Mr Zac Mahoney v Bechtel Construction (Australia) Pty Ltd

[2014] FWC 2756

[2014] FWC 2756

FAIR WORK COMMISSION

DECISION

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

Mr Zac Mahoney
v
Bechtel Construction (Australia) Pty Ltd
(U2013/2468)

COMMISSIONER BOOTH BRISBANE, 20 MAY 2014

Application for relief from unfair dismissal - arbitration.

Introduction

[1] This is an application by Mr Zac Mahoney (the Applicant) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The Applicant was employed by Bechtel Construction (Australia) Pty Ltd (Bechtel) as a labourer, specifically as a crane driver and rigger. He began his employment in March 2012. He was dismissed on 4 July 2013. The reasons for the dismissal were set out in a termination letter dated 4 July 2013, citing his participation in unlawful industrial action on 3 July 2013 and a prior “first and final” warning given on 11 October 2012 for an unrelated matter.

[3] The Applicant alleges his dismissal was harsh, unjust and unreasonable because there was no valid reason, as he was not guilty of the misconduct alleged, and further, that the termination was procedurally unfair.

[4] Bechtel asserts that the Applicant’s dismissal was justified. It asserts all employees including the Applicant who participated in the action were disciplined for their involvement in that action. Six employees including the Applicant were found by Bechtel to have engaged in industrial action on 3 July 2013, and to be already on a final warning or have significant disciplinary history. They were dismissed. 1

Background

[5] The Applicant worked on the QCLNG project at Curtis Island near Gladstone. He lived on the mainland outside Gladstone. In order to work he travelled to and from Curtis Island on a ferry owned by Bechtel.

[6] On 3 July 2013, the Applicant commenced his shift at 6:30am. He went to his smoko break as scheduled at 10.00am when on his evidence he had a meal and returned to work on time at 10.30am.

[7] The Applicant's union, the Construction, Forestry, Mining and Energy Union (CFMEU), held a planned meeting pursuant to s.484 of the Fair Work Act 2009 during this smoko break, conducted by local CFMEU organiser Mr Ben Loakes.

[8] The Applicant’s evidence is that he forgot about the planned meeting and he did not attend it, and returned to work on time from his smoko break. He was to begin his lunch break at 1.30pm.

[9] It seems there were unresolved issues at the scheduled time for the smoko meeting to conclude and the meeting continued until 10.50. Those attending discussed a second meeting to commence at 1.00pm at cluster 8. Bechtel’s evidence is that the meeting commenced at 1.00pm with approximately 100 workers attending.

[10] The Applicant says he did not know of the afternoon meeting before he arrived at cluster 8. He admits he was present at this meeting prior to 1.30pm, having arrived at the site on his account at 1.18pm and joining the meeting after first washing and eating some food. His evidence is that he was present at the meeting no earlier than 1.28pm, but he says he was not participating in the meeting but taking his lunch break. Sometime during the meeting the Applicant became aware that Bechtel considered the meeting to be unlawful industrial action and that those attending the meeting would be docked 4 hours pay. The Applicant says he learnt of the pay docking at 1.28pm. Bechtel says it must have been earlier, probably at 1.07pm.

[11] The exact time an employee is permitted to begin their lunch break was the subject of considerable debate in these proceedings, but there was agreement an employee is able to arrive and wash ready to begin their lunch, so the Applicant was entitled to arrive before 1.30pm, giving him time to wash and commence his lunch at 1.30pm. The Respondent’s evidence was that the time was either 1.20pm or 1.25pm.

[12] There was a considerable amount of evidence led as to the exact time the Applicant would have arrived at the site and been present during the meeting.

[13] The exact time assumed importance because the employer considered the meeting unauthorised and advised those attending accordingly for the purposes of s.474 of the Fair Work Act 2009. Bechtel's Mr Ben Fox along with Mr Downham informed those present they were participating in unlawful industrial action and they would be docked 4 hours pay as provided for by s.474.

[14] The Applicant admits to arriving early. He submits:

“I arrived at cluster 8 a bit earlier that day than I would have usually gone to lunch. This was not intentional. This was related to me driving past cluster 8 at that time and not being able to complete the pump delivery before lunch.” 2

[15] In cross-examination, the Applicant's evidence was that he was in the area and was going there to get lunch. He was not going there for a union meeting. 3

[16] Asked when he found out there was a union meeting on he replied:

“When I was walking over there”.

[17] As to what informed him that there was a meeting going on the Applicant replied:

“other people walking in that vicinity”.

[18] The Applicant says he asked Mr Coleman, his leading hand, what was going on. Both the Applicant and Mr Coleman said this interaction took place at 1.18pm. In his statement the Applicant does not indicate what Mr Coleman said and he could not recall during cross examination. 4

[19] However, Mr Coleman in cross examination recalled the following:

Did you tell the Applicant that you were going to the meeting?---The Applicant - yes, I told the Applicant I was going to the meeting. 5

[20] Mr Fox deposes that he made the announcement at approximately 1.07pm 6. The Applicant denies he was present at 1.07pm and so could not have heard that particular announcement. He deposes in his Statement in Reply that Mr Fox may have made the announcement at a later time. Bechtel says the announcement was made only once and that the inference to be drawn is that the Applicant must have been there at 1.07pm.

