Mr Scott Wilson v Leighton Contractors Pty Limited
[2014] FWC 5503
•20 AUGUST 2014
| [2014] FWC 5503 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Scott Wilson
v
Leighton Contractors Pty Limited
(U2013/13665)
COMMISSIONER CLOGHAN | PERTH, 20 AUGUST 2014 |
Unfair dismissal.
[1] On 17 September 2013, Mr Scott Wilson (Mr Wilson or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with Leighton Contractors Pty Limited (Employer).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] At the hearing, the Applicant was represented by Mr S Millman of counsel. The Applicant gave evidence on is own behalf.
[4] The Employer was represented by Mr A Longland of counsel. Evidence on behalf of the Employer was given by:
- Mr J Whiteside, Employee Relations Advisor; and
- Ms K Taylor, Employee Relations Advisor.
[5] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.
RELEVANT LEGISLATIVE FRAMEWORK
[6] There is no dispute between the parties that Mr Wilson has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework is ss.385 and 387 of the FW Act.
[7] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”
[8] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is 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.”
RELEVANT BACKGROUND
[9] Mr Wilson commenced employment with the Employer on 20 July 2012 as a Skid Steer Operator on the Gorgon Project at Barrow Island.
[10] Prior to commencing work on the Gorgon Project, Mr Wilson attended a pre-commencement Project Induction presentation and was provided with an offer of employment and a copy of the Leighton Contractors Pty Limited Western Australia and Northern Territory Employee Collective Agreement 2009 (Agreement).
[11] On commencing employment, Mr Wilson attended a site induction.
[12] The Employer’s operations on the Gorgon Project are across a large construction site and, at the time of his employment, involved a workforce of approximately 2,500.
[13] Mr Wilson’s employment was on fly-in-fly-out (FIFO) basis. Barrow Island is located 56 kilometres off the north-west coast of Western Australia and approximately 1,250 kilometres from Perth. Barrow Island has multiple parties involved on the worksite. Mr Wilson was primarily employed on night shift and worked 26 days on and 9 days off.
[14] The Applicant was dismissed on 27 August 2013.
[15] The Applicant’s dismissal occurred after a sequence of events which commenced on 3 April 2013 The agreed chronology of events are as follows:
3 April 2013 | Mr Wilson sends an email to GorgonCivilsBWIP&CAdmin and GorgonCivils InjuryManagement requesting contact details of HR/IR support on nightshift. This email is forwarded to Mr Whiteside who responds identifying that he is the appropriate contact and asks Mr Wilson if he wishes to raise an issue. |
4 April 2013 | Mr Wilson sends an email to KJV asking how to make a complaint about Leighton and is advised that he needs to contact Leighton directly. |
7 April 2013 | Mr Wilson sends an email to GorgonCivilsBWIP&CAdmin and GorgonCivilsInjuryManagement raising a complaint of harassment, intimidation, bullying, pressure and aggressive behaviour towards operators and labourers by leading hands and supervisors. |
16 April 2013 | Mr Wilson sends an email to Ms Julie Neiuwhof asking for a contact for Leighton Perth HR to raise his complaint about intimidation, harassment and bullying from supervisors, and pay. He again contacts Ms Nieuwhof on 28 may 2013. |
19/20 May 2013 | The Power Outage Incident occurs on nightshift. Mr Wilson sends an email on 20 may 2013 to GorgonCivilsBWIP&CAdmin and GorgonCivils InjuryManagement about that incident. |
21 May 2013 | Mr Wilson sends an email to Gorgon CivilsBWIP&CAdmin stating he will contact OHS in Perth and a workplace lawyer because of his supervisor’s continued harassment, intimidation and nit picking towards him and ‘everyone else on nightshift’ and being requested to attend the site medic to ascertain his fitness for work. |
21 May 2013 | Mr Wilson emails GorgonCivilsInjuryManagement to advise he won’t be in at work as he has a headache. In response, Mr Wilson is told to follow up with his GP while on R&R and obtain clearance from his GP to operate plant or machinery and not take any medication which may alter his judgment. |
22 May 2013 | Mr Wilson emails GorgonCivilsInjuryManagement to advise he won’t be in at work as he is ‘having stress issues’ and asks what medication he can take. The next day, Mr Wilson is advised that KJV has expressed concern regarding his ‘stress issues’ and has placed a flight block on his return flight until he can be assessed by a Leighton doctor and be medically cleared fit to return to work. |
