Mr Tommy Sebasio v Ergon Energy Corporation Limited
[2010] FWA 4917
•10 NOVEMBER 2010
[2010] FWA 4917 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Tommy Sebasio
v
Ergon Energy Corporation Limited
(U2009/14169)
COMMISSIONER SPENCER | BRISBANE, 10 NOVEMBER 2010 |
Termination of employment - arbitration - reinstatement ordered.
Introduction
[1] This determination relates to an application made by Mr Tommy Sebasio (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of his employment from Ergon Energy Corporation Limited (the Respondent) was harsh, unjust and or unreasonable. The Applicant originally sought reinstatement and then re-employment.
[2] The Applicant had been employed at a remote power station in Far North Queensland for more than 20 years. The termination of his employment predominantly related to his failure to perform the administrative parts of his role.
[3] The Applicant was represented by Mr Michael Wright and Ms Pat Rogers of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union). The Respondent was represented by Mr Andrew Herbert of Counsel, instructed by Mr Phillip Copeland of Copeland Workplace Law and Mr Richard Farmer, Generation Operations Manager of Ergon Energy Corporation Limited.
[4] The matter was heard over four days in Cairns, with 12 witnesses, eight were cross-examined. There was a significant range of issues canvassed pertaining to the fairness of the dismissal. Whilst not all of the evidence and submissions have been referred to, all of such have been considered in the determination of this matter.
Background
[5] The Applicant was an electrical fitter mechanic. He had been employed as an apprentice at the Bamaga Power Station from 1989 until 1992 by the Department of Community Services. In 1992, the Far North Queensland Electricity Board (FNQEB) took over the power station and his employment. Later, FNQEB was amalgamated into Ergon Energy Corporation Limited.
[6] The Applicant’s evidence was that he was born in Bamaga, and lived most of his life there. The residents of the communities are predominantly Torres Strait Islander or Aboriginal. He was a respected figure in the community and he spoke the following five languages: English; Torres Straits Creole; Western Torres Strait Islander; Eastern Torres Strait Islander; and Local Aboriginal English.
[7] The Applicant stated that for the duration of his employment, he was responsible for the operation of the Bamaga power station, which provided electricity to five communities in the area; as well as being responsible for approximately 400 kilometres of power line.
[8] Mr Farmer (Generation Operations Manager and the Applicant’s final supervisor) described the recent upgrade that had occurred at the Bamaga Power Station as follows:
“Mr Sebasio’s role was to look after the Bamaga Power Station. A $13M upgrade to the Power Station was commissioned in March 2008. The Station is now our “Jewel in the crown” and represents best practice in power output, fuel efficiency, fuel & oil management, noise suppression, safety, environmental management and station design.
Ergon has approximately 742 customers in the Bamaga community (Bamaga, New Mapoon, Umagico, Seisia and Injinoo). Our role in the community for field operations is as a first response, that is, to address pole and wires faults and basic maintenance which, if not dealt with in a timely manner, could cause serious safety issues to the people in the community. Other work consists of, but is not limited to, meter connection, disconnections, supply connections to new building and other customer queries. Delays in meeting the requirements for these can result in people not having power to their homes, building contractors’ work delays and Ergon Energy being liable for penalty payments for non-supply.” 1
[9] At the commencement of proceedings, the Applicant presented video footage of the Bamaga power station and the surrounding community to provide a general view of the power station, and its environment within a remote, regional and mainly Indigenous community.
[10] The Applicant was employed under the terms and conditions contained within the Ergon Energy Union Collective Agreement 2008. A show cause letter dated 14 October 2009 as to why his employment should not be terminated was provided to the Applicant. The show cause letter was provided to the Applicant by his supervisor Mr Richard Farmer (Generation Operation Manager). 2 The letter cites a meeting on 3 September 2009 with the Applicant, Mr Farmer, Ms Jane Oorschot (Senior HR Advisor) and Mr Robert Hill (ETU delegate) during which the Applicant’s ‘ongoing unsatisfactory performance’ was discussed. The performance issues were recorded in the letter as:
“— Refusal to undertake work assigned i.e. carry out reasonable management instructions
• Failure to effectively communicate with manager and exercise responsibility and accountability within current role; in relation to operational and attendance requirements
• Failure to attend to specific business requirements of the role particularly regarding service orders, completed or attended [to] within required timeframes.”
[11] The letter stated that the initial performance discussions were held with the Applicant in October 2008 and that a formal counselling and disciplinary process was then undertaken. A First Warning was issued on 9 December 2008 and a Final Warning issued on 9 July 2009.
[12] The Respondent stated in the correspondence that further failure to comply with policies and procedures may result in further disciplinary action up to and including the termination of employment. The correspondence also stated:
“On 3rd September 2009 you gave your personal commitment to a performance improvement plan which has been monitored for a four (4) week period. Despite the performance improvement plan being in place and reviewed weekly with yourself, there has been no demonstrated improvement in your overall performance to date.
Due to your continued unsatisfactory performance, despite performance expectations being clearly identified and various attempts by Ergon Energy to manage your performance, Ergon Energy requests that you show cause as to why your employment should not be terminated.”
[13] A written response addressing the ongoing performance issues was sought from the Applicant. The Applicant was stood down on pay until further notice.
[14] The Applicant responded to the Show Cause letter by providing responses to each of the three issues identified by Mr Farmer.
[15] The response was provided in tabular form, and is reproduced below:
“Refusal to undertake work assigned i.e. carry out reasonable management instructions
• I have access to limited resources and training provided to mentor and develop the Bamaga team
• Recent work practices adopted as a team have good results and Bamaga team have been building on it until recent disruptions with staff on recreation leave and sick leave. Both team members have recently been challenged by personal issues and this has affected the dynamics of the team, consideration for the personal wellbeing of my team will always be a priority.
• Leadership is lubricated by RESPECT, limited if any direction from management only criticism. I strongly believe that the mediation process was not successful due to ongoing issues with communication.
Failure to effectively communicate with manager and exercise responsibility and accountability within current role; in relation to operational and attendance requirements
• Bamaga staffs are dedicated to work whilst on holidays and carrying out difficult work with limited resources with little complaint shows a close effective team willingly tackling the challenges of unplanned emergency work in a remote community.
• Down to single man with no relief for Kris Motlop (Rec leave 21/09/09 to 06/10/09), or Craig Ger (Medical Certificate) All power station and customer service work carried out by me.
• Advised Management who was on leave during the September school holidays, left message to call when back from leave.
• Phone calls were made to Richard Farmer when possible to landline and mobile.
• Richard was not always available due to meetings and on leave
• Some phone calls from Richard were not always convenient when I was occupied with manual work or restricted by mobile coverage.
• I strongly feel communication is not effective especially when there are Cultural Protocols considerations.
• Micro management - evident to bullying and harassment and when brought to attention to management, no course of actions were undertaken to address the teams concerns.
• Management has failed to communicate effectively with all staffs e.g. Kris Motlop Literacy and Numeracy Assessment; wearing of baseball cap and smoking in a non smoking area by visiting staff accompanied by Management.
• Micro management - evident to bullying and harassment and when brought to attention to management, no course of actions were undertaken to address the teams concerns.
• In my role as Power station supervisor I am required to fulfil this current role with no formal training, limited support, and limited resources and not in line with wage classification for this specific role.
• I have never sited [sic] a role description or position description for any of the roles and responsibilities the Power Station Supervisor, at present directed by Management which is adhoc.
Failure to attend to specific business requirements of the role particularly regarding service orders completed or attended within required timeframes
• Discussed issue with Management in regards to Service Orders, advised that Service Orders has a target date and not driven by the date it is faxed to Bamaga. Bamaga staffs have endeavoured to close Service Orders.
• As of the 22 October 2009 in consultation with staff, there is only one outstanding Service Order due to shared work site.
• I am still waiting for documentation guidelines/Ergon Policy and Procedure or a MOU/agreement between the workgroups showing responsibility for training and resource for the perspective [sic] workgroups.” 3
[16] A letter of termination was provided to the Applicant dated 13 November 2009. The letter relied on the same unsatisfactory performance issues as the show cause letter. The letter traced the origins of the performance issues from October 2008 to the escalation of the disciplinary process. Specifically, it stated:
“Ergon Energy has given thorough consideration to the above issues as represented to you in the Show Cause letter (dated 14 October 2009) and to your written response to the Show Cause letter dated 23 October 2009.
A notice to attend was issued to you confirming a meeting scheduled for 9am on Wednesday 11 November 2009. As Ergon Energy was provided with subsequent information on behalf of you by your union representative, late afternoon on 10 November 2009; to allow for this information to be considered this meeting was postponed to allow for this information to be considered.
Several attempts were made to schedule a meeting for 4.00pm on 11 November 2009 and 10:00am on 12 November 2009. Your union representative called in for both of these meetings. Given that reasonable attempts have been made by Ergon Energy to seek your attendance at the revised times, no further meetings will be arranged.
As such, Ergon Energy hereby confirms that your response to the Show Cause and additional information provided is considered unsatisfactory and does not mitigate your inherent unsatisfactory performance which has been clearly communicated to you previously and documented in your performance improvement plans which you gave your commitment to. Therefore the difficult decision has been taken by Ergon Energy to terminate your contract of employment.” 4
[17] The letter was signed by Rick Higginson, General Manager - Transmission and Project Services; however, he did not provide evidence in the proceedings.
[18] The Applicant alleged that the termination of his employment was unfair and that there was no valid reason for his dismissal, as his dismissal was set against a background of systemic bullying and a lack of cultural awareness on the part of the Respondent. It was submitted by the Applicant that this background tainted the performance management processes undertaken by the Respondent, rendering the decision to dismiss the Applicant an unfair one.
[19] The Respondent objected to the allegations of deficiencies in the disciplinary process. The Respondent denied any act of bullying against the Applicant and provided evidence regarding how it promoted cultural awareness. The Respondent stated the reasons for the dismissal were based on a lengthy performance management process which demonstrated the Applicant would not discharge a range of required duties over a significant period of time.
[20] These duties in question did not relate to his pole and wire duties or field operations work. In this regard he was considered to be reliable and technically efficient. The duties in question related to his administrative responsibilities and the maintenance obligations at the power station.
Relevant Legislation
[21] The relevant sections of the Act are sections 394 and 387. They are set out as follows:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
...
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
[22] In respect of remedy, s.391 of the Act is relevant and reproduced below:
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
...
Order to restore lost pay
...
