Ms Denise Stewart v Riverside Marine Gladstone Pty Ltd
[2014] FWC 3898
•25 JULY 2014
| [2014] FWC 3898 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Denise Stewart
v
Riverside Marine Gladstone Pty Ltd
(U2014/4066)
COMMISSIONER SIMPSON | BRISBANE, 25 JULY 2014 |
Application for relief from unfair dismissal - No valid reason - Harsh, unjust or unreasonable - compensation ordered.
[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (“the Act”) by Ms Denise Stewart (“the Applicant”) who alleges that the termination of her employment with Riverside Marine Gladstone Pty Ltd (“the Respondent”) was unfair.
[2] The application was filed on the 28 January 2014 and a conciliation conference was conducted on 12 March 2014 which was not successful in resolving the matter. The matter was listed for determination on 19 June 2014 in Brisbane.
[3] A Notice of representative commencing to Act was received 6 June 2014 for the Respondent and representation was granted. That matter was dealt with as a determinative conference in accordance with the power to do so in s.398 of the Act. Closing submissions were filed by 30 June 2014.
[4] The Applicant was employed by the Respondent on 11 October 2011. She was one of 6 masters employed to service Curtis Island under a 5 year contract between the Respondent and Bechtel Constructions QCLNG. The Applicant said she worked in that capacity as a Master IV until her termination on 21 January 2014.
[5] The Applicant said she also worked concurrently for approximately 16 hours a week in an Office Administrative role for the Respondent from around March 2012 to May 2013. The Applicant set out in some detail the breadth of roles she fulfilled during this time of performing the dual roles of a master and office based work. The office based work extended to the auditing of safety management systems, and preparation of new safety management systems for different vessels, as well as the preparation of complete documentation systems including safety management systems for new build and co-ordination and collection of vessel drill systems. 1
[6] The Applicant said she was employed on a 3 week on 2 week off roster, however she said she was often called upon to do extra shifts. The Respondent said the position of master requires a high level of qualification, experience and responsibility. A master is responsible at law for the safety of a vessel and all aboard.
[7] The Respondent said that it is reasonable for an employer to expect a master to display appropriate levels of responsibility in their role without the need for management oversight or remedial instruction.
EVIDENCE
[8] The Applicant provided a first statement, 2 a statement in reply to the statements of Ms Jeanette Jifkins and Mr Ian Fraser,3 and a separate statement in reply to the statement of Mr Myles Jackson4. The Respondent provided witness statements from Mr Fraser, Mr Ian Ziebell, Mr Jackson and Ms Jifkins.
[9] Mr Fraser, the Operations Manager for the Respondent said in his statement 5 that he had been employed by the Respondent for 10 weeks when the Applicant applied for and took 7 weeks holiday leave and also 10 weeks unpaid leave.6 Mr Fraser said the Applicant commenced her leave on 24 June 2013 and returned on 21 October 2013.
[10] During cross examination the Applicant was directed to the second page of the position description for her role which included the following:
“Each Master has complete authority and responsibility for taking all necessary actions for safety, pollution prevention and the efficient operation of the vessel to which he/she is assigned.” 7
[11] The Applicant accepted that she had complete authority over the vessel but responded that she did not have authority over the crewing of the vessel which she said was management’s authority. She accepted she had authority to decide not to take a ship to sea if she believed it unsafe, but said she also had responsibility to train crew in the quickest possible method in order to take the vessel to sea safely. She accepted her position description included other key responsibilities concerning onboard training requirements including:
● Appraising and co-ordinating onboard training requirements of all staff as per Riverside Marine’s Safety Management System (SMS).
● Ensuring the SMS is complied with and kept up to date.
● Ensuring all records relevant to the SMS, and as defined in procedures, are available.
● Conduct weekly meetings with crew to ensure safe operations of all vessels.
● Conduct safety drills as per Riverside Marine (Gladstone Ferry Service) Safety Management System. 8
[12] The Applicant was also taken to clause 1.5 of a document titled ‘Contingency Plan/Emergency Procedures SM 09’ and the second paragraph of that document which reads:
“Safety drills including:-
● On board Fires
● Collision
● Grounding
● Person overboard
Should be carried out by crewmembers aboard at intervals of not more than 2 months. These drills should also be conducted when a new crewmember joins the vessel. The drills are to be carried out under the Master or Engineers instruction.
All training drills and instruction given regarding emergency procedures and equipment are to be documented in the ship’s log.”
[13] The Applicant was also taken to clause 10 of the same document which reads as follows:
“In addition to initial safety training, there shall be on going individual and team emergency preparedness training in the operational and emergency procedures.
The training shall establish, maintain and verify the competence and capacity of the crew to respond rapidly and effectively to an emergency situation and to follow the requirements of the emergency plan.
The training shall be tailored to the duties of each member of the crew to ensure they are able to fulfil the roles required of them in the emergency plan. Training should allow for variations to the plan due to planned and unexpected changes to the crew e.g. leave, changes to schedules, ill-health.
The frequency of emergency preparedness training shall be sufficient to maintain crew competence at a level needed to ensure the crew’s rapid and effective response to emergencies at all times.
In accordance to Section 3.11.2 in the National Standard for Commercial Vessels Part E safety drills will be conducted as noted below;
The frequency of training shall take into account-
a) the likelihood that crew performance will deteriorate over time without periodic practising because of loss of familiarity with procedures and the location and use of equipment; and
b) That new crew members may join the vessel who will need the opportunity to practice with and learn from other members of the crew.
NOTES:
1. For optimum training value, the period for repetition of emergency preparedness training should not exceed 2 months.
2. Some training may be conducted as a simulation on board combined with hands-on practical training conducted off the vessel (e.g. practical fire fighting). Other training may be a discussion or review of actions relevant to an emergency situation. The value of training is enhanced when conducted at different levels (i.e. review of - ‘what if’ situations, regular simulated drills to ensure all members know what they should do, with an occasional full evacuation trial using people as passengers to prove the evacuation procedure actually works).
3. Training may involve combining several scenarios in one training session in order to relieve the drill load; e.g. explosion followed by a fire followed by abandon ship, or, collision involving injury and subsequent oil pollution.
4. Shore communications and coordination arrangements between the vessel and the shore owner/office that would be required to cope with a serious emergency to the vessel need to be tested on an annual basis.
Recording of emergency preparedness training
The entry in the vessel’s log recording the emergency preparedness training undertaken shall include date, persons participating, nature and location of the training.”
[14] The Applicant said there is initial safety training and there is on-going training. She said the initial training does not have to be a drill, it can be one-on-one, and that her argument with the Respondent prior to termination, was that she was not getting sufficient personnel and sufficient time to give these people the correct training. She said firstly there needs to be an induction one-on-one, and a timeframe where all four people on the vessel are available to participate in a drill. 9
[15] The Applicant was asked if it was usual for her to pre-train people before they came onto the vessel. She replied as follows:
So, are you saying that your usual mode was to pre-train people before they came onto the vessel?---No, we don't get the opportunity to. As soon as they get on board, we train that person. But most of the time – and I would say 99 per cent of the time – not all four crew are available. Most of the time I am actually having to drive the vessel. If you'd like to, I can start referring to the instances where at 1600 hours I am given a crew member that has never been on board that vessel before and I have to depart at 1610. And when I questioned that with management – actually I got two crew given to me – I questioned that with management. Instead of him giving me qualified crew to train that person, he has just taken one of the unqualified off and left me still with one unqualified person as a trained crew member. So, I've got 10 minutes. In the meantime the engineer is downstairs during start up, I am supposed to be doing all my radio checks and my nav station checks, I've got deckhands inside checking emails if there's change to schedules, and we have got 10 minutes in which to teach this person how not to be unsafe on board the vessel. So, what we have got to do is one at a time pretty much I start driving out, the engineer will start showing them the fire pump system, as we are underway the deck hands will be showing them, you know, either the pump system, or the filter system or something, because we haven't been given enough time by management to give that person the best possible time to have training and be on board that vessel in a safe situation. 10
[16] The Applicant was referred to the ‘National Standards for Commercial Vessels Part E Operations’ 11 (NSCV) and specifically Schedule 2 clause 6 which sets out responsibilities to ensure crew receive training. The Applicant was also referred to clause 5 which included that “..the master may request the owner’s assistance and make decisions for the operation, navigation and safety of the vessel and pollution prevention to ensure compliance with the operation requirements.” The Applicant responded that she did request the Respondent’s assistance. The Applicant claimed the previous owner used to allow 3 days for training and now they were only getting 10 minutes.12
[17] The Applicant was also referred to Schedule 2, subclause 6(4) which states “A written record of any training mentioned in subclause (1) that is undertaken must be made and signed by each person who undertook the training.” The Applicant said she complied with this requirement by recording in the ship’s log an inductee section where the crew member being trained and the person doing the induction is recorded and it is signed by the employee on the log. 13
[18] The Applicant was taken to Schedule 2, subclause 11(7) and (8) which says:
“(7) A logbook or engineering record book must not:
(a) be mutilated or destroyed; or
(b) include an illegible entry; or
(c) include a false or fraudulent entry; or
(d) be deliberately withheld from inspection.
