Patrick Sakadakis v Sedco Forex International Inc

[2015] FWC 8189

[2015] FWC 8189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick Sakadakis
v
Sedco Forex International Inc
(U2014/15126)

COMMISSIONER WILLIAMS PERTH, 27 NOVEMBER 2015

Termination of employment.

[1] This decision concerns an application made under section 394 of the Fair Work Act 2009 (the Act), by Mr Patrick Sakadakis (Mr Sakadakis or the applicant). The respondent is Sedco Forex International Inc (Sedco or the respondent).

Background

[2] Mr Sakadakis was operating a crane on an offshore drillship the Deepwater Millennium when another member of his work group Mr Ben Morcom (Mr Morcom) was injured. Mr Morcom’s injury occurred when Mr Morcom unhooked the latch securing a master link that was being moved by the crane and the master link, weighing 32 kg, fell approximately 60 cm onto his foot.

[3] Subsequent investigations concluded that the root causes of the incident were that there was a failure to identify relevant hazards because there was no adequately risk assessment of the task and a simple lift checklist was not completed as required and that planning and communication was inadequate and ineffective.

[4] Consequently the respondent terminated the employment of Mr Sakadakis on 5 November 2014.

Evidence and Factual findings

[5] Mr Sakadakis gave evidence and the respondent called evidence from Mr Blair Callander (Mr Callander) the Rig Manager of the Deepwater Millennium, Mr John Coletta (Mr Coletta) the Human Resource Manager of the respondent, Mr Johan Mattiasson (Mr Mattiasson) the Quality Health Safety and Environment Advisor of the respondent and Mr Morcom the Roustabout who was injured in the incident.

[6] Considering the evidence of the witnesses I make the following factual findings.

[7] Sedco operates offshore drilling rigs and ships for customers developing offshore oil and natural gas reserves.

[8] The Deepwater Millennium is a dynamic positioned drillship operated by Sedco which in 2014 was drilling off the coast of North Western Australia.

[9] Mr Sakadakis is 61 years old and has worked on oil rigs in the offshore oil and gas industry since 1988. He has been employed as a Crane Operator/Deck Pusher for 25 years.

[10] Mr Sakadakis was first employed with Sedco in 2011 as a Crane Operator. He has worked on the Deepwater Millennium since December 2012.

[11] The respondent has a comprehensive scheme of safety management systems in place on the Deepwater Millennium.

[12] The offer of employment accepted by Mr Sakadakis which is dated 28 November 2011 provides at section 8−Safety and Training that safety of all personal on board is of utmost priority to Sedco and that Mr Sakadakis is expected to observe safe working procedures for not only his own safety but also that of his fellow workers. It is pointed out that safety meetings and rules are held and attendance is compulsory. It is expressly stated that as part of his employment agreement he is required to adhere to Sedco’s health and safety manual requirements, perform his job in a safe manner and comply with company safety policies and work safely at all times.

[13] Further this section of the offer of employment states:

“If you fail to work in a safe manner by not following company policies or procedures, or not applying safe common-sense working practices, your employment with the company will be terminated and you will be removed from the rig forthwith.”

[14] The safety policies and procedures which Mr Sakadakis was bound to comply with are contained in the respondent’s Health, Safety and Environmental Handbook. 1 There are individual policies dealing with Manual Handling Operations and Lifting Equipment and Operations that are applicable.

[15] Mr Sakadakis was aware of the relevant safety policies and procedures. 2

[16] It is a requirement that a lift plan or lift card/simple lift checklist is completed to ensure all hazards have been identified and risks reduced before a lift with the crane is carried out.

[17] On the day of the incident Mr Sakadakis, Mr Cosgrove and Mr Morcom came on duty at approximately 12 noon and after handover from the previous crew they had a toolbox talk where they reviewed a Written Risk Assessment (WRA) for repositioning deck cargo and they completed a Risk Assessment Prompt Card (Prompt Card). 3

[18] As noted on the WRA Mr Sakadakis is the Crane Operator and was the senior person assigned to the task.

[19] The WRA was a generic risk assessment and applied to a number of lifts that would be involved in the general work of repositioning deck cargo that the crew were to undertake.

[20] The operations for this crew involved clearing some space on the deck and one of the items to be moved was the riser skate extension. This was to be moved 1 m from its original position.

[21] After moving the riser skate extension Mr Sakadakis lowered the hook of the crane to enable Mr Morcom to disconnect the master link/bridle.

[22] The evidence is that Mr Sakadakis understood that the master link/bridle would be lowered until it was resting on the deck.