Evidence
[23] In accordance with the Directions, submissions and statements of evidence were exchanged. The Applicant provided an initial witness statement and a further statement and was cross-examined. In addition, the Applicant relied upon the evidence provided by:
| Organiser, ETU; |
| OH&S Advisor, Unions NT; |
| Electrician, Ergon Energy; and |
| Scheduler Generation Operations, Ergon Energy. |
[24] The Respondent elected not to cross-examine the following further witnesses for the Applicant. Their statements were tendered as evidence:
| Regional Council Housing Manager for Northern Peninsula Area Regional Council; |
| Electrician, Ergon Energy; |
| Power Station Superintendent, Ergon Energy; and |
| Director of Enterprises for the Northern Peninsula and Area Regional Council. |
[25] The Respondent relied upon the following evidence; all of their witnesses were cross-examined:
| Mobile and Embedded Generation Manager, Ergon Energy; |
| Diversity Advisor, Aboriginal and Torres Strait Islander, Ergon Energy; and |
| Generation Operations Manager, Ergon Energy. |
[26] During the course of the proceedings some comments were attributed to Mr John Foot (General Electrical Design Officer) of the Respondent. His name had not previously been mentioned in the documents. At the time these references to Mr Foot were made; I made it clear to the parties that I had realised that he was a relative of mine. The parties agreed that these references were of a limited nature to the overall matter and no objection to my proceeding with the matter was made. 5
Summary of Submissions and related Evidentiary Issues - the Applicant
Work Environment
[27] It was submitted that the Applicant’s language skills, expertise and time in the Bamaga area made him a trusted and reliable contact point in the community. In fact, community members preferred to contact him directly with power failure issues instead of contacting the call centre provided by the Respondent. The Applicant stated that a range of cultural issues and the fact that there were no contractors for many years to assist him with the work contributed to his being the sole contact for the community. He said he was basically always on call, even during periods of leave. The Applicant’s dedication to his role was confirmed by Mr Traill (Organiser, ETU) 6 and Mr Reuben (Regional Council Housing Manager for Northern Peninsula Area Regional Council).7
[28] Mr Farmer (Generation Operations Manager) outlined the tasks of Mr Sebasio’s position as follows:
“Mr Sebasio’s duties included but were not limited to:
a. station checks/fault identification, which if not done could result in asset failure, running out of service parts, incorrect oil and diesel deliveries. Such events can have significant cost penalties especially if parts have to be flown to site;
b. reporting of station faults, repair of station faults within skill levels; and
c. statistical returns which provide information vital for reporting (under the National Greenhouse Energy Reporting Act 2007). Any inaccuracies found to be "material" can result in financial penalties and even convictions/jail sentences. The data from these checks are also compiled and a report is issued so that the Fuel Tax Credit (FTC) can be apportioned to each Regional Asset Manager (RAM).” 8
[29] Mr Dave Steele, a Scheduler, Generation Operations, (who had worked for Ergon for 25 years) provided evidence that:
“In my experience Tommy Sebasio was competent in relation to all of the technical aspects of the job.” 9
[30] Mr Farmer confirmed that there were also other administrative duties expected of the Applicant, including: “Daily checks. Daily, weekly, monthly checks, which all had different aspects to. There were statistical returns, stock returns, environmental checklist. There was quite a few checklists that needed to be done.” 10
Bullying
[31] The Applicant provided evidence that Mr Farmer was bullying him in the form of under-resourcing, micro-management and by exclusion.
[32] In relation to under-resourcing, the Applicant submitted there was evidence of: no staffing support; a restriction on the use of the accommodation; a denial of administrative assistance; a direction not to use the crib-room without reason and a lack of provision of other required equipment.
[33] The Applicant referred to the ongoing issue of a shortage of staff at the Bamaga station. In approximately 1995, Mr Kris Motlop commenced employment with the FNQEB as a power worker. In approximately 2007, Mr Craig Ger (Electrician, Ergon Energy) also commenced employment with the Respondent. Mr Ger was employed on the Applicant’s recommendation. The three employees were then able to move to an on-call roster; however this had little impact on the Applicant as members of the community continued to contact him directly. 11
[34] The Applicant provided evidence that his concerns about insufficient staffing and the pressure he was experiencing were not addressed:
“Due to my position within the community, which I discuss further below, I was basically on call even during periods of leave. People from the community often do not contact the Ergon call centre when they have a problem. Instead, they would regularly come directly to me. This was particularly the case where they had poor English skills.
...
Even when I received work requests from the call centre, I often had to use my local knowledge to interpret what the call centre had been told. For instance, I knew that some people in the community would understate the severity of an electrical fault, and that work requests relating to those people should be treated with added urgency.
Although Ergon has stated that support is available from Thursday Island or elsewhere, this support was in practice often difficult to obtain. I also had to periodically assist Thursday Island.
From 1989 until 1995, I was the only employee at Bamaga. During this time, Ergon would arrange for relief and call-outs from Thursday Island. However, I was effectively on-call 24 hours a day, 7 days a week”. 12
[35] The Applicant stated that he had made a request to Mr Farmer for additional staff, to assist with the workload. In response, this assistance was to be provided using staff from Thursday Island. The Applicant alleged that additional staff were not provided, other than a second-year apprentice coming to Bamaga for one weekend, while Mr Ger and Mr Motlop were incapacitated and on leave (respectively) and this rendered it impossible to perform his duties. The Applicant conceded that although he did not directly ask Mr Woods (the supervisor on Thursday Island) for additional staff, he did ask Mr Farmer, and he received no further communication from either in response to the request. 13
[36] The Applicant stated he lived in Council-provided housing, as the majority of the housing in Bamaga is owned by the Council. The Applicant commented that he had requested to use the temporary accommodation at the power station. He stated his requests were denied, but he conceded that the Respondent’s accommodation was predominantly emergency housing for crews coming to assist. 14
[37] In relation to the issue of the alleged bullying, Mr Steele, Scheduler Generation Operations, who was based in Cairns with Mr Farmer, stated:
“I would come in to the office each morning to pick up paper work at around 7:30 am. On many occasions over a period of a month when I came into the office to pick up paper work Richard Farmer would be having an animated conversation with Tommy Seabsio [sic].
The content of the conversation included such things as: was he at work, why wasn’t he at work and prove that he was at work. It appeared to be a daily conversation that began around Tommy Sebasio’s start time.
...
I could only hear Richard Farmer’s end of the conversations but from what I overheard it sounded like Richard Farmer was bullying and harassing Tommy and Tommy was getting increasingly upset.
From what I overheard it did not sound like Richard Farmer was attempting to resolve any problems that he may have had with Tommy, rather it sounded like it was his intention to sack Tommy, although knowing that Tommy is a strong person and that Ergon has a processes [sic] in place this seemed unlikely at the time.
I know that Tommy went on sick leave (stress leave) at one time because he was feeling quite stressed about the situation at work and this may have caused the process to dismiss him to be speeded up.” 15
[38] Mr Steele stated that he was only alerted to the situation between the Applicant and Mr Farmer as he overheard Mr Farmer asking on a daily basis whether the Applicant was at work. Mr Steele submitted that the approach of Mr Farmer was accusing, inflammatory, bullying and harassing and that in managing the situation he should have been more conciliatory. 16
[39] Mr Steele believed the daily checking was only being undertaken with the Applicant, but conceded that he did not know the problems or issues between Mr Farmer and the Applicant or what Mr Farmer was endeavouring to address. He considered, however, that Mr Farmer was intent on provoking a problem. He said this approach of 20 days in a row of constantly calling the Applicant and micro-managing him was to force the Applicant to decide whether he would continue to put up with that situation any more. He concluded that it was a very unpleasant experience for the Applicant. Mr Steele under cross-examination confirmed he was unsure of the dates of these events. 17
[40] In relation to the alleged micro-management, the Applicant found that Mr Farmer’s request for him to report-in daily as to what he was doing was trivial because he stated Mr Farmer requested him to report on things that they had been doing for years. Mr Farmer sought to direct the Applicant to do certain tasks, particularly in relation to paperwork, including sending emails, letters, having certain discussions, and making phone calls. 18 This was particularly the case in relation to the performance management process when Mr Farmer had trouble getting the Applicant to comply with the Performance Improvement Plan. It was also established in the cross-examination of Mr Traill and Mr Brand that Mr Brand, (the Applicant’s previous supervisor) had also been frustrated by the Applicant’s failure to respond to emails and phone calls.19 Mr Traill, however, attributed some of this lack of communication on behalf of the Applicant to the lack of technical support (as identified by the Applicant, including, no laptop computer for six months and the lack of effective internet connection at the Bamaga station, other than in the switchroom.)20
[41] In relation to the Applicant’s allegation that he was excluded, the Applicant gave evidence that he was left out of consultation in relation to the ‘happenings’ at Bamaga. The Applicant identified that he felt excluded in relation to decisions regarding the use of the smoko room, maintenance of the power station, the provision of resources, staffing assistance and considered his treatment was different to other staff. The Applicant agreed that this feeling of exclusion could have been attributed to the ongoing communication issues between himself and Mr Farmer. 21
Administrative and maintenance duties
[42] The Applicant stated that:
“In my role I was required to complete a large volume of paperwork. I consistently requested administrative assistance from Ergon in this regard but it was never provided. I understand that some administrative support has now been provided.” 22
[43] The nature of the paperwork the Applicant had to complete included time sheets and reports. 23 Mr Herbert described it as ‘basic’ and ‘fundamental’ and that the paperwork often went unattended for months on end; to which the Applicant agreed. However, the Applicant clarified that sometimes the paperwork would be completed, but would be returned to Bamaga because of the absence of a job number, which was a result of people in the community not using the Ergon call centre to request assistance. The Applicant conceded that he could have called the Ergon call centre himself to obtain a job number, but he did not.
[44] The Applicant’s evidence was that he prioritised the continuity of power supply and the safety of the community above completing the paperwork.
[45] It was alleged that the Applicant failed to undertake appropriate maintenance duties such as to mow the lawn around the power station. The Applicant provided evidence that he established an account with the local service station for purchasing two-stroke fuel for the lawn mower, and although he stated he attempted to send the invoices to the Respondent for payment, he would pay them himself. The Applicant stated that Mr Farmer had denied him access to the corporate credit card, however under cross-examination it was clear that the reason for this was due to the Applicant’s failure to provide receipts for purchases. 24
[46] Mr Herbert put to the Applicant that the nature of the paperwork did not require assistance and referred the Applicant to the other 32 power stations that did not have administrative support. The Applicant conceded that point, but qualified that the Bamaga power station, being in an under-resourced, isolated, Indigenous community had different needs and demands on it and him, in comparison to most other power stations. 25
[47] The Applicant stated that he was also restricted in completing administrative duties because of technical difficulties with the computer. He stated that until September 2009, there was only dial-up internet connection in the office, despite broadband internet being available for some time. His request for broadband internet, as a more effective way of communicating was denied, ostensibly without reason. He recognised that some internet-related work could have been completed in the switchroom; however he had been advised it was not a safe or proper environment in which to do administrative work or training, 26 particularly when contractors were there. He also stated under cross-examination that they were not permitted to use the switchroom as an office, but he confirmed that it was possible for him to use the switchroom to send and receive emails without using the switchroom as an office.27
[48] Mr Traill confirmed that he had been told that the switchroom could have been used for internet-related work, but that he did not trust that advice because it was not in writing. He also specified that the switchroom was not safe to use regularly for such a purpose. 28 Mr Traill stated that Mr John Foot had indicated that the switchroom was not an office and should not be used as such. Mr Traill further stated if the Applicant used the computer in the switchroom and had moved his chair back, he could have hit an emergency stop button (even though the button was shrouded), potentially shutting down power supply. There was also a fire risk in using this room.
Facilities, Resources and Assistance
[49] The Applicant and the other employees at the Bamaga site were also restricted by Mr Farmer from using the air-conditioned kitchen room as a crib room. The Applicant assumed this was because Mr Motlop accidentally damaged a panel in the wall but Mr Farmer had not actually given reasons as to why the kitchen could no longer be used. 29
[50] There was also evidence that despite requests from the Applicant for other equipment to be provided, such as a wheelbarrow, and a storage place for the equipment, these were either never provided or provided in part, or provided after his dismissal. The Applicant conceded that this may not have been due to Mr Farmer directly. 30 However, the Applicant stated:
“Yes, and what effect did the lack of that racking to store poles and wires and hardware – what effect did that have on your capacity to do the things that your employers were asking you to do in relation to the return of paperwork and looking after housekeeping and workplace health and safety and issues of that kind? Did it have any effect on all those things?---Indirectly, yes.