[21] The Applicant did not return to work after the lunch break at 2pm, leaving the site at approximately 3pm. He was docked four hours pay.

[22] The next day he was dismissed.

Submissions

[23] The Applicant submits as follows:-

● At about 1.15pm he realised he had a task – to deliver a pump he was carrying on the crane – that could not be completed prior to the lunch break. He therefore intended to complete the task after the lunch break.

● As he got closer to the cluster 8 he saw workers he knew to be CFMEU members standing round in what looked like a meeting.

● The Applicant states he was interested in what was happening and that as he could not complete his task prior to lunch break he parked at cluster 8. He said he had another reason to be at cluster 8: that there were pies in the pie warmer.

● As he pulled up the crane to the cluster 8 car park he saw his leading hand Mr Coleman. He submits that he was still inside the crane and he enquired about what was going on. On the question of time, he deposes in his statement:

“I have developed a habit of frequently looking at my watch at work. I record job information such as start and finish times in a diary kept in my pocket. However while I did not generally record lunch commencement times, I certainly recall looking at my watch that day at 1.18 pm.”

● He parked his crane, stepped out of it and let his dogman out of the crane. He estimates he completed these actions at 1.20pm.

● He then deposes that at approximately 1.23pm he went to the toilets inside at cluster 8, washed his hands and waited his turn before picking a pie from the pie warmer. He then went outside and listened to what was going on.

● At approximately 1.28pm he says Mr Fox approached the group and stated to the group that they would be docked 4 hours because they were at a union meeting in Bechtel’s time. 7

● The Applicant's first Statement referred to one announcement at 1.28pm.

● The Applicant further explains in his Statement in Reply that he recalled Mr Fox saying “on more than one occasion” that “this is industrial action go back to work now or you're getting docked 4 hours pay”. 8

● He suggests having only arrived at the meeting at 1.28pm he saw Mr Fox:

With arms folded and made statements to the employees about industrial action that the employees go back to work now or getting docked four hours pay. 9

● In contrast, Mr Loakes’ statement in the Federal Court matter is that the announcement was made at approximately 1.00pm. There is no indication in Mr Loakes’ statement that this was repeated during the meeting. Mr Loakes provides some detail about a further communication that did occur following the offer to return to work in return for a not docking of the employee’s pay, Mr Loakes submits “I relayed Bechtel's position to the workers”.

● In his statement the Applicant recalls that the next day, 4 July 2013 during a disciplinary meeting conducted by Bechtel’s Ms Child and Mr Scriffignano he said words to the effect that:

“I was at a smoko meeting at about 1.18pm, and she replied that your smoko was at 1.30pm he said words to the effect we have 10 minutes to wash our hands and I arrived at 1.18pm.”  10

[24] Bechtel submits that the Applicant must have arrived at or before 1.07pm for the following reasons.

● Mr Fox and Mr Downham made the industrial action announcement at 1.07pm and then left the meeting but remained in the car park area until about 1.40pm.

● In response to the Applicant's evidence that he arrived at the meeting and he heard Mr Fox announced to all those present that they would be docked four hours pay because we are at a union meeting in Bechtel time prior to 1.30 pm, Bechtel asserts that the only way the Applicant could have heard Mr Fox make this statement was if he was present for that announcement.

● Bechtel submits that the affidavit of information and belief prepared by Mr Luke Tiley, solicitor for the CFMEU in the Federal Court proceedings, refers to Mr Fox's announcement being made at around 1.00pm. Mr Loakes according to that affidavit had a conversation with Mr Fox in which he advised that the workers were prepared to go back to work at 2.00pm if the employer was prepared to withdraw its threat of taking industrial action. Mr Loakes indicates that after this was not accepted he, Mr Loakes, relayed Bechtel's position to the workers.

● Additionally Bechtel submits that none of the initial statements of the Applicant, Mr Munro or Mr Coleman suggested a second announcement was made.

● Ms Child’s evidence refers to contemporaneous notes of the meeting held on 4 July showing that in response to the employer putting to him that he had taken unlawful industrial action on 3 July that he said “approximately 1.17pm he saw the union meeting under way”.

[25] There was some evidence that the CFMEU considered the afternoon meeting to be a safety meeting pursuant to section 117 of the Work Health and Safety Act, and such a meeting was not required to be held during nonworking time. 11 However, it was not submitted that the Applicant's attendance was lawful on this basis. I note that this was also considered by Greenwood J in the Federal Court proceedings.

[26] The Applicant's attendance was said to be lawful:

● because he had no prior knowledge of the meeting;

● he arrived at cluster 8 at a time well after 1.00pm and only then learned the meeting was underway;

● he was not participating in the meeting but taking his smoko and observing proceedings; or

● he joined the meeting after his clean up at a time justifiably recognised as during his break; or

● he made a mistake as to when he started his lunch time, and only joined the meeting after that mistake was made, out of curiosity and not for the purpose of taking industrial action.

[27] The next day, the Applicant was directed to attend a disciplinary meeting, conducted by Ms Child and Mr Scriffignano. Mr Munro attended as the Applicant’s support person. At the conclusion of the meeting he was handed a pre-prepared and pre-signed letter advising he was dismissed in the following terms: 12

Dear Mr Mahoney

Re: UNLAWFUL INDUSTRIAL ACTION - 3 July 2013 - TERMINATION OF EMPLOYMENT

You participated in unlawful industrial action on 3 July 2013, by refusing to perform work.

