Nikola Pavlovic v Alcoa of Australia Limited
[2020] FWC 3919
•6 NOVEMBER 2020
| [2020] FWC 3919 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nikola Pavlovic
v
Alcoa of Australia Limited
(U2019/13374)
DEPUTY PRESIDENT BINET | PERTH, 6 NOVEMBER 2020 |
Application for an unfair dismissal remedy – whether dismissal harsh – other matters for the purpose of s 387(h) – balancing seriousness of conduct with harshness of dismissal.
[1] On 2 December 2019, Mr Nikola Pavlovic (Mr Pavlovic) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Alcoa of Australia Limited (Alcoa) from his role as a Mineworker at Alcoa’s Huntly Mine, south of Perth.
[2] Mr Pavlovic was dismissed after he and a colleague failed to isolate fixed plant equipment before commencing maintenance work on the equipment.
[3] On 11 December 2019, Alcoa filed a Form F3 Employer Response, noting it had no jurisdictional objections to the Application.
[4] On 7 January 2020 and 3 February 2020, the parties participated in conciliation but the issues in dispute could not be resolved.
[5] Taking into account the parties wishes and circumstances it was determined that a Hearing rather than a Determinative Conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on 7 April 2020. As a consequence of the COVID-19 Pandemic, the hearing was adjourned and relisted on several occasions and was eventually held in person on 21 July 2020, 22 July 2020 and 23 July 2020 (Hearing).
[6] Directions for the filing of materials in advance of the Hearing were issued to the parties on 11 February 2020 (Directions).
[7] On 16 March 2020 amended directions were issued to the parties to allow the parties to file submissions and evidence in reply (Amended Directions).
Permission to be represented
[8] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just. 1
[9] Both parties sought permission to be represented at the Hearing.
[10] Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[11] At the hearing Mr Pavlovic was represented by Mr Stephen Crawford, a lawyer employed by the Australian Workers Union (AWU) and Alcoa was represented by Mr Mark Vallence, a paid agent of Heelan & Co.
Evidence
[12] On 19 February 2020, Mr Pavlovic filed a Form F52 - Application for production of documents (Production Application) and a draft confidentiality order. The Production Application sought production of records which demonstrated what actions Alcoa had taken in response to isolation or tagging breaches since 2010 and the factors taken into account in determining the relevant disciplinary action.
[13] On 24 February 2020, Alcoa filed submissions in response to the Form F52. On 25 February 2020, Mr Pavlovic filed submissions in reply. On 28 February 2020, Alcoa filed submissions in reply to those filed by Mr Pavlovic on 25 February 2020.
[14] Based on the submissions and evidence of the parties, I determined that the order for production sought by Mr Pavlovic would have been oppressive and that it was appropriate in all the circumstances to limit the order to the disciplinary action records (including records of conversations) issued by Alcoa in relation to six particular incidents which Mr Pavlovic asserted were comparable to the incident in which he was involved. Given that the documents to be produced disclosed the disciplinary outcomes of other employees, including supervisory or management employees, I also issued a confidentiality order in relation to the documents to be produced.
[15] On 10 March 2020, an Order to Produce and a Confidentiality Order, in relation to the documents the subject of the Order to Produce, was issued.
[16] On 20 May 2020, Alcoa filed a Form F51 – Application for an order requiring a person to attend before the Commission. The application sought an order for the attendance of Ms Jenny Jaksic (Ms Jaksic) at the Hearing. At the time of the incident, Ms Jaksic was employed by Alcoa as a Fixed Plant Safety Consultant for Alcoa’s WA bauxite operations. She was involved in the safety investigation into the incident which resulted in Mr Pavlovic’s dismissal. She provided a witness statement in the proceedings before resigning from Alcoa to take up employment with a new employer. Having left her employment with Alcoa she declined to voluntarily participate in the Hearing.
[17] On 1 June 2020, Mr Pavlovic advised that he required Ms Jaksic to be available for cross-examination.
[18] An Order to Attend was issued on 3 July 2020 compelling Ms Jaksic to attend the Hearing. So as to minimise the impact on her new employment, Ms Jaksic was granted leave to attend the Hearing via video conference.
[19] At the Hearing the following witnesses gave written and oral evidence on behalf of Mr Pavlovic:
a. Mr Pavlovic;
b. Mr Andrew Christopher Cooper (Mr Cooper);
c. Mr Daniel Hamilton McCaig (Mr McCaig); and
d. Mr Stuart Allen (Mr Allen).
[20] Mr Cooper is a Senior Equipment Operator at the Huntly Mine and the AWU Convenor charged with representing AWU members employed at the Huntly Mine. Mr Cooper assisted Mr Pavlovic during the disciplinary process.
[21] Mr McCaig is the AWU official responsible for representing AWU members employed at Alcoa sites in Western Australia. Mr McCaig represented Mr Pavlovic at the later stages of the disciplinary process.
[22] Mr Allen is employed as a Bayer Process Operator in Precipitation at the Pinjarra Refinery. He is the Convenor of the AWU Pinjarra Sub-Branch. He gave evidence in relation to a safety incident which had occurred at the Refinery which Mr Pavlovic asserted was comparable to the incident in which he was involved.
[23] The following witnesses provided written and oral evidence on behalf of Alcoa:
a. Mr Michael White (Mr White);
c. Mr Liam Troy Smith (Mr Smith);
d. Mr Nicholas George Bacon (Mr Bacon); and
e. Mr Brett Hodges (Mr Hodges).
[24] Mr White is the Fixed Plant Supervisor at the Huntly minesite and a witness to the incident which led to Mr Pavlovic’s dismissal.
[25] Mr Smith is the Maintenance Manager at the Huntly minesite. Mr Smith was involved in the disciplinary process which resulted in Mr Pavlovic’s dismissal.
[26] Mr Bacon is the Human Resource Manager for Alcoa’s Western Australian bauxite operations. Mr Bacon was involved in the disciplinary process which resulted in Mr Pavlovic’s dismissal.
[27] Mr Hodges is the Huntly Mine Manager and was the decision maker in Mr Pavlovic’s dismissal.
[28] There were a number of inconsistencies in Mr Pavlovic’s evidence, some of which are expressly dealt with elsewhere in this decision, which appear, intended, to paint Mr Pavlovic’s actions in the most favourable light. Where Mr Pavlovic’s evidence differed from other witnesses, particularly in relation to the evidence of Mr White and Ms Jaksic, I have preferred the evidence of other witnesses.
[29] Final written submissions were filed on behalf of Mr Pavlovic on 12 August 2020. Final written submissions were filed by Alcoa on 19 August 2020. Final written submissions in reply were filed on behalf of Mr Pavlovic on 26 August 2020. Final written submissions in reply were filed by Alcoa on 2 September 2020.
[30] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
[31] Mr Pavlovic commenced employment with Alcoa at its Western Australian bauxite mining operations on 27 March 1996. 2
[32] At the time the events which led to his dismissal occurred, he was employed as a Mineworker in Alcoa’s Fixed Plant Department at the Huntly mine. 3
[33] Section 9 of the Mines Safety & Inspection Act 1994 (WA) (MSI Act) requires Alcoa, so far as is reasonably practicable, to provide and maintain at the mine a workplace, plant and systems of work of a kind that its employees are not exposed to hazards. Section 10 requires Alcoa employees, including Mr Pavlovic, to take reasonable care to ensure their own and others health and safety at work. This requires Alcoa employees to comply with instructions given by Alcoa for their own and others’ safety.
[34] Alcoa has a Code of Conduct that applies to all employees, officers and directors of Alcoa Corporation, its subsidiaries and entities it controls (Code). Page six of the Code warns that “Violations of this Code will not be tolerated and may result in disciplinary action or termination of employment”. 4
[35] Page 11 of the Code states that persons to whom the Code applies must practice the following six fundamentals every day:
“1. Follow safe work practices and proactively seek to improve them.
2. Ensure that you and your colleagues are working in safe, reliable and controlled conditions.
3. Before you start work, make sure all safeguards are in place.
4. Adhere to all design plans, permits and safety operating limits.
5. Keep our work environment clean, orderly and safe.
6. Stop work, or stop others, and seek help when you recognise an at-risk situation.”
[36] In his role as a Mineworker, Mr Pavlovic undertook trades assistant work supporting maintenance trades persons working on fixed plant. In this role he was required to undertake isolation and tagging activities associated with the performance of maintenance work. 5
[37] Isolation and tagging activities are required to be performed in accordance with Fixed Plant Tagout/Lockout/Verification Procedures (WAO) (Fixed Plant Procedures) and equipment specific procedures/policies. For this reason, Mr Pavlovic was provided with training on isolation and tagging requirements, which he most recently undertook on 29 May 2019. 6 Mr Pavlovic’s training record reveals that Mr Pavlovic has completed a total of thirteen training packages relating to tagging/isolation, including five training packages in August/September 2015 and 8 packages in May 2019.7
[38] The Fixed Plant Procedures relevantly specify that:
a. Under the heading ‘Philosophy and Compliance’ heading on page 5, that: “Failure of employees and contractors to comply with the requirements of the location tag out/lockout/verification program shall be considered a major and serious violation.”
b. At point 2 under the heading ‘Tagging Rules’ on page 5, ‘Always attach your own WPDT and personal lock to each required isolation device or the common tagging point or the CSE board before commencing work.”
c. At point 4 under the ‘All Personnel’ heading under ‘Responsibilities’ on page 6, “Stop work immediately and resolve unusual or unexpected situations at the moment they arise.”
d. At point 8 under the ‘All Personnel’ heading under ‘Responsibilities’ on page 6, “Ensure full compliance with safe working practices by site specific conditions, work rules, pre-job briefings, training or other requirements of this document within the employee’s control.”
[39] Mr Pavlovic received a Record of Conversation in relation to tagging activities on 17 August 2017 for failing to tag onto the spillage conveyor or apron feeder rivers. He also received a Record of Conversation in relation to tagging activities on 7 and 14 March 2018 for failing to de-isolate a 260 crusher as instructed.