Indirectly. How?---When you waited years for things to come you soon get a bit slack. It’s, “It will never happen, it will never” – you get used to that idea.” 31
[51] The Applicant also stated that due to this perspective on resourcing, he thought his chances of obtaining more expensive equipment (such as a forklift) were minimal. However, Mr Farmer had asked the Applicant to provide a business case for the purchase of such items. The Applicant did not provide the business case. He stated he did not know how to write a business case, and so did not submit one, despite Mr Farmer offering his assistance to prepare such. 32
[52] The Applicant also identified the delay in tools arriving at Bamaga as an issue of under-resourcing and a source of frustration. He stated he discussed the tools he required with Mr Farmer and that it was some time between making the request and receiving the tools. 33
[53] Finally, the Applicant identified that Mr Farmer failed to mentor him with the difficulties he was experiencing. He also stated that the pressure Mr Farmer placed him under was also a source of bullying. By mentoring, the Applicant meant showing empathy and helping him achieve a suitable level of competency working with the computer. 34
Training
[54] The Applicant also stated that he received a lack of training:
“I always found it difficult to get training from Ergon. The majority of the training I required was from the Field Operations division of Ergon, however I was employed by Generation division. Accordingly, Field Operations often seemed unwilling to pay for training to a Generation employee, whilst Generation seemed unwilling to pay for Field Operations training.
In the past, I would usually receive only the minimum regulatory amount of training, with my requests for more advanced training never being accepted.” 35
[55] The Applicant’s record of training history 36 demonstrated that from approximately 19 April 2007 onwards, there were a number of courses the Applicant either did not attend or did not complete. However, for the 13 years prior to this period his training record reflected a consistent standard of completion. He indicated under cross-examination that he experienced various difficulties in completing the on-line training as originally the computer was in the switchroom, which was not an optimum training environment. He also stated that the dial-up internet connection on the office computer regularly dropped out and that he had been on his own for much of this time; and this had reduced the amount of time he had available to undertake the training. He also stated that much of the training that was offered was training of a regulatory nature,37 whereas he had requested more advanced training.38
[56] The Applicant said that another reason he didn’t attend a particular training session on Thursday Island (towards the end of his employment) was that the water taxi to Thursday Island, on the day training was scheduled, was not available to him because of the expense to the Respondent; and the ferry was not running that day.
[57] He also stated that the bullying he experienced in the nature of under-resourcing (that is, a lack of staffing) made him feel like it was discouraged for him to attend training. 39
Cultural awareness
[58] In relation to the issue of the Applicant’s culture, which he contended wasn’t taken into account by the Respondent, the Applicant gave the following evidence:
“The on-call issue has been of particular difficulty to me as I have had to be on call during family feasting, funeral, weddings. This has been a cultural sacrifice for me as my role in the community has been put on the back burner.
...
I take my role within the community seriously and I believe I am a well respected figure.
Throughout my employment with Ergon I attempted to promote the organisation and its services to the community. I did this by:
a. making sure that Ergon was well represented at community festivals;
b. teaching the council workers about electrical and workplace safety;
c. going to the local schools and discussing future trades careers with them;
d. working with the council;
e. working with emergency response teams;
f. promoting Ergon green team, Clean Up Australia day and general environmental awareness; and
g. attempting to engage with the community as much as possible.
I also attempted to promote job opportunities for the local community. For instance, I arranged for Mr Motlop to start working at the power station as part of a work for the dole/CDEP program. He has since gone on to become a power worker and has a permanent position with Ergon.” 40
[59] Mr Wong (Director of Enterprises for the Northern Peninsula and Area Regional Council) provided evidence that due to the Applicant’s strong community outlook he went out of his way to assist people in the community. 41
[60] Ms Touchie, Occupational Health and Safety Advisor, at Unions NT and Chair of the Union’s ACTU Indigenous Committee gave expert evidence in relation to culturally appropriate methods of dealing with an Indigenous person, in particular in relation to a performance management process. Ms Touchie stated:
“Best practice in communicating with Indigenous Australians in the workplace must, as a priority, take into consideration the geographical location of employees.” 42
[61] And further that:
“In general, my opinion is that Ergon have failed to provide appropriate support mechanisms in their management of Tommy. They have also failed to make their management strategies more culturally appropriate.
Ergon claim to be a Corporate Leader for Indigenous Employment and have signed the commitment statement to support this. They also continue to be part of the Former Origin Greats Indigenous employment strategy and Expos in Queensland.
Despite these claims, it does not seem that Ergon have managed Tommy in a culturally appropriate manner.” 43
[62] She stated that in a situation like this, the individual needs to be afforded a culturally appropriate management system. 44 She stated:
“Many employers contribute to the increased stress levels by failing to understand the dynamics of working in a remote area, by failing to understand the employee’s culture and by failing to build relationships with their employee based on trust and mutual respect.” 45
[63] Ms Touchie stated she was aware of Mr Andrew Yeatman’s (Diversity Advisor, Aboriginal and Torres Strait Islander, Ergon Energy) evidence that the process used by the Respondent to manage the Applicant was culturally appropriate but that it did not alter her opinion. 46
[64] Ms Touchie provided evidence of the culturally inappropriate approach to performance management taken by the Respondent:
“For example, at the meeting held on 24th April 2009 Tommy was not offered any cultural representation or support. Given all of the circumstances it would have been more appropriate, when “performance managing” an Indigenous employee, to facilitate cultural representation and support. (The purpose of such representation is to allow interpretation and cultural and personal support for the employee).
Similarly, it appears that the escalation of the process occurred quite quickly, with the next meeting having Ergon HR, Ergon Generation Manager etc attendance at this meeting with only Tommy and the ETU delegate. Again, no cultural representation or support was offered or provided.
In my experience this rapid escalation would have had a significant impact on all future performance meetings as it would be quite intimidating for the employee and may have contributed to the employee isolating himself from the process for fear of ramifications.
From the information that I have been provided it appears that between the time of the issuing of the final warning on 9 July and the Show Cause on 14 October 2009 Tommy was not given access to any form of ongoing support.
There is also no information that suggests that Ergon had any cultural management plans in place which recognised the diversity of the situation or the particular needs of a Torres Strait Island man working in a remote, far North Queensland Community.
Further, it does not seem that the relationship between between [sic] Richard Farmer, Tommy’s manager and Tommy Sebasio is based on trust and/or mutual respect.
Finally, it appears that Ergon have not taken into consideration Tommy Sebasio’s cultural obligations of attending a funeral and have chosen to terminate his employment without any further oral communication.
Given the information that I have seen and my experience in this field it is my opinion that Ergon have not managed Tommy Sebasio in a culturally appropriate manner and that this has created an inherent unfairness in the entire performance management system, up to and including his dismissal.” 47
[65] Mr Herbert asked Ms Touchie what particular case-related material she had reviewed prior to providing her evidence. She could not confirm such, accordingly he submitted her evidence should be discounted and was not specific to the Applicant’s case. Mr Herbert asked Ms Touchie to explain how an employer can manage basic performance issues with an employee in a culturally appropriate way. Ms Touchie stated that these are best managed by relationships built on trust, in order that they feel culturally safe so that the employee does not isolate themselves from “an institutional and structural, inflexible process”. 48
[66] Mr Herbert asked what the cultural issues were that were raised. Ms Touchie responded that in his community, the Applicant was continually contacted and he felt obligated to respond. Mr Herbert questioned whether this obligation was inherent to the role of a remote Power Station Manager. Ms Touchie did not agree with this; she considered the Applicant’s obligations and the community contact with him would be greater for an Indigenous Manager in a remote Indigenous community. 49
[67] Ms Touchie stated that from the commencement of the management process, the Applicant raised that the employer was unaware of his environment and his pressures. Further to this the Applicant was required to contact Mr Farmer each day, despite the Applicant raising concerns regarding the interactions with this manager. In relation to this, she stated that research indicates when an Indigenous person is not feeling comfortable with a person or feels culturally demeaned then the process is negatively affected. 50
[68] She stated that Ergon should have treated the situation differently as they promoted themselves as an Employer of Choice and held themselves out as a recognised Indigenous employer and therefore should positively discriminate. Ms Touchie identified the cultural responsibility the Applicant felt to the community 51 and stated that she understood the Applicant had raised issues of cultural concerns, impacts, protocols and issues related to working in a remote community. However, despite questioning from Mr Herbert on these cultural concerns in relation to the Applicant, she could only identify the Applicant’s responsibility to the community to respond to calls.
[69] Ms Touchie referred to Mr Yeatman’s evidence 52 that the Applicant had communicated to Mr Yeatman that he thought Mr Farmer was a racist. She stated that this would have raised a red flag for him that there was something deeper occurring. Mr Herbert pointed out that this ‘red flag’ was not pursued by the Respondent because Mr Yeatman had himself confirmed that Mr Farmer was not racist.53
[70] Mr Herbert asked whether there was a culturally appropriate process to deal with an impasse where an Indigenous employee over a long period does not undertake his duties. Ms Touchie’s evidence in response to this questioning was that the Employer, in providing a culturally appropriate policy and procedure should provide for early intervention and focus on initially building trust in the relationship prior to commencing the human resources process. 54 She considered it was necessary for supervisors to be immersed in the environment to spend time in the cultural and work environment of the Indigenous worker.
[71] Ms Touchie also identified that the demands of the community on the Applicant and the lack of supporting infrastructure such as proper telephone reception that may have impacted on his ability to do the paperwork and other administrative tasks. She said that the Applicant may not have raised bullying concerns in compliance with the Ergon policy because he felt isolated.
[72] Ms Touchie also said that:
“...one of the things that jumped out at me was there was a continual focus in the performance management plans on issues of communication, the fact that Mr Sebasio was not communicating as directed with his direct supervisor. Now, combined with the fact that since 2008 Mr Sebasio had continued to raise these issues of concern, you know, combined with the process that was undertaken, one of the things that jumped out at me was that he's actually started to isolate himself from the situation and only communicate, you know, when he absolutely had to, but then would take himself out of the situation completely as much as possible so, yes.” 55
[73] Ms Touchie identified that throughout the performance management process, the process adopted by the Respondent was heavily ‘human resource management’ focussed. It was her opinion that the process should have started much earlier and that the Applicant’s supervisors should have been more fully immersed in his work, at Bamaga. 56
Performance management
[74] The Applicant considered that his dismissal was unfair due to the performance management by his supervisor, Mr Farmer. The Applicant stated:
“Performance management and dismissal
From late 2008 my former supervisor, Mr Richard Farmer, began a performance management process with me. At the time Mr Farmer became my supervisor, I made it clear to him that I was under a lot of work stress. At one meeting I broke down in tears.
Communications were [sic] Mr Farmer were difficult as I felt he was bullying me. I also felt that he did not properly listen to my issues or understand the environment in which I worked. As a result of the bullying by Mr Farmer, a mediation process was begun. Initially, I then reported to Mr Farmer’s supervisor with whom I had a much better relationship. However, whilst the mediation process was still ongoing Ergon reinstated Mr Farmer as my supervisor.
As a result of Mr Farmer’s bullying and other personal issues, I sought psychological counselling through Ergon’s employee assistance program. I [sic] was the recommendation of my psychologist that I have no contact with Mr Farmer.
As a result of the performance management process set by Ergon, a series of criteria were prepared which both myself and Ergon had to meet. I attempted to meet the criteria as best I could but, due to difficulties such as slow internet, no administrative support and insufficient support from Thursday Island, I was unable to meet all of the criteria. Mr Motlop and Mr Ger [other employees of the Respondent at the Bamaga power station] were both on leave at times during the performance review process. Throughout this time Mr Ger and Mr Motlop were themselves dealing with serious personal problems. I requested additional assistance from Thursday Island so that I could stay within the deadlines set in the process. However, the only support was one apprentice who was sent over for the weekend. Ergon also did not meet all of the criteria, particularly in regard to providing administrative support.
At the time of my dismissal I believed the mediation process was still ongoing. I had expressed a number of concerns about the mediation process as I was originally not allowed to have a support person and also felt as if the process was not aimed at resolving the difficulties between Mr Farmer and myself, but was an extension of the performance management process.
