Mr Vincent Lombardo v Tidewater Marine Australia Pty Ltd T/A Tidewater

[2015] FWC 5324

[2015] FWC 5324 [Note: An appeal pursuant to s.604 (C2015/5770) was lodged against this decision - refer to Full Bench decision dated 18 November 2015 [[2015] FWCFB 6788] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Vincent Lombardo
v
Tidewater Marine Australia Pty Ltd T/A Tidewater
(U2014/15085)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 5 AUGUST 2015

Application for relief from unfair dismissal.

[1] This is an application by Mr Lombardo for an unfair dismissal remedy against Tidewater Marine Pty Ltd trading as Tidewater (Tidewater)pursuant to s.394(1) of the Fair Work Act 2009 (the Act).

[2] Mr Lombardo represented himself in these proceedings. Having regard to the complexities of this application I granted Tidewater permission to be legally represented. Tidewater was represented by Mr Wade, solicitor, of Ashurst Australia. I heard both parties’ evidence and submissions in Perth on 26 and 27 May 2015.

[3] I have had regard to s.396 of the Act and determined that this application was made within the period required by the Act, that Mr Lombardo is a person protected from unfair dismissal, that Tidewater is not a small business employer and that there is no issue of genuine redundancy.

[4] It is necessary for me to determine whether or not Mr Lombardo's termination of employment was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act which is set out below:

“(i) 387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures for followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

[5] Mr Lombardo commenced work with Tidewater in July 2004. His employment was terminated on 24 October 2014 for misconduct. The grounds of termination of employment were described in the letter of termination as:

“Having reviewed the available evidence, including taking into account what you said in your letters on 6 October 2014, Tidewater is satisfied that:

1. On 6 September 2014, you failed to discharge your responsibility as Chief Officer on watch on the bridge of the Allison Tide. Specifically:

(a) At the relevant time, you were responsible for the vessel’s navigation.

(b) At around 1740, Mr Thompson (a trainee integrated rating) took over manual steering of the vessel, in order to perform some supervised manual steering. You were responsible for supervising Mr Thompson while he was steering the vessel at the time.

(c) At approximately 1800, you received a telephone call on your mobile telephone, which you answered and began a conversation.

(d) Soon after, the Allison Tide’s waypoint GPS alarm went off, indicating that a course change was necessary. Despite the alarm, you failed to end your telephone conversation and supervise Mr Thompson in effecting a course change.

(e) At around the same time, William Jackman (Second Officer, Allison Tide) came up to the bridge to change-over the watch with you. Mr Jackman noticed that the waypoint GPS alarm was going off, and asked you: ‘What is the course to steer?’ You failed to respond to Mr Jackman on at least one occasion, and, after being pressed, responded saying: ‘Look at the chart.’ Despite Mr Jackman’s questions, you failed to end your telephone conversation and supervise Mr Thompson in effecting a course change.

(f) You failed to perform a proper handover with Mr Jackman before leaving the bridge.

2. On 7 September 2014, while on the bridge of the Allison Tide, you picked up and threw the vessel’s log book at Captain Vince Scully. You then left the bridge, despite the fact that you were the officer on watch.

The findings made against you are very serious.

Your actions on 6 September 2014 constitute a serious breach of your duties as an officer, and particularly as the officer on watch. As noted in Tidewater’s show cause letter of 3 October 2014, the officer on watch’s primary responsibility at all times is the safety of the vessel. You were responsible for ensuring that the planned passage of the vessel (in confined waters) was properly carried out. You were also responsible for maintaining a continuous and alert watch, specifically to avoid collisions and/or stranding. Further, in no circumstances should the officer on watch leave the bridge until properly relieved. You failed to meet these fundamental requirements of the role, thereby compromising the safety of those on board the Allison Tide. To make matters worse, you demonstrated insubordination in doing so.

Your actions on 7 September 2014, in throwing a log book at the head of Captain Scully, are also very serious. Additionally, you again left the bridge while on watch without being properly relieved (a further failure to meet the fundamental requirements of your role).

Such behaviour is entirely unacceptable and cannot be tolerated. Further, your behaviour undermines Tidewater’s (and your colleagues’) relationship of trust and confidence with you.”

