Nikola Pavlovic v Alcoa of Australia Limited T/A Alcoa World Alumina Australia
[2021] FWCFB 576
•2 MARCH 2021
| [2021] FWCFB 576 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Nikola Pavlovic
v
Alcoa of Australia Limited T/A Alcoa World Alumina Australia
(C2020/8583)
DEPUTY PRESIDENT MASSON | MELBOURNE, 2 MARCH 2021 |
Appeal against decision [2020] FWC 3919 and order PR721291 of Deputy President Binet at Perth on 6 November 2020 in matter number U2019/13374.
[1] Mr Nikola Pavlovic seeks permission to appeal and if granted, appeals a decision 1 and order2 of Deputy President Binet dated 6 November 2020. The Deputy President dismissed an application for an unfair dismissal remedy made by Mr Pavlovic pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).
[2] For the reasons that follow, we are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is therefore refused.
Background
[3] Mr Pavlovic commenced employment with Alcoa at its Western Australian bauxite mining operations on 27 March 1996. 3 He most recently held the role of mineworker in Alcoa’s fixed plant department at the Huntly mine in which Mr Pavlovic was as part of his duties required to undertake isolation and tagging activities associated with the performance of maintenance work.4
[4] On 24 October 2019, Mr Pavlovic was tasked with undertaking maintenance on equipment referred to as the 190 Stacker. This involved the preparation of a Job Safety Analysis and the installation of a new gearbox drive. 5 In the performance of such work, the 190 Stacker was required to be isolated in accordance with the Huntly Stacking Area- Tag-Out (HUN) policy.6
[5] During a ‘smoko’ break at or about 4:30pm, Mr Pavlovic and his colleague Mr Rocky Brown discussed whether the 190 Stacker was isolated. 7 Mr Pavlovic’s evidence was that he assumed that he and Mr Brown were “tagged on” because Mr Pavlovic did not have his lock with him.8 Mr Pavlovic said that he and Mr Brown intended to check whether they were tagged on before recommencing work.9 Upon arrival at approximately 5:00pm, Mr Pavlovic and Mr Brown resumed work on the 190 Stacker without checking whether it was isolated and whether they were tagged on.10
[6] Shortly prior at approximately 4:50pm, Mr White, who was the Appellant’s supervisor, identified that the 190 Stacker was live and could be started up either from a remote computer or from the machine itself. 11 At approximately 5:05pm, Mr White attended the 190 Stacker to test the installation of the new gearbox drive.12 Upon arrival, Mr White discovered that despite the 190 Stacker not being isolated Mr Pavlovic and Mr Brown were performing work on it.13 This exposed Mr Pavlovic and Mr Brown to the risk of serious injury or death had Mr White proceeded with his test.
[7] Subsequently, on 28 October 2019 a safety investigation into the incident was completed. 14 On 30 October 2019, Mr Pavlovic was issued with a show cause letter.15 Meetings were convened on 11 and 12 November 2019 to discuss Mr Pavlovic’s show cause response, following which Mr Pavlovic was summarily dismissed and issued a termination letter on 12 November 2019.16
[8] On 15 November 2019, a further meeting was convened to discuss a proposal made by Mr Pavlovic to convert his dismissal to a suspension with a final warning letter. The proposal was rejected on 18 November 2020.
The decision
[9] The Deputy President first set out the procedural history and background to the application. 17 Following the resolution of various initial matters,18 the Deputy President turned to consider the question of whether there was a valid reason for the dismissal related to Mr Pavlovic’s capacity or conduct.
[10] In respect of ss 387(a) to (d), and noting that it was not in dispute, the Deputy President concluded that:
(a) Mr Pavlovic’s conduct in respect of the 24 October 2019 incident constitutes a valid reason for his dismissal; 19
(b) the reasons for Mr Pavlovic’s dismissal were communicated to him; 20
(c) Mr Pavlovic was given an opportunity to respond to the reasons for his dismissal prior to the decision to dismiss being made; 21 and
(d) Alcoa did not unreasonably refuse to allow Mr Pavlovic to have a support person present at discussions relating to his dismissal. 22
[11] As Mr Pavlovic was not dismissed for unsatisfactory performance, the Deputy President regarded s 387(e) as being an irrelevant consideration. 23
[12] For the purposes of ss 387(f) and (g), the Deputy President was satisfied that the procedures followed by Alcoa were appropriate having regard to the size of its enterprise, and that Alcoa did not lack dedicated human resource management specialists or expertise. 24
[13] Much of the Deputy President’s analysis in the decision relates to s 387(h). 25 This is because Mr Pavlovic contested the decision to terminate his employment on the basis that it was harsh.26 The following matters submitted by Mr Pavlovic in support of his contention were considered by the Deputy President:
(a) Alcoa failed to communicate the disciplinary consequences of the conduct in advance of the conduct occurring; 27
(b) Mitigating circumstances existed; 28
(c) Alcoa’s decision was flawed because Alcoa made factual errors in the decision making process; 29
(d) The disciplinary consequences were predetermined; 30
(e) Summary dismissal was disproportionate to the misconduct; 31
(f) The outcome is inconsistent with the treatment of others in like circumstances; 32
(g) The disciplinary outcome was in breach of clause 18(a) of the applicable enterprise agreement; 33 and
(h) The dismissal is inconsistent with the outcome in other decisions made by the Commission. 34
[14] These matters in the decision are summarised below to the extent that Mr Pavlovic contends error in respect of them.