Your refusal to follow work instructions on 3 July 2013 amounted to a breach of your contract of employment, and unlawful industrial action under the Fair Work Act 2009 (Cth). You should be aware that committing unlawful industrial action straight exposes you to a number of potential consequences including:

● being fined up to $6600;

● being ordered by a court to compensate Bechtel or anybody else who suffers loss as a result of your unlawful industrial action;

● being ordered by Fair Work Australia [sic] or a court to return to work;

● being prosecuted by Fair Work Building and Construction; and

● disciplinary action by Bechtel up to and including dismissal.

Further, attempting to resolve disputes by taking industrial action, rather than appropriately using the disputes procedure in the Bechtel Queensland LNG Project Union Greenfields Agreement, can also be a breach of that agreement, and expose you to fines of up to $6000 per breach.

Bechtel is committed to dealing with matters validly raised by employees under the disputes procedure. The taking of unlawful industrial action is not acceptable and will not be tolerated.

As a result of previously being issued with written warnings in relation to your behaviour, the project has made the decision to terminate their employment with immediate effect.

Your final payments will be deposited into your nominated bank account. Any other documentation will be sent to your usual place of residence.

Yours sincerely,

[signed]

Chris McCarthy

Deputy Site Manager CQLNG

[28] The Applicant raises a number of procedural issues about this meeting, asserting the dismissal was thereby harsh, unjust or unreasonable. Bechtel asserts that the dismissal was procedurally fair.

Unfair dismissal under the Fair Work Act

[29] It is uncontested that the Applicant was protected from unfair dismissal by the Act, and that he was dismissed. The criteria for determining whether the Applicant was unfairly dismissed are stated in s.387 of the Act:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

Was there a valid reason for the dismissal?

[30] Rode v Burwood Mitsubishi 13 held under the equivalent provision of the Workplace Relations Act 1996 that:

.... in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.

[31] In Miller v University of New South Wales 14(Miller) a Full Court of the Federal Court of Australiaconsidered the same provision. Gray J said at [13]:

If the “valid reason” contemplated by s 170CG(3)(a) of the WR Act involved no more than an inquiry into the legal rights of the parties, in most cases it would be a short inquiry. It would be answered by saying that the employer had a right to dismiss the employee on notice and had exercised that right. The provision refers to a “valid reason” in another sense altogether. The reason must be related to the capacity or conduct of the employee, or to the employer’s operational requirements. What is sought is not the existence of a legal entitlement to terminate the employment, but the existence of a reason for the exercise of that right that is related to the factual situation. The validity is not to be judged by reference to legal entitlements, but to the Commission’s assessment of the factual circumstances as to what the employee is capable of doing or has or has done, or as to what the employer requires in order to continue its activities. (Underlining added)

[32] Gray J indicates that it is open to the Fair Work Commission (the Commission) to determine that there was no valid reason for the termination of employment, even if the employer had a legal right to terminate the employment. 15

[33] That is, in this matter, what is required is an assessment of the factual circumstances as to what the Applicant actually did. Even the existence of a legal right to terminate employment is not sufficient to lead to the conclusion that there is a valid reason for the termination.

[34] In final submissions, Bechtel suggests that the decision to terminate is valid because it is sound, defensible and well founded. This is because the Applicant:

● had been issued with a first and final warning in October 2012; and

● engaged in unlawful industrial action on 3 July 2013 by attending the afternoon meeting, albeit sometime after the meeting commenced, and did not return to work for the rest of the day at 2pm.

[35] Bechtel also submits that in deciding if there was a valid reason:

● the entire factual matrix should be considered in determining whether there is a valid reason for the termination; and

● the Commission is not limited to the reasons given by Bechtel at the time of dismissal.

[36] The Applicant does not dispute the October 2012 “first and final warning”. He does dispute that he engaged in unlawful industrial action but asserts that if he did, the entire factual matrix around the events should lead to a conclusion that there was no valid reason for the dismissal.

The evidence about unlawful industrial action

Smoko meeting

[37] The Applicant’s undisputed evidence is that he forgot about and did not attend the smoko meeting held on 3 July 3013 between 10.00 and 10.50am. He returned to his usual duties at the conclusion of his smoko break at 10.30pm.

[38] Mr Fox deposes to a discussion both leading up to the meeting at 10.00am and then after the meeting. Mr Loakes reported that the employees did not resolve all the issues by 10.30am.

[39] Initially Mr Fox thought that some further work could be done and then reporting back to another meeting of the workers at 1.30pm in their lunch break. He deposes:

“Shortly thereafter I overheard Ben Loakes radio Josh Munro communicating to workers that there would be a meeting at 1 pm to discuss a response to the issues. At the time I did not think anything of it and did not raise this with Ben Loakes.” 16

[40] It is clear that those attending the smoko meeting knew from 10.50am or earlier that the further meeting was planned for 1.00pm. 17 It is a reasonable inference that those in attendance at the smoko meeting had decided to meet again from 1.00pm even though the lunch break did not begin until 1.30pm.