23 May 2013 | Mr Wilson leaves site on R&R in accordance with his usual roster. |
6 June 2013 | Following an assessment of Mr Wilson, Dr Birender Singh (Leighton Medical Centre) provides a medical report stating that ‘Scott is safe to go back to work, provided he informs his safety supervisor if he is feeling stressed/unwell in advance. He should see his regular GP/specialist for a long term plan to manage his issues with stress and anger management’. |
9 June - 10 July 2013 | Correspondence occurs between Mr Whiteside (and others) and Mr Wilson regarding his return to the Project. |
10 July 2013 | Mr Wilson provides a medical clearance from his personal GP. |
22 July 2013 | Mr Wilson returns to the Project. Mr Whiteside meets with him to discuss his return. |
25 July 2013 | Mr Wilson emails GorgonCivilsInjuryManagement asking to speak to Lisa Mitchell and Paul Bowers. |
27 July 2013 | Ms Taylor (appointed as Mr Wilson’s point of contact) sends an email to Mr Wilson which, among other things, attaches a copy of the ‘Site Wide Communication - Dispute Resolution procedure Query Process’ and reminds Mr Wilson of the requirement for him to follow this. Mr Wilson responds later that day. In response to his email, Ms Taylor and Mr John Smith meet with Mr Wilson. |
30 July 2013 | Ms Taylor meets with Mr Wilson to provide an update of his workers’ compensation claim (pending) and his pay query (which had been resolved). |
13 August 2013 | Ms Taylor and Mr Smith meet with Mr Wilson and his support, Mr David Flett. The meeting is arranged at the request of Mr Paul Bowers. |
14 August 2013 | Mr Wilson is issued a final written warning. Mr Wilson refuses to sign the warning to acknowledge receipt. |
Mid August 2013 | Mr Wilson lodges a complaint with Ms Taylor using the complaint form. The complaint is in relation to: ● the Power Outage Incident; ● the Stretching Event; ● perceived pressure on operators; and ● ‘constantly being dragged into Paul Cott’s (Nightshift Superintendent) office’. The complaint is forwarded to Mr Whiteside for investigation. |
23 August 2013 | A meeting is held between Mr Whiteside, Mr Mark Groves, Mr Wilson and his support person, Mr Jason Dowling to discuss the findings of the investigation. |
27 August 2013 | A meeting is held between Mr Whiteside, Mr Wood, Mr Wilson and his support person, Mr Dowling during which his employment is summarily terminated. The reason for his dismissal is explained to Mr Wilson in this termination letter. |
[16] The letter of termination of employment relevantly reads:
“We refer to a previous meeting on 14 August 2013 where you were issued with a final Written Warning for repeated failure to follow continual instructions and to abide by the Dispute Resolution Procedure as outlined in your Employee Collective Agreement.
We confirm that in this meeting you lodged a formal EEO/Workplace Behaviour Complaint form regarding alleged bullying from a Supervisor. We further confirm that an investigation was conducted into your complaint.
Following that investigation, you attended a meeting on 23 August 2013 with Jamin Whiteside - ER Advisor, and Mark Grove - Area Manager to be informed of the outcome of the investigation. We confirm that you chose to leave this meeting prior to its conclusion and before all of the information had been communicated to you. Subsequently, you were instructed to attend a follow-up meeting on 27 August 2013 with Jamin Whiteside and Mark Grove in order for the investigation to be closed out and the outcome communicated to you. We further confirm that you disobeyed this instruction and refused to attend this meeting.
As a result of your continued failure to follow instructions and abide by the Dispute Resolution Procedure, we confirm that Leighton Contractors Pty Ltd has decided not to continue your employment. As a result, your employment will end today - 27 August 2013.”
APPLICANT’S CASE
[17] Mr Millman, in his opening, submits that the case is no more complicated than for the Commission to determine whether Mr Wilson was in breach of the Employer’s policies by taking his concerns outside of the employment relationship. Mr Millman submits that, by invitation provided by those entities, the answer to the question is in the negative. However, should I find that Mr Wilson did breach company policies, the penalty of termination of employment was disproportionate to any breach of policy.