[15] Firstly, the Deputy President found that Mr Pavlovic ought to have been aware that the incident might result in disciplinary action up to and including the termination of his employment. 35 In respect of this matter, the Deputy President observed that some references provided by Mr Pavlovic to Alcoa as part of his show cause response were given on the presumption that Mr Pavlovic was likely to be dismissed and might need them for future employment.36
[16] Secondly, the Deputy President concluded that that there were no mitigating circumstances that were relevant to Mr Pavlovic’s conduct. 37 Relevantly, the Deputy President found that:
(a) Mr Pavlovic’s failure to check whether the 190 Stacker was tagged and isolated is more serious than merely forgetting to tag and isolate at all. 38 In so finding, the Deputy President had regard to the fact that Mr Pavlovic failed to observe the requirements prescribed by the Mines Safety and Inspection Act 1994 (WA), the applicable enterprise agreement, and three of Alcoa’s procedures which deal with how work is to be carried out on the 190 Stacker.39 Further, the Deputy President identified that Mr Pavlovic had undergone extensive training in respect of tagging, in addition to having contributed to the development of the Job Safety Analysis prior to the commencement of the work, which expressly referred to the requirement to tag and isolate.40
(b) The fact that Mr Pavlovic repeatedly isolated and tagged the 190 Stacker on the day of the incident ought to have “embedded the practice of isolation into his work routine,” and does not mitigate against the seriousness of his conduct. 41
(c) Mr Pavlovic had passed the control room isolation point of the 190 Stacker, such that his contention that he and Mr Brown had entered the 190 Stacker via an alternative entry does not mitigate against the seriousness of his conduct. 42 Further, the Deputy President said that the obligation upon Mr Pavlovic was to isolate live equipment before commencing work, irrespective of the entry point.43
(d) Mr Pavlovic’s contention that his fatigue, caused by an upper respiratory tract infection should be regarded as a mitigating factor was rejected. The Deputy President found that Mr Pavlovic was required to report any incapacity to perform work safely to his supervisor and stop working, which he did not do. This was regarded by the Deputy President as a matter which weighed in favour of Mr Pavlovic’s dismissal. 44
(e) On the evidence, none of the factors in the FSI Alert issued by Alcoa prior to the conclusion of its safety investigation were individually or collectively so exceptional, unusual, or significant that they mitigated against the seriousness of Mr Pavlovic’s failure to isolate and tag the 190 Stacker before commencing work. 45
(f) The Deputy President was not satisfied that a third-party verification system was feasible, as contended by Mr Pavlovic. Nor was the Deputy President satisfied that such a process would have been effective in the circumstances to prevent the incident from occurring. 46
[17] Thirdly, the Deputy President concluded on the evidence that Mr Pavlovic’s conduct was sufficiently serious such as to warrant summary dismissal. 47 This conclusion was made taking into account Mr Pavlovic’s own evidence, which included that he regarded the incident as a serious near miss that could have resulted in injury or death. Further, Mr Pavlovic gave evidence that he had questioned whether the 190 Stacker was tagged shortly before recommencing work. In addition, the fact that Mr Pavlovic performed duties in the period between the incident and his dismissal was found not to be inconsistent with Alcoa’s decision to terminate him, given that Mr Pavlovic was directed to tag on and complete work on the 190 Stacker to ensure its safe operation before proceeding to make a statement about the incident. Subsequently, Mr Pavlovic was not tasked with safety critical work, and was suspended from duties after 28 October 2019.48
[18] Fourthly, the Deputy President determined that Mr Pavlovic was not treated inconsistently when compared to other Alcoa employees, as contended. 49 The first of these incidents took place on 25 February 2019 and involved an employee failing to check whether a transformer was isolated, resulting in his electrocution and hospitalisation.50 The Deputy President found that the incident was “narrowly distinguishable” on the basis 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 (sic) 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 of whether he was tagged on but did not go and check before recommencing work.”51 In respect of the second incident concerning another employee, the Deputy President said that there was no risk of serious injury and the incident did not involve a breach of a known tagging procedure.52 As to the third incident, the evidence before the Deputy President was that while the employee in that case did not tag out a machine, “there was another procedure that did not require the employee to tag out the machine provided it was de-energised.”53 Further, there was no risk of harm.54 The Deputy President determined that the second and third incidents could be distinguished in that there was confusion as to the isolation/tagging procedure, and there was no risk of injury.55
[19] Fifthly, the Deputy President determined that Mr Pavlovic’s contention that Alcoa failed to comply with its obligation under the applicable enterprise agreement to “…apply and implement all disciplinary action in a fair and reasonable manner” was not made out. 56 In so concluding, the Deputy President had regard to earlier findings in respect of Mr Pavlovic’s contentions that he was treated inconsistently, that Alcoa had made factual errors in its decision making by referring to Records of Conversation, and that the dismissal was predetermined.57
[20] Sixthly, the Deputy President was not satisfied that Mr Pavlovic’s failure to isolate the 190 Stacker can be described as entirely unintentional. This conclusion was reached having regard to Mr Pavlovic’s direct evidence that he had a discussion with Mr Brown querying the tagging status, however Mr Pavlovic did not inspect the isolation point prior to recommencing work. 58 The Deputy President had earlier considered that the conduct of Mr Pavlovic “was more serious than merely forgetting to tag and isolate at all.”59
[21] Finally, the Deputy President found that there were a number of inconsistencies in Mr Pavlovic’s evidence. It was determined that these inconsistencies adversely reflect upon Mr Pavlovic’s credibility and suitability for reinstatement. 60 More is said about these alleged inconsistencies later in this decision.