[40] On 24 October 2019, Mr Pavlovic was tasked with undertaking maintenance on the 190 Stacker with 3 other employees:
a. Mr Mick Levco - an Adult Apprentice;
b. Mr Lachie Hays - an Apprentice Mechanical Fitter; and
c. Mr Rocky Brown - the tradesperson whom Mr Pavlovic had been allocated to support (Mr Brown). 8
[41] Mr Pavlovic says that the team were informed that due to a loss in production earlier in the week it was imperative that the maintenance work on the 190 Stacker be thorough so that it would not require further maintenance in the following seven days. 9
[42] Mr Pavlovic says that on 24 October 2019 he was not feeling well and that he had taken antibiotics to treat a chest infection he had been suffering from for about 5 weeks. 10 He says that he had already had time off and says he was reluctant to take more time off because he believed further time off would be viewed negatively by management and his colleagues.11
[43] Maintenance on the 190 Stacker is to be undertaken in accordance with a 190 Stacker Maintenance (HUN) Standard Work Instruction (190 Maintenance Procedure). The 190 Maintenance Procedure relevantly requires, at point 16, the isolation and tag out of the Stacker prior to the performance of washdowns, inspections and maintenance on the 190 Stacker. 12
[44] The isolation of the 190 Stacker is to be undertaken in accordance with the Huntly Stacking Area Tag Out (HUN) policy (Stacking Procedure). The Stacking Procedure relevantly provides:
a. in the first dot point under the heading ‘Tagging’ on page 1, that, “Before access can be gained to any of the Stacker Area equipment, correct isolation and tag-out is mandatory”; and
b. in the fourth dot point under the heading ‘Tagging’ on Page 1, that, “It is the responsibility of the authorised tagger to determine and tag out the correct master key and/or individual isolators to provide his/her self with safe access to the desired work areas.” 13
[45] The performance of maintenance on the 190 Stacker involved the preparation of a Job Safety Analysis (JSA). 14 The preparation of the JSA expressly contemplated tagging requirements. Mr Pavlovic was involved in the preparation of the JSA and signed it.15
[46] Whilst assisting with initial maintenance work, Mr Pavlovic: 16
a. Tagged on to the 190 Stacker tag out box to assist with the installation of the gear box drive;
b. Tagged off to allow electrical personnel to complete rotation/direction testing;
c. Tagged on to complete the installation of the gear box drive on the 190 Stacker; and
d. Tagged off to test run and commission the installed gear box drive.
[47] The 190 Stacker has a single isolation point. 17
[48] Between 4pm and 4.30pm Mr Pavlovic and Mr Brown took a ‘smoko’ break in the crib room. At some time between 4.30pm 18 and 4:40pm19 they departed the crib room by vehicle.20 The crib room is located around 500m from the isolation point for the 190 Stacker.21
[49] In his initial witness statement filed in these proceedings Mr Pavlovic says that: 22
“At 4.30pm … as we got into the vehicle Rocky asked “are we still tagged on the 190 Stacker? Given I did not have my lock with me I said words to the effect of: “I think so”.
[50] I note that in a statement prepared immediately following the incident which led to his dismissal Mr Pavlovic stated that he presumed that he and Mr Brown were still tagged on when they returned to the 190 Stacker. 23 In a subsequent response in the course of the disciplinary process he says that it came as a shock to him that he was not tagged on because he and Mr Brown were sure they were tagged on.24
[51] In his reply witness statement filed in these proceedings, Mr Pavlovic’s evidence with respect to his discussions about whether or not he was tagged out was further expanded to assert that he intended to check that the tags were in place when they arrived at the 190 Stacker but forgot to do so. 25 It appears possible that Mr Pavlovic’s evidence has ‘evolved’ to suit a proposition that the breach was less serious because he and Mr Brown had in fact turned their mind to whether they were tagged on and not entirely disregarded their obligation to ensure that they had isolated the 190 Stacker before commencing work.
[52] I note that in his response to the show cause letter issued in the course of a disciplinary inquiry into the incident for which he was dismissed (Show Cause Letter) Mr Pavlovic says that the alleged conversation about whether or not he and Mr Brown were tagged on occurred at 4.40pm. 26 It appears possible Mr Pavlovic has changed his evidence in order to create a greater time span between the conversation occurring and him reaching the isolation point.
[53] Mr Pavlovic and Mr Brown conducted some visual checks on previous jobs from earlier in the week and arrived at the 190 Stacker at 4:50pm. 27
[54] Mr Pavlovic says that he and Mr Brown entered the 190 Stacker at 5pm and that Mr Brown subsequently climbed into the chute of the 190 Stacker to conduct inspections. 28
[55] The 190 Stacker is connected to a computer system, Experion, which Mr White can access from his office. It is usual, following the completion of maintenance work, to test the equipment which has been worked on, and get it up and running. 29
[56] Experion identifies the status of each piece of equipment as either red, blue, green or yellow. Red means that the equipment has a fault and is unable to run. When equipment is isolated it is marked as red. Blue means that the equipment is live and can normally be started from a remote computer or on the machine. Yellow means the equipment is starting to operate but is not up to speed. Green means that the equipment is running/in operation. 30
[57] At approximately 4:50pm on 24 October 2020, on the understanding that the work on the 190 Stacker was scheduled to be completed before shift end, Mr White logged onto Experion to check the status of the 190 Stacker and saw that it was blue. 31
[58] At approximately 5.05pm, Mr White attended the 190 Stacker to check on the new gearbox drive installation and to start up that equipment to test the installation. On his attendance, he was shocked to find that:
a. Mr Pavlovic was located on the conveyor belt, providing tools to Mr Brown;
b. Mr Brown was located inside the 190 Stacker Chute; and
c. The 190 Stacker was not isolated at that time. 32
[59] Mr White yelled at Mr Pavlovic and Mr Brown that the equipment was not isolated and that they needed to immediately get off the 190 Stacker. 33
[60] Mr White says that he felt physically unwell because had he started the machine and Mr Brown had not been able to exit the chute before the belt started moving he would have been forced under the chute wall and killed or seriously injured before being dropped eight metres onto a bauxite stockpile (the drop itself likely to have resulted in death or serious injury). Mr White says that given where Mr Pavlovic was sitting when he arrived, there was also a chance that Mr Pavlovic could have been dragged into the chute and also seriously injured or killed. 34
[61] Mr Pavlovic says that because the 190 Stacker was in maintenance mode that if it was started then a siren would have sounded and that would have prompted him to pull a safety lanyard near where he was standing which would have halted the machine. 35 However, under cross examination he conceded that the potential consequences of his failure to isolate the 190 Stacker were in fact injury and death.36
[62] Mr White says that he discussed with Mr Pavlovic and Mr White how the situation had occurred and they told him that they had forgotten to isolate the 190 Stacker. 37 Mr Brown asked Mr White multiple times whether he and Mr Pavlovic would lose their jobs. Mr Pavlovic says that Mr White and Ms Jaksic told Mr Brown that they would not be sacked. Mr White and Ms Jaksic were adamant that they did not say this. I prefer Mr White and Ms Jaksic’s evidence in this regard.38
[63] Mr White directed Mr Brown and Mr Pavlovic to tag on, finish the work on the 190 Stacker to make it operational so that production could recommence the following day and then make the area safe. 39
[64] Mr White returned to the office at approximately 5:10pm and reported the incident to Ms Jaksic. She says: “Mr White looked shocked, he looked genuinely really rattled, like a ghost.” 40 This evidence is consistent with Mr White’s evidence with respect to the severity of the incident.
[65] Mr White and Ms Jaksic returned to the 190 Stacker to discuss the incident with Mr Pavlovic and Mr Brown. 41
[66] After a brief discussion, Mr White and Ms Jaksic left to return to the office and instructed Mr Pavlovic and Mr Brown to also attend the office.
[67] Mr White thereafter reported the incident to his direct Supervisor, Mr Ian McCormick, Fixed Plant Superintendent (Mr McCormick).
[68] Mr Pavlovic and Mr Brown attended the office. Mr Pavlovic prepared a written statement in respect of the incident (Incident Statement), as did Mr Brown and Mr White. Mr Pavlovic completed his shift around 6.45pm and went home. 42
[69] Mr Pavlovic returned to work on Monday, 28 October 2019 and was told that a safety investigation into the incident would commence that day. 43 Based on instructions from Mr McCormick both Mr Pavlovic and Mr Brown were barred from performing any safety critical work that day.44
[70] Alcoa conducted an investigation into the incident involving Mr Pavlovic and Mr Brown. 45 The Health & Safety Investigation Report (H&S Report) identified that the root cause of the incident on 24 October 2010 was:46
“Lock out/Tag out & confirm zero energy – not effective. The involved persons did not isolate (assumed they were tagged on, no physical check) the equipment before commencing”.