EMPLOYER’S CASE
[18] In contrast, Mr Longland submits that the dismissal should not be seen through the context of the Applicant sending emails and contacting external entities to the employment relationship. It is a case demonstrated by evidence, of Mr Wilson, over a period of six months, refusing to accept instructions to the extent it became endemic. Over a period of six months, Mr Wilson received two warnings, both in writing. The first warning was described as informal. The second warning was formal and could not be mistaken. The state of affairs crystallised in his attitude to his superior, over a short period of time which Mr Longland described as “rank insubordination”. In view of the large construction site and the interplay between different shifts and contractors, the Employer came to the view that it had no option but to act and dismiss Mr Wilson.
CONSIDERATION
[19] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
[20] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”
[21] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.
[22] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 1. Further,
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 2
[23] Summary dismissal for misconduct may be warranted in certain circumstances. The Fair Work Regulations relevantly defines at 1.07, the meaning of serious misconduct as follows:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) ...
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) ...
(b) ...
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) ...”
[24] Notwithstanding the misconduct may have resulted in summary dismissal, the test remains the same, that is, the decision to terminate the employee’s employment must be “sound, defensible and well founded”.
[25] What makes and underpins the employment relationship of an employer and employee is the contract of employment.
[26] The contract of employment creates various obligations. For an employee, the basic obligation is to carry out lawful orders. Depending upon the facts and circumstances, a breach of the obligation to carry out a lawful order(s) of the employer may result in the lawful dismissal of the employee. If the refusal to carry out a lawful direction is serious enough, it can be sufficient to result in serious misconduct and summary dismissal. The circumstances contemplated within the meaning of “serious misconduct” in the FW Regulations include an employee refusing to carry out reasonable and lawful directions and wilful or deliberate conduct inconsistent with the contract of employment.
[27] If the facts and circumstances of an employee’s misconduct are not serious enough, it would be expected that the employee would be given a warning. A warning serves two purposes; it admonishes the employee for what they have done, and secondly, puts the employee on notice that, should they not change their course of conduct, he or she runs the risk of having a more serious penalty imposed, up to and including termination of employment.
[28] Mr Wilson’s offer of employment expressly informed him that the Employer had developed various policies and procedures to administer its business. Mr Wilson was required to comply with those policies and procedures at all times.
[29] The offer of employment also included reference to the fact that his principal conditions of employment are contained in the Agreement. The Agreement provides that employees are to familiarise themselves with and comply with the Employer’s various policies, procedures and guidelines. Further, and importantly, the Agreement sets out a procedure for the resolution of employment related issues. The procedures are mandatory.
[30] The parties agree that the reason for Mr Wilson’s dismissal is contained in his letter of termination of employment.
[31] Mr Wilson commenced employment on 20 July 2012 and there appears to be no issues with his employment until 3 April 2013.
[32] On 3 April 2013, Mr Wilson forwarded at 3:42 pm an email to Gorgon Civils BWIP & CAdmin enquiring as to how he could access Human Resources as a nightshift employee. The email is forwarded, within a minute, to Mr Whiteside.
[33] Mr Whiteside responded on 3 April 2013 that he is the Employee Relations Advisor “here at Gorgon” for the Employer and is there anything, in particular, Mr Wilson wishes to raise. Mr Wilson responds within five (5) minutes to say “yes” but that he wishes to wait until after the upcoming nightshift. 3
[34] At this point there appears to be no issues concerning Mr Wilson’s query.
[35] On 4 April 2013, Mr Wilson forwards an email to Kellog Joint Venture-Gorgon (KJV) indicating that he works on Barrow Island and “would like to know some [one] here on the island i can contact to complain about the way Leightons and leightons supervisors treat their employees IE harassment, intimidation, bullying, extreme pressure, HR issues and payroll queries”. Mr Wilson is informed politely that KJV is not the employer and is advised to contact his Employer “if you would like to lodge a grievance or discuss any issues”. Mr Wilson’s responds to KJV and expresses the following sentiments “sorry to bother you” and his opinion regarding Chevron’s “care about people” 4.