[22] The Deputy President ultimately concluded that Mr Pavlovic’s dismissal was not harsh, unjust or unreasonable. 61
Appeal grounds
[23] By appeal grounds one to five, Mr Pavlovic contends that the Deputy President made significant errors of fact. It is said that the Deputy President erred by determining that:
1. Mr Pavlovic was not treated inconsistently with other Alcoa employees.
2. Mr Pavlovic’s conduct was not entirely unintentional, and that Mr Pavlovic’s 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.
3. No unusual or exceptional mitigating circumstances existed in relation to the safety breach.
4. There were a number of inconsistencies in Mr Pavlovic’s evidence about key aspects of the events.
5. References provided by Mr Pavlovic’s superiors were given on the presumption that Mr Pavlovic was likely to be dismissed and might need them for future employment.
[24] In respect of appeal grounds one, three and five, Mr Pavlovic submits that the Deputy President also erred by failing to take into account a relevant consideration. As to grounds two and four, it is said that the Deputy President had regard to irrelevant considerations.
[25] By appeal grounds six and seven, it is submitted that the Deputy President erred and did not take into account a relevant factor by:
6. Failing to consider Mr Pavlovic’s argument that Alcoa erroneously applied a Deviation Analysis Model in responding to Mr Pavlovic’s safety breach.
7. Determining that Alcoa acted in accordance with clause 18(a) of its enterprise agreement in light of Mr Pavlovic’s contention that he was treated inconsistently with other Alcoa employees who committed comparable safety breaches.
[26] Finally, by appeal ground eight it is said that the Deputy President erred by finding that Mr Pavlovic’s dismissal was a proportionate and appropriate outcome.
Statutory framework
[27] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.62 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[28] This appeal is one to which s 400 of the Act applies. 63 Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[29] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, 64Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.65 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 66
[30] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.67 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.68
[31] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 69 However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Consideration
Appeal grounds one and seven
[32] By appeal ground one, Mr Pavlovic contends that the Deputy President erred in concluding that he was not treated inconsistently when compared to other Alcoa employees. Accordingly, it is said that the Deputy President failed to take into account a relevant consideration.
[33] Mr Pavlovic refers to three separate incidents involving other employees in contending that he was treated harshly by Alcoa because the other employees are said to have committed serious safety breaches but were not dismissed. In respect of each of these incidents, Mr Pavlovic says that the following matters are of significance:
(a) Alcoa’s Code of Conduct (Code) applies equally across its West Australian mines and refineries, and does not distinguish between isolation breaches at these sites; and
(b) Alcoa’s Maintenance Manager, Mr Liam Smith gave evidence that “we would consider all tagging breaches or errors to have a serious or fatality incident potential, based on how important tagging is in our environment.” 70
[34] The first incident involved an employee receiving a final written warning following an electrical shock from untagged equipment. 71 The Deputy President concluded that this incident was “…narrowly distinguishable on the grounds that the employee in the first case had correctly tagged the equipment, someone else had de-isolated it and there was no evidence he had any reason to believe it was still not isolated.”72
[35] Mr Pavlovic contends that the Deputy President’s conclusion fails to appreciate that the employee proceeded to work on the equipment on the basis that it remained tagged from four days prior, and therefore assumed that the equipment was isolated without having checked. Mr Pavlovic refers to Mr Smith’s evidence that this was an “incredibly serious incident,” 73 in characterising the safety breach. It is submitted by Mr Pavlovic that the employee made a deliberate decision not to check whether the equipment was isolated, and this conduct was at least as serious, if not more so, than his own. In contrast, Mr Pavlovic says that he forgot to check whether the 190 Stacker was isolated.
[36] Alcoa’s position is that the conduct of Mr Pavlovic is factually different. It is said that the incident occurred under separate management and involved a different tagging system and process at the Pinjarra Refinery. 74 Alcoa also says that the incident differed in that it concerned an electrical isolation, rather than a mechanical isolation.75 Further, the evidence before the Deputy President was that the employee had correctly tagged the equipment.76 Alcoa submits that unbeknownst to the employee, in the four day period that he was absent from the workplace, another workgroup had completed the task and put the equipment back into service.77 By comparison, Alcoa says that Mr Pavlovic had failed to tag and isolate the equipment being worked on by him. Against these factual circumstances, Alcoa submits that the decision made by management of the Pinjarra Refinery to not terminate the other employee does not render the decision to terminate Mr Pavlovic unfair, irrespective of whether the employees are subject to a commonly applicable Code.
[37] As to the second incident involving another employee’s failure to tag equipment, Mr Pavlovic contends that the Deputy President’s finding that the safety breach was caused by confusion and did not give rise to a risk of injury is unsupported by any evidence. Mr Pavlovic says that the finding made was not reflected in the warning letter issued to the employee. Further, Mr Smith’s evidence was that the employee’s failure to tag the equipment was serious, 78 and he was unaware of what caused the tagging breach.79 Noting that the employee held the role of superintendent,80 Mr Pavlovic contends that the employee’s conduct was at least equally as serious as his own conduct.
[38] In respect of the second incident, Alcoa refers to Mr Smith’s evidence that there was no defined procedure concerning the work performed by the employee, and that such work was not routine. 81 Further, it is submitted that the equipment was de-energised and tagged with an electrical lock,82 such that “the risk of fatality is actually not there; there was no energy source in place.”83 Alcoa says that in these circumstances, the Deputy President did not err in her finding.