Afternoon meeting

[41] It is not in dispute that:

● the meeting from 1.00pm until the regular lunch time at 1.30pm was not authorised by Bechtel and was therefore unlawful industrial action;

● the Applicant did not know that the meeting was planned for 1.00pm, nor what it was about;

● the Applicant arrived at the meeting at some time after 1.06pm but no later than 1.28pm;

● sometime during the meeting, while the Applicant was there, he became aware because of a statement from Mr Fox that Bechtel considered the attendees to be participating in unlawful industrial action and would be docked 4 hours pay;

● those present were told that their pay would be docked; and

● they were not told they might be dismissed.

[42] The Applicant’s evidence is that he heard Mr Fox make the announcement about unlawful industrial activity and recalled Mr Fox’s posture at the time. Bechtel’s evidence, and material adduced in the Federal Court proceedings indicate that Mr Fox’s announcement was made only once, and earlier than 1.28pm (when the Applicant says he heard the announcement) and earlier than 1.18pm (when he says he arrived at cluster 8). Bechtel says it was made at 1.07pm.

[43] Importance was attached to these times because the employer, having asserted that the Applicant and others were in attendance at the meeting priorto the lunch break, concluded that he and all those attending were participating in unlawful industrial action and would be sanctioned. Most were docked 4 hours pay. Six, including the Applicant, were subject to prior final warnings and were dismissed.

[44] While generally vague about times in cross examination, the Applicant, is unequivocal in his Statement that on 3 July 2013 he looked at his watch while still in the crane and mentally noted the time as 1.18pm. Mr Coleman’s statement speaks of a discussion with the Applicant at 1.18pm. Despite that exactitude, Ms Child’s notes indicate that he told her he arrived at the meeting site at 1.17pm. Mr Scriffignano’s statement refers to the Applicant’s response as “approximately 1.17pm” 18 the Applicant gives slightly different times in different accounts and slightly different versions of when he arrived at the meeting. I find that his evidence as to the exact time is not reliable.

[45] If the Applicant heard Mr Fox make the announcement it follows he was at the meeting when an announcement was made. The weight of the evidence, outlined above, supports a conclusion that Mr Fox made only one announcement, at or about 1.07pm. In particular, I rely on consistencies between the statement of Mr Fox and the affidavit of information and belief of Mr Tilley, recounting the events as described by Mr Loakes. I conclude that the Applicant was present at the meeting when Mr Fox made the announcement. It is therefore likely he was at the site by about 1.07pm. I note however that there is no direct evidence of when he was in attendance, and that Ms Child under cross-examination admitted: 19

“… we had no way to know that he was there earlier than 1.30, other than he had told us that he was.”

Was the Applicant participating in unlawful industrial action?

[46] Unlawful industrial action includes failure or refusal by an employee to perform work. 20 The Applicant failed to perform work before his scheduled lunch break and prior to clean-up time. He did not return to work that day.

[47] The Applicant’s submissions referred to Automotive Food Metals Engineering Printing and Kindred Industries Union and The Age Company Ltd 21which deals, among other things, with the breadth of the definition of unlawful industrial action. It was submitted on behalf of the Applicant that he was not taking industrial action because:

“It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition.” 22

[48] It was submitted that if the Applicant had made a mistake and gone to lunch early it cannot be said he was taking industrial action, lawful or unlawful. He was making no demand. He was not involved in enterprise bargaining of any kind. 23 Under cross-examination the Applicant confirmed that was his view:

All right. You say that you had a grievance that you were just there for lunch. You weren't like the others who'd had an unauthorised stoppage but you were going to be penalised with the others?---That's correct. 24

[49] Bechtel says the “question of degree” referred to in The Age case is important. Those attending the meeting were represented by Mr Loakes who went to Mr Fox and delivered what Bechtel says was ultimatum: withdraw the employer’s industrial action declaration and the employees will go back to work at 2.00pm. Bechtel says this is a clear industrial demand. The employer declined to give in to that demand and industrial consequences flowed. 25

[50] That is, Bechtel submits the fact that no work was done on the afternoon resulted directly from the actions of the Applicant and the others who participated in a stoppage of work between 1.00pm and 1.30pm without authority. 26 Bechtel in oral submissions relied on both attendance at the afternoon meeting and the failure to return to work at 2.00pm to sustain its argument that the Applicant was participating in unlawful industrial action.27

[51] The Applicant knew about the meeting from his own observation or from Mr Coleman. His explanation that he just arrived early at cluster 8 because of insufficient time to complete another task before his scheduled lunch break is irrelevant. His obligation was to work until his lunch break, with an allowance for clean-up beforehand. The Applicant at some point knew there was a union meeting on, that it was not in his lunch break, and he attended the meeting prior to his lunch break, even if only for a short time. On his evidence it was as little as two minutes. However the weight of the evidence indicates on the balance of probabilities it was more likely to be 1.07pm. He participated in the meeting by presenting himself at the meeting, observing, and discussing with others there the proceedings. I conclude that the Applicant was participating in unlawful industrial action because:

● he failed to perform duties before his permitted clean up and break time;

● he knew by observation or from Mr Coleman that a CFMEU organised meeting was in progress;

● he joined those participating in the meeting, standing near the CFMEU organiser; 28 and

● he observed the business of the meeting including hearing the announcement made by Mr Fox at 1.07pm.