[36] On 5 April 2013, Mr Wilson emails Mr Whiteside. Mr Wilson offers his opinion about new leading hands and their need for “people management training”. Mr Wilson encapsulates his previous night’s work situation as “bullshit”. That email was forwarded by Mr Whiteside to Megan McCormack who was the Employer’s ER/HR support for nightshift 5.
[37] I am satisfied that by 4 April 2013, Mr Wilson knew that he had to take any workplace grievance to his Employer and that Mr Whiteside was the Employer’s contact person.
[38] Notwithstanding being informed where to raise workplace grievances, Mr Wilson, on 7 April 2013, emails Gorgon Civils BWIP & CAdmin and Gorgon Civils Injury Management. Mr Wilson firstly acknowledges that he has spoken to the Employer’s representative and then uses the word “but”. The word “but” is used by Mr Wilson in the sense of an objection; I have communicated to the Employer’s representative but I want you to do something about the issues I have raised and not the Employers’ representative. In the correspondence, Mr Wilson has a list of workplace grievances and suggests which employees should get apologies and which employees should be given a written warning 6.
[39] Chevron emailed Mr Wilson on 15 April 2013. Chevron advised Mr Wilson that, as he is employed by the Employer, he should examine and follow the Employer’s appropriate policies and procedures. Mr Wilson responds to Chevron on the same day with his view on his Employer and that, it is time for “Fair Work Australia to step in”.
[40] By 15 April 2013, I am satisfied that Mr Wilson had been told, on two separate occasions by external parties, that should he have employment grievances with his Employer, he should pursue those directly with this Employer.
[41] On 16 April 2013, Mr Wilson forwards an email to Ms Nieuwhof, who is employed as the Employer’s Recruitment Coordinator. Mr Wilson is seeking a contact person in Perth with regards to “intimidation, harassment, and bullying from supervisors and all the pay issues”. 7
[42] On 20 May 2013, Mr Wilson sent an email to the Employerwhich has a subject heading of “poor management on night shift” and commences “All I have to say about Paul Cotts (N/S Superintendent) A bloody disgrace!!! and should be sack[ed]!” This email is forwarded to Mr Whiteside 8.
[43] On 21 May 2013, Mr Wilson sends an email to the Employer. with a subject heading of “poor management again!”. On this occasion, Mr Wilson again sets out his workplace grievances and uncomplimentary views about some of the Employer’s employees 9.
[44] On the same day Mr Wilson sends an email to Gorgon Civils Injury Management. The email is short and is set out in its entirety:
“Hi my name is Scott Wilson and working night shift can you let Greg Jones n/s supervisor I willnt be in tonight as I have a headache thanks.”
[45] Mr Wilson’s email in the immediate paragraph above leads to an exchange of emails regarding Mr Wilson’s absence for a headache and further sick leave due to stress on 22 May 2013. The content of the emails relate to medication used by Mr Wilson and his capacity to work on machinery. Mr Wilson is informed on 23 May 2013 that “as you have been working in a safety critical role as a machine operator, we must ensure that you are fully fit to carry out your role upon your return”. 10 Mr Wilson is required to attend the Employer’s General Practitioner. Notwithstanding Mr Wilson’s stress, he further emails, on 23 May 2013, the Employer regarding the “bad management on night shift and his assessment of his supervisor”.11
[46] On 28 May 2013, Mr Wilson contacts Ms Nieuwhof, Recruitment Coordinator, to speak to somebody ASAP. The email is referred to Mr Whiteside.
[47] Mr Whiteside coordinates flights, a doctor’s appointment in Perth on 4 June 2013 and expenses for Mr Wilson.
[48] The General Practitioner (GP) provided a report to the Employer on or about 6 June 2013. The report opines that Mr Wilson is safe to go back to work with certain provisions. In this context, Mr Wilson should see his own GP for a “long term plan to manage his issues with stress and anger management” 12.
[49] On 9 June 2013, Mr Wilson emails the Employer stating that he is ready to return to work and attaches a letter from his GP in Canberra. The GP letter reads, “I have seen Scott [Mr Wilson] today and I think he is capable to perform his duties” 13 (my emphasis).