[71] On Tuesday 29 October 2019, Mr Pavlovic was rostered off work. 47
[72] On 29 October 2019, Mr Hodges, Mr McCormick, Mr Bacon and Mr Simon Carr, the Production Manager, met to discuss the outcomes of the investigation and the action to be taken. 48 As a part of that discussion they considered, inter alia, that the incident involved an uncomplicated isolation, that Mr Pavlovic and Mr Brown knew and understood the tagging process, Mr Pavlovic had previously been issued with Records of Conversation for failing to discharge his tagging obligations, and that Mr Pavlovic had a long employment history with Alcoa which included performance counselling and a written warning. They concluded that Mr Pavlovic’s (and Mr Brown’s) conduct amounted to serious misconduct and decided to issue Mr Pavlovic with a show cause letter.49
[73] On 30 October 2019, Alcoa issued Mr Pavlovic with a show cause letter (Show Cause Letter). 50 The Show Cause Letter set out the facts established in the investigation, identified the legislation and company policies and procedures allegedly breached, and cautioned that the company was contemplating summary dismissal. The Show Cause Letter also made reference to the counselling Mr Pavlovic had received with respect to two prior tagging breaches. The Show Cause Letter informed Mr Pavlovic that he was stood down pending the outcome of the show cause process. 51
[74] Between 30 October 2019 and 1 November 2019, Mr Pavlovic sought and obtained ‘references’ from Ms Jaksic, Mr Micheal Hutchings (his Leading Hand), Mr White and Mr Lee Tregenza (with whom he had previously worked) (References). 52
[75] On 1 November 2019, Alcoa issued a FSI Alert addressing the 24 October 2019 incident, which was sent to all Fixed Plant Maintenance employees (FSI Alert). 53
[76] On 5 November 2019, Mr Pavlovic provided a response to the Show Cause Letter together with the References and a medical certificate. 54
[77] On 11 November 2019, Mr Smith, Mr McCormick and Mr Bacon met again to discuss the show cause responses supplied by Mr Pavlovic and Mr Brown. The participants considered the matters raised by Mr Pavlovic and Mr Brown in detail, but concluded that the termination of Mr Pavlovic and Mr Brown’s employment, on a summary basis, was appropriate due to the seriousness of the incident on 24 October 2019, and their conduct in failing to physically check whether they were tagged on prior to the commencement of work on the 190 Stacker. 55
[78] Mr Bacon and Mr Smith met with Mr Hodges later the same day and recommended to Mr Hodges that Mr Pavlovic be summarily dismissed. 56
[79] A meeting was held on 12 November 2019 between Mr McCormick, Mr Bacon, Mr Cooper and Mr Pavlovic to discuss the outcome of the show cause process. At the conclusion of the meeting, Mr Pavlovic was informed that he was summarily dismissed and was handed a letter of termination (Termination Letter). 57
[80] At the request of Mr Cooper, on 15 November 2019, Mr Mathew Gleeson (Director – Employee Relations & Learning and Development), Mr Hodges and Mr Bacon met with Mr Pavlovic, Mr Cooper and Mr McCaig. During the course of that meeting a proposal was put forward on behalf of Mr Pavlovic that, inter alia, his termination be reversed and he receive a four week suspension and a final warning. 58
[81] On 18 November 2019, Mr Gleeson advised Mr McCaig that Alcoa would not accept the proposal but that Mr Pavlovic could be permitted to resign from his employment and be paid notice. Mr Pavlovic chose not to accept this proposal. 59
[82] Mr Pavlovic says that since his dismissal he has struggled to sleep. He says that he was referred by Centrelink to a job agency and has been attending regularly but has been unable to secure alternative employment. He says that his age and his caring obligations for his mother prevent him from accepting FIFO employment and that this limits his employment prospects significantly. 60
[83] On 2 December 2019, Mr Pavlovic filed the Application.
[84] Mr Pavlovic submits it would be appropriate for the FWC to order his reinstatement and continuity of service. He accepts that, based on prior authority, it would not be appropriate to make an order for lost renumeration given he was dismissed for a serious safety breach.
Is Mr Pavlovic protected from unfair dismissal?
[85] An order for reinstatement or compensation may only be issued if Mr Pavlovic was unfairly dismissed and Mr Pavlovic was protected from unfair dismissal at the time of his dismissal.
[86] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
a. the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
b. one or more of the following apply:
i. a modern award covers the person;
ii. an enterprise agreement applies to the person in relation to the employment;
iii. the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[87] Mr Pavlovic commenced employment with Alcoa, which is a national system employer, on 27 March 1996 and was dismissed on 12 November 2019. 61 There is no dispute, and I am satisfied that the Alcoa World Alumina Australia W.A. Operations AWU Enterprise Agreement 2014 (Agreement) applied to his employment at the time of his dismissal.62 Consequently, I am satisfied that Mr Pavlovic was protected from unfair dismissal.
Was Mr Pavlovic unfairly dismissed?
[88] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was harsh, unjust or unreasonable;
c. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d. the dismissal was not a case of genuine redundancy.
Was Mr Pavlovic dismissed?
[89] Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.
[90] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[91] There was no dispute, and I find, that Mr Pavlovic’s employment with Alcoa was terminated at the initiative of Alcoa. 63
[92] I am therefore satisfied that Mr Pavlovic has been dismissed within the meaning of section 385 of the FW Act.
Was Mr Pavlovic’s dismissal a case of genuine redundancy?
[93] Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
a. the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
b. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[94] It was not in dispute, 64 and I find, that Mr Pavlovic’s dismissal was not due to Alcoa no longer requiring his job to be performed by anyone because of changes in Alcoa’s operational requirements.
[95] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Was Mr Pavlovic’s dismissal consistent with the Small Business Fair Dismissal Code?
[96] Section 388 of the FW Act provides that a person’s dismissal was consistent with the SBFD Code if:
a. immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
b. the employer complied with the SBFD Code in relation to the dismissal.
[97] It was not in dispute, 65 and I find, that Alcoa was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of 14 employees.
[98] As Alcoa is not a small business employer within the meaning of the FW Act, I am therefore satisfied that the SBFD Code does not apply to Mr Pavlovic’s dismissal.
Was the Application made within the period required?
[99] Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.
[100] Section 394(2) of the FW Act requires that the Application is to be made within 21 days after the dismissal took effect.
[101] It is not disputed, and I find, that Mr Pavlovic was dismissed from his employment on 12 November 2019 and made the Application on 2 December 2019. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
Was the dismissal harsh, unjust or unreasonable?
[102] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 66
[103] Section 387 of the FW Act provides that, 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);
b. whether the person was notified of that reason;
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
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;
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
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.
[104] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.67
Was there a valid reason for the dismissal related to Mr Pavlovic’s capacity or conduct?
[105] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”68 and should not be “capricious, fanciful, spiteful or prejudiced.”69 However, the FWC will not stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.70
[106] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.71 “The question of whether the alleged conduct took place and what it involved is to be determined by the FWC on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 72
[107] It is not disputed, 73 and I find based on the evidence before me and the submissions of the parties, that Mr Pavlovic’s safety breach on 24 October 2019 constitutes a valid reason for his dismissal.
Was Mr Pavlovic notified of the valid reason?
[108] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,74 and in explicit,75 plain and clear terms.76
[109] The reasons for the decision to terminate Mr Pavlovic’s employment were communicated to Mr Pavlovic on 12 November 2019 by Mr McCormick and confirmed in the Termination Letter which was provided to Mr Pavlovic on the same day.
[110] It was not disputed,77 and I am satisfied, that Mr Pavlovic was notified of the reasons for his dismissal.
Was Mr Pavlovic given an opportunity to respond to any valid reason related to his capacity or conduct?
[111] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.78
[112] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.79 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance, and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.80
[113] Mr Pavlovic was provided with an opportunity to respond to the reasons for termination through the provision of a response to the Show Cause Letter issued to him on 30 October 2019. Mr Pavlovic took that opportunity and provided a response on 5 November 2019.
[114] It was not disputed,81 and I am satisfied, that Mr Pavlovic was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did Alcoa unreasonably refuse to allow Mr Pavlovic to have a support person present to assist at discussions relating to the dismissal?
[115] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[116] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 82
[117] Mr Pavlovic had support persons present during the discussions on 30 October 2019 and
12 November 2019.
[118] There is no dispute,83 and I am satisfied that Alcoa did not unreasonably refuse to allow Mr Pavlovic to have a support person present at discussions relating to his dismissal.
Was Mr Pavlovic warned about unsatisfactory performance before the dismissal?
[119] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of Alcoa’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[120] Where an employer is substantial, and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.84
[121] Alcoa is a large business and no allegations of a denial of procedural fairness have been raised by Mr Pavlovic.
[122] I am satisfied that the procedures followed by Alcoa were appropriate having regard to the size of its enterprise.
To what degree would the absence of dedicated human resource management specialists or expertise in Alcoa’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[123] The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”85
[124] Alcoa’s enterprise did not lack dedicated human resource management specialists and expertise.
What other matters are relevant?
[125] Section 387(h) requires the FWC to take into account any other matters that the FWC considers relevant.
[126] Mr Pavlovic submitted that the following other matters are relevant to the FWC’s consideration of whether the dismissal was harsh, unjust or unreasonable:
a. Alcoa failed to communicate the disciplinary consequences of the conduct in advance of the conduct occurring;
b. Mitigating circumstances existed;
c. Alcoa’s decision was flawed because Alcoa made factual errors in the decision making process;
d. The disciplinary consequences were predetermined;
e. Summary dismissal was disproportionate to the misconduct;
f. The outcome is inconsistent with the treatment of others in like circumstances;
g. The disciplinary outcome was in breach of clause 18(a) of the Agreement; and
h. The dismissal is inconsistent with the outcome in other decisions made by the FWC.
[127] Alcoa submitted that Mr Pavlovic’s conduct post termination is relevant to the FWC’s consideration of whether the dismissal was harsh, unjust or unreasonable:
Failure to communicate disciplinary consequences
[128] Mr Pavlovic submits that his dismissal was harsh because Alcoa failed to clearly communicate to him prior to the incident that a breach of isolation or tagging procedures would lead to dismissal.
[129] He points to statement contained in the Code at page 6 that “Violations of the Code will not be tolerated and may result in disciplinary action or termination of employment” 86 and notes that in the ‘Operating Safely’ section, the Code contains the following question and answer:87
“Q: I work in a plant. One of my colleagues does not always follow the energy isolation (lock-tag-verify) procedure before starting a task. Should I say something?
A: Yes. The procedure is in place to prevent hazardous energy from fatally or seriously injuring someone. By not following the procedure, your colleague risks a life threatening injury. Speak up, stop work and help.”
[130] He says that none of the content described above provides an indication to an employee that they are likely to be dismissed, let alone summarily dismissed, for an isolation or tagging breach.
[131] Furthermore, he says that there does not appear to be any statement that isolation or tagging breaches will lead to dismissal in the Fixed Plant Procedures, 88 or the 190 Stacker Maintenance Procedures.89
[132] Mr Pavlovic also points to the evidence of Mr Cooper and Mr McCaig that prior to Mr Pavlovic’s dismissal, it was not understood by Alcoa employees that dismissal would be a consequence for an isolation or tagging breach. 90
[133] Mr Pavlovic submits that the evidence of Mr Cooper and Mr McCaig is consistent with the initial response of Mr White and Ms Jaksic on 24 October 2019, which he says was to indicate that neither he or Mr Brown would get sacked over the incident. 91 Mr Pavlovic also submits that it would be unlikely that four colleagues would provide references if they believed that such a safety breach would ordinarily lead to dismissal.
[134] Alcoa submits that the evidence clearly demonstrates the consequences for a breach of tagging requirements can involve the termination of employment and that both Mr Pavlovic’s and Mr Brown’s conduct shortly after the incident on 24 October 2019 confirms that they were both acutely aware of this.