[39] As to the third incident, Mr Pavlovic says that the evidence of a tagging breach and a racist comment made by an employee supports his position that Alcoa historically issued final warning letters for serious misconduct. 84 Mr Pavlovic contends that the evidence also indicates that the employee’s tagging breach was deliberate in that the employee did not agree with the relevant procedure. In these circumstances, it is said that the Deputy President’s finding that the employee’s breach was caused by confusion is unsupported, and the conduct of the employee was at least equally as serious as the conduct of Mr Pavlovic.
[40] Alcoa submits that contrary to Mr Pavlovic’s position concerning the third incident, there is no error in the Deputy President’s finding. The evidence of Mr Smith was that there was no applicable tagging/isolation policy or procedure concerning the work performed by the employee. Further, there was no risk of injury to the employee arising from the tagging breach because the equipment had no battery, engine, or transmission. 85 Alcoa says that Mr Pavlovic has conflated the employee’s tagging breach with other conduct to support a conclusion that there has been inconsistent treatment by Alcoa.
[41] It is well established that the Commission should approach with caution claims of differential treatment of employees in considering whether termination of an employee was harsh, unjust or unreasonable. 86 Relevantly, the Commission must be satisfied that the cases upon which a comparison is drawn are properly comparable, and that there is sufficient evidence to enable a proper comparison to be made.87
[42] We are not satisfied that appealable error is disclosed in the Deputy President’s conclusion that the first incident is narrowly distinguishable in respect of the conduct of Mr Pavlovic. The Deputy President correctly distinguished the incident on the basis that the employee had tagged the equipment, it was deisolated by other workers, and that fact was not known to the employee upon his return to work some days later. Mr Pavlovic’s conduct was different in that he turned his mind to the possibility that the equipment was not isolated during his break and had intended to check before recommencing work but failed to do so. These findings were reasonably open to the Deputy President on the evidence and no appealable error is disclosed in the Deputy President’s approach.
[43] We also discern no appealable error in the Deputy President’s approach to distinguishing the second incident from the conduct of Mr Pavlovic. Mr Pavlovic says that the Deputy President’s conclusion that the safety breach in the second incident was caused by confusion is unsupported by any evidence. However, the evidence was that there was no defined procedure concerning the isolation of the belt reeler on which the employee had performed work, said to be performed infrequently. Mr Smith said that this was “not quite the same as violating a known procedure that is repeated day in, day out.” Rather, the employee did not recognise the belt reeler to be an energy source which required isolating. 88 The fact that the warning letter did not refer to the employee’s confusion as occasioning the safety breach89 is not telling of error in the Deputy President’s decision. Nor is Mr Smith’s understanding or otherwise of why the employee did not tag the belt reeler.
[44] Similarly, no appealable error arises in the Deputy President’s distinction between Mr Pavlovic’s conduct and that of the employee in the third incident. Mr Smith’s evidence was that there were two procedures that provided conflicting requirements as to the need for the employee to deisolate. 90 We are satisfied that the Deputy President’s finding that there was confusion in respect of the tagging requirements was open on this evidence. Further, the evidence before the Deputy President was also that the equipment could not be started because it had no power source.91 Having regard to these matters, it was reasonably open to the Deputy President to find that the incident concerning Mr Pavlovic can be distinguished.
[45] In light of the conclusions reached, we dismiss appeal ground one.
[46] Mr Pavlovic accepts that appeal ground seven will succeed only in the event that appeal ground one is upheld. By consequence of our conclusion at [45], appeal ground seven also fails.
Appeal ground two
[47] Appeal ground two relates to Mr Pavlovic’s contention that the Deputy President erred in characterising his conduct as not entirely unintentional and being more serious than forgetting to tag and isolate at all. In so finding, Mr Pavlovic says that the Deputy President had regard to an irrelevant consideration.
[48] Mr Pavlovic’s evidence was that he and Mr Brown forgot to ensure that the 190 Stacker was isolated before recommencing work. 92 Mr Pavlovic submits that in the absence of any evidence from Mr Brown, the only conclusion that was available to the Deputy President was that he forgot to check.93 Further, Mr Pavlovic says that Alcoa’s witnesses all accepted that he did not intentionally breach the isolation procedures, and this lends support to his position that his conduct was not deliberate.94 It is also said that the Deputy President’s finding that Mr Pavlovic’s breach was not entirely unintentional appears to be at odds with an observation made by the Deputy President during the proceedings,95 and [272] of the decision where the Deputy President appears to accept that Mr Pavlovic forgot. Mr Pavlovic submits that it was not open to the Deputy President to find his conduct to be “more serious than merely forgetting to tag and isolate at all.”
[49] Alcoa contends that the Deputy President’s conclusion, including in respect of the seriousness of Mr Pavlovic’s conduct, was drawn from Mr Pavlovic’s incident statement, written response to the show cause letter, and his witness statement filed in the proceedings.