(8) A written record of the following matters must be kept about any safety training undertaken by crew members:
(a) the date of the training;
(b) the name of each participant;
(c) the nature of the training;
(d) the location of the training.
Examples of safety training
1 Initial safety training.
2 Training in emergency procedures.
Note This record may be included in the logbook.”
Sharing of Crew Drills
[19] The Applicant said that on returning from her approved leave on 21 October 2013, she read in the Masters Handover Notes from Mr Jackson dated 20 October on the 5th dot point “I have completed October drills”. 14 The Applicant said she and Mr Jackson shared the same crew, F crew and that sharing responsibility for crew drills was common practice. The Applicant claimed that in some months she would complete F crew drills and some months Mr Jackson would, and some months they would share.
[20] Mr Jackson’s evidence was that he had completed the October drills. The Applicant was asked if there were any new crew on the vessel in that context. She replied that even though Mr Jackson had said the October drills were complete, she did a man overboard, a fire on board, and an abandon ship. 15
[21] The Applicant provided a copy of the drill matrix for January to June 2013 to demonstrate the arrangement of Masters sharing the training responsibility. 16 The Applicant said the requirement as per the ship’s SMS and industry standard is for drills to be conducted “at intervals no greater than 2 months.” The Applicant further provided copies of the Masters Handover Notes from Mr Jackson to Mr Ziebell for August and September 2013 to show they also adopted the arrangement of sharing drills.17 Mr Ziebell accepted that he and Mr Jackson shared drills on the F crew matrix when the Applicant was on leave.18
[22] Mr Jackson accepted he changed the practice from shared drills to separate drills. 19 Mr Jackson accepted prior to the Applicant going on leave it varied from month to month as to whether he or the Applicant did most of the drills.20
[23] The Applicant said this practice continued on her return even though Mr Jackson had said he already completed the October drills. The Applicant said she had Mr James Bussell rejoin the crew after several months in the Brisbane office. The Applicant said he was therefore refreshed on all the safety equipment and jointly participated in a fire pump activation and anchor drop talk through. 21
[24] The Applicant said that she talked at length to Mr Glynn Molloy and Mr Alec McCowan to ascertain their level of competence. She said she was satisfied with their answers and with the fact that they had only recently completed drills with Mr Ziebell and Mr Jackson, and went about instructing them on her personal preferences for tie up and untie. She said they still however completed a Man Overboard Drill by launching the tender on 2 November 2013, the last day of her first swing. 22
[25] The Applicant agreed under cross examination that the Freedom was the only vessel that had shared drills between masters because it had a shared crew unlike the other vessels. The Applicant agreed that all vessels including the Freedom had their own drills matrix. 23
[26] The Applicant explained that on ‘Catalina’ crew A and crew E operate, on ‘Mandalay’ crew D and crew B operate, on ‘Avalon’ crew C, crew B and crew D operate and ‘Freedom’ is operated by crew F. 24
[27] The Applicant did not recall Mr Jackson raising with her before her going on leave that he was uncomfortable with the shared drills. She said Mr Jackson implemented this after her first swing, which I understood to be her first swing after returning from leave. 25 The Applicant pointed out that if Mr Jackson held a genuine view that he had wanted to separate the matrix by master why didn’t he make that change when he was sharing the master role with Mr Ziebell over the period the Applicant was on leave.26
Completion of training records by the Applicant
[28] Mr Ziebell, a Marine Engineer who acted as a master on the Freedom during the Applicant’s leave said that when Mr Jackson returned as master (when the Applicant was on an off swing) he reviewed all records. He said Mr Jackson asked him what drills he had participated in. Mr Ziebell said that it was evident the drills that were recorded with him completing them did not happen. 27
[29] Mr Ziebell said that a drill matrix was filled out with the first date of 2 November 2013 and the last date of 7 December 2013. Mr Ziebell said he was on the vessel Freedom during the period covered by those dates however he said none of the drills filled out on the drill matrix were done while he was on the vessel. He said the writing on the form matched that of the Applicant.
[30] Mr Ziebell said that he did not believe that any of those drills were even talked through; or at least not in his hearing. Mr Ziebell attached a copy of a document headed ‘Drill Matrix’ to his statement. 28
[31] The Applicant said Mr Ziebell’s claim was incorrect and drew attention to an email of Mr Jackson’s of 9 November 2013 to Mr Fraser indicating certain drills were completed. 29 The Applicant claimed in her evidence Mr Ziebell had contacted her by phone before signing his statement and said to her “This is bullshit.”30
[32] It would seem from Mr Ziebell’s evidence he was reading the drill matrix 31 in such a way that he believed the Applicant was claiming all crew members participated in training on certain days, however the evidence which I deal with further below suggests that the Applicant did not deliberately intend for the matrix to be read that way.32 When it was put to Mr Ziebell that Mr Jackson said three drills were done he replied it could be correct.33 The Applicant gave evidence that she designed the forms she was using herself on behalf of the Respondent during her time employed in the office.34
[33] The Applicant said that on her return on 25 November 2013 (after being off swing for 3 weeks) she noted the Drill Book had been altered. She noted her drills were now removed and put in a separate section, along with a separate Drill Matrix page. She said she was not sure what happened to the Matrix that she had filled out on the previous swing. She said the new Matrix page only had the Safety Equipment Checklist entered for her, and she noted that it was in Mr Jackson’s handwriting. 35
[34] Mr Ziebell said that there was a Crew Practical Training Record for K Mann with the dates 28 and 29 November 2013. Mr Ziebell said that as he inducted Mr Kerry Mann to the vessel Mr Mann filled in the form details down the left hand column. Mr Ziebell said that the training was completed just between himself and Mr Mann and no one else was involved. Mr Ziebell said that when using this form the crew details aren’t usually completed unless they are part of the training. Mr Ziebell said that the Applicant has filled in all the crew details and signed each section. Mr Ziebell said that the Applicant then entered this information into the Drill Matrix with crew participating in the drills. Mr Ziebell said he believed this was an incorrect way to complete the form and that the Applicant did not witness any of the training or participate. 36 Mr Ziebell attached a copy of the ‘Crew Practical Training Record’ to his statement.