[50] Mr Wilson emails the Employer on 10 June 2013 seeking to return to Barrow Island. Mr Whiteside responds by email on 11 June 2013 and follows up with a telephone discussion on 12 June 2013. The discussion related to the conditions for Mr Wilson’s return to Barrow Island. Mr Whiteside reduces his discussions to a detailed email to Mr Wilson on 12 June 2013 14.
[51] Mr Whiteside’s email of 12 June 2013 to Mr Wilson requires a report from the GP that: advises that the Applicant is not taking any medication; a long term plan which addresses his stress/anxiety and anger issues, and given the location of the Applicant’s work, that with a long term plan in place, he is fit to return to work.
[52] On 17 June 2013, Mr Wilson emails a memorandum from his GP to Mr Whiteside with the words “hope this letter is good enough for kjv”. The memorandum from Mr Wilson’s GP, in my view, is an unsatisfactory response to the Employer’s request. On the same day, Mr Wilson makes enquiries regarding non-receipt of pay for his two weeks on stress leave.
[53] On 21 June 2013, Mr Whiteside responds to Mr Wilson’s email of 17 June 2013 advising that the GP’s memorandum is insufficient and confirms that KJV has placed a “block” on Mr Wilson returning to Barrow Island as a consequence of him suffering from anxiety and stress. Mr Whiteside states:
“Scott, I have been working with you on this and will continue to work with you so we can get you back to work as soon as possible.
If you are able to make contact with your Dr and remind her that I am waiting on her to get back to me so that we can achieve your return to work in a timely fashion, that would be great.
I look forward to hearing from either yourself or your Dr to discuss the details/information that is needed to be able to get back to work.” 15
[54] Mr Wilson responds on the same day. The email is short and in essence, he complains the circumstances he finds himself in as “bullshit”.
[55] Mr Whiteside’s response to the above email is restrained and requests that Mr Wilson refrain from obscenities especially as he is assisting him to return to Barrow Island. 16
[56] Mr Wilson’s response to Mr Whiteside is to send an email to six (6) email addresses; all of which appear to be beyond the Employer. In one response, Mr Wilson is directed to liaise directly with the Employer’s representative on site as previously instructed. 17
[57] Further emails are exchange between Mr Wilson and Mr Whiteside regarding the Applicant’s GP and resolving pay issues.
[58] On 3 July 2013, Mr Whiteside discusses and emails Mr Wilson’s GP to obtain the appropriate requirements to enable the Applicant to return to work. 18
[59] Further emails are exchanged between the parties regarding Mr Wilson’s pay, workers’ compensation claim, a doctor’s certificate and return to work.
[60] On or around 20 July 2013, Mr Wilson returned to work.
[61] On 25 July 2013, Mr Wilson seeks an appointment with the Employer to discuss the events of the preceding paragraphs [44] to [60]. Specifically, Mr Wilson states, “also don’t wish for Jamin [Mr Whiteside] to be contacted in this matter any further.” 19
[62] At this point in time, Mr Wilson was advised that the period of time he had been off work was not “stress leave”, but leave to obtain the necessary medical clearance for him to return to site and work. Around this time, Mr Wilson made a workers’ compensation claim for the period of time he was, in his view, on stress leave.
[63] On 26 and 27 July 2013, Mr Wilson is told in straightforward language that Mr Whiteside is his primary contact person in relation to his grievances. Mr Whiteside is the “designated point of contact appointed by the Company.” Further, and importantly, if employees have an issue or disputes relating to their employment, these should be raised through the DSP. 20
[64] On an entirely separate issue, Mr Wilson raises an issue regarding flights with Employee Relations when he should have pursued the matter with his supervisor in the first instance. 21
[65] On 1 August 2013, Mr Wilson pursued his workplace grievances with KJV. 22 Mr Wilson was advised by KJV that the Employer was dealing with his grievances.
[66] On 27 July 2013, Mr Wilson emails Ms Taylor for an appointment and states “I don’t want Jamin [Mr Whiteside] to have anything to do with these issues as he is now part of the problem...i guess lies are the Leighton way! I will now no longer send anyone at Leightons any more email...” 23
[67] On 6 August 2013, Mr Wilson telephoned KJV and left a message regarding his grievances.
