, the Inspector may award the product NATA certification.
[20] If the product has a defect then the defect would be marked with non-permanent ink or paint and retested or inspected in full once rectified by welders or any other department that could make the repairs 16.
[21] If the defect was excessive, for example exceeding a quarter of the thickness of a product wall, the Inspector was to alert the Production Controller and a non-compliance report completed. The acceptance criteria did cater for certain defects that were considered acceptable.
NATA accreditation
[22] When applying for accreditation with NATA, an assessment is conducted to establish whether the facility can competently perform the activities for which accreditation is being sought. A NATA assessment team is required to investigate the operation of the facility against the criteria detailed in the NATA Accreditation Criteria.
[23] Veem had arranged for Mr Bolta to become an accredited NATA Inspector. It submitted that it had done so on the basis that Mr Bolta would follow the required inspection regimes. This would enable Veem to deliver NATA conforming product and contribute to its risk mitigation.
[24] To be able to issue or sign a NATA authorised NDT certificate and release test results within the Veem laboratory Mr Bolta had to be assessed as competent against specific criteria such as demonstrating a sound knowledge of:
● the principles of the calibrations, measurements and/or tests they perform or supervise;
● the standards or specifications for which accreditation is held;
● the facilities management system;
● have read and understood ISO/IEC 17025 standards and its integration to the Veem Management System;
● access to the NATA website and how to source latest revision documents, policy and technical notes;
● Veem’s online NATA document register;
● measurement ranges and estimation of the uncertainties 17.
[25] Veem was said to service businesses predominately in industry that required high end product. Such businesses include the military. Veem said that it prided itself on high level compliance therefore it published policies and procedures for its employees and maintained these according to relevant Australian Standards. It was also submitted that it trained and assessed employees for their understanding of the procedures.
[26] Mr Bolta had undergone all necessary training with the NATA and was an authorised NATA signatory, capable of awarding NATA certification 18. Having been assessed as competent to be an authorised NATA signatory Mr Bolta had completed procedure tests for those that were relevant to his work practice including that of ‘WI-00106 Proficiency Testing for NDT Processes’, ‘WI-00022 Operator Qualification – Visual acuity testing’ and ‘WI-00014 NDT – In house liquid penetrant inspection’.
Worksheet
[27] All test conditions, restrictions and results were recorded on an ITP Worksheet (Worksheet). The Worksheet was an in-house document that recorded when the DPI complied with the requisite criteria. It detailed the work undertaken, test method, product used including bench number and date of expiry on the red dye or the developer.
[28] Every inspection would finish with the completion of the Worksheet. After every NDT or retest of the NDT all findings would be stated on the Worksheet including defects, position of defects and where they occurred. This information was relevant as after the repair of a defect there would otherwise be no reference to where the defect had been previously. On completion of the NDT it would be reported on the Worksheet that the product complied.
[29] Mr Dawson stated that the Worksheet ‘is actually the controlling document’ with the certificate being ‘the gloss for the client’ 19. He continued that the Worksheet ‘has the time, the day, it might even have the temperature… the serial number for the products used to do the test, all the critical things that control the test’20.
Processes at Veem
[30] Mr Bolta submitted that while he had been provided with instructions concerning inspection and testing practices at Veem he observed that it had become common practice over time to carry out procedures in a different way 21.
[31] To summarise, Mr Bolta said that it was accepted that the surface of some products could not be tested with NDT DPI over 100% of the product’s surface area. This was because the nature of the surfaces meant that with some surfaces the dye test would show all rough surfaces irrespective of whether they were defective and dye would drip down to the bottom of a pocket like water in the bucket. Mr Bolta said it was for these reasons that he was told he could exclude the pocket area of the T-Foil from the NDT DPI and carry out a visual inspection only 22.
[32] Mr Bolta expressed that it became common practice to do a visual inspection on products where NDT DPI was not possible on 100% of the surface of the product 23. Further, Mr Bolta said that there were many times on different jobs where he excluded areas and recorded them as a test restriction recording them as ‘hard accessible areas’24.
[33] With regard to communicating the nature or extent of defects to the welding team, Mr Bolta said that he had never been given a form to write down such defects 25. He said the process was that NDT developer and visual inspection would reveal the defects and he would circle them with a charcoal pen, draw arrows toward the defect and send the product to the welders to fix26.
[34] Concerning the ITP document, Mr Bolta did say that when a defect was identified on a product a yellow sticker would be placed on the ITP 27. There was, according to Mr Bolta no formal documentation of defects ever being found and by the time the ITP document was completed and signed there was no documentation of any of the products being defective28.
[35] It was common, Mr Bolta said, that the ITP would not be received until after finishing the initial inspection, as most Job Cards or ITPs were generally the same 29.
[36] Mr Dawson gave evidence at hearing that where a product had a defect it was documented in writing only if that was a requirement of the contract between Veem and the client, otherwise, any defect would be marked up visually 30. Mr Dawson said that the NDT Inspector would generally talk to the welders about the defect, the welders would repair it and then it would be re-tested31. However, Mr Dawson said that it was not unusual to have defects marked up in writing particularly if the product being manufactured was for the military32.
[37] Concerning those defects that exceeded a certain thickness, Mr Dawson gave evidence that a non-compliance report would be required 33. Usually the acceptance criteria in the ITP will set out the parameters with regards to whether certain bleed out quantities within a certain area were allowed34.
[38] It was explained by Mr Bolta, and noted earlier in this decision, that the manufactured product had to be cleaned before testing. According to Mr Bolta, if the surface area of a product was rough when conducting NDT DPI, the dye would go into all the cracks and imperfections on the surface. The developer, which is a white powder, would be applied and when on a clean surface the dye would start to bleed out and the defect could then be noticed. However, Mr Bolta said that on a rough surface you would not be able to tell that there was a defect through this process. Mr Bolta provided this information as way of explanation for why he did not conduct a NDT DPI on the pocket of the T-Foil in addition to reason the potential pooling of the dye.
[39] In contrast Mr Dawson was of the view that there should have been no restrictions regarding the testing of the T-Foils. Mr Dawson considered it peculiar to mark-up defects if there was a test restriction as if there were a restriction it would have been difficult to test or visualise the defects. Further, Mr Dawson considered that the area could have been NDT DPI tested 35 easily given the defects were on the side of the T-Foil struts and not the bottom (hence avoiding the issue of pooling).
29 August T-Foil Inspection
[40] On 29 August 2017, Mr Dawson instructed Mr Bolta to complete DPI testing on two T-Foils 36.