At the time of my dismissal I was also still receiving treatment through the employee assistance program. I was also receiving treatment through my local doctor and the mental health team.
I believe I was a good employee for Ergon and could return to work within the organisation.” 57
[75] Mr Robert Hill, an electrician employed by the Respondent and its predecessor for 16 and a half years, provided evidence. He also was the Deputy Senior Delegate Far North since July 2009. He attended a resolution meeting with the Applicant and Ms Oorschot and Mr Farmer of the Respondent. He stated:
“I felt that this meeting was very much a case of Ergon Energy management and HR dictating to Mr Sebasio his perceived failings with little to no consideration for Mr Sebasio, his situation, his problems complying with what was expected, his standing in his community, his service to the company with little or no support over the years, or the reactive nature of the work performed in Bamaga.” 58
[76] He stated that he considered the Employer’s representatives were dismissive of the Applicant’s responses at the meeting. 59
[77] Mr Traill’s (ETU Organiser) assessment was that there was a communication breakdown directly with Mr Farmer. Mr Traill became involved in July 2009, when the Applicant received a Final Warning. However, he conceded that similar issues had also been part of the performance management process that the former supervisor, Mr Brand had also undertaken with the Applicant, but that the process was escalated when Mr Farmer became involved. 60
[78] Mr Traill also stated that Mr Farmer managed the situation in an abrupt manner compared to the more conciliatory approach of Mr Brand. Mr Traill considered that Mr Farmer’s involvement led to the situation as described in the psychologist’s report (as included in his statement). It was noted by the psychologist that had seen the Applicant:
“However, what could well be problematic is his need to make contact with his supervisor or visa versa, in the course of his daily duties. This is likely to trigger his stress levels as he feels he is being “persecuted/unfairly treated” by his supervisor. This situation appears to be untenable and does in my opinion need to be resolved as quickly as possible.
I am aware that there are always two sides to these situations and that Mr Sebasio’s perceptions are Mr Sebasio’s perceptions, and may not represent the objective reality but he is, as we all do, operating out of his perceptions. This situation I think needs to be addressed quickly, maybe via some sort of mediation process??
If it is possible on a short term basis for some other reporting procedure/pathway to be put in place, such that he will be able to maintain appropriate contact with the organization, instead of with his Supervisor, then maybe that could somehow be considered.?” 61
[79] This situation led to mediation, where the Applicant was initially denied access to a Union Representative. However, Mr Traill confirmed that at the later scheduled mediation session of 3 September, the Union Representative did not attend, despite being notified of the mediation. 62
[80] It was confirmed in evidence that Mr Brand, his former supervisor, had failed to rectify the issues between the Applicant and the Respondent. 63 Mr Traill under cross-examination agreed that a number of the issues the Applicant was experiencing in terms of difficulties with communication and under-resourcing were present with Mr Brand. However, Mr Traill stated the nature of the Applicant’s limited availability was due to the dual role he was performing between operations and generation areas and the ongoing difficulty with computer connections and mobile phone coverage plus the micro-management of the Applicant.
[81] The Applicant stated he had required additional staff assistance. With regard to the assistance he required from Thursday Island, he indicated that he would normally go directly to Mr Wood on Thursday Island; however, on this occasion on the conditions of the Performance Improvement Plan and process; he went directly to Mr Farmer requesting the assistance. He further stated Mr Farmer never confirmed with him that Mr Farmer had expected Mr Wood to directly assist the Applicant with the support staff.
Safety audit
[82] Mr Traill gave evidence that he conducted a Safety audit on Monday 13 July 2010, and that a number of the safety issues previously raised remain unresolved by the Respondent. 64 He stated that following this Safety Audit he forwarded an email to Mr Farmer and that he had done nothing about it. However, Mr Herbert referred Mr Traill to an email65 Mr Farmer sent to the Applicant regarding Mr Traill’s workplace health and safety site visit. Mr Herbert submitted that the Applicant conceded he was responsible for the site safety issues raised.66 However, Mr Traill’s evidence that the deficiencies of performance attributed to the Applicant remained after his dismissal. Further, Mr Traill directed a series of workplace health and safety issues to Mr Farmer that he says he did not address.
[83] In relation to some of the maintenance issues, Mr Traill stated that he had asked the Applicant why material and gear was on the floor. He stated the Applicant had said he did not have appropriate shelving. Mr Herbert put to him that the two sets of racking requested, one by the Applicant and one by Mr Ger were both provided; prior to this safety report. Mr Traill responded that a forklift had been required for some of this gear, and that the Applicant had requested such and it was denied. Mr Traill stated that on his recent visit the tripping hazards as reported had been dealt with as the appropriate shelving and the forklift had been provided after the Applicant’s dismissal. Mr Herbert put to him the racking was provided and a forklift was available for hire in Bamaga; and it was open to the Applicant to organise the gear and reduce the hazard. In addition, it had been open to the Applicant to acquire the forklift on completion of a business case.
[84] In regard to the inappropriate storage of chemicals; Mr Traill stated that the Applicant had not had the appropriate training. Further he said the First Aid Kit and the Fire Extinguisher were on the floor as the Applicant had been advised they were left there whilst painting was occurring and was advised that they were going to be put back on the wall after completion. 67
[85] Mr Traill in his Statement 68 set out that Mr Farmer had refused to deal with a number of serious safety breaches. Mr Traill acknowledged he received a response from Mr Farmer in relation to a number of the issues he raised in his report, contrary to his statement.69 However, Mr Traill considered some of Mr Farmer’s responses were inadequate. 70
[86] Further to the explanation Mr Farmer provided to Mr Traill, he also sent a list of follow ups to the Applicant to deal with the issues raised by Mr Traill.
[87] Mr Traill stated that Mr Farmer’s response was inadequate so he escalated the issue but he did not provide any further response to Mr Farmer indicating he was dissatisfied with the response. 71
[88] Mr Herbert put to Mr Traill that if he wanted to resolve the issue he could have responded to Mr Farmer rather than escalating the issues. Mr Traill expressed concern that the ‘genuine safety issues’ remain today and have not been fixed by the Respondent. Mr Traill stated:
“On 23 June 2010, whilst in Bamaga, I attended the Bamaga Power Station. Whilst at the Power Station I identified a number of safety breaches from my previous trip of 13 July 2009 that had still not been addressed. These breaches included:
a. Lack of appropriate First Aid facilities, namely eye wash facilities, wash down facilities, first aid kits; and
b. Electrical appliances out of test as per Electricity Regulations; and
c. Inappropriate storage of Hazardous substances; and
d. Load bearing equipment not stamped with Safe Working Loads, and
e. Pole stack does not comply with Ergon standards despite numerous safety incidents within Ergon regarding inappropriate storage of poles.” 72
[89] He further stated:
“Ergon had not provided, despite repeated requests:
a. shelving;
b. a forklift; or
c. the necessary workplace health and safety training,
to allow the Bamaga Power Station staff, including Mr Sebasio, the ability to remedy these safety breaches.” 73
Summary of Submissions and related Issues - Respondent
The previous supervisor - Mr Brand
[90] Mr Brand, the Mobile and Embedded Generation Manager provided evidence. He has been a permanent employee of the Respondent since April 2005, and worked in supervisory roles for 11 years in remote mining communities within Australia and internationally. He was the Applicant’s supervisor from June 2006 to September 2008. Mr Brand stated that he had no cause to question the Applicant’s technical abilities.
[91] Mr Brand’s role had overall responsibility for 33 power station operations, including collecting specific information. He stated:
“I regularly had difficulty in obtaining Bamaga power station information and cooperation from Tommy. It was significantly harder with him than with other remote stations, eg:
a. Monthly stock returns and fuel usage sheets were regularly late;
b. When followed up, calls were rarely returned;
c. poor housekeeping; and
d. not maintaining safety programs.” 74
[92] In relation to this issue of the Applicant’s alleged deficiencies with administrative duties, Mr Wright cross-examined Mr Brand as to why the Respondent promoted the Applicant having identified various problems with the Applicant’s work in terms of monthly stock returns, calls, housekeeping and safety programs. Mr Brand stated that the Respondent sought to provide the Applicant with an ‘avenue to succeed and to move forward within the company’ and that this followed the Applicant saying he wanted some recognition for the efforts already made. However, Mr Brand confirmed that this ‘promotion’ was in title only, and that it did not alter the Applicant’s remuneration, but it did amount to increased responsibility in terms of the areas of deficiency already identified. 75
[93] Mr Brand’s evidence was that he continued to experience difficulty with the Applicant in relation to communication issues. This resulted in a “Performance Agreement and Review” and associated training schedule on 11 March 2008. A related meeting on 9 May 2008 was arranged and a subsequent Review drawn up. It was after this that Mr Brand thought there may have been some cultural issues involved, so he arranged for Mr Yeatman, the Aboriginal and Torres Strait Islander Employment and Support Officer to assist with the perceived communication issues. 76 Mr Brand confirmed that Mr Yeatman’s advice was provided over the telephone, and at no stage was a strategy developed in relation to managing the Applicant.77
[94] Mr Brand’s evidence was that the Applicant continued to fail to respond to his emails and phone calls, and on 30 July 2008, the Applicant explained that he had personal issues that were affecting his performance. An Operational Plan to improve the Applicant’s performance was developed. A final performance management meeting between Mr Brand and the Applicant occurred on 20 October 2008, prior to Mr Brand handing over the supervisory duties to Mr Farmer. 78 Mr Brand stated he was trying to open up a channel of communication with the Applicant but his calls were not returned. He said he was aware that the Applicant was experiencing some personal issues, and he offered for the Applicant to speak with Mr Yeatman and referred the Applicant to the Employee Assistance Program and endeavoured to work on communication between them.79
[95] Under cross-examination, Mr Brand confirmed the Applicant sought additional resources in the form of administrative support and equipment such as a car and a forklift. However, the requested information to support a business case for such was not provided, despite a deadline for completion of the work; 80 and therefore the resources were never provided whilst the Applicant was employed.81 After further questioning, Mr Brand stated that he visited Bamaga every three months, but during those visits he never sought to sit down with the Applicant to assist in drafting a business case because “it wasn’t one of those things that was high on my priority list at the time to complete” as he was there to conduct inspections, site performances, agreements, learning, and development plans etc.82
[96] Mr Brand agreed that in other power stations, the control room is used for completing general administration such as emails and training however he confirmed that the Applicant was not to use the control room for general office functions. 83 However, Mr Brand acknowledged that he had never seen the switchroom raised as a safety issue outside Bamaga.84
[97] Mr Brand was referred to the Applicant’s training record 85 and asked why he thought the Applicant’s training attendance and completion after April 2007 deteriorated. Prior to this he had 18 years from 1994 of appropriate completion and attendance. Mr Brand had wanted the Applicant to complete two online courses in April 2008 as part of the Operational Plan, but the courses were not completed. Mr Brand stated that the Applicant had stated he had not completed the courses because he did not have time to complete them. Mr Brand stated that he had offered assistance to the Applicant to help him complete the courses.86
[98] He stated the consistent problems he had with the Applicant were communications and reporting. Mr Brand confirmed he had similar difficulties on a sporadic basis in having paperwork returned with some other employees, but not to the same extent as with the Applicant. 87 Mr Brand said that he knew the Applicant was capable of doing the work and he wasn’t sure why the work wasn’t being completed. He stated that there were occasions when the conversations were heated between himself and the Applicant, but it was the Applicant that was the aggressor in those situations.88 He later clarified this as follows:
“Mr HERBERT: And, finally, in relation to the evidence you've just given, Mr Brand, you talked about a heated conversation and you indicated on that occasion - on the occasion that you had a very heated conversation you didn't consider that you initiated that heated aspect of the conversation. Could you tell the commission what you meant by that?