[68] On 7 August 2013, Mr Whiteside advised Mr Wilson that KJV had contacted him regarding his grievances with the Employer. Mr Whiteside reminded Mr Wilson that he had already been directed not to contact persons outside the organisation regarding his grievances and to utilise the DSP that had been provided to him. 24
[69] On 9 August 2013, Mr Wilson requested from Mr Whiteside a workplace behaviour/EEO complaint which had been previously been given to him but which he had misplaced. 25
[70] On 13 August 2013, Mr Wilson was the subject of a discussion which led to a First Written Warning. The warning was made because “[Mr Wilson] failed to demonstrate the minimum standards of performance and behaviour as required by the Company in that you failed to follow continual instructions and failed to abide by Company Dispute Resolution Procedure” 26 (my emphasis). The discussion cited examples of where Mr Wilson raised matters with KJV and the need to follow the DSP.
[71] Mr Wilson refused to sign the record of the disciplinary action.
[72] The final written warning is, in the hierarchy of penalties, the highest of four (4) punitive measures. The Employer’s comments include the following, “Failure to show improvement...in the abovementioned areas may result in further disciplinary action up to and including termination of your employment.” 27
[73] On 16 August 2013, Mr Wilson emailed the Employer advising that he wished to complain about Ms Taylor and Mr Whiteside. Consequently, the matter was referred to Mr Bevan who was the Western Australian Employee Relations Manager.
[74] Between 16 August and 23 August 2013, Mr Wilson engaged in email communication with Mr Bevan. Mr Bevan did not give evidence, however, the emails between Mr Wilson and himself indicate an attempt to resolve Mr Wilson’s grievances. Mr Bevan’s final email states, “as previously advised prior to being able to move forward on the issues you have raised previously...We can work through the issues in a cooperative manner which requires both sides to follow through on commitments. As reiterated, until the requested detail is received no further action can be taken by Leightons to progress a resolution to these matters. 28
[75] At this time Mr Wilson also lodged a complaint regarding what is described as the Power Outage incident; stretching event; pressure on operators and being constantly dragged into the Superintendent’s office. The complaint was forwarded to Mr Whiteside for investigation.
[76] On 23 August 2013, a meeting was held between Mr Wilson, Mr Whiteside and Mr Grove to discuss the outcome of the investigation. Mr Wilson’s support person was also present.
[77] Mr Wilson’s written evidence is that, at the meeting on 23 August 2013, he met with Mr Whiteside and Mr Grove, Interface Manager. Mr Whiteside informed Mr Wilson that he had spoken to Mr Concannon who denied threatening or intimidating the Applicant Mr Wilson’s evidence is “I then told him he was the most incompetent person I have ever meet (sic) and walked out” 29.
[78] In oral evidence, Mr Wilson stated that on walking out he went back to the work site, “and my supervisor just came down and told me I had to go back up to the office, which I refused. I went and sat in the crib hut for the rest of the day, and the next day I was terminated” 30.
[79] Mr Whiteside, Mr Bevan and Mr Dowling all reduced to writing their record of the meeting on 23 August 2013. It is common that Mr Wilson was angry. The statements reveal that Mr Wilson raised his voice, swore and was agitated. For the purposes of an independent perspective, Mr Dowling’s statement reads, “Jamin asked Scott [Mr Wilson] if he [could] give him some names of witnesses that he could help Scott. Scott said that he hasn’t spoke to his witnesses about backing up his story as yet. Scott got upset and started to raze (sic) his voice again and Jamin asked him to lower his voice please. Scott got up out of his chair and said this is bullshit and said well I guess this will be going to court and you can talk to the loyers (sic) as he stormed out of the meeting” 31. I am satisfied that Mr Wilson made derogatory comments about Mr Whiteside, Ms Taylor and the Employer’s Injury Management Department and described them as “all incompetent”32.
[80] On 26 August 2013, Mr Wilson was requested by Mr Wood, Senior Supervisor to attend the recommencement of the 23 August 2013 meeting. In front of another employee, he replied to Mr Wood on three (3) occasions, that he was not going to attend 33. Further, that the Employer could speak to his lawyer.