[41] Mr Bolta said that he asked Mr Dawson for the Job Card and was informed that he would receive one later that day 37. Mr Bolta reports having conducted an NDT DPI on each of the T-Foils. The testing was done one at a time as more than one test could not be conducted in the wash bay at any given time38.
[42] Having completed the first NDT DPI in the flange position on the first T-foil, Mr Bolta identified that it was not compliant with Work Instruction 00014 (Work Instruction) 39. The Work Instruction provided:
4.0 NDT QUALIFICATIONS
Personnel involved in Liquid Penetrant inspection shall:
● Have ISO 9712 Level 2 certification for Penetrant Testing.
● Have proven their visual acuity within the preceding 12 months.
● Have met the requirements for a VEEM Facility Approved Signatory for the Release of Test Results covering the relevant NATA cope [sic] of accreditation and class of test. Signatory approvals are IAW E-MNP-08.
6.8 EXAMINATION AND INTERPRETATION
Examination of the component shall begin immediately upon application of the developer and continue for a minimum of ten (10) minutes. A longer examination time may be required dependent upon the nature of the defect(s) to be detected and/or code requirements.
Following development the surface shall be examine [sic] for indications.
Each indication shall be compared against acceptance criteria and when unacceptable shall be marked with a non-permanent ink or paint.
Dispositioning shall occur in accordance with standard procedure.
All test conditions, restrictions and results shall be recorded on the Penetrant Inspection Worksheet which shall be retained with job documentation at all times.
The measurement of the indications size and shape for assessment to the stated acceptance criterial shall take into account the estimated uncertainty of the measurement. Where the measured value of the indication is less than the acceptance limit, but when summed with the estimated uncertainty exceeds the stated acceptance tolerance, the assessment and acceptance shall be either:
- a re-examination of the discontinuity by the same technique with the result being the same or less…
RETESTING
When re-testing of a component is required this procedure shall be repeated in full from Section 6.4 Preparation of the test surface...
[43] Mr Bolta said that he went to get further instruction from Mr Dawson regarding the T-Foil not being compliant and this action was in accordance with the Work Instruction 40. Mr Bolta said that Mr Dawson informed him to take the first T-Foil to the welding bay for welding repair41. Non complying documents were not completed, as according to Mr Bolta, unless the products had special requirements or needed approval this approach was supported by Production Managers and Coordinators42.
[44] Mr Bolta stated that if there were no special requirements or customer instructions then the process followed was to circle the defect with red charcoal for identification. Before delivering the T-Foil to the welding bay, Mr Bolta noted that he had marked the defect areas with red charcoal 43. Mr Bolta stated that he did not know if there were any special requirements or customer instructions as Mr Dawson had not provided him with the ITP/Job Card44.
[45] The evidence of Mr Bolta was that the second T-Foil was not compliant with the Work Instruction and after a discussion with Mr Dawson, Mr Bolta sent the T-Foil to the welder’s bay having marked the defected areas with red charcoal 45.
[46] At some point during Mr Bolta’s employment with Veem, he said that he had discussed with Mr Bakshi, Production Coordinator (Mr Bakshi) not being able to conduct NDT DPI to a 100% of the T-Foils due to the bottoms of the T-foils being cast surfaces making it difficult to remove the dye that showed up on the surface 46. Mr Bakshi was said to have agreed that only visual inspections would be done of those surfaces, being the cast surfaces at the bottom of the T-Foils that were not blasted or polished47. Mr Bakshi was not present at the hearing.
[47] The first T-Foil in respect to the bottom or cavity hole of the product, or what was referred to at hearing as the ‘pocket’, was not blasted or polished. Therefore, Mr Bolta’s account was that he conducted a visual inspection in accordance with Mr Bakshi’s previous instructions 48.
[48] Mr Dawson disagreed that the pockets of the T-Foils were not able to be NDT DPI tested due to poor accessibility or because the surface of the pocket was unsuitable 49. In his evidence Mr Dawson said that the defects were not on the bottom of the pocket they were on the sides50 and if there was a concern, the T-Foil could be lifted part up allowing it to be washed out or simply wiped out with regards the pocket, with rags51. Mr Dawson said he had observed Mr Bolta and others do this over the years52. Mr Dawson said it was also normal to wipe the dye out with wet cloths.
[49] When Mr Bolta delivered the second T-Foil to the welder’s bay the first T-Foil was returned to the flange down position. Mr Bolta said that because it was in this position he could not conduct a further visual inspection to ensure the T-Foil was defect free 53.
[50] By the time that Mr Bolta had conducted the testing for the second T-Foil he stated that he had not received an ITP/Job Card from Mr Dawson 54. He further advanced that if he had received the ITP/Job Card from Mr Dawson he would have marked that the T-Foils were non-compliant (meaning they had defects) by placing a yellow dot on the Card55. The yellow dot signified that the T-Foil was on hold before further re-testing and an approval compliance report is generated56
[51] At the time when Mr Bolta’s shift ended he had not completed the non-complying documents 57. However, he said that he wanted to make sure that employees knew further work was required on the T-Foils and he placed a yellow dot on the Veem ID Tag to indicate they were not compliant58. Mr Bolta also observed that a Mr Shaun Craig, Veem Welder, was making the repairs on the first and second T-Foils. Mr Bolta said that Mr Dawson came to check the progress made with the repairs and he had provided Mr Dawson with an update on work completed59.
[52] The following day, on 30 August 2017, Mr Bolta says that Mr Dawson approached him with two Job Cards for the first and second T-Foil and asked Mr Bolta to do the NATA compliance reports (Penetrant Inspection Reports) 60. Having gone to the welding bay to locate the T-Foils, Mr Bolta could not locate them and asked a welder where they were61 to which he was informed they had been packed ready for delivery to the client62. Mr Bolta then found Mr Dawson who confirmed that to be the case, and that the welder had conducted a ‘re-test’ on the T-Foils which he observed63. Mr Bolta’s evidence was that it was ordinary practice at Veem for welders to perform ‘re-testing’ under the supervision of a Production Coordinator or Manager64.
[53] Mr Bolta then noticed that the ITP Worksheet had his initials next to the NDT DPI operation tasks 65. Mr Bolta said that he was not sure why his initials had been signed by the task as he had not done the work, nor had he received the ITP/Job Card for the First and Second T-Foil until the 30 August 201766. Mr Bolta then gave the following evidence:
I was concerned that I had not checked the First and Second T-Foil as I had planned following the end of my shift the previous day however since I had received the confirmation of compliance from Dawson and Craig, someone having already initialled my name on the DPI operations task and because the First and Second T-Foils had been packed away, I decided to issue the complying NATA report.
[54] Mr Dawson gave evidence that the two T-Foils were among the largest parts manufactured at Veem and there were only two locations where one would look for them, either the welding or fitting bay 67.