[23] However the balance of the evidence is that Mr Cosgrove and Mr Morcom instead understood that it would be lowered to a height above the deck which would allow Mr Morcom to unlatch the master link/bridle and then lift it manually down to the deck.

[24] The evidence of Mr Morcom which I accept is that when the load was at waist height and he thought he could manage the weight he communicated to Mr Cosgrove to stop the crane. Mr Cosgrove communicated this to Mr Sakadakis by radio and Mr Sakadakis stopped lowering the load, leaving the master link/bridle at this height above the deck.

[25] Mr Morcom’s evidence is that once the load was stationary he took the weight of the master link/bridle and unhooked the latch at which point the master link/bridle dropped onto the deck and his foot.

[26] Mr Sakadakis did not see Mr Morcom get injured because he was unsighted and a considerable distance away. There was a tower in front of him and through the tower he could see Mr Cosgrove where he had moved into position but he could not see Mr Morcom whilst the master link/bridle was being lowered. 4

[27] The crew had not weighed the master link/bridle before carrying out the lift. Nor had the crew considered the hazards and risks involved in manual handling the master link/bridle.

[28] Mr Morcom’s understanding of the process is that there is a written risk assessment of a general nature in place for deck lifts using the crane and if there is something about a particular lift that is unusual he understands all of the crew would be involved in conducting a risk assessment and adding specific details to the written risk assessment as required.

[29] His evidence was that this lift of the master link/bridle was a simple lift and did not warrant anything specific going into the written risk assessment.

[30] Mr Morcom’s evidence which I accept was that prior to undertaking this lift there was no discussion between himself and Mr Sakadakis about the lift.

[31] Mr Sakadakis acknowledges that in the toolbox meeting and discussion with Mr Cosgrove and Mr Morcom before commencing their work they did not identify any hazard in lowering the master link/bridle.

[32] Mr Sakadakis had significantly more experience than either Mr Cosgrove or Mr Morcom. Mr Morcom had only been on board the vessel since February 2014 and Mr Cosgrove was a Roustabout who was carrying out high duties as a Banksman.

[33] Mr Sakadakis in cross-examination agrees that he should have identified and made sure that all three of them were in agreement on how to lower the master link/bridle to the deck and indeed he thought it was clear to them all

[34] After the incident Mr Sakadakis made the following handwritten notation on the WRA:

“Keep feet clear. If bull ring too heavy, foot placement.”

[35] In terms of his assessment of the central failing behind the incident Mr Sakadakis on the one hand agreed that his criticism of what occurred was that when Mr Morcom manhandled the master link/bridle to the deck he simply had not kept his feet clear however he also says that the correct way to do this is to lower the master link/bridle all the way to the deck.

[36] The evidence of the respondent’s witnesses is that the cause in large part of the incident was the poor communication that allowed Mr Sakadakis and the other crew to have different understandings as to whether the master link/bridle was to be lowered to the deck or instead to be stopped above the deck and then manhandled onto the deck.

[37] Mr Sakadakis does acknowledge that there was not communication as to how the master link/bridle was to be lowered to the deck. 5

[38] The risk assessment Prompt Card, for the task of repositioning deck cargo, which was completed by the crew before beginning the work, has a series of sections with potentially relevant issues listed designed to prompt the crew to consider various risk and hazards. The evidence is that on the completed Prompt Card under the heading “Behaviour” the second item which is “Effective communications – All parties informed” was not ticked.

[39] Under cross-examination Mr Sakadakis acknowledged this deficiency in completing the Prompt Card and he agreed that there was not any communication amongst the crew in regard to how the master link/bridle would be lowered. He agrees that as the crane operator supervisor he should have ensured that there was in fact communication about that important issue. 6

[40] I accept that Prompt Cards are not used solely for heavy crane lifts but rather on their face are applicable to all manner of task including minor tasks carried out by individuals.

[41] No manual handling assessment was undertaken to consider what risks and hazards might be involved in Mr Morcom lifting the master link/bridle onto the deck. I note of course that Mr Sakadakis did not realise that Mr Morcom was going to manually handle the master link/bridle.

[42] Mr Sakadakis acknowledges that he did not on this occasion communicate his view to the crew that the master link/bridle should be lowered to the deck before being unlatched although his evidence was that he had done so on other occasions. This however was denied by Mr Morcom in his evidence. 7

[43] Mr Sakadakis acknowledge it was his responsibility as the Crane Operator to ensure that Mr Cosgrove and Mr Morcom understood how the lift was to be conducted and specifically whether the master link/bridle would be lowered to the deck or not.