[50] We are not persuaded that the Deputy President erred in the manner contended by Mr Pavlovic. In concluding that Mr Pavlovic’s breach was not entirely unintentional, the Deputy President referred to Mr Pavlovic’s evidence that he and Mr Brown queried their tagging status but failed to inspect and isolate the 190 Stacker. This evidence included Mr Pavlovic’s statement that he intended to check. 96 Further, notwithstanding Mr Pavlovic’s submission that all witnesses accepted that his breach was not deliberate, Mr Hodges’ evidence was that “…I accept he didn't deliberately not tag, but he did deliberately work on it.”97
[51] Mr Pavlovic relies upon the Deputy President’s statement during the proceedings (to the effect that it is difficult to regard an omission as deliberate) 98 as giving rise to error in the finding that his conduct was not entirely unintentional. However, the Deputy President did not make a finding that Mr Pavlovic’s conduct was deliberate. The Deputy President’s conclusion that the conduct was not entirely unintentional falls short of such a finding. Further, a review of the transcript discloses that the Deputy President drew a distinction between a scenario of merely forgetting to tag on, and the circumstances of Mr Pavlovic in which he had contemplated that he and Mr Brown may not be tagged on but did not check.99 In light of the fact that Mr Pavlovic had regard to the possibility that he was not tagged on, a contention that the Deputy President erred by finding that his conduct was not entirely unintentional cannot be sustained. This is because Mr Pavlovic planned to check but did not do so (whether he forgot or otherwise). The Deputy President’s finding that Mr Pavlovic’s conduct is “more serious than merely forgetting to tag and isolate at all” was reasonably open on the evidence. By questioning whether he and Mr Brown were tagged on shortly before recommencing work, Mr Pavlovic ought to have appreciated the risks that would be occasioned by the equipment not being isolated.
[52] Appeal ground two is rejected.
Appeal ground three
[53] Mr Pavlovic contends that the Deputy President made a significant error of fact in finding that no unusual or exceptional mitigating circumstances existed in respect of his conduct, and therefore a relevant consideration was not taken into account. Mr Pavlovic says that this finding is contrary to Alcoa’s investigation report of the incident which identifies the following contributing and environmental factors: 100
“Contributing factors:
• Maintenance job rescheduled ahead due to production hand back shift; Concerns about equipment health given on previous Monday maintenance day. Hence 5pm chute check.
• Multiple tasks on that day at various locations – employees isolated and de-isolated to test run drive several times.
…
Environmental:
• Occurred at 5pm in the evening on the last day of their shift
• Multiple jobs and job front on the day
• 190 drive in was an unplanned job”
[54] Mr Pavlovic also refers to the FSI Alert and that he performed multiple isolations on the 190 Stacker in contending that there were additional mitigating factors. Mr Pavlovic says that the Deputy President preferred Mr Smith’s evidence which had the effect of dismissing Alcoa’s own investigation report.
[55] Further, Mr Pavlovic says that his chest infection was a mitigating factor in that it may have made him more susceptible to forgetting to ensure that the 190 Stacker was isolated. Mr Pavlovic contends that the Deputy President erred in finding that this matter weighed in favour of his dismissal.
[56] Alcoa submits that the conclusion reached by the Deputy President was clearly open on the evidence.
[57] We are not persuaded that the Deputy President’s finding was inconsistent with the documentary evidence. While the decision assesses the mitigating factors contained in the FSI Alert, these matters are also identified in the investigation report. The only exception is that the investigation report provides context for the chute check on 24 October 2019. As a result, Mr Pavlovic’s contention that the Deputy President dismissed the contributing and environmental factors contained in the investigation report cannot be sustained. 101
[58] In concluding that none of the matters in the FSI Alert were exceptional or unusual, either individually or collectively, the Deputy President relied upon the evidence of Mr Bacon, Mr White and Ms Jaksic, in addition to Mr Smith. 102 Collectively, the evidence was that the performance of multiple isolations/de-isolations is commonplace,103 time pressures exist,104 and the content of the FSI Alert does not necessarily reflect the investigation outcome.105 As to Mr Pavlovic’s fatigue, the evidence before the Deputy President was that Mr Pavlovic did not consider himself to be unfit for work on the day of the incident,106 nor did Mr Pavlovic report to his superiors that he was unfit for work on account of his chest infection.107 Accordingly, the finding at [169] of the decision was reasonably open. In any case, we agree with the Deputy President’s conclusion at [170] that none of the factors identified in the FSI Alert prevented Mr Pavlovic from safely isolating the 190 Stacker before commencing work.
[59] We dismiss appeal ground three.
Appeal ground four
[60] As to appeal ground four, Mr Pavlovic says that it is not clear from the decision which parts of his evidence the Deputy President determined not to be true. Mr Pavlovic contends that the decision contains speculative statements concerning the following matters:
(a) the period between his conversation with Mr Brown and the time Mr Pavlovic reached the isolation point;
(b) how Mr Pavlovic entered the 190 Stacker;
(c) that Mr Pavlovic had assumed the 190 Stacker was isolated; and
(d) that Mr Pavlovic had entered the loading chute of the 190 Stacker.
[61] Mr Pavlovic says the statements made in respect of these matters are not sufficient for an adverse finding to have been made about his credibility, and the Deputy President took into account an irrelevant consideration.
[62] Further, Mr Pavlovic submits that while the Deputy President preferred the evidence of other witnesses above his own evidence, particularly in respect of Mr White and Ms Jaksic, the issues were minor. Further, contrary to the Deputy President’s finding that his evidence was inconsistent, Mr Pavlovic says that there has not been a suggestion by Alcoa that he was dishonest in his employment which commenced in 1996, or that dishonesty was a factor in his dismissal. Mr Pavlovic submits that his honesty during the investigation process is supported by Alcoa’s witnesses and by the fact that he admitted to the key factual details of the incident. In these circumstances, the Deputy President is said to have erred by making an adverse finding about Mr Pavlovic’s credibility and took into account an irrelevant consideration.