[55] Further, Mr Dawson confirmed that he had initialled the ITP with SB and JVN, he said:
On the ITP, Mr Bolta stated that you annotated the ITP with his initials of his own initials and also a welder in their respective operations. Is that correct, and if so, why?---Yes, that's correct, the reason being that the two hadn't signed off the operations that they'd completed, so I'd written SB, being Sasa Bolta and JVN being Juan Van Niekerk to come out and ask them to sign off their ops, had they completed them, which they did.
Did they state that they hadn't completed them?---No.
Did you actually discuss this with Mr Bolta?---That I had initialled the - yes.
What was the explanation and the outcome?---The same which I've just said and Sasa was fine.
So, when an item is being dispatched, when basically a project has been finished, does a PC or a production manager - in this case you were working as a PC, do they carry out a final inspection?---Yes.
Can you please describe that test, or that inspection?---It's to look over the product for some presentation really - so, in this case, I would have got up on top of the truck and walked around and wiped my hand on the leading and trailing edges to make sure the shapes were correct, hydrodynamically polished and just had a look that there was no burs and no writing. Often we have texta marks and things like that which don't present well, grease and dirt. That's pretty much the end of looking at it. Normally the project manager is involved as well.
Does the inspection then require perhaps a review of the documentation?---Yes, well.
Can you describe that?---It's not necessarily at the job, but certainly the job package is checked before the product is released. Before the project manager will allow delivery dockets to be printed and transport to be arranged, he checks that the ITP operations are all signed off. Non-conformances are completed and any specific reporting is complete and says that it's complying. It could be mechanical tests of materials or dimensional inspections or dye penetrant inspections and whatever is part of that particular contract. They do this thoroughly, yes.
Does that final inspection, does that require a reinspection of all the specialized tests that went into that product, or is it?---No, no. It's - no, all the testing is done at the time that it's completed. It would be - well, it's unnecessary and it would be very costly to redo everything. 68
Investigation
[56] Veem received notification from its client sometime after the dispatch of the T-Foils that they had defects. An investigation ensued. Mr Bolta says that he was initially approached by Mr Bakshi and asked to respond to an email and photograph of a defect on a T-Foil 69. In response to being asked what Mr Bolta remembered about the defect, Mr Bolta said that he told Mr Bakshi that he had completed a visual inspection on the first and second T-Foil and had marked the defect with red charcoal70. Mr Bolta said that he had expressed to Mr Bakshi that he was surprised that the defect was not repaired before going to the client71.
[57] Three to four days after the meeting with Mr Bakshi, Mr Bolta states that Mr Nick Moore, Integrated Systems Manager (Mr Moore), asked Mr Bolta to meet with him as he was conducting an investigation into the defect on the first or second T-Foil that Mr Bolta had completed in August 2017 72. Mr Bolta said that Mr Moore asked if he had completed the final inspection before the T-Foil was packaged to which Mr Bolta said he responded ‘no’73. Mr Bolta said that he explained to Mr Moore the work as it happened on 29 and 30 August 2017 and confirmed that he did not have the ITP/Job Card at the time of testing the T-Foils74.
Audit report
[58] On 19 October 2017, Mr Bolta states that Mr Dawson handed to him an Audit Report to sign 75. The Audit Report had been compiled by Mr Moore. Mr Bolta said that he read the Audit Report, informed Mr Dawson that the contents were not reflective of the interview that he had with Mr Moore as he was identified as the only employee accountable for the defect not getting repaired, and therefore refused to sign the Audit Report76.
[59] The Audit Report 77 was compiled by Mr Moore and included the following findings:
2.1 The archived job packs for K94004 and K94007 were audited initially due to these documents being the controlling documents for jobs performed at VEEM. Findings are as follows:
● The ITPs showed that Sasa Bolta (SB) had signed off ITP Op 28 – Final NDT and Visual Inspection 30/08/2017 for both jobs.
● The Job packs also showed that SB had issued the Penetrant Inspection (PI) report on 30/08/2017, same day the operation was signed off.
● Both PI report and PI worksheet, completed by SB include statement “Through holes and hard to accessible areas on T-foil are excluded from this test” whereas ITP states “Final NDT to be carried out on 100% of surface area”.
This evidence points to the fact that the Final Inspection Operation has not been performed as directed by the ITP. The ITP required inspection of 100% of the surface area however the operator, with no instruction or approval from his production controller or higher, has taken it upon himself to state that “hard to accessible areas on T-foil” are excluded from the final inspection test.
It is of the opinion of the auditor that the pocket in which the defect is found is able to be assessed as visually non-compliant as evidenced by photographs (can clearly be seen in IMG_0853, and use IMG_0852 for comparator of zoom) and therefore would not be deemed as a “hard to accessible areas on T-foil”.
2.2 Both ITP’s [sic] also had Visual inspection operation post fettling. On this preliminary Visual inspection operation (Op11) there is no requirement stating “100% of surface area”. This was used as a defence by the PM, PC and operators interviewed as to how this defect could have been missed in the preliminary inspection. The text for the operation does however include the instruction to “Comply with requirement” with the acceptance criteria stating WI-00016.
● In WI- 00016 (Minimum Inspection Methods for Unspecified Criteria), under visual inspection it states “All visual inspection shall be performed in accordance with WI00036 and accepted in accordance with MSS SP-55 & MSS SP-112-1999 to a minimum level 8”.
● WI-00036 (Visual Inspection Method) directly reference AS 3978 (Non Destructive Testing) which states “Unless otherwise stated, visual inspection shall cover 100% of the surface requiring inspection. Where complete inspection is not possible, the inspector shall document fully, with clear measurements, the areas not inspected”.
The assertions by the PM, PC and operators that 100% surface inspection was not required as it was not asked for by the ITP are incorrect. This inspection should have defaulted to 100% surface inspection as per the above evidence. Those controlling the processes are evidentially unaware of this requirement given their responses.
2.3 On interview of NDT technicians and inspectors it was stated that the T-foil is presented for the preliminary inspection palm plate down. One inspector stated he lifted the foil by the wings using soft slings in order to completely inspect. One technician stated he does not lift the T-foil as he is not confident in lifting the foil (PC confirms he has seen this technician lift them by himself previously). The last stated he does roll the foil himself. In all three cases all confirmed that the pocket in which the defect is found is facing down and is not visually inspected as it is hard to access (without completely rolling the foil) and all figured it would be inspected as part of the final inspection and therefore it wouldn’t matter if it was not inspected at this point.