[135] It is difficult to believe Mr Pavlovic’s claim that he was unaware that a breach of safety might not result in disciplinary action up to and including dismissal. It is expressly stated in the section of the Code cited by Mr Pavlovic that a violation of the Code can lead to dismissal.
[136] Page 11 of the Code states that persons to whom the Code applies must practice the following six fundamentals every day:
“1. Follow safe work practices and proactively seek to improve them.
2. Ensure that you and your colleagues are working in safe, reliable and controlled conditions.
3. Before you start work, make sure all safeguards are in place.
4. Adhere to all design plans, permits and safety operating limits.
5. Keep our work environment clean, orderly and safe.
6. Stop work, or stop others, and seek help when you recognise an at-risk situation.”
[137] The Fixed Plant Procedures states that:
“Failure of employees and contractors to comply with the requirements of the location tag out/lockout/verification program shall be considered a major and serious violation.”
[138] The Fixed Plant Procedures make it clear that a breach of the requirements of the location tag out/lockout/verification program shall be considered a major and serious safety violation. Mr Pavlovic and Mr McCaig agreed that the statement was unambiguous. 92
[139] It is not surprising or unusual that Fixed Plant Procedures or the 190 Stacker Maintenance Procedures do not set out the consequences of a failure to adhere to the procedures given the documents are procedural documents setting out the technical process requirements.
[140] It is clear from Mr Brown’s statement “will we be getting the sack over this?” made shortly after the incident, and recalled by Mr Pavlovic in his own witness statement, that Mr Brown was aware that their conduct was of a such a serious nature that it might inevitably lead to dismissal.93 In fact, Mr White’s evidence is that Mr Brown asked him multiple times whether he would be sacked. 94 Mr Pavlovic’s own evidence was that nearly an hour after the incident he was still “feeling physically sick” since being told he had not tagged on.95 He also described the incident in his response to the Show Cause Letter as a ‘serious near miss’.
[141] Mr Pavlovic initially sought to ‘play down’ Mr White’s response to finding Mr Pavlovic and Mr Brown on the non-isolated equipment. In his initial witness statement, Mr Pavlovic gave evidence that Mr White told him he wanted to check if the gearbox was running ok before he noted that Mr Pavlovic and Mr Brown were not tagged on. 96 Only later did Mr Pavlovic concede that Mr White’s first response was to inform them that they were not tagged on.97
[142] The evidence of both Mr White and Ms Jaksic is that they definitely did not tell Mr Pavlovic and Mr Brown that they would not be sacked. Both were aware that they were not the decision makers in that process. Ms Jaksic says that in her view, which she subsequently shared with Mr Pavlovic, was that they would be dismissed and that if she was the decision maker she would have dismissed them. 98
[143] The References supplied by Mr Pavlovic with his response to the Show Cause Letter do not address the incident itself or whether termination would be an appropriate outcome. They were not provided by any person who was a decision maker in the disciplinary process. It appears that the References were provided as personal references and that they were given on the presumption that Mr Pavlovic was likely to be dismissed and might need them for future employment. 99
[144] For example Ms Jaksic gave evidence that when she provided the reference she had a conversation with Mr Pavlovic “… that he would probably lose his job given the fact that he actually didn’t verify the isolation and he was working on live plant.” 100 She also says that she explained that if she had been the decision maker she would have terminated his employment. She told him:101
“…you’re missing the point, you’re concentrating on the loss of a job, whereas what you’ve not seeing is that you could have lost your life.”
[145] She says that the purpose of her reference was to explain her experiences with him. It was not her intention that it be relied on to indicate that she agreed that he should remain employed. She says she was very disappointed that Mr Pavlovic has relied on the reference to justify his claim that his dismissal is unfair. 102
[146] Mr Pavlovic’s assertion that he was unaware that a possible disciplinary consequence of his failure to isolate the 190 Stacker might be the termination of his employment does not sit easily with his concession that the very same conduct formed a valid reason for his dismissal. Mandatory isolation of live equipment before maintenance is a recurrent feature of the ‘golden safety rules’ applying across industries and locations throughout Australia.
[147] I am satisfied based on the evidence before me that Mr Pavlovic ought to have been aware that a failure to isolate equipment in circumstances which could result in himself or others being exposed to the risk of serious injury or death might result in disciplinary action up to and including the termination of his employment.
Mitigating circumstances
[148] Mr Pavlovic says that there are a number of factors which mitigate against the seriousness of his conduct making his dismissal harsh in the circumstances, namely that: 103
a. When he and Mr Brown discussed whether the 190 Stacker was isolated they were not in the vicinity of the machine. Mr Pavlovic believed the machine was isolated because he did not have his lock with him. 104
b. He and Mr Brown entered the 190 Stacker via an unusual entry point using a ladder, which meant they did not pass the isolation point prior to entering the machine. 105
c. It cannot be said that he deliberately failed to isolate the 190 Stacker or was reckless as to isolation requirements because he and Mr Brown had already isolated the 190 Stacker on several occasions that day. 106
d. He was suffering fatigue from an upper respiratory tract infection at the time of the incident. 107
e. The FSI Alert accepted that the following were contributing factors to the incident: 108
• Distractions.
• End of shift.
• Time pressures.
• Performing multiple tasks on the day at various locations.
• Frequent isolation and de-isolation of the machine on the same day.
f. The absence of third party verification.
Mitigating Factor – Prior Discussions
[149] Mr Pavlovic accepts that he failed to tag on and isolate the 190 Stacker before commencing work in the afternoon of 24 October 2020. 109
[150] Mr Pavlovic’s failure to tag on and isolate the 190 Stacker was in contravention of his obligations pursuant to:
a. Section 10 of the MSI Act, to take reasonable care to ensure his own and others safety and health at work.
b. Clause 6.5(b) of the Agreement, insofar as he failed to comply with relevant occupational, health and safety standards and regulations determined by Alcoa.
c. The Fixed Plant Procedures, insofar as he failed to attach his own personal lock, stop work immediately and resolve unusual or unexpected situations as they arose (in this case when he and Mr Brown were unsure whether they had applied their tags) and ensure he complied with the safe working practices.
d. The 190 Maintenance Procedure, insofar as he failed to isolate and tag out the 190 Stacker prior to performing maintenance.
e. The Huntly Stacking Procedure, insofar as he failed to correctly isolate and tag out before accessing the 190 Stacker.
[151] The evidence reveals that Mr Pavlovic had received extensive training on his tagging obligations. 110 The breach involved, not just a failure to fully comply with a tagging process, but a complete failure to tag at all.
[152] Mr Pavlovic was involved in the development of the JSA which expressly contemplated the requirement to tag and isolate before performing allocated work on the 190 Stacker on 24 October 2019. 111
[153] Mr Pavlovic’s evidence at Hearing is that he and Mr Brown expressly discussed the issue of whether they had isolated the machine before recommencing work and yet did not take steps to physically check that they had done so. That conversation is alleged to have occurred within 500m of the 190 Stacker and on at least one version of Mr Pavlovic’s evidence only 10 minutes before he arrived at the 190 Stacker. In my view, the failure to check that the equipment was tagged and isolated having consciously contemplated whether it was, is more serious than merely forgetting to tag and isolate at all.
Mitigating Factor – Multiple Isolations
[154] Mr Pavlovic also asserted that his performance of multiple isolations on 24 October 2019 should be considered a mitigating factor when assessing the seriousness of his misconduct.
[155] The evidence is that the performance of multiple tasks and frequent isolation/de-isolation processes during the course of the day was not unusual for workers like Mr Pavlovic. 112
[156] I am not satisfied that the fact that Mr Pavlovic undertook multiple isolations on the day of the incident mitigates against the seriousness of his conduct. In fact, to the contrary, the repetitive nature of the isolations should have embedded the practice of isolation into his work routine.
Mitigating Factor – Entry Point
[157] Mr Pavlovic says that he and Mr Brown entered the 190 Stacker at 5pm via a ladder, which is not the usual entry point, and meant that they did not pass the tagging box before commencing work. 113 Mr Pavlovic asserts that his entry onto the 190 Stacker via an unusual entry point on 24 October 2020 provides an excuse for his failure to tag on and isolate the 190 Stacker before performing work.
[158] The circumstantial evidence suggests that Mr Pavlovic may have in fact entered via the normal entry. 114 For example, Mr White gave evidence that when he arrived at the scene Mr Pavlovic’s vehicle was parked so that the normal entry point was the closest and obvious point of entry.115
[159] Even if Mr Pavlovic did not use the normal entry point the evidence is that the control room isolation point is only 6 metres from the ladder Mr Pavlovic used to access the 190 Stacker. Relevantly, Mr Pavlovic conceded that he did pass the control room isolation point whilst working on the 190 Stacker and even though he had walked past the control room, he did not look inside to see whether he was tagged on.
[160] Mr Pavlovic did so despite not more than 30 minutes, and perhaps less than 10 minutes, earlier discussing with Mr Brown the possibility that they were not tagged on.
[161] Regardless of whether an employee passes the isolation point before commencing work, their obligation is to isolate live equipment before commencing work, and the necessity of them to do so for their own and others safety remains unchanged.
[162] I am not satisfied that Mr Pavlovic’s alleged entry point mitigates against the seriousness of his conduct.
Mitigating Factor - Fatigue
[163] Mr Pavlovic has tendered evidence that he was suffering from fatigue caused by an upper respiratory tract infection at or around the time of the incident, and that this should be considered a mitigating factor.
[164] Mr Pavlovic is obliged by the MSI Act and Alcoa’s policies to report any incapacity to perform work safely. Mr Pavlovic had received training on fatigue management. 116 However, he conceded under cross examination that he did not:117
a. report to his supervisor that he was unwell that day;
b. stop work that day due to him being unfit to continue; or
c. consider that he was unfit to work that day
[165] He accepted that there was an obligation to stop work in the event of a safety hazard (which was also accepted by Mr McCaig 118 and Mr Cooper119).120
[166] To the extent that Mr Pavlovic’s health adversely impacted on his inability to safely and properly perform his duties, he was obliged to act to protect his own, and others, safety by reporting his fatigue or ill health to his supervisor and stopping work. His failure to act in such circumstances weighs in favour of his dismissal rather than mitigates against it.