[35] The Applicant said she entered the ‘Fire on Board’ and ‘Abandon ship’ done on the 24 October 2013, onto the form and continued using that form. She said she noted that Mr Ziebell’s drills still remained shared with Mr Jackson’s on file as well as on the Matrix. She said she saw no directive that ‘F Crews’ drills be segregated, in particular just hers. 37
[36] Mr Jackson also claimed that many times he returned to his vessel after his off swing to find minimum to nil “Master Handover Notes.” He said he was away from the vessel for 2 weeks at a time and there was no information of changes, problems, crew issue nor drills. Mr Jackson said that once a lift raft was taken away for servicing, and he was not told of it and there was nothing mentioned about it in the handover notes. He said this reduced the capacity of the vessel and was critical information he needed to be aware of. 38
Concerns raised in November about drills and safety on the Freedom
[37] Mr Fraser said that in November 2013 he was approached by Mr Ziebell and Mr Jackson with their concerns about drills and safety on the Freedom. 39 Mr Jackson said that this occurred on or about 9 November 2013.40
[38] The Applicant said that Mr Jackson would have been on swing at this time until she returned on 25 November 2013, 2 weeks later. The Applicant said that on returning for her 2nd swing she continued to log and perform training as she had done since the new forms were introduced 12 months earlier. The Applicant said she was not approached by her manager Mr Fraser informing her to correct that action. 41
[39] Mr Fraser claimed that Mr Jackson told him that the Drill Matrix that summarises the drills the Applicant’s crew complete while on shift were being filled in without the crew member’s knowledge or participation in the said drills. Mr Fraser said that this practice satisfies MSQ spot audits but does little to give crew the necessary experience to deal with an on board emergency. Mr Fraser said he asked Mr Jackson to put it in writing. 42 Mr Jackson confirmed this.43 Mr Jackson said his concerns were about the lack of drills happening on the vessel Freedom while he was off swing. Mr Jackson attached a copy of the email referred to by Mr Fraser to his statement.44
Jackson investigation
[40] Mr Jackson said that he asked Mr Mann, Mr Ziebell, Ms Suzanne Chauvier, Mr Les Stephen and Mr Tim Arthurson about the drills they completed while he was off swing at the end of October, beginning of November 2013 regarding drills signed off but not completed by crew members. 45
[41] The Applicant said it was not surprising that the persons interviewed by Mr Jackson said they did not complete drills at that time as none of them were on the Applicant’s crew except Mr Ziebell. The Applicant said that Mr Mann did not start employment until late November 2013. 46 She repeated this in her oral evidence, including that she hadn’t worked with Ms Chauvier and Mr Stephen since before going on leave in June 2013.47
[42] Mr Jackson claimed in his oral evidence that he did speak to other crew including Mr McCowan and Mr Molloy, however he did not make this claim in his written statement. He said he did not include them as they had left the Company. Paragraph 6 of the statement of Mr Jackson clearly refers to discussions with 5 specific employees about the drills they completed between the end of October and the beginning of November 2013 when he was off swing. This is clearly referring to the period that the Applicant was on swing. The fact that 4 of those 5 were not on the vessel with the Applicant at the relevant time undermines the reliability of the evidence of Mr Jackson.
[43] Firstly it appears from his own statement he relied on what he claims he was told by 4 of the 5 employees regarding the issue when they could not possibly have provided any meaningful information concerning the relevant period, and secondly, by appearing to rely on this information in the circumstances creates the impression that he was not thorough in the manner in which he was investigating the matter, or in how he prepared his statement. None of the persons referred to by Mr Jackson other than Mr Ziebell were called by the Respondent to support Mr Jackson’s claims.
[44] Mr Jackson said that the new Engineer/Deckhand Mr Mann, was inducted on the Freedom by Mr Ziebell. Mr Jackson claimed during Mr Mann’s time on board with the Applicant there were no drills completed. 48 However Mr Jackson was not on board the vessel at the relevant time and Mr Mann was not called to give evidence about this claim.
[45] Mr Jackson claimed that the induction that Mr Ziebell did together with Mr Mann was signed off by the Applicant as drills conducted with the whole crew that month. 49 The evidence indicates this is not what the Applicant intended. The evidence supports a conclusion that Mr Jackson misunderstood the manner in which the Applicant had completed the form which I deal with below.
Alleged Refusal of induction on Catalina
[46] On a separate issue Mr Fraser said that on the Applicant’s return on 21 October 2013 she started working on the Freedom. Mr Fraser claimed that he set out to have the Applicant do inductions on other vessels so that she could fill the master’s role when crew took holidays or leave because of personal reasons. Mr Fraser claimed that the Applicant refused to be inducted on the Catalina and ‘surrendered’ the master’s position to Doug Cross. Mr Fraser claimed that of the 5 vessels operating in Gladstone the Applicant would only accept the master’s position on the Freedom. 50 I will deal with this matter in more detail later.
Request by Applicant for meeting with Management
[47] The Applicant said that on 29 November 2013, 4 days after the start of her 2nd swing, she asked her manager Mr Fraser to request a meeting with Mr Angus Campbell and Ms Jifkins to discuss her dispute regarding losing her position, referring to her roster having her perform deckhand duties as well as master duties. She said Mr Campbell confirmed a meeting for 5th December 2013 by video conference.
[48] A “Without Prejudice” letter was sent on 5 December 2013 as an email by MacDonald & Michel Solicitors acting for the Applicant to Mr Campbell of the Respondent advising that the Applicant had been seeking to resolve her dispute about her rostered hours and the duties she is directed to perform using the grievance procedure under The Gladstone Ferry Company Curtis Island Ferry Service Project Agreement (the Agreement) however had been unable to resolve the dispute. The letter advised that the Applicant reserved her right to treat the issue as a demotion. A meeting was sought.
[49] The Applicant said she asked if the meeting could be in person as she had paperwork she wished to present to the meeting. The Applicant said that she was notified by email that the meeting was to be changed to 9 December 2013. The Applicant said she was still of the opinion that the meeting was at her request and not a Performance Review meeting. The Applicant said on the morning of 6 December 2013, Mr Fraser handed her a letter advising her that the meeting would be a performance review. 51
[50] The letter was as follows:
“Dear Denise
RE: Performance Review Meeting
Further to your recent discussions and emails between yourself and Ian Fraser, I am writing to advise you that you are required to attend a performance review meeting on Monday 9th December 2013 at 10.00 am which is to be held at the Gladstone office (Gladstone Marine Centre, Bryan Jordan Drive) with Ian Fraser, Jeanette Jifkins and I will be attending that meeting via video conference.
At the interview you will be asked to respond to our concerns regarding:
● Your requests for special treatment regarding rostering and work hours;
● Your lack of cooperation;
● Your failure to comply with lawful directions of the company for induction on Catalina; and
● Your persistent attempts to disrupt Gladstone operations by demanding changes in schedules.
Your responses to our concerns will influence whether or not we determine any disciplinary action being taken. Disciplinary action can include dismissal.
In addition, we wish to discuss your allegations of harassment and bullying.
You are entitled to be accompanied at this hearing by a support person. Please note that a support person is there for your support and not to act as an advocate. Please let Ian Fraser know who will be attending with you if you elect to bring a support person.
Yours sincerely,
Angus Campbell
General Manager”
[51] The Applicant said the letter outlined the Respondent’s concerns but did not mention any alleged unsatisfactory safety compliance. Mr Fraser said that the letter to the Applicant gave her notice of performance issues mainly to deal with problems she was having with her roster, but also to start a conversation around the complaints he had received about drills not being conducted on the Freedom. 52 It is apparent from the letter the matter of drills not being conducted was not raised in the letter.