WI-00036 clause 4.2 for Remote visual examination states “In some cases, remote visual examination may have to be substituted for direct examination. Remote visual examination may use visual aids such as mirrors, telescopes, borescopes, fibre optics, cameras, or other suitable instruments. Such systems shall have a resolution capability at least equivalent to that obtainable by direct visual observation”. Even if the T-Foil is not rolled, remote visual examination has not been utilised in accordance with the WI.
[60] The Audit Report set out a conclusion and recommendations, including the following:
The conclusion of this audit is that the cause of this non-conformance is due to the final inspection not following the requirements of the ITP with the responsibility for this NCR attributed to Sasa Bolta. The grounds for this conclusion is that it was Sasa’s decision, and his alone, to exclude hard to access areas from the test and therefore missing the defects found in the pocket 78.
[61] Mr Bolta stated, and Mr Dawson confirmed, that he became very upset in the meeting after reading the Audit Report. Both Mr Dawson and Mr Bolta confirmed that Mr Dawson informed Mr Bolta to calm down as there was to be a subsequent meeting with Mr Moore and Mr Mike Coyle, Commercial Manager (Mr Coyle) 79.
[62] During the course of the meeting between Mr Dawson and Mr Bolta, Mr Dawson gave evidence that Mr Bolta was aware that there were deficits with the T-Foils but he had not conducted re-testing:
When you met with Mr Bolta, did you discuss as to what he thought the reasons why the product was delivered non-conforming?---Yes, his initial response was that the welders must not have welded the defects. I said okay, so you knew there were defects. He said yes, I marked them up with red chinagraph and he indicated that he'd drawn arrows on the flange, which is the top portion of the casting, indicating that there's defects inside. I said right, did you retest it after that? That was the first that I'd heard that no, the answer was no, he hadn't retested it. So, he said the welders didn't fix it and then admitted yes, I didn't test it again 80.
[63] It was Mr Dawson’s view that it was the responsibility of the NATA Inspector to retest the product after repairs particularly in circumstances where it is asserted that the test is the final inspection 81.
Disciplinary meeting
[64] The subsequent meeting was held after a short period on the same date of 19 October 2017, and Mr Bolta said he was asked why he had restricted the pocket on the first and second T-Foils from the NDT DPI as he lacked authority to do so and the area could have been NDT DPI tested 82. Mr Bolta expressed that he informed the gentlemen that he did not agree with that finding as the area was not polished or blasted and the NDT DPI would not have been effective83. Further, Mr Bolta said that he referred to the discussion that he had with Mr Bakshi, who supported the approach of visual inspection84.
[65] Mr Bolta’s evidence was that he asked the gentlemen why the T-Foils had been packed without a qualified person conducting the final re-testing, and why his initials had been signed on the ITP/Job Card 85. Mr Bolta said that Mr Dawson responded by informing him that he had signed Mr Bolta’s initials so he could remember to ask him to sign the ITP/Job Card at a later stage86. Mr Bolta said that he disputed that this was the case and provided an alternative explanation that Mr Dawson signed an IPT/Job Card if an employee forgot or was on leave to enable jobs to be progressed87. Mr Bolta said that it was a rule that no job could be progressed unless the ITP/Job Card was signed correctly88. Mr Dawson was asked by Mr Bolta whether he had signed the ITP/Job Card for the T-Foils to allow them to move to the next stage for delivery, to which Mr Bolta said that Mr Dawson became upset89.
[66] Following the meeting on 19 October 2017, Mr Bolta was required to attend a further meeting with Mr Dawson, Mr Moore and Mr Bakshi, the next day and was accompanied by a support person. Mr Bolta said that he was asked why he had excluded areas of the T-Foil for testing and why he had not re-tested the T-Foils post repair for compliance 90. Mr Bolta replied:
I told them that the area could not have been effectively tested given it was neither blasted or polished. I said that I should have specified the area excluded on the NATA compliance documentation, and was sincerely sorry for this oversight but reminded them that I had told by my acting PC (Dawson) that the necessary re-testing had been completed and the First and Second T-Foil were defect free 91
[67] Mr Bolta said that it was explained by Mr Moore that he would not be comfortable allowing Mr Bolta to maintain his NATA signatory status until he had received re-training in the requirements of holding such status 92. Mr Bolta reports that he informed Mr Moore that he would be happy to complete any further retraining93.
[68] Having been informed to leave the room, after approximately 40 minutes Mr Bolta was asked to return. On returning he was notified that he was dismissed because of serious misconduct and that he had jeopardised a multi-million dollar contract and had ruined Veem’s reputation with this particular client 94.
[69] It was not in dispute that the Veem Engineering Group Pty Ltd Collective Workplace Agreement 2008 applied to Mr Bolta’s employment as an Inspector.
Submissions of Veem
[70] Veem submitted that a customer of the T-Foils who was situated in the Philippines had identified that there were serious defects with the product hence indicating that the relevant testing or inspection had not been done. As a consequence of the defects being identified by the client, Veem said it mobilized a staff member to the shipyard in the Philippines and incurred $11,123.00 in costs to rectify the defect; in addition; it advances, to suffering reputational damage.
[71] Without being exhaustive, the view of Veem is that Mr Bolta did not perform his duties in accordance with known requirements that required certification of a critical product to a specified standard. Mr Bolta admits to having not re-tested the T-Foils as would be the normal procedure before distribution to the client. His NATA certification approval of the T-Foils was based on the communication of a Production Manager and Welder who were involved in the process. These actions occurred notwithstanding the day prior Mr Bolta had identified defects on the T-Foils that were non-complying. Veem submitted the only way to verify compliance of the defect repair was to perform a re-test of the relevant rework by a NATA inspector.
[72] It was said that an illusion of compliance had been created when Mr Bolta signed the NATA endorsed Penetrant Inspection Report and progressed the T-Foils as fully compliant under the ITP. Veem say that such conduct was by way of action and not omission. Mr Bolta was charged with knowing the correct approach to NDT and re-testing. While Veem did not suggest maliciousness in his actions they nevertheless considered that he had knowledge of the potential exposure to the client and itself, to significant risk.
[73] To summarise, Veem submitted:
● the actions were not simple omission or error. Mr Bolta specifically stated details that were not true;
● he signed internal documents and constructed and signed official reports stating data that was not true exposing the company to significant actual and potential damages;
● his stated reasons for his action have consistently been based on the blame of others or circumstances and he had failed to acknowledge responsibility;
● Mr Bolta is the only NATA inspector involved in this matter who produced final certification;
● his actions are not consistent with someone who is to continue employment in this role; and
● his actions resulted in damages to the company and further resulted in an inability to continue with an employment relationship requiring professional trust.