Mitigating Factor - FSI Alert
[167] Mr Pavlovic submits, that in the FSI Alert, Alcoa accepted that the following were contributing factors to the incident and that these factors should be considered a mitigating factor in the seriousness of his misconduct:
a. distractions;
b. end of shift;
c. unplanned job;
d. time pressures;
d. performing multiple tasks on the day at various locations; and
e. frequent isolation and de-isolation of the machine on the same day.
[168] The FSI Alert was issued prior to the conclusion of the safety investigation and is intended to identify as an interim measure any potential contributing factors to a safety incident. The factors identified in the FSI Alert are factors which the evidence suggests commonly or routinely exist. While efforts are made to minimise them, they are factors which may not ever be entirely excluded and for which employees are trained (for example, that multiple isolations occur in a single day, 121 that isolations may occur towards the end of a shift, that time pressures might exist122).123 For example, Mr Smith gave evidence that:124
“The root cause for the incident remained and will always remain the fact that they failed to isolate the piece of equipment. During investigation, you have to go through the process to look at every possible contributing factor. The contributing factors that were stated there are common and completely well understood in the environment. There is always time pressure in an operation. There is always high workload in a maintenance shutdown, that is not new and different, that is common place and it's why we train our employees so highly and is why we spend so much time ensuring that they don't succumb to those. That we are very clear about no matter what, putting in the controls are the most important thing, regardless of whether there's time pressure, regardless of whether there's a high workload. Ensuring the employee's safety is paramount and that's why you would never work on a piece of equipment without isolating it first.”
[169] The evidence does not suggest that any of the factors identified in the FSI Alert were exceptional or unusual. Nor that the factors identified in the FSI Alert were, in combination on that particular date, exceptional or unusual. If those factors were individually or collectively such that they made the workplace unsafe by compromising Mr Pavlovic or Mr Brown’s capacity to safely perform their duties (including isolation) both Mr Pavlovic and Mr Brown bore a personal obligation to bring those concerns to the attention of Alcoa management. They did not do so.
[170] None of the factors identified in the FSI Alert prevented Mr Pavlovic or Mr Brown from safely isolating the 190 Stacker before commencing work.
[171] The H&S Report concluded that the root cause of the incident on 24 October 2019 was: “persons did not isolate (assumed they were tagged on, no physical check) the equipment before commencing”.
[172] I am not satisfied that the factors identified in the FSI Alert were individually or collectively so exceptional, unusual or significant such that they mitigated against the seriousness of Mr Pavlovic’s failure to isolate and tag the 190 Stacker before commencing work.
Mitigating Factor - The absence of third party verification.
[173] Mr Pavlovic submits that Alcoa’s failure to implement a third party verification process contributed to the incident occurring. A third party verification process contemplates a separate individual checking that tagging has been done correctly. This type of system operates in its refineries where highly complex tagging/isolations occur, and was implemented briefly for one month after the incident involving Mr Pavlovic.
[174] This system of third party verification requires the third party to be aware that the tagging was occurring. Mr Allen accepted that third party verification of tagging would not identify a tagging flaw if a job hadn’t been tagged out. 125 The evidence is that such a system is expensive to implement.
[175] Based on the evidence before me I am not satisfied that a third party verification system was feasible or would have been effective in the circumstances to prevent the incident occurring.
Factual errors in Alcoa’s decision-making process
[176] Mr Pavlovic submits that his dismissal was harsh because Alcoa took factually wrong matters into account when deciding to dismiss him.
[177] The Termination Letter refers to Mr Pavlovic providing a “response to [his] previous discipline record related to safety”. It is agreed that this is a reference to the two Records of Conversation referred to in the Show Cause Letter. Mr Pavlovic asserts a record of conversation does not constitute a disciplinary record. He relies on Mr Cooper’s evidence of an email sent by Mr Gleeson in 2019, in which Mr Gleeson states that Alcoa does not regard Records of Conversation as disciplinary notes, and on the evidence of Mr McCaig which asserts that this was also his understanding.
[178] In addition, the Termination Letter records that Mr Pavlovic and Mr Brown “entered the loading chute” on the 190 Stacker. Mr Pavlovic says that he did not enter the loading chute. Mr Pavlovic submits that this is significant because entering the loading chute without having the machine isolated carries a greater risk of injury than standing on the conveyor.
[179] Alcoa submits that any errors in description of Mr Pavlovic’s conduct in the Termination Letter issued to Mr Pavlovic on 12 November 2019 do not impact the decision making of Alcoa or the fairness of the decision to terminate.
[180] Alcoa submits that the Records of Conversation can be characterised as a counselling document and that it was not inappropriate for regard to be had to them as part of its decision making. 126
[181] The Record of Conversation is captured in a template document. It has all the components common to a written warning. For example, it records, inter alia, the employee’s name and number, the nature and date of the incident the subject of the conversation, details of the content of the conversation and the name and signature of any witnesses to the conversation. Relevantly it states at the top in bold “Retained on HR personnel file.” 127
[182] The evidence suggests that a Record of Conversation is a ‘light touch’ form of counselling or guidance to put an employee on notice that a problem is occurring or has the potential to occur. It appears designed for circumstances when the conduct in question and/or the circumstances in which the conduct occurs, makes formal disciplinary action unnecessary or excessive. That an employer has had cause to alert or remind an employee about particular conduct in the past is relevant to disciplinary action in relation to subsequent misconduct. While the Records of Discussion might arguably have been misdescribed in the Termination Letter, it was raised as a relevant factor in the Show Cause Letter to which Mr Pavlovic had an opportunity to, and did in fact, reply in his response.
[183] I am therefore not satisfied that any errors in description of Mr Pavlovic’s conduct in the Termination Letter, issued to Mr Pavlovic on 12 November 2019, impacted on the decision making of Alcoa or the fairness of the decision to terminate.
[184] In relation to the assertion that Mr Pavlovic entered the chute, Alcoa submitted that it was not unreasonable for it to conclude that Mr Pavlovic had (and include that information in the Show Cause Letter and the Termination Letter) because in his initial Incident Statement in his description of the incident, Mr Pavlovic stated:
“check hydraulic drive for visual leaks. Then went into 190 chute to check the chute for wear”
[185] While Mr Pavlovic now describes the finding that he entered the loading chute as a significant error, he did not raise this in the show cause process, despite providing a detailed show cause response.
[186] It is unclear whether or not Mr Pavlovic entered the loading chute at any point. Certainly, when he was observed by Mr White he was not standing in the chute, however he was also not sufficiently close to Mr Brown to have passed tools to Mr Brown (a key element of his duties). 128 Under cross-examination he says that he stood outside the chute and threw tools to Mr Brown aiming for them to land at his feet. Given his own evidence that he presumed the 190 Stacker was isolated, it is quite possible that he did in fact enter the chute. This may well explain why he did not raise a concern at the time that the Show Cause Letter noted that he had entered the chute.
[187] Regardless of whether he entered the chute or not, the fact remains that he failed to isolate the 190 Stacker. The consequence of failing to isolate the 190 Stacker is that Mr Brown (who did enter the chute) could have suffered serious injuries or have been killed. 129 It is not determinative that the isolation breach did not cause injury or even that it may not have caused an injury. Isolation procedures exist to ensure that on no occasion can injuries or fatalities occur.
[188] In his Submissions in Reply, Mr Pavlovic alleged a further factual error was contained in Alcoa’s decision making process. He says that Mr Smith and Mr Hodges erroneously believed that Mr Pavlovic and Mr Brown were in the vicinity of the 190 Stacker when they discussed whether or not they were tagged out. Mr Pavlovic says that he was near the crib room. 130
[189] The evidence is that Mr Pavlovic discussed with Mr Brown whether or not they were tagged out no more than 30 minutes (and perhaps as little as 10 minutes) and 500 metres from commencing work on the 190 Stacker. The conversation occurred in a time frame and/or vicinity of the 190 Stacker.
[190] Regardless of where and when the conversation occurred, the fact remains that, notwithstanding apparently having some doubts as to whether they were tagged on, Mr Pavlovic and Mr Brown commenced work without checking that the 190 Stacker was isolated.
Disciplinary outcome was predetermined
[191] Mr Pavlovic alleges that Alcoa’s key decision makers (Mr Smith, Mr Hodges and Mr McCormick) had already formed a view that he should be dismissed on 24 October 2019. Mr Pavlovic submits that it was inappropriate and unfair for Alcoa’s key decision makers to already be doing so before the formal investigation process had even commenced. 131
[192] Alcoa submitted that it was not inappropriate for Mr Hodges, Mr Smith and Mr McCormick to hold a view that termination may be an outcome of the incident, as it involved an undisputed and serious breach of a basic and fundamental safety obligation.
[193] The preliminary views of Mr Hodges, Mr Smith and Mr McCormick are consistent with Alcoa’s submissions and evidence that the likely consequences of a safety breach of this nature were well known in the workplace. It is also consistent with Mr Pavlovic’s own evidence that Mr Brown understood immediately following the incident that his employment was in jeopardy, hence his question to Mr White as to whether he would be sacked.
[194] The evidence is that Mr McCormick, Mr Smith, Mr Hodges and Mr Bacon considered a variety of mitigating factors including those identified in the Safety Investigation and Mr Pavlovic’s employment record before deciding to issue the Show Cause Letter. 132
[195] The evidence demonstrates that the decision to terminate was not made on 24 October 2019, but was actually made only on 11 November 2019, after Mr Pavlovic was provided an opportunity to respond to the Show Cause Letter. 133
[196] The evidence is that the decision makers took into account the content of Mr Pavlovic’s response to the Show Cause Letter and other potentially mitigating factors before the decision to terminate Mr Pavlovic’s employment was made. 134
Summary Dismissal
[197] Mr Pavlovic submitted that his failure to isolate the 190 Stacker was an unintentional mistake that cannot reasonably justify a decision to summarily dismiss him. He says that he was permitted to perform regular duties after the incident on 24 October 2019 135 and again on 28 October 2019,136 and this was completely inconsistent with the proposition that his misconduct was serious enough to warrant summary dismissal.