[44] His evidence however was that in his opinion the crew should not have to be told what to do every time and also that they did not really listen to him because they thought they knew what they were doing. 8

[45] Following the incident the respondent undertook an investigation.

[46] The draft report into the incident identified that the root cause of the incident was that all personnel involved had failed to identify some important risks on the WRA. It was Mr Mattiasson however who wrote the final report which came to a different conclusion. The final report and summary concluded that the planning and risk assessing of the lift was inadequate as demonstrated by the fact that Mr Sakadakis had a different idea as to how the lift would be carried out from the understanding of Mr Cosgrove and Mr Morcom. An additional strong indicator of poor planning and risk assessment was the fact that the master link/bridle weighed just over 32 kg which was well above the maximum amount allowable under the respondent’s policies and procedures for one person to manually handle which is 22.7 kg. Further it was found that the crew did not utilise the simple lift checklist as they were required to.

[47] The evidence of Mr Mattiasson under cross-examination which I accept is that Mr Sakadakis was the most competent and experienced person involved in this particular task and needed to lead the planning of the task and the risk assessment and needed to ensure that they all had a common understanding of exactly what each step of the task was going to be and what the associated risks were.

[48] Following the investigation the respondent’s Managers met with Mr Sakadakis.

[49] On 5 November 2014 there was a formal meeting. This was attended by Mr Coletta and Mr Callander. Mr Sakadakis had a support person present from the Maritime Union of Australia.

[50] It was explained that the purpose of the meeting was to discuss the incident and what the respondent saw as a breach of safety protocols and that Mr Sakadakis employment was under review.

[51] At the meeting it was put to Mr Sakadakis that the lift in question had not been properly planned or risk assessed nor had the master link/bridle been weighed for manual handling purposes.

[52] Mr Sakadakis was invited to provide what evidence or explanation he wanted to in support of why his employment should not be terminated.

[53] It was put to him that he had been in charge of the lift and had failed to properly manage it and had failed to do a simple lift checklist as required.

[54] The evidence is that in his response at this meeting Mr Sakadakis queried whether Mr Morcom had been injured at all and that he did not believe the master link/bridle weighed 32 kg. He also stated that the other crew were not listening to him because they thought they knew what they were doing.

[55] Mr Callander considered the situation and formed the view that Mr Sakadakis posed a significant risk to health and safety on board the Deepwater Millennium because he had on this occasion breached a fundamental safety protocol and he appeared to lack acceptance of his responsibility in this regard.

[56] The evidence is that the applicant had received two previous written warnings.

[57] The first Notice of Unsatisfactory Performance was given to Mr Sakadakis on 25 December 2013. The details of the warning referred to the applicant conducting crane operations in an unsafe manner using too few personnel. Due to not enough personnel the Crane Operator, Mr Sakadakis, was allowing a Banksman to handle loads and rigging. This warning refers to this as a breach of the company’s Lifting Equipment and Operations policy.

[58] Mr Sakadakis believes this warning was not correct nor fair and he should not have received it. His evidence was that he did not read it although he did sign it at the time. 9

[59] The second Notice of Unsatisfactory Performance was given to Mr Sakadakis on 10 February 2014. The details of the warning refer to him not properly risk assessing before performing general deck lifts. It refers to no timeout for safety being called even though this was suggested when the plan changed and that a generic WRA was being used and no review of the WRA was done. The notice refers to no Prompt Card being used and disregarding policies and procedures. The warning in this instance again refers to this as a breach of the company’s Lifting Equipment and Operations policies.

[60] On this occasion the incident involved another Roustabout being injured by a nail penetrating his boot.

[61] Mr Sakadakis also believes this warning was not correct nor was it fair and he should not have received it. His evidence was also in this case that he did not read it but again also signed it. 10

[62] Mr Sakadakis did not challenge or attempt to appeal either of the Notices of Unsatisfactory Performance when they were given to him nor at any later date.

[63] Mr Sakadakis has some explanations as to why he says he should have not received these two prior warnings but his evidence on both of these matters is quite limited and is not at all persuasive.

[64] Mr Coletta’s evidence is that the respondent also issued a formal warning to Mr Cosgrove and a verbal warning to Mr Morcom. By comparison with Mr Sakadakis this lesser disciplinary action was taken because neither Mr Cosgrove nor Mr Morcom had previous warnings for unsatisfactory performance. In addition the applicant as the Crane Operator was in charge of the lift and following the incident did not, in the respondent’s view as he should have, recognise that his failure to fully comply with the respondent’s policies and procedures had contributed to Mr Morcom being injured.