Submissions of Mr Bolta
[74] With reference to Edwards v Giudice and Others 95(Edwards) Counsel for the Applicant, Mr Stewart, (Mr Stewart) submitted:
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 not to justify the termination. An employee may concede in an arbitration that the conduct took place, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also be relying on other grounds in paras (a)-(e) 96.
[75] The relevance of the passage in Edwards was said to be that much of what Veem had alleged in terms of conduct was disputed by Mr Bolta, but nonetheless Mr Bolta had accepted some fault on his part 97. The central tenet relied upon by Mr Bolta was that there was not a valid reason for his dismissal because key aspects of the conduct did not occur, or alternatively, if the conduct was taken to have occurred it did not justify termination.
[76] Mr Stewart submitted that Mr Bolta carried out the task required of him in line with normal practice and with the approval of his supervisor, and this would not be conduct that, in the normal course of events, would have been reported. It was accepted, said Mr Stewart, that that if Mr Dawson had sighted the NATA endorsed Penetrant Inspection Report, he would not have considered there to be an issue with Mr Bolta restricting the ‘hard accessible areas’ from the NDT DPI.
[77] The Audit Report placed blame upon a number of employees and considered the failure on the part of the Production Controller and management in supervising the leading team was a critical factor, submitted Mr Stewart. Mr Bolta relied up on an oral instruction to undertake the work and was not provided with the relevant Job Card until after initial inspections had taken place.
CONSIDERATION
Matters in dispute
[78] In short form, the obstacles sought to be raised by Veem to the success of the Application are that Mr Bolta restricted or excluded inspection of the pockets of the T-Foils when not authorized to do so and in circumstances where Veem held the view that the area excluded or restricted was in an accessible area for NDT DPI testing.
[79] Further, Mr Bolta had accepted that the ITP was signed confirming, Veem say, the final visual and NDT DPI inspections were performed and there was compliance notwithstanding that there was not. Mr Bolta then proceeded to issue a NATA endorsed Penetrant Inspection Report with exclusions in circumstances where a final inspection was not conducted post welding repair of the T-Foils.
[80] Mr Bolta conceded that he had not conducted a final inspection, whether a visual inspection or an NDT DPI, on the two T-Foils and had yet signed the NATA Penetrant Inspection Report that the T-Foils were compliant. However, he advanced that his dismissal was nevertheless unfair because:
● relevant Job Cards were not provided with the oral instruction from Mr Dawson;
● the inspection conducted on the T-Foils was in accordance with that agreed to previously with Mr Bakshi;
● when defects were identified on first pass they were sent to the welder for repair;
● Mr Bolta attempted to locate the T-Foils the next day in the welding bay;
● Mr Bolta had been assured by Mr Dawson that the defects he had identified on inspection had been repaired;
● there was no internal process to record the defect with specificity;
● the Job Cards had already been signed by Mr Dawson;
● Mr Dawson and the relevant Project Manager was responsible for reviewing all documentation before the T-Foils were dispatched; and
● had Mr Dawson seen the NATA endorsed Penetrant Inspection Report he would not have considered the restriction Mr Bolta had included as being an issue.
[81] Mr Stewart submitted that Mr Bolta was not provided with an opportunity to respond and the disciplinary outcome was a disproportionate response.
Agreed Matters
[82] It is not in contest and I am satisfied on the evidence that:
(a) Mr Bolta is a person protected from unfair dismissal because, at the time of his dismissal, he had completed a period of employment with Veem of at least the minimum employment period, an enterprise agreement applied to the Applicant in relation to the employment (s.382 of the Fair Work Act 2009 (Cth));
(b) Mr Bolta was dismissed by Veem (ss.385(a) of the Act);
(c) Veem was not a “small business employer” as defined in s.23 of the Act, so the Small Business Fair Dismissal Code was inapplicable (ss.385(c) of the Act);
(d) Mr Bolta’s dismissal was not a case of genuine redundancy (ss.385(d) of the Act); and
(e) Mr Bolta’s Application was made within the period required (ss.394(2) of the Act).
Valid reason for the dismissal – ss.387(a)
[83] When determining if a dismissal is unfair the Commission must take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct 98.
[84] Where the reason for termination of employment relates to an employee’s capacity or conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is rather for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct 99.
[85] The reasons considered are the employer’s ‘reason(s)’ 100. The Full Bench in B, C, and D v Australia Postal Corporation T/as Australia Post101 (Australian Postal Corporation) stated:
[34]... In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).
[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal. 102
[86] Therefore, the question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the matter before it. As referred to in Australian Postal Corporation, the test is not whether the employer believed, on reasonable grounds after sufficient enquiry the employee was guilty of the conduct which resulted in termination 103.
[87] The valid reason need not be the reason given to the employee at the time of the dismissal 104 and the reason should not be ‘capricious, fanciful, spiteful or prejudiced’105. The provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly106.
Consideration
[88] From the evidence it would appear that Veem had endeavoured to take a consistent approach to ensure its employees were aware of the requirements for NDT and NATA certification of manufactured components.
[89] There was dispute between the parties on whether the defects on the T-Foils should have been excluded or restricted from inspection. It was clear that Mr Dawson held the view that the defects were located in an accessible part of the T-Foils, the restriction should not have been put in place and the NDT DPI testing could have been conducted.
[90] To the contrary, Mr Bolta gave evidence of the problematic nature of inspecting the T-Foils and conducting the NDT DPI Testing. Mr Bolta asserted that he was simply following an instruction that had been issued by Mr Bakshi concerning reliance on visual inspection. Mr Bakshi was said to have agreed that only visual inspections would be done of those surfaces, being the cast surfaces at the bottom of the T-Foils that are not blasted or polished 107. Mr Bakshi was not present at the hearing and was not called to give evidence.
[91] In response to the notification of the client that there were defects with the T-Foils, Veem conducted an Audit. The Audit Report provided:
This evidence points to the fact that the Final Inspection Operation has not been performed as directed by the ITP. The ITP required inspection of 100% of the surface area however the operator, with no instruction or approval from his production controller or higher, has taken it upon himself to state that “hard to accessible areas on T-foil” are excluded from the final inspection test.
It is of the opinion of the auditor that the pocket in which the defect is found is able to be assessed as visually non-compliant as evidenced by photographs (can clearly be seen in IMG_0853, and use IMG_0852 for comparator of zoom) and therefore would not be deemed as a “hard to accessible areas on T-foil”.
[92] Mr Bolta of course says that he was authorized to restrict or exclude inspection of the pockets by the say-so of Mr Bakshi.