Meeting and letter to Applicant of 9 December 2013
[52] The 9 December 2013 meeting was attended by Mr Fraser, Ms Yvonne Strzelecki, Administration Assistant taking notes, Mr Campbell, the General Manager, and Ms Jifkins, Group General Counsel. The Applicant attended the performance review meeting with her lawyer, Kathy Rundle as advocate/support person. A copy of the notes taken by Ms Strzelecki were attached to the statement of Mr Fraser. 53
[53] The Applicant said that it was not until the meeting itself that the subject of drills was “very vaguely raised”. The Applicant said she was asked if she had ever falsified drills documents, and she said she answered no. She said she explained that practical drills and drill scenarios are done. The Applicant claimed that this was “pretty much” the full extent of the dialogue on the matter. 54
[54] The Applicant said even a letter sent to her that afternoon titled ‘Performance’ 55 did not refer to an investigation. The letter addressed the matters concerning the Applicant’s dispute and requirements that she complete an induction on the Catalina’s sister ship, the Mandalay. The closing paragraph addressed the handling of a complaint the Applicant had raised about comments made by another employee Mr Damien Perry and indicated the Respondent believed that this matter had been addressed and resolved some months earlier. In regard to the matter of drills and safety the ‘Performance’ letter of 9 December 2013 written after the meeting stated:
“Drills and safety
You have advised today that you complete some drills on our vessels using a ‘scenario’ discussion rather than a physical run through of the drill including checking equipment. We request that all drills are completed properly as physical drills rather than just talked through scenarios. We expect you to demonstrate sound judgment in completing all drills, as such, you would understand that a ‘man overboard’ drill does not require a crew member in the water on every occasion, but does require a walk through of that process including throwing of life rings and lines as applicable to the example being tested. All crews are expected to meet our quality, health, safety and environmental management system requirements.”
[55] The Applicant said that if in fact further dialogue and warning had taken place at the performance review meeting as implied in the “alleged” Minutes (as the Applicant described them) then why wasn’t this raised in the letter sent to her later that day. The Applicant challenged the veracity of the Minutes as a true record. In any event the Minutes do not make clear that the Applicant was formally warned or counselled about the issue. The references to the issue in the Minutes are as follows. On the second page:
“Angus said that we have to be really careful here because there are serious claims made about Denise, mostly to do with Denise not conducting drills.”
[56] Later on the bottom of the second page and the top of the third page it reads:
“It is Angus’ job to ensure that the passengers are safe.
He had received a direct complaint against Denise regarding drills not being done. Jeanette asked whether Denise had ever noted in the ship’s log that a drill was completed when the actual drill was not conducted?
Denise stated that it depended on the drill whether it was a practical drill or a scenario.
Kathy asked Jeanette to repeat the question as it seems that she is implying that fraud may have been conducted.
Jeanette said that there was a complaint that drills had been noted in the ship’s log when in fact they weren’t conducted.
We will give Denise a copy of the log with the notation and require detail from her via a statutory declaration.”
[57] Finally, further down on the third page the minutes include:
“Any more complaints about drills not being conducted will be investigated.”
[58] While the combination of the minutes of the 9 December 2013 meeting and letter sent to the Applicant later that day do not make it entirely clear when looked at together that the Applicant was at that time the subject of a formal disciplinary investigation regarding not conducting drills, it is clear she was going to be given a copy of the ship’s log pertaining to a complaint that drills had been noted where they had not been conducted, and asked to respond to that issue.
[59] After the meeting on 9 December 2013 the Applicant was off swing and was not rostered to return to work until 6 January 2014 some 4 weeks later. The Applicant said that from 6 January 2014 she continued to induct and train her crew as she had done since the introduction of the new forms 12 months earlier. The Applicant said that she recommenced her swing on 6 January 2014 and in the first 4 days was given 3 untrained crew to fulfil the positions of deckhand (trained). The Applicant said the minimum crew requirement for the vessel is 4 who must be fully trained otherwise the vessel is considered unseaworthy by legislation and industry standard. The Applicant said that her request for an additional crewmember was denied. The Applicant said that she followed procedure to ensure new crew received training and documented this as required and attached documents marked “C - Roster Third Swing V2” to her statement. 56
[60] The Applicant said in her statement 57 that she did do drills as a physical run through regularly as per the SMS, and logged it as such on the ‘Crew Practical Training Record Form’ if a physical run through was completed, or the ‘Drill Scenario Form’ if a theoretical exercise was undertaken. The Applicant said she had used those forms for over a year since they were introduced. The Applicant said to confirm these Drills they are entered into the ‘Drill Matrix’ as required on the SMS and by Marine Safety Queensland. (MSQ)
[61] The Applicant said that she used the ‘Crew Practical Training Record Form’ as additional record keeping of Induction and Training of new crew members as the instructions at the top of the form stipulate. The Applicant explained that the new crew member’s name would appear at the top, or in the box when several were inducting. The Applicant said that on completion they personally fill out the explanation. The Applicant said that these practical demonstrations are only entered in the drill matrix if all crew of the day participated. The Applicant said that she considered this was correct procedure and without other direction continued to do that. The Applicant attached copies of drill and induction records marked “B - Drills Second Swing” to her statement. 58
10 January 2014 letter
[62] Mr Fraser said that he collected documents from the Freedom with Mr Ziebell’s and Mr Jackson’s assistance and they told him that after extracting log book entries, drill records and brief conversations with crew there were inconsistencies with the Applicant’s record keeping. 59 Mr Fraser said he sent all of the information to Ms Jifkins to put in a letter to the Applicant.60
[63] The Applicant said that on 10 January 2014 she was emailed 2 documents by the Respondent. One document was a response to a separate dispute the Applicant had filed in the Fair Work Commission (the Commission) she initiated under the dispute resolution procedure in the Agreement in an attempt to have what she described as her usual roster (and therefore usual wage) reinstated.
[64] The 2nd document was correspondence to her headed “Results of investigation into Vessel documentation”. 61 It read as follows:
“Further to the performance meeting conducted with you in December, I am writing to let you know of the findings so far in the investigation of vessel records, including recording of drills, whilst you have been Master on Riverside Freedom since your return from leave in October.
I would appreciate it if you could please explain the following concerns regarding records completed by you on Riverside Freedom:
1. Fire on board drill noted without date, no F038 drill debrief completed, nothing noted in vessel log
2. 24/10/13 - Crew Practical Training record shows anchor drop drill, but no F038 drill debrief completed
3. 24/10/13 - Crew Practical Training record shows fire pump activation drill, but no F038 drill brief completed
4. 24/10/13 - Abandon ship drill recorded but no F038 drill debrief completed, nothing noted in vessel log
5. 2/11/13 - Crew Practical Training record shows bow ramp/tender launching drill, but no F038 drill debrief completed
6. 3/11/13 - Man overboard drill recorded for F crew but F crew not rostered that day and no F038 drill debrief completed, nothing in vessel log
7. 28/11/13 - Crew Practical Training record for K Mann conducted one on one by Ian Ziebell. It appears that you have added ‘very good’ under each task noted and listed all crew as being trained when they were not involved.
8. 3/12/13 - first aid and safety drill recorded but your records show you booked sick leave that date and didn’t attend work
9. 7/12/13 - 4 drills recorded with different crew recorded against 3 out of 4
A copy of the records referred to above is attached for your reference.
Please explain each of the above anomalies in the form of a statutory declaration and return to Ian Fraser by 17 January 2014. It is important that you give careful consideration to your explanations. Unsatisfactory explanation may result in termination of your employment.
If you have any questions or need clarification of any of the above or the attached documents, please discuss with Ian Fraser at first instance.
Yours sincerely
Jeanette Jifkins
Group Legal Counsel”
[65] The Applicant said that she had no knowledge of an investigation being conducted nor did her Manager consult her personally for explanation during the investigation. The Applicant said she was not asked to supply the most current training records for the 3 new crew inducted that week. The Applicant said that she immediately emailed through the 21 pages of training documents for the 3 new crew that had been done over the previous 5 days. 62 The Applicant said she took leave that day and responded to the allegations by the date requested.
[66] The Applicant said that at the same time she raised her own safety concerns with regard to management rostering untrained and fatigued crew members aboard her vessel. The Applicant said that at no time did her Manager speak to her regarding her concerns or their concerns.
[67] The Applicant said that she answered all 9 points in a reply email on 17 January 2014 as requested. 63 Her response read as follows:
“RESPONSE TO LATEST ALLEGATIONS
To the best of my knowledge the uncontrolled Matrix and Form F038 were superceeded (sic) late in 2012 by the new Drill Scenario Form and Crew Practical Training Record. Both of these later forms were issued in rectification to the “NON COMPLIANCE” of the Drill System during the Marine Safety Compliance Audit by Ferriby Australia in late 2012. Callum Campbell and myself personally completed an Office Evacuation Drill on this new system and submitted it for non compliance close out.