[198] There is no doubt that summary dismissal that is disproportionate to the misconduct may support a conclusion that a termination was harsh, despite the existence of a ‘valid reason’ for termination.
[199] Alcoa submitted that Mr Pavlovic’s conduct constituted serious misconduct as contemplated by Regulation 1.07 of the Fair Work Regulations 2009 (FW Regulations) and justified summary dismissal. Regulation 1.07 defines serious misconduct as follows:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.”
[200] In support of the submissions that Mr Pavlovic’s conduct was wilful and/or deliberate behaviour that was inconsistent with his contract of employment and thus justified his summary dismissal, Alcoa point to [25] of Mr Pavlovic’s witness statement where he stated:
“At 4:30pm Rocky and I went back in the vehicle, as we got into the vehicle Rocky asked: “are we still tagged on the 190 Stacker?” Given I didn’t have my lock with me, I said words to the effect of: “I think so””
[201] Alcoa says that this evidences a deliberate decision not to check whether or not he was tagged on in circumstances where he passed only a few metres from the single isolation point where he could have readily ascertained his tagging status and easily prevented risk to his own, and Mr Brown’s, health and safety.
[202] In addition, or in the alternative, Alcoa submit that his conduct created a serious and imminent risk to the health and safety of himself and Mr Brown. Alcoa say that Mr Pavlovic was clearly aware of the seriousness of the incident given his evidence that he felt physically ill immediately after he became aware that the machine was not isolated, and he continued to feel ill more than an hour later. 137
[203] Consistent with the view of the Full Bench of the FWC in Sharp v BCS Infrastructure Support Pty Limited, 138 I am not of the view that Alcoa need necessarily demonstrate that Mr Pavlovic’s conduct satisfies the definition of serious misconduct in Regulation 1.07 for his conduct to justify Mr Pavlovic’s summary dismissal:
“The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.
It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts.” 139
[204] To the extent that the definition in Regulation 1.07 in the FW Regulations is relevant, I am satisfied on the evidence before me that Mr Pavlovic’s failure to isolate and tag the 190 Stacker caused serious and imminent risk to the health and safety of himself and/or Mr Brown.
[205] While Mr Pavlovic disputed the seriousness of the risk to his and Mr Brown’s health and safety, 140 in his reply to the Show Cause Letter, Mr Pavlovic described the incident as a “serious near miss” and in cross-examination he conceded that injury and even death were a possible consequence of his failure to isolate and tag the 190 Stacker before commencing work on it.
[206] Mr Pavlovic did not wilfully refuse to isolate and tag out the 190 Stacker, however he was negligent in failing to do so. Given the seriousness of the consequences of his failure to do so in working circumstances which were not unusual or exceptional, I accept that his conduct struck at the heart of Alcoa’s confidence and trust that he could safely perform his duties.
[207] I am satisfied on the evidence before me that his failure to isolate and tag the 190 Stacker caused serious and imminent risk to the health and safety of himself and/or Mr Brown. I am also satisfied that a failure to isolate and tag equipment in circumstances where:
a. there is no dispute that he fully understood his obligations to do so;
b. he was adequately trained to be able to;
c. the isolation was not complex;
d. the isolation point was near to work location;
e. the failure to isolate and tag out could have had catastrophic results; and
f. no unusual or exceptional mitigating circumstances existed (other than his fatigue for which he bore an onus to safely manage),
and in circumstances where he admits that he discussed whether he was tagged on not long or far from when and where he commenced work, could constitute misconduct for which summary dismissal was a proportionate and appropriate remedy.
[208] In addition, I note that Mr Pavlovic was given the opportunity to resign on notice and chose not to do so.
[209] Mr Pavlovic says that he was permitted to perform regular duties after the incident on 24 October 2019 141 and again on 28 October 2019.142 He submitted that this was inconsistent with the proposition that his misconduct was serious enough to warrant summary dismissal.
[210] Alcoa submitted that it was appropriate for Mr White to direct Mr Pavlovic and Mr Brown to restore the 190 Stacker to its operational state after the incident, given that it is not in dispute that Mr Pavlovic and Mr Brown were capable of correctly undertaking the task.
[211] The evidence is that, on 24 October 2020, Mr White directed Mr Brown and Mr Pavlovic to tag on and finish the work on the 190 Stacker, so it was ready to operate, and make the area safe before going to the office to make a statement. 143 On the evidence before me, these tasks did not take them long.
[212] Mr Pavlovic and Mr Brown were barred from performing any safety critical work on 28 October 2019 and after that date were suspended from duties. 144
[213] On the evidence before me, the conduct of Alcoa with respect to the duties which Mr Pavlovic was required to perform between the incident and his dismissal were not inconsistent with his dismissal being of sufficient seriousness to warrant summary dismissal.
Inconsistent Treatment
[214] Mr Pavlovic submits that his dismissal is harsh because isolation breaches by other Alcoa employees has not resulted in their dismissal.
[215] Mr Cooper says he is not aware of any Alcoa employee being dismissed for an isolation or tagging breach during his time assisting AWU members working for Alcoa. 145 Mr Pavlovic also points to the evidence of Mr McCaig, that he is also not aware of any other Alcoa employees being dismissed for an isolation or tagging breach.
[216] I note that Mr McCaig caveated his assertion stating that he was not aware of any employees being dismissed for a safety breach in relation to a first offence. 146 It is also relevant to note that Mr McCaig conceded in cross examination that Mr Pavlovic’s failure to tag at all was unique in his experience.147
[217] Mr Smith gave evidence of an instance where a decision was taken to terminate the employment of an employee for a tagging breach. The employee concerned ultimately separated from Alcoa by way of resignation. 148
[218] In his initial witness statement, Mr Cooper identified seven of what he described as comparable previous isolation breaches by Alcoa employees that have not led to the relevant employee being dismissed. 149 Mr Smith provided evidence in his initial witness statement that one of those incidents did not involve any Alcoa employees and explained how the remaining incidents were not comparable.
[219] It appears that Mr Pavlovic, through his closing submissions, narrowed his submission of inconsistent treatment to two of these incidents and a third incident, which occurred in 2018, which was first raised during the cross examination of Mr Bacon. 150
[220] In relation to the first of these three incidents, Mr Pavlovic submits that the employee committed a comparable breach of Alcoa’s isolation procedures on 25 February 2019 by failing to check whether a transformer was isolated, resulting in his electrocution and hospitalisation. The employee in question was not dismissed but was issued with a final written warning, directed to deliver presentations to employees about his breach and to undergo re-training. 151
[221] Alcoa submit that this incident is distinguishable from the incident involving Mr Pavlovic because the employee in question had tagged out the relevant equipment and the tag had been removed by others, whereas Mr Pavlovic failed to isolate and tag out the 190 Stacker altogether. Alcoa further submit that the decision not to terminate the employee reflected a different management structure and system of work which then operated at the Refinery where the incident occurred. The implication being that the employee in question would have faced a more severe disciplinary outcome, if the incident had occurred at the mine rather than the Refinery. 152
[222] Mr Allen, who provided evidence on behalf of Mr Pavlovic in respect of the incident, conceded that he was not there at the time of the incident, was not involved in the incident in any way and was not involved in the investigation and reporting process. The evidence which he could give was therefore quite limited. Mr Allen did not disagree with a proposition that the employee in question had properly tagged out the equipment and that others had not communicated to the employee that the equipment he had tagged onto had been de-isolated. Mr Allen agreed that the refining and mining parts of Alcoa’s business had been, until relatively recently, two discrete business units with their own management structures and different arrangements in place for some work. 153
[223] In the second of the incidents relied upon by Mr Pavlovic as demonstrating inconsistent treatment, the employee concerned failed to realise that he needed to attach his personal lock to a belt reeler sitting inside a conveyor. 154
[224] The evidence is that the conveyor was tagged, isolated and de-energised, that there was no pre existing tagging procedure for the belt reeler and that the employee had checked that there was no power to the reeler. The tagging breach did not involve a failure to tag at all, did not involve the performance of work on energised equipment, there was no risk of serious injury and did not involve a breach of a known tagging procedure. In contrast, on his own admission Mr Pavlovic did not isolate the 190 Stacker at all, worked on energised equipment and was in breach of a known tagging procedure. 155
[225] In the third case relied upon by Mr Pavlovic as demonstrating inconsistent treatment, the employee did not tag a chassis of a truck which he was working on. The evidence is that the engine of the truck had been removed. The employee involved was not dismissed, however he was suspended for three weeks and given a first and final warning. 156
[226] Mr Smith gave evidence that whilst there was a tagging procedure that was breached, there was another procedure that did not require the employee to tag out the machine provided it was de-energised. He also gave evidence that there was no risk of harm because the chassis had no source of energy and that the tagging procedures in mobile maintenance, at that time, were different to the fixed plant and were not well understood. 157
[227] Mr Smith explained that: 158
“Working on mobile equipment is vastly different to fixed plant. So at the time, the context around the incident was there is live work, these are conducted in a mobile equipment work space.
…
we've spent a lot of time in the last 12 or 18 months working to a no live work policy inside the mobile equipment work space. So at the time, this is before that process had gone through. The piece of equipment that Mr King was working on, had no battery, no engine, no transmission; it was effectively a chassis sitting up on blocks. So what we were trying to drive is a culture that said you must get to the situation where you isolate continuously. You're locking-on regardless of whether there's energy, so to speak, getting yourself into the culture and the habit of no matter what, you lock on so that there's never a stage where you can forget, or there's something that's missed. Now we were in a process of culture change in that environment at the time and Mr King was clearly resistant to that culture change, but I would say that we were not in a space where those policies and procedures were very very clearly understood and written and very upheld as a clear standard and that's why we went through the process to change them.”
[228] The second and third cases are more easily distinguishable from the incident involving Mr Pavlovic than the first. In both those cases, there was confusion regarding the isolation/tagging procedure and there was no real risk of injury. The first incident was the most similar to Mr Pavlovic’s in terms of the risk of serious injury and the failure to check that the machine was still isolated before the commencement of work. It is narrowly distinguishable on the grounds that the employee in the first case had correctly tagged the equipment, someone else had deisolated it and there is no evidence he had any reason to be believe it was not still isolated. In Mr Pavlovic’s case, he removed the tag himself and he had turned his mind to the possibility whether he was tagged on but did not go and check before recommencing work.