[93] It is clear from the Audit Report that in practice the Inspectors adopted different approaches to inspecting the T-Foils. Relevantly, the Audit Report sets out that on presentation the T-Foil is palm plate down. Consequently, one Inspector is said to have stated ‘he lifted the foil by the wings using soft slings in order to completely inspect’, a Technician is reported has having said ‘he does not lift the T-foil as he is not confident in lifting the foil’ although the Production Coordinator confirmed he had seen this technician lift them by himself previously 108. The last Inspector is said to have ‘rolled the foil himself’109. The Audit Report sets out that in all three cases those interviewed confirmed that the pocket in which the defect is found is facing down and is not visually inspected as it is hard to access (without completely rolling the foil) and all figured it would be inspected as part of the final inspection and therefore it wouldn’t matter if it was not inspected at this point110. With regard to the reference to ‘this point’, I have interpreted that to mean the point prior to a final NDT inspection being conducted.
[94] The approach of the Inspectors and Technician interviewed for the purpose of the Audit Report regarding NDT of T-Foils appeared to lack uniformity. Although there was consensus that the T-Foils were not visually inspected before final inspection because they were hard to access.
[95] Considering the evidence before me I am not inclined to find that the imposition of an exclusion or restriction imposed on the initial or later NDT (excluding the final NDT) would be considered divergent to the usual practice within Veem.
[96] However, when it came to conducting the final NDT of the T-Foil it is obvious from those interviewed that they anticipated the pocket of the T-Foil would be inspected as part of the final inspection. Reference to the ITP within the context of the Audit Report importantly states ‘Final NDT to be carried out on 100% of surface area’ 111.
[97] Conflicting evidence was given on whether the surface of the T-Foil leant itself to a NDT DPI or not. While I appreciate that Mr Dawson had worked for Veem for a period in excess of ten years he was not a NATA certified Inspector. Further, while Mr Bolta asserted the T-Foils had surfaces which meant the dye test would show all rough surfaces irrespective of whether they were defective and dye would drip down to the bottom of a pocket like water in the bucket, based on the evidence provided I am unable to conclude that Mr Bolta was authorised to only conduct a visual inspection based on the justification he provided. It is in these circumstances I am unable to arrive at a finding on whether an NDT DPI should have been conducted on the surface of the T-Foils.
[98] As it stands, Mr Bolta acknowledged he did not conduct a final inspection of the T-Foils. It is true that Mr Dawson signed the Worksheet. However, to extend the significance of Mr Dawson signing of the Worksheet to mean that the T-Foils had been inspected and were defect free, is in my view a step too far.
[99] Further, I am unconvinced by the evidence of Mr Bolta that Mr Dawson informed him that the T-Foils were defect free and that the welder had retested the First and Second T-Foils while Mr Dawson witnessed the inspection 112.
[100] When unable to locate the T-Foils on the morning of 30 August 2017, Mr Bolta could have raised his concern to the Production Coordinator or high level management regarding not having re-tested the T-Foils. He did not. Mr Bolta said that it was not until Mr Dawson approached him with the Job Cards and requested NATA endorsed Penetrant Inspection Reports that Mr Bolta went to the welder’s bay in search of the T-Foils. I question why, if Mr Dawson knew that the T-Foils had been checked, re-tested, and packed ready for delivery to the client, he did not inform Mr Bolta there and then of this when requesting the NATA endorsed Penetrant Inspection Report and showing him the Job Cards with Mr Bolta’s initials on. Yet, Mr Bolta states that it was not until he returned to Mr Dawson, having tried to locate the T-Foils, that Mr Dawson informed him they were checked, re-tested, packed and ready. Mr Dawson gave evidence that it was not until he interviewed Mr Bolta as part of the disciplinary process that he became aware that retesting of the T-Foils had not been conduct 113. I find Mr Dawson’s evidence compelling and plausible.
[101] From the evidence presented, I am satisfied that Mr Bolta was well aware that his responsibility was to inspect the T-Foils and that he was not positioned to delegate that responsibility to another or to rely upon the representations of another to complete the NATA endorsed Penetrant Inspection Report absent having actually conducted the NDT himself.
[102] Further, when confronted with a Worksheet on which his initials were printed, it was open to Mr Bolta to dispute the signing of the Worksheet/ITP or to have clarified that he had not undertaken the final NDT. Mr Bolta’s own evidence was that signing the ITP was important because only the employee performing the specific operation was authorized to sign the task on the ITP 114.
[103] Even if were to be the case that Mr Dawson informed Mr Bolta that the retesting had been conducted by the welder, which I am unpersuaded it is, it nevertheless sat squarely with Mr Bolta to undertake the NDT, a process that he was trained to do and which was primarily his, and only his responsibility.
[104] Mr Bolta then proceeded to complete two Penetrant Inspection Reports for the two T-Foils. It is true that Mr Bolta had rightly or wrongly, and I would say wrongly, noted that the ‘Test Restriction’ was ‘Through holes and hard accessible areas on T-Foil excluded from this test’. But, perhaps of greater importance was Mr Bolta had signed these NATA endorsed Penetrant Inspection Reports in circumstances where he knew that he had not completed the final inspection and therefore his statement ‘1 Off T-Foil Final Inspection, Complies’, was a nonsense.
[105] The NATA endorsed Penetrant Inspection Reports include in their content the following:
NATA
World Recognised Accreditation
Accreditation No. 11145.
Accredited for compliance with ISO/IEC 17025 – Testing
The results of the tests, calibrations and/or measurements included in this document are traceable to Australian/national standards.
[106] While it may have been case that Mr Dawson did not provide the ITP/Job Card to Mr Bolta it was open to Mr Bolta to have sought the ITP/Job Card and it was again, as noted, open to Mr Bolta to challenge Mr Dawson’s signing of the ITP/Job Card Worksheet.
[107] Mr Bolta may have attempted to locate the T-Foils the next day after his initial inspection of them. However, he did not locate them, and he did not inform Mr Dawson or anyone else for that matter that this was the case. It was submitted that Mr Dawson and the relevant Project Manager were responsible for reviewing all documentation before the T-Foils were dispatched. Mr Dawson was agreeable with this proposition but cautioned that this review did not take the form of a re-inspection or NDT noting that all the NDT was done at the time it is completed 115. Further, it was clear on the evidence that it was only the NATA accredited Inspectors who were qualified to undertake the NDT within Veem. The NDT did not form part of the final inspection of the Production Coordinator or Project Manager before dispatch.
[108] Mr Bolta had been appointed into a position that was essentially that of a gatekeeper controlling the product that was approved for dispatch and that which was not. The approval of a product or component was dependent on compliance with specifications that sat within the ITP and processes which were included in Work Instructions.