Mr BRAND: I made the call to Tommy to ask basically where he's been for the last couple of days and why he wasn't able to return any of my calls. There was a number of issues that were outstanding that needed answers to. Mr Sebasio, I guess, didn't like the questions I was asking and for possible reasons that I may have found out later such as some issues at home Tommy was very animated and heated towards his reply to myself and, of course, that continued on for a little while, of which I probably got a little bit heated myself under the collar and at the end of the conversation it was, like, "Well, perhaps we should discontinue this for the moment and come back to it later on," of which Tommy hung up the phone on me.
Mr HERBERT: Did you ever in your time as Mr Sebasio's supervisor initiate any aggression in relation to the conversations you had?
Mr BRAND: No.” 89
[99] Mr Brand stated in handing over the role to Mr Farmer, he informed him of the Performance Improvement Plan in place and the communication and performance issues he was having with the Applicant. 90
[100] When Mr Brand was asked whether the Applicant’s role in his community was an element he considered in terms of the Applicant’s workload, his answer indicated that he had not made specific consideration of any cultural issues that may have impacted on his role, but he recognised that the Applicant was a community-minded person particularly in relation to taking calls. He stated he had left it up to the Applicant to determine whether to attend to the calls or to refer them to Mr Ger. 91
[101] Mr Brand was also asked whether it was normal to give the Applicant the title of Power Station Supervisor but not the commensurate entitlements. Mr Brand agreed this was not a standard way of advancing a promotion however the intention was to develop the Applicant in the role. 92
Cultural issues
[102] Mr Yeatman, the Respondent’s Aboriginal and Torres Strait Islander Employment Diversity Advisor provided evidence. Mr Yeatman outlined his qualifications for this role in his Statement. He holds a Bachelor of Applied Science Degree in Indigenous Community Management and Development; and stated that throughout all of his work history he has worked with Aboriginal and Torres Strait Islanders. 93 He stated that he is a member of the Kuku Yalanji tribe, Olkalo Aboriginal Corporation, Olkalo tribe, Kuku Tyhpan tribe and Kyerrwanhdha Thingalkal Land Trust and the Pyhpan/Possum Negotiation committee;94 and that his wife is Torres Strait Islander.95 He relevantly stated:
“My involvement in assisting Ergon Energy to become an employer of choice for Aboriginal and Torres Strait Islanders throughout Queensland also looked at the broader issues faced by both the business and employees throughout rural, remote and isolated communities. I have had the pleasure in visiting Ergon Energy employees and community members alike in the Torres Strait region, the Northern Peninsula Area, Cape York Peninsula, Yarrabah and Palm Island to name a few.” 96
[103] In relation to his dealings with the Applicant, Mr Yeatman stated:
“I became aware of the issues between Tommy and his manager, Jason Brand, in early 2008. The generation management team at the time was seeking advice on how to engage with Tommy, as many attempts were made to establishing and maintaining a communication link between manager and employee. My original thoughts on the issue that there may have been cultural barriers limiting communication.
The generation team had on ample occasions sought my advice on potential cultural issues. This led me to discussing issues face to face with all indigenous employees in the Bamaga Power station. I would then liaise back to management (first Jason, then later, Richard Farmer) prior to any meeting commencing, to take into account any cultural barriers such as Non-English speaking background and other socioeconomic barriers.
I accompanied Richard on a couple of trips to Bamaga to meet with Tommy. Prior to these meetings I met with Tommy to identify any cultural issues. Tommy did not raise any cultural issues with me. However, Tommy said he thought Richard was racist, but when I asked him why, he didn’t answer. In my dealings with Richard, I did not form the impression that he was racist.
My understanding of the issues faced by both Richard and Tommy was articulated through a “Responsible, Accountable, Consult, Inform” (RACI) model which I developed for them [Attachment 3 to his Statement]. This tool enabled both parties to identify and agree to a set of actions to work through issues that could prolong or prohibit an inclusive work environment.
Through the use of this tool and conversations between Tommy, Richard and I, I believe that to the best of my knowledge Richard acted on my advice and was fully aware of the cultural issues faced in rural, remote and isolated communities.
I attended several performance management meetings that Richard held with Tommy, and I considered that Richard acted with sensitivity to Tommy’s cultural background.
I was included in a lot of the emails between Tommy and Richard. At times I reviewed outcomes [Attachment 4 to his Statement] and saw no issues with how Richard communicated his expectations to Tommy.” 97
[104] Mr Yeatman stated “there is no 12 point step to engaging with Aboriginal and Torres Strait Islander people” but it was necessary to be aware of the cultural differences and tailor the approach accordingly. 98
[105] Mr Yeatman stated that the program documents were more proactive, instructive documents for the day-to-day achievement of the policy goals. He confirmed part of his role was to assist employees and supervisors where there were cultural communication issues, but he was not the only support person available for employees (both individuals and supervisors alike) to utilise when cultural issues arose. He said the Ergon Employee Strategies Indigenous Buddy Program also provided a contact point for support and this was communicated on Ergon’s Indigenous Intranet website. Mr Yeatman said Mr Danny Sebasio (the Applicant’s nephew) is the nominated “buddy” for the Northern Region, but employees can contact any of the buddies. 99
[106] He stated that during his involvement with Mr Farmer and the Applicant, he facilitated the use of the RACI tool (Responsible, Accountable, Consult, Inform) to consider accountabilities and identifying potential resolutions. He agreed that this is not a tool specifically designed to deal with cross cultural issues, he wasn’t aware there was such a tool, but he stated he was an Indigenous person and he was facilitating it, and therefore was mindful of possible cultural issues. 100
[107] In his dealings with the Applicant and Mr Farmer, he characterised them both “as pretty good blokes” and both were respectful. 101 Mr Yeatman confirmed that the Applicant had stated to him that Mr Farmer was racist. He stated he didn’t identify Mr Farmer as racist. The Applicant had stated:
“In relation to the witness statement of Mr Yeatman, I disagree with some of his evidence, in particular:
a. paragraph 9 - when Mr Yeatman travelled to Bamaga with Mr Farmer, I implied that characteristics of Mr Farmer’s behaviour were familiar with that of persons ignorant of cultural, historical, and environmental issues of the area in which i [sic] live. I understood Mr Yeatman to have agreed with me. I explained to Mr Yeatman that it was difficult for me to develop a rapport and a respect for Mr Farmer, as he as manager failed to show any competent skills to mentor me in my trade and work area and only confirmed by his lack of empathy.” 102
[108] Mr Yeatman, in reply stated he wasn’t aware of this. 103
[109] Mr Wright asked Mr Yeatman what advice he had provided to Mr Farmer in relation to the Applicant; he stated it was general advice regarding the cultural aspects only, and not particularly in relation to the issues that were more relevant to the Human Resources Department. 104
[110] Mr Yeatman said on a number of occasions he endeavoured to contact the Applicant, and the responses were delayed, but whether this was due to phone or computer connection difficulties he was not certain.
[111] In relation to the Performance Improvement Plan, Mr Yeatman confirmed in his opinion the plan would work to improve the Applicant’s performance. He stated he did not form the view that Mr Farmer calling the Applicant on a daily basis was culturally inappropriate. He stated he had attended some performance management meetings in Bamaga and had sat with the Applicant prior to the meetings. He stated that his view was that Mr Farmer spoke quietly at the meeting and was sensitive to the Applicant’s work and cultural obligations during the meetings. Mr Yeatman conceded that the Applicant’s community obligations were probably greater in Bamaga, as he was an Indigenous person but had also lived most of his life in Bamaga and therefore the frequency of contact would be greater than for a person from outside the community and greater than for a non-Indigenous person. 105
Supervision by Mr Farmer
[112] Mr Farmer, the Applicant’s supervisor from September 2008 to the time of the Applicant’s dismissal, provided evidence. He is the Generation Operations Manager for Ergon Energy, and is based in Cairns. He had held the position for 18 months. He stated he had been employed in management and supervisory positions for 18 years and had 24 years of experience in the Electrical Industry.
[113] He stated:
“When I commenced in the Generation Operations Manager role, the former manager, Jason Brand, informed me of the performance management issues that he had been addressing with Mr Sebasio since June 2008. I was aware that Mr Brand had conducted a formal Performance Counselling Interview with Mr Sebasio (and his union representative) on 20 October 2008. As part of my handover from Mr Brand, I implemented a Performance Improvement Plan with Mr Sebasio on 4 November 2008 to address the issues raised in the Performance Counselling Interview which had been conducted by Mr Brand, eg lost invoices and associated paperwork, timesheets faxed late, not returning phone messages, not replying to emails, housekeeping, WH&S program, etc (Attachment 1 to his Statement).
I was sensitive to Mr Sebasio’s cultural background so I involved Ergon’s Diversity Advisor A&TSI, Andrew Yeatman in this process, to advise me on best practice to communicate and influence Mr Sebasio to improve his performance. Mr Yeatman advised me on cultural protocols, and on 3 December 2008 met with me and Mr Sebasio and developed a “Responsible, Accountable, Consult, Inform” (RACI) model to facilitate clear communication lines and accountability between Mr Sebasio and I. [Attachment 2 to his Statement]. I sought advice from Mr Yeatman on many occasions in my approach to managing dealings with Mr Sebasio, and I always acted on Mr Yeatman’s advice.
I discovered on several occasions over my first 3 months that Bamaga staff members were not at work at times when they should have been working. I required Mr Sebasio to regularly contact me so I could gain a better understanding how the station was performing, and identify issues so support staff or parts could be sent up to site. It was necessary for me to constantly try to contact Mr Sebasio via phone, fax and e-mails to ensure he completed service orders by the target date (compliance with which is required by the Queensland Electricity Industry Code). This Code imposes a cash penalty on distributors which must be paid to customers for non-compliance. Up until now this penalty has been dependent on the customer claiming their Guaranteed Service Level Payment, however from 01/07/2010 the distributor is required to be pro-active. Wherever Ergon fails to meet the target date, it is required to make a penalty payment. There is also the potential for Ergon to be fined for continued failure to meet targets and there is also the possibility of the Ergon Electricity Distribution Entity Licence being brought into question.” 106
[114] Mr Farmer identified that one of the performance issues in relation to the Applicant was that there were complaints received by Ergon Energy about service orders not being completed. When Mr Farmer spoke with the Applicant about these complaints, agreed target dates were set to ensure he completed the service orders by that date. He conceded that the target dates included a portion of time that Mr Ger and Mr Motlop were not at work and that the service orders were of a kind that would not incur a penalty, 107 but they were part of the Performance Improvement Plan.
[115] Mr Farmer also identified that the Applicant had not completed the maintenance checks that he had been requested to complete, for example to ensure registration was current on the vehicles and check the eyewash sink. He identified that these maintenance checks were critical to meeting the Key Performance Indicators. 108 Mr Wright questioned Mr Farmer that if the checks were not being completed, and the checks were critical, then why something was not done. Mr Farmer stated that it was the responsibility of the power station manager to ensure they were done; that he’d offered support, but had not sent someone to assist in completing the critical task.109
[116] In his statement, Mr Farmer said:
“On 3 April 2009 Mr Sebasio phoned me and said I was bullying him and that he was stressed. I informed him of the procedure for applying for work-related stress via a workers compensation claim. I also informed him of the bullying complaint process under Ergon’s Diversity Policy [Attachment 4 to his Statement]. Mr Sebasio did not and has not to date lodged a formal bullying complaint, nor has he provided any particulars of the alleged bullying, nor proceeded with a stress-related workers compensation claim.