[229] Mr Pavlovic also says that his dismissal is harsh because he was treated differently to Mr Brown. The evidence is that Mr Brown was not only offered an opportunity to resign, he was given approval to work for contractors engaged on Alcoa’s sites immediately and granted the ability to re-apply for employment with Alcoa after 12 months. Mr Brown was also allowed to keep Alcoa tools valued at $4,000.13. Mr Pavlovic says that these were opportunities and benefits not offered to him. 159
[230] Differential treatment of an employee can be a ground for determining that a dismissal is harsh, unjust and/or unreasonable. 160
[231] The evidence is that Mr Pavlovic was also offered an opportunity to resign and rejected it. 161 Alcoa has made no commitment to rehire Mr Brown and the evidence is that it would be unlikely for this to occur.162 There is no evidence that Mr Pavlovic sought similar benefits to facilitate his separation from Alcoa by way of resignation or that these or similar benefits would have been denied by Alcoa.
[232] Therefore, I don’t accept that Mr Pavlovic was treated inconsistently when compared to Mr Brown.
The disciplinary outcome was in breach of clause 18(a) of the Agreement
[233] Mr Pavlovic submits that his dismissal was harsh because Alcoa failed to comply with clause 18(a) of the Agreement which required Alcoa to “… apply and implement all disciplinary action in a fair and reasonable manner.”
[234] He says Alcoa failed to apply and implement its disciplinary action against him in a fair and reasonable manner because:
a. he was treated inconsistently;
b. the Records of Conversation were taken into account even though they are not a form of disciplinary action; and
c. Mr Hodges, Mr Smith and Mr Bacon were already stating that it was likely he would be dismissed before the investigation process had even commenced.
[235] I have dealt with each of these matters elsewhere in this decision. For the reasons set out elsewhere in this decision I am not satisfied that he was treated inconsistently as compared to other mining employees. For the reasons set out elsewhere in this decision I am satisfied that it was appropriate for Alcoa to take the Records of Conversation into account when determining what disciplinary action would be appropriate. For the reasons set out elsewhere in this decision I do not think it was unfair or unreasonable that Mr Hodges, Mr Smith or Mr Bacon considered it was likely that Mr Pavlovic would be dismissed before the decision to dismiss Mr Pavlovic was made. I therefore do not consider that the disciplinary action was applied or implemented in a manner which was not fair and reasonable based on the reasons identified by Mr Pavlovic.
Length of Service
[236] Mr Pavlovic says that it is clear that he and Mr Brown both made an out-of-character mistake when they wrongly assumed the 190 Stacker was already isolated on 24 October 2019. He submitted that it is manifestly harsh for an employee “… with more than 23 years of unblemished service” 163 to be dismissed for making an unintentional mistake.
[237] A lengthy period of employment with a single employer is increasingly becoming uncommon in the industry generally, although it is not so unusual among Alcoa’s blue collar workforce in Western Australia. The references submitted by Mr Pavlovic with his response to the Show Cause Letter indicate that he is generally considered, by those colleagues who provided references at least, as a safe worker.
[238] Notwithstanding the references obtained by Mr Pavlovic, his employment record is not entirely unblemished. The evidence is that he was issued with a warning in 2011 and counselled in relation to his performance in 2013. Records of Conversation were also made for conversations Alcoa had held with him in relation to tagging activities. The first, for an incident on 17 August 2017 for failing to tag onto the spillage conveyor or apron feeder rivers. The second, for incidents on 7 and 14 March 2018 for failing to de-isolate a 260 crusher as instructed. 164
[239] Mr Pavlovic says that the incident the subject of the Record of Conversation dated 17 August 2017 occurred a week after he commenced in the fixed plant maintenance department and arose because he did not understand the relevant procedures. In relation to the second Record of Conversation he says that it was pressed by Alcoa because Alcoa suspected that the failure to remove the tag was a form of unprotected industrial action. 165
[240] There was considerable dispute in the evidence as to whether or not a ‘record of conversation’ is intended by Alcoa to constitute disciplinary action. There must be some purpose for which the conversation occurs and is captured. On the evidence before me, the purpose is that it is a form of counselling to put an employee on notice that a problem is occurring or has the potential to occur.
[241] Of relevance to the current matter is that the Records of Conversation are evidence that Alcoa was proactively enforcing compliance with isolation policies and procedures, even if the conduct was not sufficiently serious to warrant formal disciplinary action. This should have reinforced with Mr Pavlovic the importance that Alcoa placed on compliance with isolation practices. It is also relevant as evidence that Mr Pavlovic was recently reminded of his obligations to properly isolate equipment.
[242] In these circumstances, I am not satisfied that the failure to comply with isolation procedures can be described as entirely out of character. Nor am I satisfied that failure to isolate can be described as entirely unintentional, given Mr Pavlovic’s evidence that he and Mr Brown their tagging status, but then failed to physically inspect the isolation point before commencing work.
[243] Other than these matters Mr Pavlovic has had a lengthy period of service with Alcoa which is otherwise unblemished. It is a matter which weighs in favour of a finding that his dismissal, particularly on a summary basis, was harsh.
Personal Circumstances
[244] Mr Pavlovic says that his personal circumstances make his dismissal harsh.
[245] Firstly, he says that he faces an extremely uncertain employment future following his dismissal from Alcoa. Mr Pavlovic has sought assistance from Centrelink and has been referred to a job search agency. According to Mr Pavlovic, this agency has made it clear to him that he will face difficulties finding comparable employment given his age and the labour market in Western Australia. 166
[246] Mr Pavlovic also says that the dismissal has complicated his plans in relation to caring for his elderly and ill mother. He says that these caring responsibilities also limit the alternative jobs that he can apply for, particularly in relation to fly-in-fly-out (FIFO) work. 167
[247] Finally, he says that the dismissal has had a significant impact on his health and has caused him and his family considerable stress. 168
[248] Mr Pavlovic’s personal circumstances weigh in favour of his dismissal being harsh.
Consistent with Case Law
[249] Mr Pavlovic submits that a finding that he has been unfairly dismissed and a decision for him to be reinstated in the particular circumstances of his case would be consistent with a
number of previous FWC decisions, including at a Full Bench level.
[250] He cites, for example Schofield and Winterton v Broadmeadow Mine Services Pty Ltd (Broadmeadow Case), 169in which Hatcher VP concluded that the two relevant employees had been unfairly dismissed and should be reinstated in circumstances where his Honour determined there was a valid reason for dismissal and no procedural fairness issues.
[251] I am satisfied that the Broadmeadow Case is distinguishable from the present circumstances. In the Broadmeadow Case, the dismissed employees had used the roof of a drift runner as a work platform. The dismissed employees had seen other employees engage in the same conduct. In addition, the conduct engaged in had been proposed by a different senior employee. In the Broadmeadow Case, there was also evidence that the dismissed employees were treated inconsistently with other employees. For the reasons outlined elsewhere in this decision, I am not satisfied that Mr Pavlovic’s treatment was inconsistent with the treatment of other employees. Furthermore, in the Broadmeadow Case the safety breach was deemed by the Vice President to be at the lower end in terms of the extent of the contravention and the risk to safety that it posed. On Mr Pavlovic’s own admission, his incident was a serious near miss which could have caused injury or death.
[252] Mr Pavlovic also cited Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth (Allied Mining Case), 170 in which the majority (Lawler VP and Roberts C) ordered the reinstatement of an employee who had breached isolation procedures by removing the isolation locks of two contractors from a pump line.
[253] The Allied Mining Case may be distinguished from the present circumstances. In the Allied Mining Case, the majority characterised the breach as “… far from being at the most serious end of the scale..” because the contractors had completed their work and there was no reason why their locks should not have been removed (albeit by the contractors). Critically the majority considered that the safety risk created by the breach was for all practical purposes non-existent. On Mr Pavlovic’s own admission his incident was a serious near miss which could have caused injury or death. The majority in the Allied Mining Case gave significant weight to the applicant’s 28 years of service. According to the majority, the applicant: “…was an exemplary employee with an exceptional work ethic … had not been subject to any disciplinary allegation or action, … had never been guilty of any safety breach”, (notwithstanding that he had worked for the majority of his employment in a safety critical role). In Mr Pavlovic’s case his disciplinary record is not entirely without blemish and two Records of Conversation had been made in relation to discussions had with him in relation to tagging breaches.
[254] Mr Pavlovic also cited Chevron Australia Pty Ltd T/A Chevron v Rogers (Chevron Case), 171 in which a Full Bench dismissed an appeal against a first instance decision to reinstate an employee who had been found to have committed an isolation breach.172
[255] The Chevron Case may be distinguished from the current case on the grounds that a lack of training and failures in the employer’s safety systems were found to have been contributing factors. The evidence in this case is that Mr Pavlovic was fully trained and could competently perform the necessary isolation. Relevantly, the isolation breach in the Chevron Case was not a failure to isolate entirely, rather it was a failure to fully complete the isolation process. Importantly there was also evidence that another employee had not been dismissed for essentially the same conduct. For the reasons outlined elsewhere in this decision, I am not satisfied that Mr Pavlovic has been treated inconsistently with other employees.
[256] For these reasons, I am satisfied that a finding that Mr Pavlovic was fairly dismissed would be consistent with the decisions cited by Mr Pavlovic.
Post Employment Conduct
[257] Alcoa submits that Mr Pavlovic has been dishonest in relation to some aspects of his statement. By way of example they cite the following examples.
[258] At paragraph 56 of his witness statement, Mr Pavlovic states that neither Mr McCormick nor Mr Bacon could answer him when he asked why the Records of Conversation had been referred to in the Show Cause Letter. However, Mr Bacon’s notes from that meeting (which he prepared and sent to himself approximately half an hour after that meeting) clearly contradict that assertion and make clear that it was explained that the reference to the Records of Conversation were included to give context as to why the business was very uneasy with continuing Mr Pavlovic’s employment.