[63] Alcoa’s position is as follows:
(a) It relies upon Mr Pavlovic’s response to the show cause letter and his initial witness statement in contending that an inconsistency arises about the point in time that Mr Pavlovic says that he and Mr Brown had discussed whether they were tagged on. 108 Alcoa says that Mr Pavlovic did not provide a reasonable explanation for the change in time from 4:40pm to 4:30pm.109
(b) Mr White’s evidence supports speculation as to how Mr Pavlovic entered the 190 Stacker, although the Deputy President did not draw a conclusion in respect of this matter. Rather, the Deputy President found that Mr Pavlovic may have entered via the normal entry. 110
Further, it is submitted that the evidence regarding where Mr Pavlovic was located on the 190 Stacker changed. Mr Pavlovic’s evidence was that he did pass the control room where the tagging box is located, however he also said that he remained within close proximity of Mr Brown and did not move from his position. 111 Moreover, Mr Pavlovic’s initial statement was that he was handing Mr Brown tools from the walkway of the conveyor belt.112 This is said to be inconsistent with his own evidence under cross examination that he had been throwing tools to Mr Brown.113
(c) Alcoa refers to Mr Pavlovic’s incident statement which provides, “[T]hen went into 190 chute to check the chute for wear” 114 as an indication that Mr Pavlovic may have entered the chute contrary to his position that he did not. This is said to support the Deputy President’s finding that it is possible that Mr Pavlovic did in fact enter the chute.
(d) Alcoa does not contest Mr Pavlovic’s honesty during his employment, but rather it says that Mr Pavlovic was not credible in the evidence provided to the Commission.
[64] A review of the evidence discloses that there were inconsistencies in Mr Pavlovic’s evidence, as identified by Alcoa. Mr Pavlovic’s submissions on appeal do not resolve these matters. While Mr Pavlovic makes submissions as to his work history and honesty, the inconsistencies in his evidence remain unresolved. It follows that we discern no appealable error in the Deputy President’s conclusion at [261] of the decision. There was an evidentiary basis upon which it was open to the Deputy President to make an adverse finding about Mr Pavlovic’s credibility.
[65] Appeal ground four is rejected.
Appeal ground five
[66] Appeal ground five relates to the Deputy President’s finding regarding the references that Mr Pavlovic had provided to Alcoa. The Deputy President found that the references were given on the presumption that Mr Pavlovic was likely to be dismissed and he might need them for future employment, and they do not address the incident or whether termination would be an appropriate outcome.
[67] Mr Pavlovic says that the Deputy President’s finding was incorrect, and a relevant consideration was not taken into account. It is submitted that except for Ms Jaksic’s reference, the other references were provided to Alcoa to assist Mr Pavlovic in preserving his ongoing employment. Mr Pavlovic contends that the error in the decision is significant because the Deputy President did not consider that at least three superiors were supportive of Mr Pavlovic remaining employed despite the incident. Mr Pavlovic says that these referees seemingly held the view that the incident would not result in his termination.
[68] It is submitted by Alcoa that if any speculation made by the Deputy President at [143] of the decision was in error, such error was not a significant error of fact. This is because the evidence indicates that Alcoa had considered the references in reaching its decision to dismiss Mr Pavlovic. Alcoa also states that Mr Pavlovic’s dismissal is not unfair simply because some of his superiors did not consider that the incident would result in his termination.
[69] The Deputy President considered the provision of four references in the context of Mr Pavlovic’s contention that Alcoa did not communicate the potential disciplinary consequences arising from the incident. The references were provided by Mr Pavlovic in response to the show cause letter dated 30 October 2019, which relevantly provided: 115
“Alcoa has considered the seriousness of your conduct on 24 October 2019, including the risk that it created to your safety and concluded that such conduct justifies the termination of your employment (potentially on a summary basis).
However, prior to taking a decision on whether to terminate your employment, the Company is providing you with an opportunity to respond to the above and provide reasons as to why your employment should not be terminated (including any mitigating factors that you consider should be taken into account).
…
After that time, Alcoa will take into account all of the information available to it (including information you have provided) and take a decision on an appropriate outcome (which could, as noted above, include the summary termination of your employment).”
[70] It is apparent from the content of the show cause letter that the possibility of Mr Pavlovic’s termination existed, and Mr Pavlovic was on notice of this fact. Mr Pavlovic’s show cause response included the four references. In this context, the Deputy President’s finding that “[I]t appears that the references were given on the presumption that Mr Pavlovic was likely to be dismissed” is logical. The Deputy President had regard to the fact that the references were provided by Mr Pavlovic in support of his ongoing employment. While the statement made by the Deputy President that Mr Pavlovic “might need them for future employment” is not reflected in the evidence, no significant error of fact arises. It does not follow that the inclusion of this statement resulted in the Deputy President failing to consider that at least three superiors were supportive of Mr Pavlovic retaining his job. Relevantly, the Deputy President made observations under s 387(h) about the content of the references, and further that they were not provided by any person who is a decision maker in the disciplinary process. For these reasons, appeal ground five fails.
Appeal ground six
[71] Mr Pavlovic says by appeal ground six that the Deputy President erred by not taking into account that Alcoa erroneously applied a Deviation Analysis Model (model) in responding to the incident.
[72] The model is said to be applied by Alcoa in assessing the severity of a safety breach. 116 Mr Pavlovic submits that the incident was incorrectly classified as an ‘Individual Driven Violation,’ and ought to have been classified as an ‘Individual & System Driven Violation & Error.’ Mr Pavlovic says that the Deputy President did not address this matter in the decision, and accordingly did not take into account a relevant factor. The contended error in the decision is said to be significant because the characterisation of the incident under the model was an important factor in Alcoa’s decision making.