[81] On 27 August 2013, Mr Wilson did attend a meeting with his support person, Mr Dowling. Mr Whiteside and Mr Wood were in attendance. At this meeting, Mr Wilson was informed that his employment was being summarily dismissed because he had failed to follow reasonable and lawful instructions. The decision to dismiss Mr Wilson had been made not only because of the events in the preceding days, but also because it was a continuation of conduct which had led to him receiving a final warning. On being given the letter of termination of employment, Mr Wilson responded with the words, “my lawyer can read it” 34. Later, but prior to leaving site, Mr Wilson yelled aggressively to Mr Whiteside, “see you in fucking court you red headed cunt”35.
[82] When asked in cross examination whether the above immediate comments were an appropriate way to speak to the Employer’s representative, Mr Wilson responded, “definitely not, but I was in absolute shock and awe that I was actually being terminated basically for something so simple as speaking up, and it escalated” 36.
[83] In cross examination, Mr Wilson gave the following evidence:
“You made the decision yourself that you weren’t going to comply with what they asked you to do. That’s right, isn’t it?---Because of my state of mind at the time. I was so furious and angry and stressed, I did make wrong decisions. I know that. I’m not the smartest person in the world, and I will tell you that now, and yes, I made wrong decisions, but that doesn’t justify what he did to me.” 37
“You would agree with the general proposition though that when people on a site like Gorgon refuse to comply with simple instructions and take matters into their own hands, that can potentially lead to danger, can’t it?---Absolutely.
And you had been given this instruction, on the evidence you have given today, repeatedly between April and August. That’s right, isn’t it?---That’s correct.
You have, to your credit, acknowledged today under oath that you repeatedly disregarded that direction?---That’s correct.” 38
[84] An employee is under an obligation to carry out lawful instructions. It would be intolerable for employees to consider attendance at meetings requested by the employer to be at their discretion. It would also be intolerable for employees to consider it appropriate behaviour to storm out of meetings, at a time of their own choosing, rather than conclude a meeting properly. It is also unendurable for an employee, after being notified of their dismissal, to call the Employer’s representative a “cunt” and consider it should go unnoticed.
[85] The idiom “every person is the architect of his own misfortune” is appropriate to Mr Wilson’s decision, actions and behaviours in this application. While the Applicant may attempt to blame the Employer for his misfortunes, he was the “driver” on the road which eventually led to a crash and the termination of his employment. The rules of the employment relationship “road” required him to comply with lawful instructions and raise any grievance within the Employer’s procedures. However, his “traffic infringements” became numerous, and were sufficiently serious, to warrant a final written warning.
[86] As I have previously stated, Mr Wilson’s warning is both an admonishment and putting him on notice that he is required to comply with the “rules of the road”.
[87] However, instead of taking notice of the warning, he proceeded to become angry and agitated at a meeting called to discuss his complaints. Mr Wilson stormed out of the meeting letting those present know whom of the Employer’s representatives are incompetent. As if that was not sufficient, he refuses repeatedly to comply with an instruction by a senior supervisor to attend a further meeting. Finally, when his employment is terminated, proceeds to describe Mr Whiteside in terms of the female genitals.
[88] I have taken into account Mr Wilson’s frustrations at the delay concerning his inability to return to work on Barrow Island. However, in my view, the genesis of Mr Wilson’s workplace issues lie in his comments on 15 April 2013 and contained in an email which is entitled “Working on Barrow!”, which states “this is my first and last Civil Job [I am] going back to Mining...” 39
[89] Mr Wilson’s conduct on the employment relationship ‘road” was not a single act of “road rage” over the period 23-26 August 2013 but preceded by a series of incidents commencing on 4 April 2013 where he takes his employment grievances to KJV after being told on 3 April 2013 that the Employer has a dedicated person to deal with such issues.
[90] In conclusion, as on the roads, if we adopt behaviours which are inconsistent with the rules, we are penalised up to, and including, the sanction of taking away our licence or right to drive on the road. In Mr Wilson’s case, he not only refused to carry out lawful and reasonable directions but also his behaviour, over a long period of time, became inconsistent with the contract of his employment.
[91] For the above reasons, I am satisfied that Mr Wilson’s conduct was not a matter of refusing to adhere to policies and procedures but a refusal to comply with lawful instructions to the extent, described by Mr Longland, it led to “rank insubordination”.