I reject any allegation that I have bullied Mr Sebasio either in person or by phone. I found it necessary to repeat instructions and speak firmly to him, as some of his non-compliance issues directly affect me and the performance of the Ergon business in the manner set out earlier in this statement. However, at no point was I aggressive, loud or otherwise disrespectful towards him.” 110
[117] In approximately April 2009, the Applicant met with Mr James Archer (Manager of Generation Services, Ergon Energy), and his psychologist, Crispin Jones, who advised the Applicant to take stress leave. Mr Farmer gave the following evidence regarding this under cross-examination:
“MR WRIGHT: … you say there that his stress claim was not genuine?
MR FARMER: Yes…Well, I’m not a medical practitioner, but he was advised to take leave and chose not to.
MR WRIGHT: And because of that you thought it was not genuine, his claims. So when you say “stress claim” are you referring to his claims to being stressed?
MR FARMER: Work stress.” 111
[118] The Applicant did not make a formal complaint against Mr Farmer. Mr Farmer said that he was surprised at the Applicant’s phone call and that he called Human Resources to inform them that he had received the call alleging bullying. He thought it was important that no formal complaint had been made, because the normal human resource processes of the Respondent weren’t then followed. 112
[119] Despite no formal complaint being made, a mediation session was scheduled for 2 June 2009 with Ms Bronwyn Bayly, psychologist from IPS Worldwide. The mediation session was initially cancelled due to Mr Traill not being allowed to be involved in the mediation as a support person.
[120] Mr Farmer denied the evidence that was provided by Mr Steele regarding his treatment of the Applicant.
[121] He could not recall whether the Applicant had told him, during the handover with Mr Brand that he was under stress; and initially denied that the Applicant had ever broken down in tears at a meeting or on the phone with Mr Farmer. 113 He later specified that he had been with the Applicant when the Applicant had broken down, but he was not clear on the detail as to why. He thought that it was sometime in September 2008.114
[122] In receiving the handover of the Applicant’s supervision from Mr Brand, Mr Farmer confirmed that at no time did he discuss with Mr Brand the option of terminating the Applicant’s employment. 115 He also specified that at one point, he discussed the Applicant’s redeployment with Mr Jane Oorschott (Human Resources Manager) and the Applicant, but the Applicant did not take up this offer. Mr Farmer confirmed that the Applicant’s role had, at the time of hearing, not been made redundant.116
[123] In relation to the use of the switchroom, Mr Farmer confirmed that the Bamaga employees were not to use the switchroom for administrative purposes or not for lengthy periods, as follows:
“MR HERBERT: Can I show you this email please? Mr Farmer, have you gone back to find an email communique – have you been requested to find the earliest email communication you were able to locate relating to the question of the use of the computer in the switch room?
MR FARMER: Yes.
MR HERBERT: Is that an email from you to Mr Sebasio on 15 January 2009?
MR FARMER: Yes.
MR HERBERT: In which you say in the last sentence, “It has been agreed that you can do emails, et cetera, via the computer in there but extended periods should be avoided”?
MR FARMER: Yes.” 117
[124] In relation to the Applicant’s training record, Mr Farmer was not sure as to why the Applicant’s training attendance deteriorated, especially as there was assistance offered by way of the Cairns staff members helping to input data for the Applicant. However, this assistance was not referred to in any of the Performance Improvement Plans. 118
[125] Mr Farmer explained that he had not received any formal training through the Respondent in relation to dealing with people from other cultures; however he stated that Mr Yeatman had been a source of advice for him in relation to these issues, both specifically in relation to the Applicant and other employees. 119 He stated in evidence:
“MR WRIGHT: In this situation, going forward, how did Mr Yeatman suggest you manage the situation going forward?
MR FARMER: Trying to break down any perception, being open and honest, any barriers that – you know, that Mr Sebasio was to bring up, to try and remove those barriers. Just try and have some open and honest communication, discussion, and when we had gone through the RACI model, you know, I was quite confident that after that process we could certainly move forward.” 120
[126] Mr Farmer confirmed that he was aware that the Applicant felt that the community relied upon him. He was aware that the Applicant had some 20 weeks annual leave entitlements accrued, but was sure that the Respondent could have provided relief for the Applicant to take leave. 121
[127] Under cross-examination, Mr Farmer stated that the Applicant had sought assistance, and that Mr Farmer had called the Thursday Island power station to send over someone who could assist him during a period that Mr Ger and Mr Motlop were absent. He confirmed that he left the decision as to who to send, in accordance with Thursday Island’s own requirements up to Mr Woods, the Thursday Island Power station supervisor. 122
First Warning
[128] Mr Farmer stated he met with the Applicant and his Union representative on 3 December 2008 and the first warning was issued to him on 9 December 2008 by Mr Farmer. 123 The warning stated that the Applicant had ‘not met your commitment to communicate with your Supervisor and support staff in Generation in a timely manner and you failed to supply your monthly WH&S report.’ It also stated that Mr Farmer was to visit the Applicant on a monthly basis for three months. The Applicant was also required to call twice per week and respond to emails within 24 hours. 124
[129] The Background Summary (attached to the warning document) formed the context of the warning as follows:
“Performance meetings were held on the 20th October and 21st October 2008 to discuss various areas of Tommy’s performance as a Power Station Supervisor that were not being performed to the required standard. These included Spendvision Issues (lost invoices and associated paperwork), timesheets faxed late, not returning phone calls/messages, not replying to e-mails, housekeeping not compliant.
A performance plan was developed on 21st October and subsequent discussions were held with Richard Farmer to review the plan which was signed by Tommy on the 4th November. Since the 4th November Tommy’s performance has deteriorated to an unsustainabale [sic] level especially in relation to communications [sic].” 125
[130] Following the first warning issued on 9 December 2008, the following subsequent performance management occurred:
- Meetings in January and March 2009 between the Applicant and Mr Farmer to discuss the Applicant’s ‘unacceptable performance’;
- A meeting was arranged on 2 April 2009 and 23 April 2009 in Cairns, of which the Applicant failed to attend, however Mr Farmer said that the Applicant emailed him that he would not be attending meetings until the bullying complaint had been dealt with; and
- It was agreed that the Applicant would respond in writing to a list of 11 performance and behaviour issues developed by Mr Farmer. The Applicant did so on 29 June 2009.
[131] Mr Farmer provided evidence on the disciplinary process undertaken with the Applicant as follows:
“On 9 July 2009 I issued Mr Sebasio with a Final Warning, clearly setting out my expectations for the future (Attachment 12). I felt a final warning was necessary as the previous counselling, warning and meetings seemed to have no effect on Mr Sebasio carrying out required, basic tasks.
On 23 July 2009 the Electrical Trades Union (ETU) lodged an Application to Fair Work Australia to Deal with a Dispute “in relation to the action being taken against Mr Tommy Sebasio”, alleging that he “has not been provided with the appropriate training and support to enable him to perform his role and that this lack of training is, to a large extent, based on Mr Sebasio’s geographical location”” 126
FWA Dispute Resolution and Further Performance Management
[132] A conciliation conference was held after a dispute was lodged before FWA with regard to the issues the Applicant was experiencing. The outcome of the conciliation conference was that the Respondent would reconvene a mediation session between the Applicant and Mr Farmer; discussions were to occur in relation to ‘the ongoing viability of Tommy in the role/revised Work Group Leader role’; that the Final Warning was in relation to behaviour expectations of the Respondent and was separate to the revised role and accountabilities; that discussions were to occur in relation to the delivery of performance expectations as identified in the Final Warning; and that it was expected that the Applicant would engage and communicate with management as required. 127
[133] Following this, the subsequent performance management occurred:
- A mediation session was arranged on 3 September 2009 involving Ms Bayly, Mr Farmer and the Applicant. The Applicant’s support person was invited but failed to attend. A written resolution was reached and signed by all the parties, including a new Performance Improvement Plan;
- The first weekly meeting to review the performance improvement plan occurred on 17 September 2009 and then again on 23 September and 30 September 2009. Three emails were sent in relation to these meetings seeking the Applicant’s confirmation of the Performance Improvement Plan issues.
[134] Mr Farmer confirmed no response was received from the Applicant to these emails. 128
[135] The performance management process then entered its final stages on 14 October 2009 when Mr Farmer issued the Applicant with a Show Cause letter. The Applicant responded on 14 October and 10 November 2009. Mr Farmer stated:
“Despite all of our efforts there was no improvement in Mr Sebasio’s performance, and no indication of how or when we might expect such improvement. An ETU audit identified housekeeping as an issue; this is an issue we had been trying to address with Mr Sebasio for over 12 months. As set out earlier in this statement, many of the issues in which there had been little or no progress in the past year were serious workplace health and safety issues, and potentially damaging to Ergon’s business.
I therefore decided I had no alternative but to terminate Mr Sebasio’s employment by letter due to the ongoing performance and behavioural issues that were occurring, and I informed him of this by letter dated 13 November 2009.” 129
Consideration
[136] In accordance with s.387 of the Act, there are specified criteria FWA must take into account in considering whether a dismissal was harsh, unjust or unreasonable.
[137] The criteria will be addressed separately as set out.
s.387(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);
[138] The Respondent stated that the Applicant’s dismissal was based on the following reasons:
1. refusal to undertake work assigned, ie carry out reasonable management instructions;
2. failure to effectively communicate with his manager and exercise responsibility and accountability within his role, in relation to operational and attendance requirements; and
3. failure to attend to specific business requirements of the role, particularly ensuring service orders were completed or attended to within required timeframes.
[139] It was submitted on behalf of the Applicant that there was no valid reason for the Applicant’s dismissal. This is the Applicant’s primary position, in that the Applicant was a longstanding, hardworking, diligent and proud employee of the Respondent, and a respected member of his community. It was submitted that the Applicant did much to promote the Respondent within his community. In addition it was argued that the tasks and duties of the Applicant were well beyond the norm expected of somebody in his position. Further that his difficulties in his role were exacerbated by being performed in an isolated, predominantly Indigenous community where his skills were heavily relied on and where he was directly contacted at all hours.
[140] It was submitted that the Applicant consistently raised issues of under-resourcing, and cultural barriers to communication, that the processes adopted by the Respondent were not culturally appropriate and that he faced specific environmental and cultural pressures that he felt he was not adequately or sufficiently equipped to handle. It was stated that as the Applicant became increasingly frustrated with the response from the Respondent, he isolated himself in a way that Ms Touchie said was consistent with that of many Indigenous employees in responding to such situations.
[141] The Applicant submitted that the dismissal occurred whilst he was undergoing counselling and psychological treatment through the employee assistance program. It was submitted that he was attempting to deal with personal issues and with the issues of work stress, particularly relating to his relationship with his supervisor Mr Farmer. It was also submitted that the Applicant gave evidence that he often had to carry the load for his staff who themselves were dealing with serious personal problems and were on periods of leave, particularly through the final performance management stage of the Applicant's employment.
[142] It was submitted on behalf of the Applicant that the supporting evidence confirmed the mitigating factors that the Applicant had stated. In relation to the resourcing issues, the Applicant submitted that Mr Traill had supported this evidence and he referred to the deficiencies in the Respondent’s management of the Bamaga power station, and related ongoing deficiencies in dealing with safety issues that were not just evident during the Applicant’s management but remained after his dismissal. Mr Traill alleged Mr Farmer had failed to remedy the safety concerns as he had outlined.
[143] In relation to the cultural issues, Ms Touchie had confirmed that the way the Applicant reacted to Mr Farmer was consistent with an Indigenous person feeling isolated; and that because the Respondent held itself out to be an Employer of Choice, these cultural issues and in light of the assertion of bullying, required close examination. Furthermore, it was submitted Mr Yeatman had not been appropriately involved in the performance management process, and that his involvement from a cultural perspective was unclear. The Applicant also relied on Mr Steele’s evidence, who was, they stated, a disinterested party who described Mr Farmer’s management of the Applicant as bullying. The Applicant also submitted it was meaningful that the three witnesses who were ‘on the ground’ with the Applicant were not cross-examined by the Respondent.