[109] Mr Stewart kindly referred me to the decision of Edwards. It is the case that Mr Bolta conceded he did not conduct a final NDT. However, it is not the case that Mr Bolta’s omission can be characterized as a trivial misdemeanor when the entire crux of his position was to conduct NDT and assess whether a product was compliant or non-compliant with the ITP. His conduct and the preparation of documents thereafter perpetuated a deception.
[110] In Parmalat Food Products Pty Ltd v Wililo 116, the Full Bench held:
The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The fining of a valid reason is a very important consideration in establishing the fairness of a termination.
[111] I am satisfied in the circumstances of this case that the termination of Mr Bolta’s employment was for a valid reason.
Notification of the valid reason –ss.387(b) and an opportunity to respond –ss.387(c)
[112] The Commission must take into account whether notification of a valid reason for termination has been given to an employee protected from unfair dismissal before the decision is made 117, and in explicit118, plain and clear terms. It is accepted that this is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality119.
Consideration
[113] I am satisfied that Mr Bolta was notified of the reasons why Veem was considering terminating his employment and was given an opportunity to respond to those reasons. I am not satisfied that the decision to dismiss Mr Bolta was made before notification of a valid reason or providing the opportunity to respond.
Unreasonable refusal of a support person – ss.387(d)
[114] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.
Consideration
[115] At all relevant times, Mr Bolta was allowed a support person.
Warnings regarding unsatisfactory performance – ss.387(e)
[116] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.
[117] Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct 120. The Commission must take into account whether there was a period between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period gives the employee the opportunity to understand their employment is at risk and to try to improve their performance121.
Consideration
[118] This is a neutral factor in light of the finding that the reason for dismissal was the misconduct of Mr Bolta rather than his performance.
Impact of the size of the respondent on procedures followed and absence of dedicated human resources management specialist/expertise on procedures followed – ss.387(f)-(g)
[119] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which: (a) the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (b) 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.
Consideration
[120] The size of Veem’s business had some effect on the procedures followed by it in effecting the dismissal. Veem is a small to mid-size company, employing approximately 150 employees. It does not have a dedicated Employee Relations function or Human Resources team or advisor.
[121] It was submitted by Mr Bolta that he was denied procedural fairness as a consequence of Mr Dawson’s involvement in the disciplinary decision making process. However, I am satisfied that the procedures followed by Veem in affecting the Applicant’s termination of afforded procedural fairness.
[122] An audit was conducted by a member of the Veem team who was independent of the circumstances that gave rise to the omission of the final NDT DPI inspection of the T-Foils. Veem’s consideration of the Audit Report was not misplaced when deliberating on the disciplinary action to take against Mr Bolta. It was not the case that Veem was obliged to accept the recommendations of the Audit Report in their entirety or at all. Ultimately, the decision with regard to what, if any, disciplinary action should be taken against Mr Bolta, sat with the management of Veem.
[123] However, in light of the findings of the Audit Report and the involvement of both Mr Bakshi and Mr Dawson in the circumstances which ultimately gave rise to the omission of the final NDT DPI, it was unwise for Veem to charge them both with the responsibility of participating in the disciplinary meetings, and with regard to Mr Dawson alone, signing the termination letter.
[124] It was uncontested that Messrs Bakshi, Moore and Dawson were present at the disciplinary meeting on 20 October 2017, and that after listening to Mr Bolta’s response to a query concerning his version of events, Mr Moore reportedly stated that he would not be comfortable letting Mr Bolta retain his NATA signatory status until he had received further retraining 122. Soon after Messrs Bakshi, Moore and Dawson suspended the meeting to consider the disciplinary outcome and on his return to the meeting room, Mr Bolta was dismissed.
[125] The evidence is such that Messrs Bakshi, Moore and Dawson were at a minimum involved in the decision to dismiss Mr Bolta. It is therefore the case that the involvement of two of the three decision makers may have given rise to a perception of impartiality.
[126] Mr Bolta had asserted that the approach he adopted regarding the inspection of the T-Foils aligned with that agreed upon by Mr Bakshi; no evidence was tendered at hearing to say otherwise. The final inspection was said to have not been conducted because Mr Bolta relied upon what he said were representations of Mr Dawson that the repairs to the T-foils had been actioned, and that his signatory had already been placed in the ITP by Mr Dawson. It follows that both Mr Bolta and Mr Bakshi were witnesses in the matter.
[127] It will not always be the case that within a business there will be layers of management available to conduct the disciplinary process when a management member is themselves witness to the disciplinary matter. However, I observe that at hearing Messrs Lenane and Kay appeared for Veem both of whom sit in executive management positions in the business. Consequently, it may have been entirely viable for the disciplinary process to be conducted by someone other than Messrs Dawson and Bakshi.
[128] However, while Messrs Dawson and Bakshi may be perceived to be lacking in impartiality due to their involvement in the matter, it is important to observe that the Commission is to determine if the conduct occurred based on the evidence before it, not based on the evidence or the belief of the decision maker or makers. In this respect, I am satisfied that the investigation, and subsequent findings into the matter, were not flawed or made deficient because of the involvement of Messrs Dawson and Bakshi.
Other relevant matters – ss.387(h)
Serious misconduct
[129] Whether the Applicant’s conduct justified summary dismissal is a factor relevant for consideration under ss.387(h) of the Act 123.
[130] The term ‘serious misconduct’ does not operate as a fixed standard for the determination of the type of conduct by the employee which may warrant summary dismissal 124. In Owen Sharp v BCS Infrastructure Support Pty Limited125 the Full Bench referred to the decision in Rankin v Marine Power International Pty Ltd126in which Gillard J stated that ‘[T]here is no rule of law that defines the degree of misconduct which would justify dismissal without notice’ and identified the touchstone as being whether the conduct was such a grave nature as to be repugnant to the employment relationship127.
Consideration
[131] I am satisfied that Mr Bolta’s misconduct was manifestly serious and in clear breach of the obligation he had concerning his responsibilities as a NATA endorsed Inspector.
[132] It was entirely open to Veem to conclude that Mr Bolta had conducted the initial NDT, had identified the defects in the pockets of the T-Foils, had sent them to the welder for rectification, had re-tested the T-Foils post rectification to ensure the amelioration or complete removal of the defects and had, when signing the NATA endorsed Penetrative Inspection Report, done that which the Report purported to have been done. Further, I simply observe it makes no sense to me to have relied upon a test restriction or exclusion to excuse the existence of the defects in circumstances where the defects were identified and marked by Mr Bolta in the first instance and sent to the welder for repair. On this basis the defects were clearly observable.