Other relevant factors - factual matrix leading to termination

[52] That conclusion is but the start of the matter. As both parties pressed, the entire factual matrix is relevant to deciding if there is a valid reason to the termination. There are a number of factual matters that should be taken into account.

Attendance at the smoko meeting

[53] The earlier smoko meeting where employees did not return to work until 10.50am was a factor in Bechtel deciding that participation in the 1.00pm lunch meeting would be dealt with as unlawful industrial action with serious consequences for participants.

[54] The evidence about this appears in a statement Mr Fox prepared for the Federal Court proceedings. He deposes that after the meeting concluded at 1.40pm, Mr Loakes approached Mr Alex Gardner and Mr Fox and advised that the employees were prepared to return to work at 2.00pm if you are “prepared to cop it on the chin that you f--ckd us around” and then stated “they will go back to work if you don't dock them pay”.

[55] Mr Fox replied that he would make a phone call but it doesn't look good because, “we copped it on the chin this morning. I'll make the call”.Mr Fox explains that copping it on the chin meant Bechtel did not take any action in respect of the smoko meeting that morning that went beyond 10.30am.

[56] Mr Fox’s consultation with Bechtel supervisors confirmed the decision to dock pay. Mr Fox advised Mr Loakes:

“Then I have just got the call the guys have committed (unlawful) industrial action and will be docked.”

[57] It is clear that Bechtel, in deciding that the afternoon meeting was unlawful industrial action, had consideration of the morning’s action when Mr Fox said “we copped it on the chin this morning”.

[58] It is not unreasonable that an employer would take into consideration that twice in one day employees had not worked the requisite hours. But that was not the case with the Applicant. He did not attend the smoko meeting, and he was not present at the afternoon meeting from its commencement, joining the group only after it started.

Employees who were taking industrial action were docked 4 hours pay

[59] The Applicant submits that in circumstances where Bechtel had determined that it would not pay the Applicant for 4 hours work, he was not obligated to perform his “dependent obligation”, namely to perform work. 29 Even if the Applicant had engaged in unlawful industrial action and even if by reason of that, Bechtel was prohibited from making any payment in respect of the period of unlawful industrial action, there is no consequential obligation arising out of the proposition on Bechtel for the Applicant to work for no pay.30

[60] Bechtel submits that if the Applicant was unsure about being docked unfairly then he could have raised with his supervisor whether he was considered to be part of the unauthorised meeting. The Applicant submits he is entitled to accept the word of his superior that he would be docked, notwithstanding that he considered it unfair.

[61] It seems neither party was clear about the consequences flowing from Bechtel’s declaration.

[62] Ms Child states in cross-examination:-

If Mr Fox had told people at a meeting or told people at cluster 8 at about quarter past to half past 1 that they weren't going to be paid, you say it didn't make sense that Mr Mahoney believed what Mr Fox has said?---Correct, because if he hadn't have been there since 1 o'clock why would he assume he was in the same boat as everybody else that was there.

Perhaps because Mr Fox, in his role, employee relations role, was entitled to be relied for his word?---I disagree. I think that if he didn't think he was in the wrong he should have asked the question. 31

[63] It is clear that the Applicant was not in the ‘same boat as everybody else.’ He had not attended the smoko meeting, had no knowledge of what was discussed at that meeting, was not aware of the plans for the afternoon meeting or the agenda, and was not at the afternoon meeting until after it had started.

[64] It is an error of logic to assume that it was for the Applicant to challenge Bechtel on whether their actions were fair or not. Bechtel dismissed the Applicant not because he failed to challenge an unfair determination, but because it treated him the same as others whose circumstances were in fact different. It was Bechtel that put the Applicant “in the same boat” when in fact he was not.

[65] This goes also to the question of procedural fairness discussed below.

[66] There is no doubt that employees have rights under the dispute resolution clause in the enterprise agreement. It may well be that the Applicant might have used it to good effect. But should the consequences of not having done so result in his dismissal the next day?

[67] In cross-examination when told he had been participating in an unlawful stoppage the Applicant says “I have to say I didn't think” and when asked why he did not talk to Mr Loakes about it, the Applicant said that on being told he was to be docked 4 hours pay “I saw red.” 32 I note also that Mr Fox also did not think much of the radioed news of a planned 1.00pm meeting at the time.33

[68] What is clear is that the decision to dismiss certain employees who were present at cluster 8 between 1.00pm and 1.30pm involved no particular attempt by Bechtel to differentiate the factual circumstances of different individuals. There are various permutations possible: attendance at the two meetings; in whole or in part; and whether or not the worker signed back on at 2pm. But Bechtel concerned itself with only two questions: Did the employee attend at the meeting prior to 1.30pm? And did he fail to return to work at 2.00pm?

[69] A positive answer to either or both questions might prove participation in unlawful industrial action as a matter of law, but as established by Miller, the test is more than ascertaining if there is a power to dismiss. Bechtel’s decision to dismiss the Applicant failed to take into account the factual circumstances applying to him. That decision was made on the basis that he attended the meeting prior to 1.30pm, did not return to work at 2.00pm, and had a prior warning. The decision was not well founded in his case: it did not consider the full factual circumstances, but was a blanket approach to all participants.  34

Bechtel's practice and position regarding unlawful industrial action

[70] Bechtel asserts that the decision to dismiss the Applicant was because it was consistent with its recent practice and position about what it considers to be unlawful industrial action.