Submissions

The applicant

[65] For the applicant it is submitted that the Commission should be mindful of the fact that the draft report into the incident identified that the root cause of the incident was that all personnel involved had failed to identify some important risks on the WRA. However the final report drafted by Mr Mattiasson came to a different conclusion that places more blame on the applicant.

[66] It is submitted that whilst the applicant is not without some blame for the incident in the circumstances it was a relatively minor incident as part of an incidental lift in the workplace which did not justify his termination.

[67] It is submitted that the respondent put some reliance on the two previous Notices of Unsatisfactory Performance that had been given to Mr Sakadakis when making its decision to dismiss him. It is submitted that these warnings were not put to the applicant before he was dismissed and they should have been given there is some dispute as to the validity of these previous warnings.

[68] The applicant is 61 years old and has been employed in this industry for 26 years. The evidence is that there is been a downturn in the industry and in the circumstances the chances of the applicant securing further employment is slim.

[69] The applicant submits that the termination of his employment is disproportionately harsh given his age and his length of service in the industry. A decision to terminate his employment over a relatively minor incident is effectively a decision to consign him to unemployment.

[70] The applicant urges the Commission to find the dismissal of Mr Sakadakis was unfair and that he should be granted the primary remedy under the Act of reinstatement.

The respondent

[71] The respondent submits that the applicant’s employment was terminated because he breached the respondent’s requirements that he operate in a safe manner at all times. The applicant was required by his employment contract and the respondent’s policies and procedures to perform his duties safely at all times, adhere to all safety policies and he has been expressly notified in his contract that failure to do so would result in termination of his employment.

[72] It is submitted that the evidence discloses the applicant’s safety breaches are ones that caused risk to others and consequently the respondent was required to terminate his employment to minimise the risk of harm occurring to other workers on the Deepwater Millennium.

[73] The applicant did not undertake his role as a Crane Operator in a safe manner as was required of him. The applicant did not properly plan the lift or conduct a proper risk assessment as he was required to. The applicant did not properly communicate with his crew regarding the manner in which the master link/bridle would be lowered.

[74] After the incident the applicant did not accept he had not followed correct safety protocols and disputed he was responsible for the incident. Mr Sakadakis even disputed that Mr Morcom had actually been injured.

[75] The applicant’s behaviour was not an isolated occasion as he has previously received two written warnings for similar breaches of the respondent’s health and safety policies in December 2013 and February 2014. This history reveals a pattern of behaviour by Mr Sakadakis where he poses a risk to himself and his co-workers by failing to adhere to the respondent’s safety policies and procedures.

[76] In the circumstances whilst recognising the consequences to the applicant, given his age, of being dismissed the respondent’s prime concern is to ensure the safety and well-being of the employees on the Deepwater Millennium drilling rig which operates in an inherently dangerous environment which warrants the employer taking all precautions to ensure the safety of its employees.

[77] In those circumstances the dismissal of Mr Sakadakis was not unfair and this application should be dismissed.

Consideration

[78] Section 387 of the Act sets out the matters the Commission must consider when determining whether or not a dismissal was harsh, unjust or unreasonable. This section of the Act is set out below:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

Valid reason

[79] The evidence is that Mr Sakadakis as a Crane Operator on the Deepwater Millennium on 4 October 2014 did not comply with the respondent’s safety policies as he was required to. As the Crane Operator he was responsible for the planning of lifts including a proper risk assessment and for the communication of relevant matters to the two other crew.

[80] Specifically Mr Sakadakis did not, as he should have, properly lead the planning of a lift that resulted in Mr Morcom being injured. He did not ensure that the required lift card/simple lift checklist was completed. He did not ensure that the Prompt Card was thoroughly considered and completed. Mr Sakadakis did not ensure there was effective communication amongst his crew and as a consequence he and the other two crew members had different understandings of how the lift would be undertaken. As a consequence of these failures an incident occurred and Mr Morcom was injured.

[81] These failures by Mr Sakadakis were valid reasons for his dismissal and his conduct had a negative effect upon the safety of another employee.

Notification of reason

[82] Mr Sakadakis was notified before he was dismissed of the reasons Sedco were considering terminating his employment.

Opportunity to respond

[83] Mr Sakadakis had an opportunity at the final meeting with the respondent’s Managers to respond to the reasons for which he was dismissed and did so.