[73] Alcoa says that while the model was not addressed in the decision, it does not give rise to a significant error. This is because the model does not prescribe disciplinary outcomes and does not preclude the decision made by Alcoa to terminate Mr Pavlovic’s employment.
[74] It is not in dispute that the Deputy President did not refer, in terms, to the model in the decision. However, we are not persuaded that this omission gives rise to appealable error for the following reasons.
[75] Mr Pavlovic contends that Alcoa erroneously applied the model because his safety breach was an inadvertent human error. 117 The Deputy President dealt with the intentionality of Mr Pavlovic’s conduct in failing to tag, and concluded as follows:
“… 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.”
[76] We have earlier concluded that no appealable error is disclosed by the Deputy President’s finding that the conduct was not entirely unintentional. Accordingly, the contention that the Deputy President erred by not addressing Mr Pavlovic’s submission that Alcoa erroneously applied the model cannot be sustained. This is because while the model was not expressly dealt with in the decision, Mr Pavlovic’s application of the model is underpinned by his position that the conduct was unintentional. On a practical reading of the decision, by rejecting this argument the Deputy President similarly rejected Mr Pavlovic’s application of the model. The fact that the Deputy President did not positively say so does not, in these circumstances, give rise to appealable error. We therefore do not accept that the Deputy President failed to take into account a relevant matter.
[77] Further, and in any event, Mr Pavlovic’s conduct was not assessed only by reference to the model, which we note does not prescribe any disciplinary outcomes. The Deputy President had regard to the show cause and termination letters issued to Mr Pavlovic, which provide that Alcoa had determined that his conduct was non-compliant with the following procedures: 118
(a) 190 Stacker Maintenance Procedure (HUN);
(b) Huntly Fixed Plant Tagging Documents;
(c) Huntly Stacking Area – Tag-Out; and
(d) 190 & 290 Stacking while Reclaimer under Maintenance (HUN).
[78] A review of the 190 Stacking Procedure alone discloses that Mr Pavlovic’s conduct amounts to a “major and serious safety violation.” 119 Mr Pavlovic accepted that this statement of the procedure is unambiguous.120
[79] Mr Pavlovic’s conduct was also determined to be inconsistent with Alcoa’s Conduct and General conditions document, the Mines Safety and Inspection Act 1994 (WA) and Alcoa’s Code of Conduct as it relates to safety. 121 The Code provides that safety is a fundamental value, and that a violation of its terms will not be tolerated and may result in disciplinary action or termination of employment.
[80] While Mr Pavlovic contends that Alcoa’s characterisation of the incident under the model was an important factor in its decision making, the evidence discloses that it was a tool in assessing behaviour that is unexpected. 122 It is apparent from the show cause and termination letters that Mr Pavlovic’s conduct was assessed against the safety obligations in the documents set out at [77] above. Accordingly, we reject Mr Pavlovic’s contention of significant error in circumstances where the Deputy President gave consideration to the matters that ultimately informed Alcoa’s decision to terminate his employment.123
[81] We reject appeal ground six.
Appeal ground eight
[82] By appeal ground eight, Mr Pavlovic contends that the Deputy President erred by finding that Mr Pavlovic’s dismissal was proportionate and appropriate. However, Mr Pavlovic says that this appeal ground is contingent upon him succeeding in respect of appeal grounds one (inconsistent treatment), two (the nature of his breach), three (mitigating circumstances), and five (references).
[83] We have earlier dismissed appeal grounds one, two, three and five. Having regard to the way in which Mr Pavlovic has framed this ground of appeal, the contention that summary dismissal was not a proportionate and appropriate response for the reasons at 8(a) to (d) of the notice of appeal cannot be sustained.
[84] Further, we reject Mr Pavlovic’s contention at 8(e) of the notice of appeal that the Deputy President erred by finding that Mr Pavlovic’s dismissal was proportionate and appropriate in light of Mr Pavlovic’s length of service and good employment record. The Deputy President dealt with these matters at [236] to [243] of the decision. Mr Pavlovic does not identify how the Deputy President erred in the assessment of these matters, nor how this bears upon the conclusion that the dismissal was not unfair. Accordingly, there is no merit to this component of the appeal ground.
[85] Appeal ground eight is dismissed.
Conclusion and disposition
[86] In summary, none of the matters raised by Mr Pavlovic as justifying the grant of permission to appeal enliven the public interest. Mr Pavlovic’s application for an unfair dismissal remedy was determined on the basis of its own facts and the appeal does not raise any issue of novelty, importance or general application. We are therefore not satisfied that it would be in the public interest to grant permission to appeal.
[87] Accordingly, permission to appeal must be refused in accordance with s 400(1) of the Act.
DEPUTY PRESIDENT
Appearances:
Mr Crawford for the Appellant.
Mr Vallence for Alcoa of Australia Limited T/A Alcoa World Alumina Australia.