All crews were issued with the new style debriefing forms and controlled Matrix by Callum Campbell.
Masters were asked to help create the new scenarios but little assistance was forthcoming and some Masters started to revert back to the superceeded (sic) Form F038. I have had no notification that this form has been reinstated since the Ferriby Audit.
I wish to also note the Controlled Swing Documentation Plan Matrix has been tampered with. Each block was created to cover a crew swing NOT a monthly record as this only creates confusion when a swing straddles over 2 calendar months, as it has here.
Therefore to answer your investigation:
1. 24/10/13, sorry forgot to date
2. Form F038 superceeded
3. Form F038 superceeded
4. Abandonship is Anchor Drop (Q2)
5. Form F038 superceeded. Bow or Tender Launch is Man Overboard
6. This is “2” not a “3” see No 5
7. Most inductions have been done underway due to a lack of downtime on F crew roster. I have complete trust in Ian Ziebell’s assessment as a Master and Engineer. The crew listed on the right are crew of the day for record keeping (or witch-hunting!) They are only noted in the Matrix if all crew have participated.
8. Safety Equipment is a checklist not a drill and new crew are asked to complete this in their own time as a way of familiarising themselves where all safety equipment is. Kerry Mann completed this on 03/12/13.
9. Not sure what you mean here but if it is because I started writing Lifejacket/Assembly Station in the wrong month and left it unfinished to find liquid paper and forgot, then this is petty.
If it’s safety you are worried about perhaps you could answer..
1. Why on my first day back this swing was Adam Stonnil rostered on Freedom as 4th crew having never stepped foot aboard before?
2. Why was 2 new crew Tony Berry and Pat McCosker rostered together to work Thursday nightshift BOTH (3 days experience) instead of Pat. Then Greg (3 weeks experience) to induct Pat the following afternoon in 4 hours. Leaving me then with Tony and Pat unsupervised for the rest of the week with only 1 night and 4 hours training respectfully.
3. Add an engineer that had just completed a 8.5 hour morning shift then rostered to work a 16.5 hour nightshift with only a 3.5 hour break. This is exactly the shift that MSQ condemned two months earlier.
4. Then new inductee Tony having just completed a 16.5 hour shift has to attend a Bechtel Induction for 2 hours before returning to a 4 hour afternoon shift with no time for sleep.
Yours truthfully
Denise Stewart”
[68] The Applicant said she gave what she believed was a satisfactory explanation to each of the concerns as requested.
[69] Mr Fraser said he read the letter and discussed the letter with Mr Campbell and Ms Jifkins by video conference on the afternoon on 20 January 2014. Mr Fraser said the substance of the conversation was that the Applicant was not giving any indication that she would work with ‘us’ or the crews to make sure the drills were completed properly or to do anything positive about training the crews or ensure safety on the vessels. Mr Fraser said that the Applicant’s focus was on blaming the Respondent, and not on the responsibility of a master who is in control of the vessel and responsible for the vessel, the crew and the passengers. Mr Fraser said that even though there were real concerns the documents had been falsified, he said ‘we’ didn’t feel comfortable alleging fraud. He said ‘we’ reached a decision that ‘we’ weren’t comfortable with having the Applicant in charge of any vessel with the kind of attitude she displayed and the potential for false records on the vessel. 64
Termination
[70] Mr Fraser said that it was decided in the video conference that ‘we’ had no real choice but to let the Applicant go. He said Ms Jifkins was asked to write the letter to let her know. 65 The Applicant said that her employment was terminated whilst she was on rostered days off and not due to return to work before the original dispute conference before the Commission scheduled for 7 February 2014 regarding her own dispute. The Respondent claimed to have afforded due process to the Applicant, and the Applicant was paid in lieu of notice on termination.
[71] The Applicant said that on 21 January she was emailed a termination letter. The termination letter sent to the Applicant read as follows:
“Dear Denise,
RE: Results of investigation into Vessel documentation and your Response
Thank you for responding to the concerns we outlined in our letter of 10 January 2014. We have now had the opportunity to review and consider your response.
Unfortunately your response does not demonstrate a high regard for health and safety compliance, nor does it offer any indication of your intention to improve performance in the future in order to allay our concerns. By way of example:
● Offering the excuse that the F038 has been superseded fails to address the issue that proper records were not made, even on a new form.
● A general comment about ‘most inductions’ fails to explain why documents were completed which give the impression all crew present on the vessel participated in a drill when they did not.
● As you are aware, the acceptable practice in altering ships’ records is to draw a single line through the entry and initial on the side. Liquid paper is not an acceptable method of amendment and should not be on the vessel.
● Questioning why untrained crew were on your shift is of particular concern. As Master of a vessel it is your responsibility to provide induction and training to new crew members. Night shift is an ideal time to provide that training as crew are on the vessel for an extended time.
Having considered your explanations we have formed the opinion that your response does not provide us with any confidence that you are prepared to, or will give due consideration to safety issues whilst in charge of vessels in our fleet. As a result, we are unable to offer you further employment with Riverside Marine Gladstone and provide notice of the termination of your employment.
In accordance with the EBA, you are entitled to be paid:
● wages due
● accumulated annual leave
● leave loading on that accumulated annual leave
● accumulated personal leave
● 4 weeks ordinary pay in lieu of notice
Please see attached final pay slip for your records.
As there is no specific provision in the EBA, no allowances or overtime payments are payable with respect to your notice period. We do not require you to work out your notice period. This means that you are free to seek alternative employment immediately.
If you have any questions, please contact Ian Fraser at first instance.
Yours sincerely,
Jeanette Jifkins
General Legal Counsel”
HARSH, UNJUST OR UNREASONABLE
[72] Section 387 of the Act sets out factors requiring consideration by the Commission of whether it is satisfied that a dismissal was harsh, unjust or unreasonable. The first of those is 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).
[73] The letter of 10 January 2014 to the Applicant requested that she explain each of the ‘anomalies’ in the form of a statutory declaration. I have not formed any adverse view of the Applicant for deciding not to respond in the form of a statutory declaration, and I agree with her statement that she was not under any obligation to do so. 66 The letter of 10 January 2014 raised nine discrete issues. I will deal with each in turn.
1. Fire on board drill noted without date, no F038 drill debrief completed, nothing noted in vessel log
[74] The Applicant responded “24/10/13, sorry forgot to date.” The Applicant was taken to the drill matrix attached to Mr Ziebell’s statement. 67 The Applicant was taken to the 2nd row of boxes and the 3rd drill along headed ‘Fire on Board’. It was put to the Applicant that the concern is that the drill was not dated. The Applicant said that she put in her response that it was the 24 October and she apologised.68 It was put to the Applicant that this was why the Respondent thought it could no longer trust her to work in its business.69
[75] It was also put to the Applicant that she did not respond to the matter of no drill debrief being completed, and she said she did respond in the opening paragraph of the response. 70 She said the form was superseded by the drill scenario form and the practical training record, and the form was no longer in use.71 The Applicant admitted it was negligent to not have put a date for the fire drill on the form. However the Applicant through a bundle of documents tendered sought to show how the fire on board training could be seen to have occurred on 24 October 2013, and marked what she said was evidence of this in different colour marker pen on the bundle admitted as Exhibit 16 to show this. Point 1 regarding the fire on board training was related to point 3 of the Crew Practical Training Record showing a fire pump activation drill on that date.72
[76] It was raised against the Applicant that she never said the matter was recorded in the vessel log, however she said it was never said it was not recorded in the log. 73 The Respondent raised this point again in closing submissions. A copy of the ship’s log for 24 October 2013 did not show a tick in the designated box for this drill having been completed that day.