Presence of a support person

[84] There was no refusal of a request for a support person to be present. At the final discussion prior to being dismissed Mr Sakadakis was accompanied by a representative of the Maritime Union of Australia.

Unsatisfactory performance warnings

[85] On two prior occasions Mr Sakadakis had been given written Notices of Unsatisfactory Performance. Both of those warnings related to his failure to follow the health and safety policies and procedures of the respondent.

Size of the employer’s enterprise

[86] The respondent is a large employer and the procedures followed were appropriate.

Dedicated human resource management

[87] The respondent does have dedicated human resources staff and consequently the procedures followed were appropriate.

Other matters

[88] Mr Sakadakis is 61 years old and it is submitted on his behalf that this fact will make it relatively more difficult for him to gain alternative employment which I accept will be the case.

[89] Mr Sakadakis’s place of work is an offshore rig. The respondent is subject to statutory obligations regarding safety in the workplace, as are all employers, but the applicable regime for an offshore oil and gas facility is very stringent and with good reason. Of necessity his employer demands of its employees a high level of adherence to its health and safety policies and procedures. Consequently conduct by employees which undermines the respondent’s efforts to meet their statutory safety obligations, such as not complying with policies and procedures, can be expected to result in disciplinary action and potentially dismissal. This is expressly stated in the offer of employment which Mr Sakadakis accepted.

Conclusion

[90] It is clear from the evidence that there was not open communication amongst the three-person crew on the day of the incident. Mr Sakadakis’s own evidence was that at times Mr Cosgrove and Mr Morcom would not listen to him because they believed they knew what they were doing. Mr Sakadakis merely accepted this and had done nothing to resolve this even though as the Crane Operator he had responsibility for the lifts the crew undertook.

[91] In any event Mr Sakadakis says he did not believe he should always have to tell them what to do. The incident and the resultant injury to Mr Morcom however demonstrates Mr Sakadakis was wrong and there did need to be open communication about what each of the crew had to do even for a simple lift.

[92] Notwithstanding these communication barriers amongst the crew if Mr Sakadakis had acted in full compliance with Sedco’s policies and procedures and ensured that both the lift card/simple lift checklist was completed and that the Prompt Card was thoroughly considered and completed it is likely that the difference in understanding between Mr Sakadakis and Mr Corbett and Mr Morcom as to how the lift was to be conducted would have become apparent and could have been clarified and that the hazard inherent in Mr Morcom manhandling this particular master link/bridle, weighing over 30 kg, to the deck would have been identified and dealt with. 11

[93] Mr Sakadakis prior to this incident on 4 October 2014 did not have an unblemished record. In fact the two prior instances where he had been warned about unsatisfactory performance both involve him not acting in full compliance with Sedco’s health and safety policies and procedures. Whilst Mr Sakadakis now complains about each of these warnings at the time he was given each warning he accepted it and did not challenge it. The existence of these two prior warnings is a relevant consideration which supports a conclusion that Mr Sakadakis dismissal was not unfair.

[94] The disciplinary approach taken by Sedco to Mr Cosgrove and Mr Morcom is not inconsistent with the company’s approach to Mr Sakadakis. When considering all three employees Sedco quite properly took into account Mr Sakadakis particular responsibilities as the Crane Operator, his greater experience compared to the other two employees and the fact that unlike Mr Sakadakis neither of the other two employees had received any previous warnings.

[95] In all the circumstances considered, including Mr Sakadakis’s age and the nature of his workplace, there is no reason to view the dismissal of Mr Sakadakis as harsh, unjust or unreasonable.

[96] The dismissal of Mr Sakadakis was not unfair. This application will be dismissed and an order will be issued to that effect.

COMMISSIONER

Appearances:

L. Edmonds, of The Maritime Union of Australia for the applicant.

R. Lindsay, of Counsel for the respondent.

Hearing details:

2015.

Perth:

May 7 and August 14.

Final written submissions:

Applicant, 3 September 2015.

Respondent, 24 August 2015.

 1   Exhibit R2, Annexure JC-2.

 2   Transcript at PN128 to PN131.

 3   Exhibit R5, Annexures JM-2 and JM-3.

 4   Transcript at PN40.

 5   Ibid., at PN193.

 6   Ibid., at PN190 to PN194.

 7   Ibid., at PN1271.

 8   Ibid., at PN173, PN289 and PN291.

 9   Ibid., at PN309.

 10   Ibid., at PN332 and PN352.

 11   As explained by Mr Mattiasson in Ibid., at PN1195 to PN1236.

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