Hearing details:
2021
Melbourne
February 8
Printed by authority of the Commonwealth Government Printer
<PR726696>
1 [2020] FWC 3919, PR721288
2 PR721291
3 Appeal book p.348 at [1]
4 Ibid p.348 at [3] and [5(b)]
5 Ibid p.349 at [10]
6 Ibid p.349 at [9]
7 Ibid p.285 at [7], p.502 at [25]
8 Ibid p.502 at [25]
9 Ibid p.565 at [3]
10 Ibid p.502 at [30] and [31], p.565 at [3]
11 Ibid p.688 at [23]-[29]
12 Ibid p.349 at [13]
13 Ibid p.689 at [32], p.690 at [46]
14 Ibid p.350 at [17]
15 Ibid p.350 at [18]
16 Ibid p.350 at [22]
17 Ibid p.4-13 at [8]-[84]
18 Ibid p.13-15 at [85]-[101]
19 Ibid p.16 and 17 at [105]-[107]
20 Ibid p.17 at [108]-[110]
21 Ibid p.17 and 18 at [111]-[114]
22 Ibid p.18 at [115]-[118]
23 Ibid p.18 at [119]
24 Ibid pp.18 and 19 at [120]-[124]
25 Ibid p.19-40 at [125]-[261]
26 Ibid p.293
27 Ibid p.19 at [128]
28 Ibid p.22 and 23 at [148]
29 Ibid p.27 at [176]
30 Ibid p.29 at [191]
31 Ibid p.29 and 30 at [197]
32 Ibid p.33 at [214]
33 Ibid p.36 at [233]; see Alcoa World Alumina Australia W.A. Operations AWU Enterprise Agreement 2014
34 Appeal book p.38 at [249]
35 Ibid p.22 at [147]
36 Ibid p.22 at [143]
37 Ibid p.32 at [207(f)]
38 Ibid p.23 at [149], p.24 at [153]
39 Ibid p.23 at [150]
40 Ibid p.23 at [151] and [152]
41 Ibid p.24 at [154]-[156]
42 Ibid p.24 at [159], p.25 at [162]
43 Ibid p.25 at [161]
44 Ibid p.25 [163]-[166]
45 Ibid pp.25 and 26 at [167]-[172]
46 Ibid pp.26 and 27 at [173]-[175]
47 Ibid p.33 at [213]
48 Ibid pp.29-33 at [197]-[212]
49 Ibid p.36 at [232]
50 Ibid p.33 at [220]
51 Ibid p.35 at [228]
52 Ibid p.34 at [224]
53 Ibid p.34 at [226]
54 Ibid pp.34 and 35 at [226]
55 Ibid p.35 at [228]
56 Ibid p.36 at [233]-[235]
57 Ibid p.36 at [235]
58 Ibid p.37 at [242]
59 Ibid p.24 at [153]
60 Ibid p.40 at [261]
61 Ibid p.41 at [274], see also pp.40 and 41 at [262]-[273]
62 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
63 See Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37]
64 (2011) 192 FCR 78 at [43]
65 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
66 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
67 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
68 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
69 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
70 Appeal book p.274 at [2274]
71 Ibid p.228 at [25]
72 Ibid p.35 at [228]
73 Ibid 249 at [2050]
74 Ibid p.231 at [1886]
75 Ibid 249 at [2050]
76 Ibid
77 Ibid
78 Ibid p.647 at [31(b)]
79 Ibid p.171 at [1271], p.227 at [1842], p.274 at [2278]
80 Ibid p.171 at [1271], p.227 at [1842], p.274 at [2278]
81 Ibid p.276 at [2290]
82 Ibid pp.274 and 275 at [2278]
83 Ibid pp.274 and 275 at [2278]
84 Ibid p.270 at [2241] and [2242], p.272 at [2250]
85 Ibid pp.271 and 272 at [2244]
86 Sexton v Pacific National (ACT) Pty Ltd (AIRC, Lawler VP, 14 May 2003) PR931440 at [36] (Sexton); see also Mr Wayne Darvell v Australian Postal Corporation[2010] FWAFB 4082 at [21]
87 Sexton at [36]
88 Appeal book p.276 at [2290]
89 Ibid pp.728 and 729
90 Ibid p.271 at [2247]
91 Ibid p.234 at [1923], pp.271 and 272 at [2244]
92 Ibid p.502 at [25], p.565 at [3]
93 Ibid p.571 at [55]
94 Ibid p.155 at [1105], p.199 at [1525], p.204 at [1584], p.239 at [1982], p.266 at [2205] and [2206]
95 Ibid p.255 at [2098]
96 Ibid p.565 at [3]
97 Ibid p.205 at [1593]
98 Ibid p.255 at [2098]
99 Ibid pp.254 and 255 at [2096]-[2100]
100 Ibid pp.675 and 676
101 Ibid pp.25 and 26 at [168]
102 Ibid pp.184-185 at [1398], p.200 at [1539]-[1542], p.241 at [1998], p.267 at [2217]
103 Ibid p.195 at [1477], p.241 at [1997], p.278 at [2306]
104 Ibid p.158 at [1137], p.184 at [1398], p.193 at [1456], p.200 at [1539]-[1541], p.267 at [2217]
105 Ibid p.208 at [1637]
106 Ibid book p.51 at [93]
107 Ibid p.51 at [90]-[92]
108 Ibid pp.469 at [3], p.502 at [25]
109 Ibid pp.53 and 54 at [108]-[122]
110 Ibid p.24 at [158]
111 Ibid pp.54 at [129], pp.77 and 78 at [386]-[394]
112 Ibid p.502 at [32]
113 Ibid p.57 [152]-[153]
114 Ibid p.713; see also p.56 at [142]-[144]
115 Ibid p.466
116 Ibid pp.681-685
117 Ibid p.571 at [57] and [58]
118 Ibid pp.465 and 466
119 Ibid p.398
120 Ibid p.21 at [138], p.61 at [196] and [197]
121 Ibid p.466
122 Ibid p.681
123 Ibid p.23 at [150]
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