2. 24/10/13 - Crew Practical Training Record shows anchor drop drill, but no F038 drill debrief completed
[77] The Applicant responded “Form F038 superceeded”. Again it was put to the Applicant that her response did not explain what happened or what was completed, just that the F038 form was superseded. She responded that was because the Form F038 was (my emphasis) superseded. She said the Respondent had the form she had completed so she did not think it was necessary to embellish that any more. 74
[78] The Applicant again relied on Exhibit 16 to show the abandon ship drill related to point 2 and point 4 as well and highlighted the relevant parts of Exhibit 16 in orange to show how this training had been done.
3. 24/10/13 - Crew Practical Training Record shows fire pump activation drill, but no F038 drill brief completed
[79] The Applicant responded “Form F038 superceeded.” Again the Applicant repeated that she did not see the need to embellish her answer any more. 75
4. 24/10/13 - Abandon ship drill recorded but no F038 drill debrief completed, nothing noted in vessel log
[80] The Applicant responded “Abandon ship is Anchor Drop (Q2)”. It was put to the Applicant that ‘abandon ship’ and ‘anchor drop’ are two completely different drills. The Applicant said this is not correct. 76 The Applicant referred to the words at the top of the ‘Crew Practical Training Record’ form77 where next to the words ‘Anchor Drop’ it says, ‘in the event of abandon ship’. The Applicant said she did not need to do a full drill and it says so in the NSCV.78 This explanation from the Applicant seems a reasonable one.
[81] Again it was put to the Applicant that she hadn’t addressed the issue of this training not being in the vessel log. She responded that it was. 79 The copy of the ship’s log on the Freedom for 24 October 2013 provided by the Respondent did not show a tick in the box for an abandon ship drill having been completed.
5. 2/11/13 - Crew Practical Training Record shows bow ramp/tender launching drill, but no F038 drill debrief completed
[82] The Applicant responded “Form F038 superceeded. Bow or Tender Launch is Man Overboard.” It was put to the Applicant that the Crew Training Record that shows a bow ramp and tender launch drill is ‘man overboard’ and she responded yes. She said the documentation was on the form itself. She referred to the ‘Crew Practical Training Record’ which states underneath the heading on the form, “Please use this form and complete the relevant section when inducting new crew or use when existing crew are performing practical drill in preference or in addition to drill scenarios.” She agreed the record of this was recorded on 2 November 2013. 80 The relevant training referred to by the Applicant was marked in green highlighter pen on Exhibit 16 throughout the document.
6. 3/11/13 - Man overboard drill recorded for F crew but F crew not rostered that day and no F038 drill debrief completed, nothing in vessel log
[83] The Applicant responded “This is “2” not “3” see No.5.” This is essentially the same issue as point 5 in the letter. The Applicant was referred to her own statement in response to Ms Jifkins 81 where she said “The Man Overboard Drill conducted on the 2nd November is more than a 50/50 chance of being a 2 instead of 3. Turning the Ships Log back one page would see the crew entered on the document worked on the 2nd.” She maintained she had filled out the document clearly.82 Again the Applicant relied on material marked in green highlighter pen on Exhibit 16 to show how this training was done. It is my impression the number read by the Respondent as a “3” appears more like a “2” and so again the explanation provided is not unreasonable.
7. 28/11/13 - Crew Practical Training Record for K Mann conducted one on one by Ian Ziebell. It appears that you have added ‘very good’ under each task noted and listed all crew as being trained when they were not involved
[84] The Applicant responded “Most inductions have been done underway due to a lack of downtime on F crew roster. I have complete trust in Ian Ziebell’s assessment as a Master and Engineer. The crew listed on the right are crew of the day for record keeping (or witch-hunting!) They are only noted in the Matrix if all crew have participated.” The Applicant was cross examined about how she knew to write “very good”, under each of the items on the ‘Crew Practical Training Record’ for Mr Mann. 83 She explained it was her responsibility to complete the form, and she said she had spoken to Mr Ziebell about the training, and that she is entitled to delegate and she trusted his judgement. She also said this was one of the occasions where the induction had to be done while the vessel was underway.84
[85] It was put to her that by writing the names of all of the crew on the right hand side of the page it gave the impression that all of the crew had completed the training. The Applicant refuted that statement, saying Mr Mann’s name was marked at the top of the page and he filled in his own name on the form. Having considered the Applicant’s evidence in response to each of the matters put to her regarding the 7th point, I am again satisfied her explanations for her actions were reasonable.
8. 3/12/13 - first aid and safety drill recorded but your records show you booked sick leave that date and didn’t attend work
[86] The Applicant responded “Safety Equipment is a checklist not a drill and new crew are asked to complete this in their own time as a way of becoming familiar with all safety equipment. Kerry Mann completed this on 03/12/13.” The Applicant was asked in cross examination why she had her name and the names K Mann, A McCowan and G Molloy recorded under ‘Safety Equipment’ for 3 December and how she could be satisfied those people undertook the drill on that day. She replied that it was not a drill it was a checklist, and Mr Mann completed the safety equipment checklist and the other two completed the first aid checklist. 85
[87] The Applicant was asked why her name should be one of the names on the form and she said she was the master. 86 It was put to the Applicant that she was sick that day and she replied that she had asked for the checklists three days earlier, and the paperwork shows the first aid was dated 29th and 1st. She said they took days to get it done.
[88] The Applicant said she was told by Mr Mann (when she returned on 4 December 2013) that he had completed the checklist on 3 December 2013, so she wrote 3 December 2013. She explained that in relation to first aid it involves checking to see what had been used and in relation to safety equipment it is going around and checking the expiry dates, and the Applicant said this had all been filled out on 3 December and that is why she put it down as 3 December. 87
[89] Whilst it is true that the Applicant was not on the vessel on 3 December 2013 to complete the form on that day as she was sick, her explanation for completing the form in the manner that she did, in the circumstances, is logical although it may not strictly conform with correct procedure.
9. 7/12/13 - 4 drills recorded with different crew recorded against 3 out of 4
[90] The Applicant responded “Not sure what you mean here but if it is because I started writing Lifejacket/Assembly Station in the wrong month and left it unfinished to find liquid paper and forgot, then this is petty.”
[91] The drill matrix form included for 7 December 2013 ‘Lifejacket/Assembly Station’ twice, as well as ‘Fire on Board’, Man Overboard. The Applicant said she should have crossed out the first entry which she said she left unfinished. 88 Again, while the Applicant’s actions did not conform with correct procedure it is apparent she was not attempting to deceive and had simply failed to draw a single line through the entry and initial on the side.
[92] The Applicant said she was never spoken to by any level of management about these nine issues raised and the letter was the first she knew about it. 89 Whilst the Respondent said the matter was raised at the meeting of 9 December 2013 that was only done in a very broad way and no specific instances were raised for the Applicant to respond to in the meeting. It is unfortunate that these specific matters were never raised with the Applicant directly in a meeting as it would appear there was a reasonable explanation for most of the issues, and where errors had been made they were not of such a serious nature as to justify dismissal given that the evidence indicates some confusion existed over correct procedure, particularly with regard to the superseded form. There was no prior history of an issue having ever been raised against the Applicant regarding her record keeping. To the contrary the evidence appears to be she had previously been charged with some responsibility in developing the system of record keeping.
[93] Mr Jackson should have raised either directly with the Applicant or sought to facilitate through management an agreement, or failing that a management decision to separate the drills being conducted by him, and the drills conducted by the Applicant. Instead he appears to have unilaterally changed the method of recording drills on the Freedom without consulting the Applicant. The method of drills being shared by masters on the Freedom had a reasonable explanation, that being the shared crew. That method had been applied for some time. While the decision of Mr Jackson to want to depart from that method is understandable (being a desire for clear and transparent accountability as between himself and the Applicant) the way he went about making the change unilaterally was unreasonable.