[92] I am satisfied that Mr Wilson’s conduct which led to his dismissal, on the plain and ordinary meaning of “serious misconduct”, as set out in subregulations 1.07(2)(a) and 3(c) of the Fair Work Regulations, was serious misconduct.
[93] Mr Wilson’s conduct is serious or grave for a number of reasons. Firstly, in clear and unambiguous terms he refused the Employer’s direction to attend a meeting. Secondly, this refusal was visible to another employee at the workplace. Third, he refused to comply with a direction not to take his workplace grievances outside of the employment relationship. Further, Mr Wilson did not access the DSP to raise his workplace grievances. When confronted about his behaviour, Mr Wilson considered his response of “bullshit” as a sufficient explanation. Finally, Mr Wilson considered that, with such a “faultless” record, he could advise the Employer’s representative who is conducting an investigation into his complaints, whom of the Employer’s employees are incompetent, and conclude his employment relationship, with highly offensive language directed at Mr Whiteside.
[94] Another way of looking at Mr Wilson’s conduct, is to consider what options the Employer had in Mr Wilson refusing to do what he had been directed to do. Was the Employer expected to tolerate such behaviour; condone such behaviour or avoid him. Given the context, Mr Wilson’s conduct was not a “grey” issue - Mr Wilson adopted and conducted a course of disobedience which led the Employer to having no option, after a final written warning, but to dismiss him.
[95] I am satisfied that the dismissal arising from the conduct was “sound, defensible and well founded”.
s.387(b) - notification of the reasons for termination of employment
[96] Mr Wilson was notified of the reasons for termination of employment on 27 August 2013.
s.387(c) - opportunity to respond
[97] Towards the end of his employment, Mr Wilson considered that he did not have an obligation to respond; that would be taken care of by his legal representative or union.
s.387(d) - support person
[98] Mr Wilson’s support person was present at the two meetings which immediately preceded his termination of employment.
s.387(e) - unsatisfactory performance
[99] In the narrow sense of performance on-the-job, this matter was not raised in proceedings. However, in the broader sense of performance concerning compliance with specific policies and procedures, and lawful instructions, it was unsatisfactory. I have set these out in details above, and it is unnecessary to repeat them.
s.387(f) - size of enterprise
s.387(g) - Human Resources
[100] The Employer extended to Mr Wilson numerous opportunities to remedy his conduct before it issued him a final warning. Towards the end of his employment, Mr Wilson appears to come to the view that compliance with instructions by the Employer was at his discretion.
[101] The size of the Employer’s business and dedicated human resources reflected a reasonable approach to Mr Wilson’s grievances. However, his language and conduct escalated to such an extent that he eventually challenged the authority of the Employer’s representatives to even meet and discuss matters with them.
s.387(h) - other matters
[102] I am satisfied that there are no other matters involved in this application which require my consideration.
CONCLUSION
[103] In conclusion, for the reasons set out above, I am satisfied that Mr Wilson’s dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.
COMMISSIONER
Appearances:
S Millman of counsel for the Applicant.
A Longland of counsel for the Respondent.
Hearing details:
2014:
Perth,
7 April.
1 Brink v TWU PR922612 at paragraph [7]
2 King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]
3 Exhibit R4(3)
4 Exhibit R4(6)
5 Exhibit R4(5)
6 Exhibit R4(10)
7 Exhibit R4(10)
8 Exhibit R4(11)
9 Exhibit R4(12)
10 Exhibit R4916)
11 Exhibit R4(17)
12 Exhibit R4(22)
13 Exhibit R4(23)
14 Exhibit R4(23)
15 Exhibit R4(23)
16 Exhibit R4(24)
17 Exhibit R4(25)
18 Exhibit R4(30)
19 Exhibit R4(42)
20 Exhibit R4(44)
21 Exhibit R4(45)
22 Exhibit R4(50)
23 Exhibit R4(44)
24 Exhibit R4(53)
25 Exhibit R4(54)
26 Exhibit R4(55)
27 Exhibit R4(55)
28 Exhibit R4(56)
29 Exhibit A2
30 Transcript PN697
31 Document 57
32 Document 57
33 Document 58
34 Exhibit R5
35 Transcript PN589
36 Transcript PN590
37 Transcript PN593
38 Transcript PN595-PN497
39 Exhibit R4(9)
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