[144] Furthermore, the Applicant submitted that there was no clear position description for the Applicant and that he was never given a clear list of responsibilities and accountabilities. It was submitted that there was no evidence of the Applicant causing the Respondent to incur penalties regarding late returns; and that there was no evidence of any deficiency in his technical capability.
[145] In relation to the performance management process, the Applicant referred to the FWA dispute conciliation conducted in 2009, where the Respondent had made undertakings to assist the Applicant to work through the under-resourcing and communication issues. The Applicant raised that the Respondent, a significantly large employer, had failed to provide the promised administrative assistance to the Applicant, as the person selected for this was on leave and couldn’t attend. The second undertaking was for Mr Farmer to mentor the Applicant; and yet, it was submitted, Mr Farmer continued in his approach of using the aggressive style of communication outlined by Mr Steele. The third undertaking was for Mr Farmer to arrange assistance for the Applicant from Thursday Island. This response consisted of calling Thursday Island and leaving the Applicant to sort out the assistance without a proper directive or charter regarding sourcing appropriate available assistance.
[146] The Applicant confirmed that he put the support of his community and the maintenance of the power supply above his administrative tasks. It was submitted that this approach is entirely consistent with the ultimate aims and goals of the Respondent.
[147] In relation to the grounds of the termination, the Respondent submitted that there were multiple attempts made by the Respondent to improve the Applicant’s managerial performance, over approximately a three year period. The Respondent submitted that for the Applicant to rely solely upon the communication difficulties between the Applicant and Mr Farmer and an alleged cultural barrier between them completely disregarded the history of the parties and the performance management process. The Respondent relied upon the consistent behaviour of failing to provide documentation, attend to administrative and power station maintenance duties and to complete workplace health and safety checks. Further they stated that these issues with the Applicant were present with the two last supervisors.
[148] The Respondent compared the Applicant’s responses for the Bamaga power station with the other 32 that were within Mr Farmer’s responsibility. It was submitted that none of the other power stations had experienced the extended difficulties completing the administrative requirements as the Applicant. The Respondent submitted that there was no other way for the situation to be managed or finally dealt with, as Mr Farmer had responsibilities to senior management, and relied upon the Applicant to provide him with the relevant information for him to complete his job.
[149] The Respondent submitted that the Applicant’s employment was terminated because he refused to do certain parts of his job after three years of coaching, counselling, advising, management and warning. However the termination was not based on a valid reason as the Respondent failed to assess the workload, the work environment or to provide the appropriate support. Further they failed to take into account the Applicant’s record in field operations duties.
s.387(b) whether the person was notified of that reason;
[150] The Applicant was notified of the reason for termination of his employment in the Show Cause letter dated 14 October 2009 and the termination letter dated 13 November 2009.
[151] The Respondent identified in the warning and the subsequent two letters following the three reasons as set out for termination:
1. refusal to undertake work assigned, ie carry out reasonable management instructions;
2. failure to effectively communicate with his manager and exercise responsibility and accountability within his role, in relation to operational and attendance requirements; and
3. failure to attend to specific business requirements of the role, particularly ensuring service orders were completed or attended to within required timeframes.
s.387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[152] The Applicant was engaged in a Performance Management process which has been detailed. Further, the Applicant was provided with a Show Cause period in which he was formally provided with an opportunity to respond; and he did so in writing.
s.387(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;
[153] The instances where the Union was not initially allowed to be present have been referred to. However, explanations for such and the remedial steps that were taken to rectify such situations were stated. It is not considered that the Applicant suffered any significant prejudice as a result.
s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[154] The Applicant’s approach to administrative duties had been condoned for a long period of time. Whilst the previous supervisor had also experienced difficulties with the Applicant in having him discharge his administrative obligations this supervisor was tolerant and did not escalate the events in the same manner as the next supervisor, Mr Farmer. The under-resourcing and lack of assistance had been long term issue, and has been taken into account in the consideration of the performance, as mitigating factors.
s.387(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;
[155] The Respondent is a significantly large employer with dedicated human resources staff. Accordingly it is expected that an appropriate standard of procedure would be afforded to the Applicant and that all available alternatives to termination exhausted. The Applicant was a long-serving employee; there was no reliable evidence of consideration of redeployment. Mr Brand confirmed there was no longer a need in terms of ‘generation’ to have a full time employee present at the Bamaga Station, but ‘the pole and wires side’ of the role was still required. 130 This was also confirmed by Mr Farmer, and at the time of the hearing a recruitment process was being undertaken for a role more focussed on field operations rather than generation and was described as a ‘slightly different role’. 131 It was appropriate that the Applicant be considered for this role.
s.387(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;
[156] In relation to the human resource management component of this matter, it was submitted by the Applicant that Mr Farmer relied very much on the human resources team, he identified that he did not take into account certain things because he thought they were the responsibility of human resources.
[157] The Respondent did not consider this consideration applicable to this matter.
[158] In my view, this consideration is applicable. The Respondent has a significantly large workforce and is an employer with dedicated resources at its disposal to manage issues such as this. There was no evidence supplied as to the significance of the human resources team of the Respondent, however for an organisation of its magnitude and reputation, it would be safe to assume that there are qualified human resource specialists who can assist managers such as Mr Farmer, and employees that are located even in the remote corners of the State, to assist with mentoring or administrative duties. The non-responsiveness of this long-serving employee to the performance management system should have initiated a further inquiry. The provision of assistance to the Applicant in the circumstances of this case is a step that should have been exhausted.
s.387(h) any other matters that FWA considers relevant
[159] It was submitted on behalf of the Applicant that his length and record of service should be considered by FWA as relevant. The Applicant has 20 years’ service and lived his entire life in Bamaga where his family is located. There is very little opportunity for alternative employment in the area. He is a prominent member of the community and his life is enmeshed in this remote area and community. The submissions and evidence were not critical of his work in the field operations. In fact, he was considered to be technically proficient, and responsive to his wire and pole obligations. The capacity for the Applicant to be redeployed in an alternative role should have been exhaustively considered. In my view this matter was not properly considered, as is evidenced by the following extract from transcript in relation to the cross-examination of Mr Farmer:
“MR WRIGHT: So if Mr Sebasio were to apply for the – he had to apply to become a work group leader, didn’t he?---The profile was developed as part of a requirement and a higher classification of role, as explained in paragraph 34. There was an option to redeploy if the person didn’t wish to take that role or continue with the new role.
In Mr Sebasio’s circumstance where would Mr Sebasio have been redeployed to?
---I don’t know at this point.
Would it have been within Bamaga?---I don’t know. I don’t know. That would have been for discussion if that option had have been taken.
It would have been for discussion?---But, you know, I would assume so.
You’re assuming he could have been redeployed within Bamaga?---Yes.
THE COMMISSIONER: What as? In what role?---I don’t know what role that could have been, whether it would have been field operations or whether it would have been elsewhere.
Was there any detail in terms of the redeployment offer?---No, not that I’m aware of. I believe if that option would have been requested there would have been some consideration and some offers made, whether that be alternative roles or roles within field operations.
MR WRIGHT: Would it have been fair for Mr Sebasio to assume that redeployment meant redeployment outside of Bamaga?---Not necessarily, no.
It wouldn’t have been fair for him to assume that?---No.
Even though there were no other – sorry, were there other positions available in Bamaga at that time?---No.
Was Mr Sebasio ever advised that redeployment could mean staying within Bamaga or within the northern peninsula area?---I believe that when Ms Oorschot spoke with Mr Sebasio I don’t believe the detail on the deployment was discussed, but I do know that the offer was given to redeploy. I don’t believe there was any question about – from Mr Sebasio either of where that would be, within Bamaga or not.” 132
Conclusion
[160] It is acknowledged that the Bamaga station has been significantly redeveloped and is now described as Ergon’s ‘jewel in the crown’. Accordingly, it is understood that there is a continuing requirement for performance of the administrative duties; and accordingly, given the Applicant’s deficiencies with these duties and the station maintenance requirements it is inappropriate to reinstate the Applicant to his former position. However, given the Applicant’s skill and tenacity with the field operation requirements, reinstatement within the Respondent, in a position at the Bamaga power station with a reduction of managerial administrative duties is appropriate. This conclusion is reached after the consideration of the series of issues addressed in this decision.
[161] The Applicant’s lack of engagement or non-responsiveness to the formal Performance Improvement Plan is remarkable and raises questions as to why that had occurred. It may have been attributable in some way to the Applicant’s complaints of exclusion, resentment, communication and cultural issues that he alleged he was experiencing. It is more than odd that an employee with more than 20 years of service who is dedicated to all of his other duties would fail to engage at all in a process that he is aware may lead to his termination. It is further puzzling why there was not an early intervention into this process to identify the cause of his lack of engagement.
[162] It is also mystifying as to how an employee who has been considered to be generally competent in his duties and has almost single-handedly provided the Bamaga station field services for 20 years does not have some personnel sent to work with him at the station for a period to assess his environment and to determine whether there was substance to the issues he complained of. Mr Farmer, his supervisor, confirmed the time he spent at the Bamaga Power Station was extremely limited. When asked whether he had ever travelled to Bamaga, he responded:
“MR FARMER: Not whilst I’ve been at Ergon – sorry, yes, I have. We done a careers expo in Bamaga, myself and Mal Trott.
MR WRIGHT: When was that, sorry?
MR FARMER: I can’t remember off the top of my head. It was 2008, 2009. We done two expos up there.” 133
[163] The Applicant’s earlier supervisor Mr Brand said that he was occupied with other things when he visited Bamaga. There was no evidence of a proper assessment in an appropriate period of time of the Applicant’s work environment and concerns.
[164] Further it seems that the micro-management of the Applicant by Mr Farmer caused the Applicant to recoil from the process. I do not detect that there was any different treatment of the Applicant due to his race, but that the supervisor continually demanded the administrative duties be completed without any regard to why they were not.
[165] The Applicant referred for some time to the considerable demands from the local community, in that he was the first point of contact for the community and accordingly was effectively continually on-call. At the time of his termination he had 20 weeks annual leave. These demands provided an additional burden that must have impacted upon his other duties. The Applicant clearly prioritised maintaining the supply of power. It is also the case that he had minimal administrative support to assist with these ancillary administrative duties. The lack of attention to his administrative and station maintenance duties cannot be condoned. However clearly the aggregate of the substantive duties were not able to be achieved by him without some further support or remedial action.
[166] The remedial action that was provided was very limited and the response somewhat artificial. In an endeavour to mentor the Applicant he was promoted to the position of Station Manager even though he was undertaking the duties of this position; but not fulfilling all of the administrative obligations as outlined.
[167] However, the promotion was in title only. He did not receive the associated increase in entitlements and was told he would not until he improved his administrative tasks. The Applicant was already operating in an isolated and autonomous manner and demonstrating he was not able to fulfil the administrative tasks; this was a superficial response; rather than investigating the impediments to the tasks being fulfilled.
[168] This act was supposedly intended as an encouragement; in all probability it further negatively impacted on the Applicant. It is an odd practice and was dismissive of the difficulties he stated he was experiencing with slow internet speed and connection, and without appropriate administrative staff.
[169] The Applicant’s requests for additional assistance from Thursday Island, so he could meet his deadlines at a time when he was short staffed in Bamaga, were also not appropriately responded to by the Respondent. Further, there seemed to be a lack of acknowledgement of the psychologist’s report arising at the time of the mediation, who considered he should not have contact with his supervisor Mr Farmer. In addition, at the time of his dismissal the Applicant was still receiving treatment from the employee assistance program, and his local doctor.