[94] Mr Fraser in denying the termination had any connection to the Applicant’s dispute regarding changes to her shifts, said the following:
Mr Fraser, it's been put forward by the Applicant that the Respondent terminated her employment because she had an ongoing dispute with it in regards to her roster arrangement. Is that why you terminated her employment?---No, it wasn't. After the performance review and just the way I was having difficulty getting her to be inducted on other vessels and accepting our roster it was just too difficult to manage. So that was one of the reasons. The reason is after we did a drill review on said drills that came to light that weren't being conducted it was found that there was drills not conducted, white out being used to falsify records. So there was a trust issue with this person. This person had crew, passengers to look after and also the company vessel. So having that trust issue was one of the main reasons as well.
All right. So do you believe that you could have continued to employ her with those trust issues?---No. 90
[95] It is not entirely clear from that answer that the Applicant’s dispute about her roster had nothing to do with her termination, however there is insufficient evidence for me to be satisfied, despite the Applicant’s view to the contrary that the roster dispute was a factor in her termination.
[96] The reference to difficulty getting the Applicant inducted on other vessels pertained to the Catalina, however the context is important. The Applicant was concerned initially that the Master of the ship at the time had already done a 12 hour shift.
[97] Mr Fraser said a second email was sent clarifying that he would find another master but accepted his initial instruction was as claimed by the Applicant. 91 It seems the master was a person the Applicant had a previous history of conflict with regarding this person’s treatment of the Applicant. It appears from the limited evidence on the matter the Applicant had raised the issue with Mr Fraser and Mr Fraser said he had spoken to employees on the vessel and instructed them that any conflict was unacceptable.92 He did not advise the Applicant that he had done this.93 The Performance letter provided to the Applicant on 9 December 2013 on the 2nd page under the heading ‘Complaint regarding Damian Perry’ indicates the Respondent was aware the Applicant had made a complaint about inappropriate conduct directed toward her by the crew of the Catalina. It appears the Applicant had some justification in being uncomfortable with the proposed arrangement to be inducted on the Catalina.
[98] Mr Fraser said other times were proposed for the Applicant being inducted on the Catalina but the Applicant said the times proposed would require her to work too many hours when added to her other existing work. 94
[99] Mr Fraser’s answer set out above given at the determinative conference regarding the reasons for termination, also makes clear the Respondent had formed the view that drills had not been conducted by the Applicant, and further white out had been used by her to falsify records. As already discussed above, the evidence does not support the first of these last 2 conclusions, and the evidence was not that the Applicant had used white out to falsify records she posed in an email, but that she could have. There was no evidence that she ever did.
[100] There is no doubt the tone of the response sent by the Applicant to the Respondent’s letter of 10 January 2014 did not help the situation, as her response was interpreted as being dismissive and it is clear became part of the reason for her termination. However the tenor of her response is somewhat understandable given much of what the Applicant said in her response appears to be a reasonable explanation, and much of what was put against her in the letter of 10 January appears to be based on misunderstanding on the Respondent’s part arising from Mr Jackson’s interpretation of the paperwork. The evidence supports the conclusion that the Applicant did not attempt to misrepresent the truth of what training had been completed, and the perception that she had was unfounded.
[101] The Applicant described the issues generally as “clerical anomalies”. 95 The Applicant did without doubt make errors such as not filling in the date for the ‘Fire on Board’ drill on 24 October 2013. However there was no evidence of a history of such errors, and the nature of the errors are not so serious in the circumstances to provide a valid reason for termination.
[102] The Applicant could have been more fulsome in her responses to help clarify the issues, however on reviewing the evidence her responses appear to overall satisfy most of the issues the Respondent was raising, and the Respondent could have discovered this by looking into the issues further itself, or seeking further clarification rather than moving straight to termination as it did.
[103] The termination letter itself appeared somewhat disconnected with the 9 issues in the 10 January 2014 letter. It did not address in detail each of the responses and address the connection between each issue and the decision to terminate. The termination letter appears to ignore (and it was not later disputed) that the F038 had been superseded.
[104] The termination letter included a statement that “A general comment about ‘most inductions’ fails to explain why documents were completed which give the impression all crew present on the vessel participated in a drill when they did not.” However the Applicant made the valid point that as the Crew Practical Training Record form states on the top of the page that it is to be used for inductions as well as drills, if using the form as she did gives the wrong impression then perhaps the form needs to be changed.
[105] The termination letter further stated, “As you would be aware, the acceptable practice in altering ships’ records is to draw a single line through the entry and initial on the side. Liquid paper is not an acceptable method of amendment and should not be on a vessel.” The Applicant conceded she should have crossed the ‘mis entry’ (sic) out, however said she did not regard it as a ‘sackable’ offence. As stated above there was no evidence that she used liquid paper.
[106] Finally the termination letter said, “Questioning why untrained crew were on your shift is of particular concern. As Master of a vessel it is your responsibility to provide induction and training to new crew members. Night shift is an ideal time to provide that training as crew are on the vessel for an extended time.” The Applicant said she agreed with this statement, and that is why she questioned it. The Applicant quoted from the NSCV and questioned how she was to achieve this when new crew are rostered directly to fill the position of “trained” crew at 16:00 for a 16:10 departure in order to make the first service. 96
[107] The Respondent argued that in the alternative to the manner in which the Applicant responded to the Respondent’s concerns being a valid reason for dismissal, it was submitted that the Applicant’s failure to record the date of training, to record drills in the drill matrix and to record drills in the vessel log was a breach of Part E, clause 11(8) of the NSCVestablished under The Marine Safety (Domestic Commercial Vessel) National Law Act 2012.
[108] Part E of the NSCV specifies the minimum requirements for the safe operations of domestic commercial vessels in Australia. 97 The Respondent’s safety management system Contingency Plan/Emergency Procedures SM0998 is made pursuant to the Respondent’s obligations under the NSCV and largely replicates the requirements established under its Part E.
[109] Having considered all of the matters for the reasons given above I am not satisfied that either the manner of the Applicant’s response to the allegations, or her paperwork errors, provided the Respondent with a valid reason for termination in all of the circumstances.
[110] The Applicant was notified of the reasons for dismissal as set out in the 21 January 2014 letter of termination above. The Applicant was given an opportunity to respond to the issues in the letter of 10 January 2014 by a written response. Whilst the employer did not refuse the Applicant a support person to be present to assist at any discussions relating to the dismissal, an opportunity for discussions never arose as the whole matter was dealt with by correspondence generated by the Respondent on 10 January requesting written responses to 9 issues raised by a given date; the Applicant complying with that request; and a subsequent decision by the Respondent to terminate the Applicant communicated in writing.
[111] The termination letter includes the following wording; “...nor does it offer any indication of your intention to improve performance in the future in order to allay our concerns.” While the Respondent asserted the Applicant was terminated for misconduct rather than performance reasons, the termination letter indicates the Applicant’s performance formed part of the reason for dismissal. The Applicant was not given any warnings about unsatisfactory performance issues before the dismissal.
[112] The Respondent was not a small business employer, and employed in-house Counsel at the time leading up to and including the time of termination. In the circumstances s.387(f) and (g) are not of particular assistance to the Respondent. There are no other matters that are relevant for the purpose of considering whether the dismissal was harsh, unjust or unreasonable. Having taken into account each of the matters under s.387 I have determined the dismissal was harsh, unjust or unreasonable.
REMEDY
[113] Reinstatement remains the primary remedy pursuant to s.390(3) of the Act. The Commission must consider that reinstatement is inappropriate before ordering the employer to pay compensation to the employee for the unfair dismissal. Further, the Commission can only make an order for compensation if it considers that it is appropriate to do so in all of the circumstances. The Applicant made clear she did not seek reinstatement. I have determined that an order for the payment of compensation is appropriate.
[114] There is no evidence that an order for compensation will affect the viability of the enterprise. The Applicant had approximately 27 months of service. There was a period of long service leave in 2013.
[115] Remaining in employment with the Respondent would have been desirable for the Applicant given her qualification and remuneration; however I have taken into account the manner in which the Applicant’s relationship with the Respondent had deteriorated since her return from extended leave in October 2013. This deterioration had real potential to bring the relationship to a much earlier conclusion then might otherwise be the case.