[71] Ms Child deposed it is not always been the case that Bechtel would take disciplinary action against those employees engaging in unlawful industrial action. She said:

“I understand from Ms Wane... that Bechtel did not take disciplinary action against the employees (including Mr Mahoney) that engaged in unlawful industrial action on 5 July 2012 because it predated Bechtel's practice of taking disciplinary action for unlawful industrial action and Bechtel considered there to be extenuating circumstances in the case of that industrial action.” 35

[72] While Mr Fox advised employees attending the afternoon meeting they were participating in unlawful industrial action, he did not raise potential consequences such as dismissal, only the docking of pay.

“Did you, … you tell anyone at the time that one of the potential consequences of what they were doing would be that they would be dismissed? ...No, I don't believe I announced that to the group at the time.” 36

Should the Applicant have known that participating in unlawful industrial action would lead to dismissal because he was on a first and final warning?

[73] The Commission does not stand in the shoes of the employer but must be satisfied that the termination of the employee was for a valid reason.

[74] There was no evidence before the Commission of clear communication to employees of a policy change that unlawful industrial action would lead to termination, such as toolbox meetings or notices. There was evidence of a change of corporate policy. Mr McCarthy, the Deputy Site Manager at the QCLNG project said in his statement:

“Like many construction projects, the QCLNG project has had issues with incidences of unlawful industrial action over the life of the project. Unlawful industrial action is illegal and causes significant losses and delays. In addition, in my view and experience, industrial action tends to lead to more industrial action, unless the employees involved are personally held accountable for their actions.”

[75] It appears that Bechtel relies on the following for the decision to dismiss the Applicant:

● the Applicant had participated in unlawful industrial action by his presence at part of the afternoon meeting and possibly for failing to resume duties at 2.00pm;

● employees present at that meeting had been warned that they were participating in unlawful industrial action; and

● the Applicant had received a prior “first and final” warning.

[76] Mr McCarthy in his statement says that this approach is consistent with Bechtel's most recent approach. It was instanced that on 23 November 2012 a number of QCLNG project employees took industrial action leading to written warnings or where there was already a final warning, dismissal. Further these had been highly publicised on the site resulting in a picket on the mainland on 28 November 2012. 37

[77] Mr McCarthy says in weighing up the decision to dismiss he was cognisant that he had been informed by Workforce Services that employees had been told at the time of participation in the industrial action that it was unlawful and that they should return to work but had failed to do so. 38

[78] Ms Child deposed that the decision to dismiss the Applicant was justified because it was consistent with Bechtel's treatment of workers who had taken the most recent unlawful industrial action on the QCLNG project on 23 November 2012.

[79] She indicates that those dismissals resulted in the picket in the QCLNG ferry car park on 28 November 2012. She says she checked attendance records and noted that the Applicant attended work on 28 November. In her view, he would have seen the picket. Additionally she deposed that people on the QCLNG project talk a lot but that the dismissals were well-known particularly because it resulted in legal action by the CFMEU against Bechtel.

[80] Bechtel submits that the Applicant admitted under cross-examination he knew Bechtel’s practice of disciplining and potentially dismissing employees who took on the unlawful industrial action. The exchange was as follows.

Do you remember that there had been a previous episode on the site where people had taken unauthorised action and they had been disciplined--- that's correct people have been yes.

So when it came to 3 July, you are well aware from what had happened on the site previously that unauthorised stoppages of work attracted discipline?--- I was aware of that but everyone's case is different and I wasn't doing that. I was on my smoko.

[81] The Applicant admitted awareness of discipline flowing from unauthorised stoppages. He added that “everyone's case is different”.

[82] It takes it too far to make this into an admission that he knew he might be dismissed or that he knew about the current or changed practice of disciplining employees or that his attendance at the afternoon meeting exposed him to dismissal because of his previous warning.

Was there a valid reason to dismiss?

[83] The Applicant’s participation in unlawful industrial action alone does not constitute a valid reason for the dismissal, independently of the factual circumstances surrounding his case. It may give rise to a legal right to terminate but that is different from establishing, through proper inquiry into the factual circumstances, whether there was a valid reason for the termination. See Miller; Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (FCA) and the detailed analysis of the majority of that case B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191, affd DP World Sydney Limited v Lambley[2013] FWCFB 9230.

[84] The reason for each of the 6 terminations was the same:

● the employee was present for some greater or lesser time during the afternoon meeting;

● that was taken to mean they participated in unlawful industrial action; and

● each was on a final warning or had previous disciplinary history.

[85] Bechtel made much of the fact that the Applicant did not further pursue a grievance. As explained above, the logic inherent in that statement is faulty, and in no way relieves the employer of its obligations. It is equally true Bechtel failed on 4 July 2013 to pursue proper enquiry into the Applicant's circumstances.

[86] There were assumptions that he must have been at the meeting at or immediately after 1.00pm. He was not. I have found he was there around 1.07pm. On his evidence he arrived as late as 1.28pm. It seems no proper inquiry was made until the dismissal was challenged in the Court and in these proceedings.

[87] No consideration was given to the fact he did not attend the smoko meeting and returned to his duties while others met past the appointed time to return to work.