(my emphasis)

[6] Earlier serious issues had arisen during the course of Mr Lombardo’s employment. These issues involved a dispute between Mr Lombardo, Tidewater and some of its employees, and the Maritime Union of Australia. Mr Lombardo complained, amongst other things, of harassment and assault by Tidewater employees and inappropriate access to personal information and photographs of Mr Lombardo's family and property. Mr Lombardo had a period of leave following these incidents and the investigation. I accept Mr Murphy's evidence that Mr Lombardo's prior complaint did not form any part of Tidewater’s decision to terminate Mr Lombardo's employment. As I am satisfied that these issues were not issues relied upon for the termination of Mr Lombardo's employment by Tidewater I have not made any findings regarding the facts in dispute.
[7] It was on his return to work that the incidents which led to the termination of Mr Lombardo’s employment occurred. In determining what occurred on 6 and 7 September I considered the evidence of Mr Lombardo, Mr Jackson, Mr Thompson, Captain Scully and Captain Sutton. Having considered this evidence and the submissions of the parties, I have set out my key factual findings below.

[8] In relation to the events of 6 September 2014 I am satisfied and find that:

● Mr Lombardo was Chief Officer on watch on the Allison Tide;
● Mr Lombardo was supervising and training Mr Thompson in navigating the Allison Tide;
● Mr Lombardo moved away from Mr Thompson and either received or made a telephone call;
● Whether Mr Lombardo remained on the bridge was in dispute. I do not intend to determine that issue because, in any event, I am satisfied and find that Mr Lombardo did not remain in appropriate proximity to Mr Thompson who he was training in navigating;
● Mr Lombardo engaged in a conversation with a person on another vessel whilst being responsible for Mr Thompson's supervision and training;
● A course change was needed and Mr Lombardo did not engage in that change of course or instruct Mr Thompson on how to do so;
● Mr Jackman came onto the bridge and identified the need for a change of course. He interrogated Mr Lombardo regarding the need for a course change. Mr Lombardo told Mr Jackman to look at the charts; and
● Mr Jackman supervised Mr Thompson in a course change.

[9] Mr Lombardo and Captain Scully gave evidence regarding the events of 7 September 2014. Mr Lombardo’s evidence regarding this event was inherently unlikely. I prefer and have accepted the evidence of Captain Scully. In relation to the events of 7 September 2014, I am satisfied and find that Mr Lombardo engaged in inappropriate conduct towards Captain Scully when he threw the log book of the Allison Tide at Captain Scully.

Valid reason - s.387(a)

[10] Mr Lombardo submitted that his termination of employment arose from a minor matter of conduct and that the decision to terminate his employment took into account his previous complaints which he alleges were not properly investigated. I have already determined that Mr Lombardo's previous complaints were not part of Tidewater's decision. Although I am satisfied and find that, given Mr Lombardo's experience, he was more than likely in a position to avert any crisis that might have arisen from Mr Thompson's navigational inexperience, Tidewater were entitled to have Mr Lombardo perform his duties to the standard it required. I am satisfied that Mr Lombardo did not perform his duties to the level required by Tidewater on 6 September 2014.

[11] I am therefore satisfied and find that there was a valid reason for the termination of Mr Lombardo's employment with notice for poor performance in that, on 6 September 2014, he failed to navigate the vessel Allison Tide to the standard required by Tidewater.

[12] I am satisfied and find that there was a valid reason for the termination of Mr Lombardo's employment with notice for misconduct in that, on 7 September 2014, he threw the log book of the Allison Tide at Captain Vincent Scully.

[13] I am satisfied and find that Tidewater had valid reasons for the termination of Mr Lombardo’s employment which were sound, defensible and well founded.   

Notification of Reason - s.387(b)

[14] I am satisfied and find that Mr Lombardo was provided with notice of the reason for the termination of his employment.

Opportunity to Respond - s.387(c)

[15] I am satisfied and find that there was an adequate opportunity provided to Mr Lombardo to discuss Tidewater’s concerns regarding his performance and his conduct, as well as its decision to terminate his employment.

Support Person - s.387(d)

[16] I am satisfied and find that Mr Lombardo had an opportunity to have a support person present at all relevant meetings.

Unsatisfactory Performance - s387(e)

[17] I am satisfied and find that, except for the circumstances relied on by Tidewater for the termination of Mr Lombardo's employment, there were no issues of unsatisfactory performance.

Procedures for implementing dismissal - s.387 (f) and (g)

[18] I am satisfied and find that the procedures adopted by Tidewater were appropriate. The size of Tidewater’s business, and the absence of any human resource professionals, had no impact on the procedures adopted in relation to the dismissal of Mr Lombardo.

Any other relevant matters – s.387 (h)

[19] I have considered the financial and social consequences to Mr Lombardo arising from the termination of employment of his employment.

Conclusion

[20] Having considered the issues referred to in s.387 of the Act I am satisfied that the dismissal of Mr Lombardo with notice was not harsh, unjust or unreasonable.

[21] The application is dismissed.

SENIOR DEPUTY PRESIDENT

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