[116] Support of this view is found in the Applicant’s contemplation of ending of the employment relationship as early as when she filed the dispute application with the Commission in December 2013. She wrote the following on the Form F10 application under the section ‘Relief sought’:
“It was always my wish to regain my 3rd week Masters shift aboard Freedom. With the extent of unresolved issues I do not believe the two parties could now work harmoniously especially after the angst exhibited during the Dispute Resolution Process.
I seek the contract of employment be terminated and compensation for loss of wages past and future (whilst seeking other employment). I also seek restitution for humiliation and heartache.”
[117] This is an indicator that the relationship was unlikely to continue for an extended period of time had the termination not occurred when it did, however it must also be considered in the context that the Applicant completed another swing following the filing of that application and therefore the language in the F10 dispute application is not sufficient of itself to be satisfied the end of the employment relationship was imminent. The Applicant said in her oral evidence that “It was obvious they didn’t want me there and I didn’t feel comfortable there.” The Applicant referred to the relief sought in her dispute application as a “mutual release.” 99
[118] I estimate that had the Applicant not been terminated she would have remained in employment with the Respondent for no longer than a further 3 months.
[119] As the Applicant was paid 4 weeks ordinary pay in lieu of notice that amount should be deducted from any compensation order.
[120] The Applicant gave evidence that she had been seeking other work and had been unsuccessful. 100 I make no further deduction on this basis. There was no evidence of the Applicant having earned any remuneration from any other source since termination of her employment.
[121] On the basis of no income being earned between termination and now, I proceed on the basis it is unlikely any income will be earned between the making of an order and the actual compensation.
[122] While the errors admitted by the Applicant in record keeping were a factor that led to the Respondent’s decision to dismiss her, I do not make a deduction on the basis of misconduct because the errors were not deliberate and therefore do not warrant a deduction from the compensation to be awarded.
[123] An amount of 2 months wages at the full rate of pay plus 9% superannuation is less than the compensation cap in s.392(5) of the Act. I therefore make no further reduction for that reason.
[124] I am satisfied that an order for payment by Riverside Marine Gladstone Pty Ltd of compensation of 2 months wages at the full gross rate of pay taxed according to law plus 9% superannuation to Ms Denise Stewart is appropriate in all of the circumstances of the case. An order to this effect will be issued with this decision.
[125] I also make the observation that the 4 weeks in lieu of notice paid by the Respondent was described as “ordinary pay”. Section 117(2)(b) of the Act provides that payment in lieu of notice must be made at the full rate of pay which is defined in s.18 of the Act. It may well be that the payment made in lieu of notice is in accordance with the Act requirements. Given that I have deducted an amount from the compensation ordered on the basis of the payment in lieu of notice the parties should confer regarding that matter, and the matter remains open only to the extent that there may be an issue concerning the Order in that regard.
COMMISSIONER
Appearances:
Ms D Stewart appeared on her own behalf.
Mr B Cooper appeared on behalf of the Respondent.
Hearing details:
2014.
Brisbane:
June 19.
1 Exhibit 5
2 Exhibit 1
3 Exhibit 2
4 Exhibit 3
5 Exhibit 20
6 Exhibit 20 at paragraph 4
7 Exhibit 4 at page 2
8 Transcript dated 19 June 2014 at PNs 125-131
9 Transcript dated 19 June 2014 at PN210
10 Transcript dated 19 June 2014 at PN213
11 Exhibit 7
12 Transcript dated 19 June 2014 at PNs 231-234
13 Transcript dated 19 June 2014 at PN250
14 Exhibit 3 paragraph 1 reference in Attachment A
15 Transcript dated 19 June 2014 at PN191
16 Exhibit 3 paragraph 2 refer to Attachment B
17 Exhibit 3 paragraph 3 Attachments C and D
18 Transcript dated 19 June 2014 at PNs 686-687
19 Transcript dated 19 June 2014 at PNs 783-784
20 Transcript dated 19 June 2014 at PN800
21 Exhibit 3 paragraph 4
22 Exhibit 3 paragraph 5
23 Transcript dated 19 June 2014 at PNs 156-161
24 Transcript dated 19 June 2014 at PN172
25 Transcript dated 19 June 2014 at PNs 162-164
26 Transcript dated 19 June 2014 at PN175
27 Exhibit 17 paragraph 5
28 Exhibit 17 paragraph 6 Attachment ‘Drill Matrix’
29 Exhibit 19 Attachment Myles Email 01
30 Transcript dated 19 June 2014 at PN412
31 Exhibit 10
32 Transcript dated 19 June 2014 at PNs 638-671
33 Transcript dated 19 June 2014 at PN582
34 Transcript dated 19 June 2014 at PNs 672-673
35 Exhibit 3 Attachment E
36 Exhibit 17 paragraph 7
37 Exhibit 3 paragraphs 7 and 8
38 Exhibit 19 paragraph 10
39 Exhibit 20 paragraph 8
40 Exhibit 19 paragraph 4
41 Exhibit 2 paragraph 3
42 Exhibit 20 paragraph 9
43 Exhibit 19 paragraph 4
44 Exhibit 19 Attachment Myles Email 01
45 Exhibit 19 paragraph 6
46 Exhibit 3 paragraph 19
47 Transcript dated 19 June 2014 at PN400
48 Exhibit 19 paragraph 7
49 Exhibit 19 paragraph 7
50 Exhibit 20 paragraph 7
51 Exhibit 2 paragraph 5
52 Exhibit 20 paragraph 11
53 Exhibit 20 paragraph 12
54 Exhibit 2 paragraph 8
55 Exhibit 2 Attachment A
56 Exhibit 1 paragraph 3
57 Exhibit 1 paragraph 2
58 Exhibit 1 Attachment B
59 Exhibit 20 paragraph 13
60 Exhibit 20 paragraph 14
61 Exhibit 8
62 Exhibit 1 Attachment F
63 Exhibit 1 Attachment G and Exhibit 9
64 Exhibit 20 paragraph 15
65 Exhibit 20 paragraph 16
66 Transcript dated 19 June 2014 at PN305
67 Exhibit 10
68 Transcript dated 19 June 2014 at PN282
69 Transcript dated 19 June 2014 at PN284
70 Transcript dated 19 June 2014 at PN287
71 Transcript dated 19 June 2014 at PNs 289-294 and PN517
72 Transcript dated 19 June 2014 at PN520
73 Transcript dated 19 June 2014 at PNs 295-298
74 Transcript dated 19 June 2014 at PN302
75 Transcript dated 19 June 2014 at PN308
76 Transcript dated 19 June 2014 at PN314
77 Exhibit 11 or Exhibit 12
78 Transcript dated 19 June 2014 at PN326
79 Transcript dated 19 June 2014 at PN332
80 Exhibit 10
81 Exhibit 2 page 2
82 Transcript dated 19 June 2014 at PN347
83 Exhibit 11
84 Transcript dated 19 June 2014 at PNs 348-360
85 Transcript dated 19 June 2014 at PN368
86 Transcript dated 19 June 2014 at PN371
87 Transcript dated 19 June 2014 at PN374
88 Transcript dated 19 June 2014 at PNs 378-379
89 Transcript dated 19 June 2014 at PN380
90 Transcript dated 19 June 2014 at PNs 954-955
91 Transcript dated 19 June 2014 at PN959
92 Transcript dated 19 June 2014 at PN961
93 Transcript dated 19 June 2014 at PN962 and PN980
94 Transcript dated 19 June 2014 at PNs 1015 -1018
95 Transcript dated 19 June 2014 at PN517
96 Exhibit 2 paragraphs 20 at Point 4. a. and b.
97 Clause 1.1
98 Exhibit 6
99 Transcript dated 19 June 2014 at PN439
100 Transcript dated 19 June 2014 at PNs 503-504
Printed by authority of the Commonwealth Government Printer
<Price code G, PR551954>
0
0
0