[88] It is clear on the evidence that participation in the smoko meeting in the morning was a factor in Bechtel’s less compromising approach towards the afternoon meeting.

[89] While I have found that the Applicant did engage in unlawful industrial action I cannot conclude there was a valid reason for his dismissal under s.387(a) when looking at the totality of the evidence surrounding that industrial action, the most important being:

● his non-attendance at the smoko meeting;

● his consequent lack of prior knowledge that the afternoon meeting had been scheduled until some time after 1.00pm;

● his lack of knowledge of the purpose of the afternoon meeting;

● the relevance of the smoko meeting in Bechtel’s decision to sanction attendance at the afternoon meeting;

● the fact he did not attend the afternoon meeting until some time after 1.00pm;

● Bechtel’s lack of independent evidence at the time of dismissal that the Applicant was in attendance when they say he must have been, namely 1.07pm.

[90] Bechtel also argued that its change in policy was a relevant factor for the validity of its decision to dismiss Mr Mahoney. While this goes more to procedural fairness, I note there was no evidence of an active approach to ensuring employees were aware of the policy. Compare eg Queensland Rail v Wake (2006) 156 IR 393. I place no particular weight on this factor.

Was the person notified of the reason?

[91] The Applicant submits that the decision to dismiss the Applicant was made early in the disciplinary process, and not in explicit terms. It is certainly the case that the termination letter was in the same terms for all other employees. It did not specify the unlawful industrial action that gave rise to the sanction nor did it differentiate the smoko meeting from the afternoon meeting. It appears that a formula had been adopted. This is confirmed by Ms Child’s evidence that prompt sheets were read faithfully.

[92] Bechtel submits that the reasons for dismissal were stated both at the disciplinary meeting and in its letter of dismissal.

[93] But specificity is important. 39 In my view the notification was not sufficiently specific because it lacked the details around the industrial action, and it failed to take into account the factual circumstances of the individual employee including the matters stated above.

[94] It should be noted that Ms Child and Mr Scriffignano’s evidence differed on whether attendance at the meeting alone or in conjunction with failure to return to work at 2.00pm constituted the unlawful industrial action. Counsel submitted that Bechtel relied on both. As I have found that the Applicant did attend the meeting, and therefore participated in unlawful industrial action, albeit briefly, nothing turns on this difference, but it is indicative of the uncertainty that pervaded the process used in his dismissal.

Was the Applicant given an opportunity to respond?

[95] The practical effect of being given an opportunity to respond was considered in Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport 40 where a Full Bench of the Australian Industrial Relations Commission stated that:

[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.

[96] The Applicant asserts that the decision to dismiss him was made prior to the meeting of 4 July 2013. Bechtel denies that a decision was made prior to the meeting.

[97] The statement of Mr McCarthy indicates that a letter of dismissal was signed prior to the meeting. However he deposes that dismissal was warranted subject to the Applicant being able to give a satisfactory explanation of his behaviour. To be meaningful, this must include the Applicant being given an opportunity to respond and perhaps justify his apparent refusal to work, or otherwise raise any mitigating circumstances.

[98] The Applicant may have had his participation in unlawful industrial action put to him. He may have been given an opportunity to respond, albeit a scant opportunity. But the employer did not attend properly to the Applicant's responses.

[99] An “opportunity to respond” is meaningless unless the employer gives proper contemplation to and consideration of the responses. It is not just whether the Applicant participated in unlawful industrial action that should have been considered, but whether there were any unique circumstances applying to the Applicant. There were. They were not adequately considered.

A support person

[100] The Applicant requested and was able to have Mr Munro as his support person and it seems Bechtel changed the meeting time to accommodate Mr Munro.

Access to human resources expertise

[101] An employer the size of Bechtel has a range of advisors and sophisticated procedures. Failure of proper procedure, as occurred in this case, cannot be excused by a lack of capacity or resources due to Bechtel’s size and access to resources.

Any other matters

[102] Mr Andrew Peters, the Applicant’s supervisor stated in cross-examination that the Applicant was well organised, planned his work, had a good memory, was good at estimating how long a job would take, and was efficient.

[103] The Applicant submits that the dismissal was harsh and he has experienced some financial and personal difficulties since termination. He was unable to find work in Gladstone. Alternative employment was made more difficult as a result of a work injury in June 2013. He was married with a family while working for Bechtel in Gladstone, but after his dismissal he and his wife were estranged. He has been suffering from sleeping problems and distress and has been advised to see a psychologist.

Conclusion

[104] In considering whether the Commission is satisfied that the dismissal was harsh, unjust or unreasonable I am required to take into account both whether there was a valid reason and the processes around the dismissal.

[105] I find there was no valid reason, notwithstanding unlawful industrial action, because of Bechtel’s failure to consider adequately the factual circumstances of the Applicant’s case.

[106] I have also concluded that while the Applicant was notified of the reasons for his termination it was not specific enough and lacked sufficient detail. While he was given an opportunity to respond to any allegations, the approach taken was formulaic, the decision to dismiss was taken beforehand, and his responses were not taken properly into consideration.

[107] I have therefore concluded that the dismissal was unreasonable because firstly, there was no valid reason; and secondly it was procedurally inadequate in that there was a failure to adequately consider the Applicant’s particular circumstances. Therefore the dismissal is unfair.