[170] It was strongly submitted on behalf of the Applicant that returning to employment with the Respondent was an appropriate remedy. It was submitted by Mr Wright regarding re-employment:
“MR WRIGHT: the applicant seeks the re-employment of Mr Sebasio to Ergon Energy and in that regard should the commission be minded to grant such an order we would seek to have discussions with Ergon Energy as to how such a re-employment could be affected. Ergon Energy is a large business and the positions already created in Bamaga reflect - we submit, would readily allow Mr Sebasio to return to work...” 134
[171] Certainly the Applicant in his evidence didn’t exhibit any animosity towards the Respondent regarding the events.
[172] The Respondent’s difficulties with the Applicant arose from his non-compliance with the administrative duties; reciprocally the Respondent was deficient in their responses to his requests for administrative support and additional staff. The other employees at the station were also on periods of leave during the performance management process.
[173] It cannot be inferred from the interactions between the Applicant and Mr Farmer that the Respondent’s performance management and the Applicant’s non-completion of the administrative work were a product of cultural issues. It is recognised that such conduct can be subtle, intangible, or undetectable; however, apart from the Applicant being Indigenous, the evidence does not provide any particular link between the conduct of the parties and cultural issues. The Applicant like any other employee of the Respondent had an obligation to discharge the required duties. The Respondent had a reasonable expectation of this (like any other employee) to complete the work.
[174] The variations inherent to the circumstances of this matter are the difficulties that the Applicant submitted he experienced given the environment of the remote location of the power station, and the lack of support and under-staffing. These matters do not pertain to cultural issues and the reference to cultural issues, being obstacles to the completion of the work were not specified or explained.
[175] Apart from the references to the existence of prejudicial cultural issues I concur with the submissions of Mr Wright in characterising the Applicant, his circumstances and his position in his community. 135 It is recognised that his position in his community provided an added burden, which was due to the community based responsibility he felt; however I don’t consider it to be specifically a cultural issue.
[176] The fact that the performance based process was so lengthy counteracted its effectiveness. The Applicant’s lack of diligence with the administrative duties was tolerated for a lengthy period and then the process was escalated. Mr Farmer’s management style was abrasive and his concentration of calls did not work to resolve the issues the Applicant stated he was experiencing. Ms Touchie commented that to prevent the interplay of potential cultural issues; the supervisor should immerse themselves in the environment. This is not a cultural response but would have assisted in assessing the Applicant’s circumstances. Neither Mr Brand nor Mr Farmer did this, their visits to Bamaga were fleeting and they were preoccupied with other issues and then they managed the Applicant remotely from Cairns. Mr Farmer in particular did not address the Bamaga operational and staffing issues.
[177] Taking into account all of the circumstances of this matter the dismissal is considered to be harsh, unjust or unreasonable. A remedy of reinstatement pursuant to s.391(1)(b) in Bamaga has been sought. Reinstatement to his previous role is not considered to be appropriate given the deficiencies in part of the Applicant’s duties. Nor is the continuity of payment for this reason appropriate. For the aforementioned reasons and in recognition of the failings in the manner in which the Applicant’s performance was managed; including without any proper assessment of his environment, the Applicant’s length of service and the diligence with his other duties; the remedy of reinstatement to a position in Bamaga in field operations is deemed appropriate in accordance with s.391(1)(b) of the Act. The parties should have discussions in relation to this remedy and respond by close of business 23 November 2010. An Order has been separately issued.
COMMISSIONER
Appearances:
Mr Michael Wright, National Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, instructed by Ms Pat Rogers of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Mr Andrew Herbert, Counsel, instructed by Mr Phillip Copeland of Copeland Workplace Law
Hearing details:
Cairns,
2010
5 - 7 July
Final submissions:
Cairns,
2010
8 July
1 Exhibit 17, Statement of Mr Richard Farmer.
2 Attachment 21 of Exhibit 17, Statement of Mr Richard Farmer.
3 Attachment 22, Exhibit 17 Statement of Mr Richard Farmer.
4 Attachment 25, Exhibit 17 Statement of Mr Richard Farmer.
5 PN1031-1073 of Transcript of Proceedings.
6 Exhibit 4, Statement of Mr Stuart Traill.
7 Exhibit 11, Statement of Mr John Reuben.
8 Exhibit 17, Statement of Mr Richard Farmer.
9 Exhibit 10, Statement of Mr Dave Steele, paragraph [6].
10 PN2596, Transcript of Proceedings.
11 Exhibit 1, Statement of Mr Tommy Sebasio.
12 Exhibit 1, Witness Statement of Mr Tommy Sebasio. This point was clarified during examination in chief [PN153-154 of Transcript of Proceedings]. There was an additional casual employee utilised when necessary, for example, on call-outs.
13 PN747-762; PN1077; PN1108, Transcript of Proceedings.
14 Exhibit 1, Witness Statement of Mr Tommy Sebasio and PN683-693 of Transcript of Proceedings.
15 Exhibit 10, Statement of Mr Dave Steele, paragraphs [19]-[20], [22]-24].
16 PN1723-1724, Transcript of Proceedings.
17 PN1673-1770 Transcript of Proceedings.
18 PN781-800 Transcript of Proceedings.
19 PN1223-1224 Transcript of Proceedings.
20 PN1233 of Transcript of Proceedings.
21 PN918-939 Transcript of Proceedings.
22 Exhibit 1, Witness Statement of Mr Tommy Sebasio.
23 PN486 Transcript of Proceedings.
24 PN507-517 and PN654 Transcript of Proceedings.
25 PN518-530 Transcript of Proceedings.
26 Exhibit 1 Statement of Mr Tommy Sebasio and PN1009-1030 of Transcript of Proceedings.
27 PN340-PN418 Transcript of Proceedings.
28 PN1239-1257 of Transcript of Proceedings.
29 PN695 Transcript of Proceedings.
30 PN662 Transcript of Proceedings.
31 PN580-581 of Transcript of Proceedings.
32 PN623-631 Transcript of Proceedings.
33 PN763-774 Transcript of Proceedings.
34 PN775-781 Transcript of Proceedings.
35 Exhibit 1, Statement of Mr Tommy Sebasio.
36 Attachment 14 of Exhibit 17, Statement of Mr Richard Farmer.
37 PN433-485 Transcript of Proceedings.
38 PN1083-1098 Transcript of Proceedings.
39 PN709-734 Transcript of Proceedings.
40 Exhibit 1, Statement of Mr Tommy Sebasio.
41 Exhibit 14, Statement of Mr Arthur Wong.
42 Exhibit 8, Statement of Ms Kara Touchie.
43 Exhibit 8 Statement of Ms Kara Touchie.
44 PN1486 Transcript of Proceedings.
45 Exhibit 8 Statement of Ms Kara Touchie.
46 PN1497 Transcript of Proceedings.
47 Exhibit 8 Statement of Ms Kara Touchie
48 PN1500-1507 Transcript of Proceedings
49 PN1509 Transcript of Proceedings.
50 PN1524 Transcript of Proceedings.
51 PN1528 Transcript of Proceedings.
52 Exhibit 16 Statement of Mr Andrew Yeatman.
53 PN1540 Transcript of Proceedings.
54 PN1542 Transcript of Proceedings.
55 PN1573-1574 Transcript of Proceedings.
56 PN1597-1599 Transcript of Proceedings.
57 Exhibit 1, Statement of Mr Tommy Sebasio.
58 Exhibit 9, Statement of Mr Robert Hill.
59 PN1640 Transcript of Proceedings.
60 PN1212-1220 Transcript of Proceedings.
61 Exhibit 4, Statement of Mr Stuart Traill, paragraph [26].
62 PN1207 Transcript of Proceedings.
63 PN1225-1227 Transcript of Proceedings.
64 Exhibit 4, Statement of Mr Stuart Traill.
65 Exhibit 3, Email from Richard Farmer to Tommy Sebasio dated 19 July 2010.
66 PN810-870 Transcript of Proceedings.
67 PN1307-1372 Transcript of Proceedings.
68 Exhibit 7, Further Statement of Mr Stuart Traill at [7].
69 PN1386 Transcript of Proceedings.
70 Extract of Exhibit 6, Email to Mr Farmer on 13 July 2009 at 1.28 pm.
71 PN1422 Transcript of Proceedings.
72 Exhibit 7, Further Statement of Mr Stuart Traill.
73 Exhibit 7, Further Statement of Mr Stuart Traill.
74 Exhibit 15, Statement of Mr Jason Brand.
75 PN1851-1861 Transcript of Proceedings.
76 Exhibit 15, Statement of Mr Jason Brand.
77 PN1879-1881, Transcript of Proceedings.
78 Exhibit 15, Statement of Mr Jason Brand.
79 PN1909 Transcript of Proceedings.
80 PN2103-2116 Transcript of Proceedings.
81 PN1882-1904 Transcript of Proceedings.
82 PN1917-1922 Transcript of Proceedings.
83 PN1959, 1962 Transcript of Proceedings.
84 PN2117-PN2125 Transcript of Proceedings.
85 Attachment 14 of Exhibit 17, Statement of Mr Richard Farmer.
86 PN2004-PN2016 Transcript of Proceedings.
87 PN2102 Transcript of Proceedings.
88 PN2033-PN2039, Transcript of Proceedings.
89 PN2132-PN2133 Transcript of Proceedings.
90 PN2040-PN2043 Transcript of Proceedings.
91 PN2056-PN2061 Transcript of Proceedings.
92 PN2072-PN2080 Transcript of Proceedings.
93 PN2164-PN2168 Transcript of Proceedings.
94 Exhibit 16, Statement of Mr Andrew Yeatman.
95 PN2170, Transcript of Proceedings.
96 Exhibit 16, Statement of Mr Andrew Yeatman.
97 Exhibit 16, Statement of Mr Andrew Yeatman.
98 PN2184 Transcript of Proceedings.
99 PN2192-PN2213 Transcript of Proceedings.
100 PN2234-PN2259 Transcript of Proceedings.
101 PN2242 Transcript of Proceedings.
102 Exhibit 2 Further Statement of Mr Tommy Sebasio.
103 PN2248 Transcript of Proceedings.
104 PN2264 Transcript of Proceedings.
105 PN2269 Transcript of Proceedings.
106 Exhibit 17, Statement of Mr Richard Farmer.
107 PN2778-2838 Transcript of Proceedings.
108 PN2876-2908 Transcript of Proceedings.
109 PN2923-2937 Transcript of Proceedings.
110 Exhibit 17, Statement of Mr Richard Farmer.
111 PN3127-3129 Transcript of Proceedings.
112 PN3018-3051 Transcript of Proceedings.
113 PN3088-3097 Transcript of Proceedings.
114 PN3108-3116 Transcript of Proceedings.
115 PN2715-2719 Transcript of Proceedings.
116 PN3279-3280 Transcript of Proceedings.
117 PN2433-2435 Transcript of Proceedings.
118 PN3286-3310 Transcript of Proceedings.
119 PN2527-2532 Transcript of Proceedings.
120 PN2729 Transcript of Proceedings.
121 PN3359 Transcript of Proceedings.
122 PN2687-2713 Transcript of Proceedings.
123 The date of the letter is actually 9 December 2009; however, this is taken to be a typographical error.
124 Exhibit 17 Statement of Mr Richard Farmer.
125 Exhibit 17 Statement of Mr Richard Farmer.
126 Exhibit 17 Statement of Mr Richard Farmer.
127 Exhibit 17 Statement of Mr Richard Farmer.
128 PN2357 Transcript of Proceedings.
129 Exhibit 17 Statement of Mr Richard Farmer.
130 PN2084-PN2100 Transcript of Proceedings.
131 PN3264-3268 Transcript of Proceedings.
132 PN3485-3495, Transcript of Proceedings.
133 PN2229-2230, Transcript of Proceedings.
134 PN3856, Transcript of Proceedings.
135 PN3853-3854, Transcript of Proceedings.
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