[259] At paragraph 64 of his witness statement, Mr Pavlovic states that Mr Bacon ‘fobbed’ Mr Cooper and him when responding to a question as to how the business considered Mr Pavlovic’s conduct deliberate or malicious and refused to answer the question. However, Mr Bacon’s notes from that meeting (which he prepared and sent to himself within an hour of that meeting) contradict that assertion and make clear that Mr Bacon did respond to the question.
[260] Mr Pavlovic submits that Mr Bacon’s notes do not establish what was said at these meetings and, in any event, Mr Bacon would be unlikely to record in his notes that he had difficulty answering the question - even if that was what happened.
[261] I am not satisfied that these particular examples overwhelmingly demonstrate dishonesty incompatible with future employment. However, there are a number of inconsistencies in Mr Pavlovic’s evidence many of which are in relation to key aspects of the events which occurred. These inconsistencies (discussed elsewhere in this decision) and those identified and set out in Alcoa’s closing submissions at paragraph six, adversely reflect on Mr Pavlovic’s credibility as a witness and his suitability for reinstatement.
Conclusion
[262] I have made findings in relation to each matter specified in section 387, as relevant. I have given due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 173
[263] Mr Pavlovic has accepted that his safety breach constitutes a valid reason for dismissal in that it was a “sound, defensible or well founded” reason.
[264] Mr Pavlovic has not argued that there were procedural fairness deficiencies associated with his dismissal or that any of the other factors in sub section 387(b) to (g) of the FW Act assist his case.
[265] Mr Pavlovic’s case relies entirely on sub section 387(h) of the FW Act.
[266] It is well established that a dismissal can be found to be unfair based solely on the ‘other relevant matters’ criterion.
[267] Lawler VP and Cribb C summarised some of the relevant authorities to this effect in B, C and D v Australian Postal Corporation T/A Australia Post:
“Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable.” 174
[268] Reaching a decision in this case has been very difficult and I have given a great deal of thought to the appropriate outcome. Mr Pavlovic has been employed by Alcoa for most of his adult life. He was remorseful for his error and offered to address his colleagues about the event to prevent them replicating his error. He has, over many years, contributed to the working life and conditions of his colleagues, and been of assistance to the FWC resolving disputes in his role as a union delegate. Given his long tenure, and that of many of his colleagues, employment at Alcoa clearly holds considerable attraction to Mr Pavlovic.
[269] The impact on Mr Pavlovic and his family of his dismissal has no doubt been significant. Mr Pavlovic lives in a regional area where alternative employment prospects are more limited. It is increasingly uncommon for a mine worker to be able to live residentially with his or her family. Mining work in Western Australia is now predominantly of a FIFO nature which brings with it all the adverse consequences of lengthy periods away from family and friends.
[270] However, safety systems exist to ensure that workers, whether working FIFO or not, do eventually return home to their loved ones. Mr Pavlovic only failed to isolate once. However, a failure to isolate only once could have been catastrophic. The outcome might have been that he and/or Mr Brown could never support their families in the future, or even worse that he and/or Mr Brown never returned to their families again.
[271] Of the greatest concern to me is that Mr Pavlovic says that no more than 30 minutes and 500m from the isolation box, he turned his mind to whether they were tagged appropriately and, nevertheless, when he arrived at the work location and passed within metres of the isolation box, he did not check that the machine was isolated, and his and Mr Brown’s tags attached.
[272] Isolating and tagging out must become second nature so that it is never forgotten. If it takes Mr Pavlovic’s dismissal to ensure that neither he (or any of his colleagues) forget to isolate equipment before commencing work and that ensures that he (and they) can return home safely to their families from work, then very sadly, that is the price he must pay.
[273] Given his contrition and his personal circumstances, I hope that the opportunity offered to Mr Brown to reapply for employment with Alcoa in the future is extended to Mr Pavlovic. I also hope that the AWU honour their offer during the disciplinary process to address their members about the importance of complying with isolation and tagging procedures, for their own and their workmates safety.
[274] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Pavlovic was unfairly dismissed within the meaning of section 385 of the FW Act. The Application is therefore dismissed.
[275] An Order to this effect will issue with this decision. 175
DEPUTY PRESIDENT
Appearances:
Mr S Crawford for the Applicant
Mr M Vallence for the Respondent
Hearing details:
Perth
2020
21, 22 & 23 July
Final written submissions:
12 August 2020 and 26 August 2020 – Applicant
19 August 2020 and 2 September 2020 - Respondent
Printed by authority of the Commonwealth Government Printer
<PR721288>
1 Warrell v Walton (2013) 233 IR 335, 341 [22].
2 Digital Court Book, 4 (‘DCB’).
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid.
7 Ibid 47 – 49.
8 Ibid 5.
9 Ibid 157.
10 Ibid 158.
11 Ibid.
12 Ibid 5.
13 Ibid.
14 Ibid.
15 Ibid 114.
16 Ibid 5.
17 Ibid.
18 Ibid 158.
19 Ibid 125.
20 Ibid 158.
21 Transcript 22 July 2020, PN 985.
22 DCB (n 2) 158.
23
24 Ibid 125.
25 Ibid 221.
26 Ibid 129.
27 Ibid 158.
28 Ibid.
29 Ibid 344.
30 Ibid.
31 Ibid.
32 Ibid 5.
33 Ibid.
34 Ibid 346.
35 Ibid 224.
36 Transcript 21 July 2020, PN 202 – 203.
37 DCB (n 2) 347.
38 Ibid.
39 Ibid.
40 Ibid 360.
41 Ibid 159.
42 Ibid 160.
43 Ibid.
44 Ibid 348.
45 Ibid 5.
46 Ibid 330 – 335.
47 Ibid 160.
48 Ibid 273.
49 Ibid.
50 Ibid 6.
51 Ibid 121 – 123.
52 Ibid 161.
53 Ibid 6.
54 Ibid.
55 Ibid 275.
56 Ibid.
57 Ibid 6.
58 Ibid 277.
59 Ibid 278.
60 Ibid 163.
61 Ibid 4.
62 Ibid.
63 Ibid.
64 Ibid 138.
65 Ibid.
66 [1995] HCA 24; (1995) 185 CLR 410, 465.
67 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
68 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
69 Ibid.
70 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
71 Edwards v Justice Giudice (1999) 94 FCR 561, 565 [7] (Moore J).
72 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23] - [24].
73 DCB (n 2) 139.
74 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73] (‘Crozier’).
75 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
76 Ibid.
77 DCB (n 2) 139.
78 Crozier (n 73) 151 [75]
79 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
80 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
81 DCB (n 2) 139.
82 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
83 DCB (n 2) 139.
84 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].
85 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
86 Ibid 12.
87 Ibid 17.
88 Ibid 50.
89 Ibid 104.
90 Ibid 167, 219.
91 Ibid 159.
92 Transcript 21 July 2020, PN 197, PN 531.
93 DCB (n 2) 159.
94 Transcript 23 July 2020, PN 1443.
95 DCB (n 2) 159.
96 Ibid.
97 Ibid 223.
98 Ibid 365, 376.
99 Ibid 301.
100 Transcript 23 July 2020, PN 2010.
101 DCB (n 2) 365.
102 Ibid.
103 Ibid 140.
104 Ibid 158.
105 Ibid.
106 Ibid 5.
107 Ibid 158.
108 Ibid 124.
109 Ibid 140.
110 Ibid 47 – 49.
111 Ibid 5, 114.
112 Ibid 344; Transcript 23 July 2020, PN 1477, PN 1997, PN 2306.
113 Ibid 158.
114 Ibid 345 – 346.
115 Ibid 345.
116 Ibid 48.
117 Transcript 21 July 2020, PN 90 – 95.
118 Ibid PN 561.
119 Ibid PN 795.
120 DCB (n 2) 92.
121 Transcript 23 July 2020, PN 1654.
122 Transcript 22 July 2020, PN 1398; Transcript 23 July 2020, PN 1539 - 1542, 1998.
123 Transcript 22 July 2020 PN 1398; Transcript 23 July 2020, PN 1539.
124 Transcript 23 July 2020, PN 2217.
125 Transcript 21 July 2020, PN 869.
126 Alcoa’s Closing Submissions, filed on 19 August 2020 [16].
127 DCB (n 2) 282.
128 Ibid 345.
129 Transcript 22 July 2020, PN 961; Transcript 23 July 2020, PN 1442.
130 DCB (n 2) 150.
131 Ibid.
132 Ibid 273.
133 Ibid 275, 295, 302; Transcript 23 July 2020, PN 2303.
134 Ibid 275.
135 Ibid 159.
136 Ibid 160.
137 Ibid 159.
138 [2015] FWCFB 1033, [33]-[34].
139 Ibid.
140 Ibid 151.
141 Ibid 159.
142 Ibid 160.
143 Ibid 347.
144 Ibid 348.
145 Ibid 218.
146 Ibid 166.
147 Transcript 21 July 2020, PN 568 – 570.
148 DCB (n 2) 305; Transcript 23 July 2020, PN 2251.
149 DCB (n 2) 218.
150 Mr Pavlovic Closing Submissions filed on 12 August 2020 4 – 7.
151 Transcript 23 July 2020, PN 2054 – 2059.
152 DCB (n 2) 303 – 304; Transcript 23 July 2020, PN 2050.
153 Transcript 21 July 2020, PN 823 – 833.
154 Transcript 23 July 2020, PN 2278 – 2285; DCB (n 2) 303 – 304.
155 Transcript 23 July 2020, PN 2278 – 2285.
156 Ibid PN 2250.
157 Ibid PN 1923 - 1924, PN 2244 – 2247.
158 Ibid PN 2244.
159 DCB (n 2) 292.
160 For example, see Darvell v Australian Postal Corporation[2010] FWAFB 4082. [21]-[23].
161 Transcript 21 July 2020, PN 330.
162 Transcript 22 July 2020, PN 932.
163 DCB (n 2) 140.
164 Ibid 273.
165 Ibid 221.
166 Ibid 163.
167 Ibid.
168 Ibid
169 [2014] FWC 9309.
170 [2010] FWAFB 10089.
171 [2015] FWCFB 5354.
172 Note: The Full Bench did determine that the employee should not be compensated for lost wages.
173 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]; See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6] – [7].
174 [2013] FWCFB 6191, [41].
175 PR721291.
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