Remedy

[108] The Applicant originally sought reinstatement. He has now obtained other employment and no longer wished to be reinstated. Accordingly the remedy available to him is compensation in lieu of reinstatement under s.392. I have decided that his case is a proper one for compensation to be ordered.

[109] While some economic loss material was handed up, this matter was not sufficiently argued in a way that allows me to determine an appropriate sum. I will invite the parties to make submissions on the question of compensation, taking into account the conclusions detailed below.

[110] In considering compensation, I make the following observations about the Applicant’s misconduct. Section 392(3) provides as follows:

If the Fair Work Commission is satisfied that misconduct of a person contributed to the decision to dismiss, it must reduce the amount it would otherwise order by an appropriate amount.

[111] Bechtel says that, even on the most favourable version of events the Applicant was at a meeting without authority in work time and that this should be taken into account to any award of compensation. Additionally Bechtel argues I should take into account the misconduct that led to the final warning. 41

[112] The Applicant suggests that the Commission can only take into account the unlawful industrial action because of the use of the definite article in specifying ‘the misconduct’ can only refer to the unlawful industrial action not to earlier warnings about the performance.

[113] Having found that the Applicant did participate in unlawful industrial action I am therefore satisfied that the Applicant’s misconduct on the day contributed to the decision to dismiss.

[114] As to his earlier misconduct, the parties did not point me to any authority that assists, arguing only from principle.

[115] It seems reasonable to me the prior misconduct, resulting as it did in a “first and final” warning is relevant but not as significant a factor as the unlawful industrial activity.

[116] Parties should in framing submissions to me in terms of Order 3 below be mindful that the Applicant’s misconduct on 3 July 2013 would reduce the compensation payable to the Applicant, and that the prior misconduct, while relevant, is a lesser consideration.

Orders

1. The application for unfair dismissal relief is granted.

2. Bechtel pay compensation to the Applicant in lieu of reinstatement.

3. The Parties provide submissions on the question of compensation if they cannot come to agreement. Separate directions will issue accordingly.

COMMISSIONER

Appearances:

Mr R Reitano of counsel for the Applicant.

Mr J Murdoch of counsel for Bechtel Constructions (Australia) Pty Ltd.

Hearing details:

2014.

Brisbane:

10 and 11 March.

 1   This and other the other dismissals were the subject of Federal Court proceedings: CFMEU v Bechtel Constructions (Australia) Pty Ltd [2013] FCA 667, in which Greenwood J reinstated one applicant. This matter was removed by the Applicant to the Fair Work Commission. Evidence from that case was adduced in these proceedings.

 2   Statement of Zac Mahoney at paragraph 36.

 3   Transcript dated 10 March 2014 at PN303.

 4   Transcript dated 10 March 2014 at PN309.

 5   Transcript dated 10 March 2014 at PN131.

 6   Statement of Benjamin Fox, at paragraph 15(i).

 7   Statement of Zac Mahoney at paragraphs36-40.

 8   Reply Statement of Zac Mahoney at paragraph 9.

 9   Reply Statement of Zac Mahoney at paragraph 6.

 10   Statement of Zac Mahoney at paragraphs 66-68.

 11   Statement of Benjamin Fox - Attachment BF - 1A Affidavit of Luke Michael Tiley at paragraph 2.aa.

 12   Exhibit R7 - Attachment KC - 1A at annexure KAC-1.

 13   Rode v Burwood Mitsubishi ( unreported, AIRCFB) Print R4471 at paragraph 19.

 14 [2003] FCAFC 180.

 15   Ibid at paragraph 15.

 16   Exhibit R3 - Attachment BF - 2A Affidavit of Ben Fox at paragraph 23.

 17   Exhibit R3 - Attachment BF - 2A Affidavit of Ben Fox paragraph 22.

 18   Statement of Scott Scriffignano at paragraph 22(c).

 19   Transcript dated 10 March 2014 at PN1017.

 20   Section 19 of the Fair Work Act 2009.

 21   PR946290.

 22   Ibid paragraph 46.

 23   Transcript dated 11 March 2014 at PN1492.

 24   Transcript dated 10 March 2014 at PN351.

 25   Transcript dated 11 March 2014 at PN1692.

 26   Transcript dated 11 March 2014 at PN1693.

 27   Transcript dated 11 March 2014 at PN1495.

 28   Transcript dated 10 March 2014 at PN326 and PN327.

 29   Applicant’s outline of submissions at paragraph 18

 30   Ibid paragraph 19.

 31   Transcript dated 10 March 2014 at PN1039.

 32   Transcript dated 10 March 2014 at PN341 and PN342.

 33   Statement of Benjamin Fox at paragraph 23 and Transcript dated 10 March 2014 at PN937.

 34   see Greenwood J in the Federal Court proceedings at [37]-[38].

 35   Statement of Kara Child at paragraph 20(g)(iii).

 36   Transcript dated 10 March 2014 at PN853.

 37   Statement of Christopher McCarthy at paragraphs 11-12.

 38   Exhibit R9 - Attachment CM - 1 Affidavit of Christopher McCarthy at paragraph 15.

 39   Previsic v Australian Quarantine Inspection Services Print Q3730.

 40 (2000) 98 IR 137.

 41   Transcript dated 11 March 2014 at PN1689.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550018>