[133] When considering the circumstances of this case and in particular the duties and responsibilities of Mr Bolta’s position, signing the NATA endorsed Penetrant Inspection Reports gave rise to a deception. It is misconduct that goes to the very core of the duty owed by Mr Bolta to Veem. In the circumstances of this case that duty was paramount as Veem was reliant upon Mr Bolta to certify that its product had been assessed through a NATA certified NDT regime.
[134] It was quite right that Mr Bolta acknowledged his wrong doing with regard to the signing of the NATA endorsed Penetrant Inspection Reports but it is quite wrong to consider such conduct as a trivial misdemeanour. Mr Bolta asserted that he would be happy to complete further training when Mr Moore raised concern regarding Mr Bolta retaining his NATA signatory status. However, it appears very doubtful to me that such re-training would address the misconduct issue that arose in the circumstances of this case and the outcome of that misconduct, namely a loss of trust.
[135] Mr Bolta’s conduct was of such a grave nature that it was simply repugnant to the employment relationship and as such justified summary dismissal.
Conclusion as to harsh, unjust or unreasonable
[136] Whether the dismissal of Mr Bolta was harsh, unjust or unreasonable must be decided on the facts of the case before me.
[137] In Byrne and Frew v Australian Airlines Ltd 128 the High Court held that:
… 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. 129
[138] Mr Bolta engaged in conduct that gave rise to there being a valid reason for his dismissal. The seriousness of his misconduct was such that a summary dismissal was justified in the circumstance.
[139] I am unpersuaded that the decision to terminate Mr Bolta’s employment for serious misconduct was unjust, unreasonable, or disproportionate to the gravity of Mr Bolta’s conduct. While there may have been a perception of impartiality with regards to the involvement of Mr Dawson in the disciplinary process or procedure, Veem was obliged when determining the disciplinary outcome to act reasonably, and as such I consider it did. Further, I do not consider based on the facts before me that this is a case that leads itself to the consideration of inconsistent treatment between employees.
[140] Whilst I appreciate that the dismissal has had some impact on Mr Bolta because he has lost his job, I am unpersuaded that the mitigating factors presented give rise to a conclusion of harshness.
[141] I have found that Mr Bolta engaged in serious misconduct and that Mr Bolta was afforded procedural fairness. It follows I am therefore satisfied that his dismissal was not harsh, nor was it unjust or unreasonable.
DEPUTY PRESIDENT
Appearances:
Mr A Stewart, for the Applicant
Mr D Lenane and Mr L Kay, for the Respondent
Hearing details:
2018
January
30 & 31
Final written submissions:
7 February 2018
1 Written Submission – Respondent (d).
2 EPCP-01 [2].
3 Transcript PN 1053.
4 Ibid.
5 Ibid PN 1055.
6 Ibid PN 1084.
7 Ibid.
8 Ibid PN 1056.
9 Ibid PN 1085.
10 Ibid PN 1058.
11 Witness Statement of Sasa Bolta (Bolta Statement) [4].
12 Applicant’s Outline of Submissions (Applicant’s Submissions) [6].
13 Bolta Statement [9].
14 Ibid [11].
15 Applicant’s Submissions [6].
16 Bolta Statement [7].
17 Exhibit R8.
18 Ibid [5].
19 Transcript PN 1259.
20 Ibid.
21 Bolta Statement [13].
22 Ibid [14].
23 Ibid [16].
24 Ibid.
25 Ibid [17].
26 Ibid.
27 Ibid [18].
28 Ibid.
29 Ibid [19].
30 Transcript PN 1260.
31 Ibid PN 1261.
32 Ibid.
33 Ibid PN 1060.
34 Ibid.
35 Ibid PN 1078.
36 Exhibit A1 [27].
37 Ibid [28].
38 Ibid [31].
39 Exhibit A1
40 Ibid [34].
41 Ibid [35].
42 Ibid [36].
43 Ibid [38].
44 Ibid [39].
45 Ibid [50].
46 Ibid [45].
47 Ibid [46].
48 Ibid.
49 Exhibit R3; Transcript PN 1107.
50 Transcript PN 1134.
51 Ibid.
52 Ibid.
53 Exhibit A1 [51].
54 Ibid [52].
55 Ibid [53].
56 Ibid [54].
57 Ibid [40].
58 Ibid [56].
59 Ibid [57].
60 Ibid [61] –[62].
61 Ibid [64] – [65].
62 Ibid [65].
63 Ibid [67].
64 Ibid [69].
65 Ibid [70].
66 Ibid.
67 Transcript PN 1113.
68 Ibid PN 1116 - 1124.
69 Exhibit A1 [76].
70 Ibid [79].
71 Ibid [80].
72 Ibid [84].
73 Ibid [85].
74 Ibid [87] – [90].
75 Ibid [93].
76 Ibid [94] – [95].
77 Exhibit A1 Attachment 6.
78 Ibid.
79 Ibid [97].
80 Transcript PN 1128
81 Ibid PN 1129.
82 Exhibit A1 [100].
83 Ibid [101].
84 Ibid.
85 Ibid [103].
86 Ibid [104].
87 Ibid [106].
88 Ibid [108].
89 Ibid [110].
90 Ibid [117].
91 Ibid [118].
92 Ibid [121].
93 Ibid [122].
94 Ibid [125].
95 (1999) 169 ALR 89.
96 Ibid [7].
97 Applicant’s Final Written Submissions [7].
98 ss.387(a) of the Act.
99 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
100 Owen Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 [25].
101 [2013] FWCFB 6191.
102 Ibid [34] – [36].
103 King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 [24]; B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191 [34].
104 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 377-8.
105 Ibid.
106 Ibid as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17 [36].
107 Exhibit A1 [46].
108 Ibid Attachment 6.
109 Ibid.
110 Ibid.
111 Ibid.
112 Ibid [67]-[68].
113 Transcript PN 1128
114 Exhibit A1 [71].
115 Transcript PN 1116 - 1124.
116 (2011) 207 IR 243 [24].
117 Trimatic Management Services Pty Ltd v Daniel Bowley[2013] FWCFB 5160; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151.
118 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151; Previsic v Australian Quarantine Inspection Services Print Q3730.
119 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1 14-15.
120 Annetta v Ansett Australia Ltd (2000) 98 IR 233 237.
121 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
122 Exhibit A1 [121].
123 Owen Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 [32]; Potter v WorkCover Corporation (2004) 13 IR 458, 474.
124 Owen Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 [34]; Grandbridge Limited v Mrs Diane Wiburd [2017] FWCFB 6732.
125 [2015] FWCFB 1033 [34].
126 (2001) 7 IR 117.
127 Owen Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 [34].
128 (1995) 131 ALR 422.
129 Ibid at 461.
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