Rodney Atkinson v BGC Contracting Pty Ltd

[2016] FWC 2821

[2016] FWC 2821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rodney Atkinson
v
BGC Contracting Pty Ltd
(U2015/17080)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 25 MAY 2016

Application for relief from unfair dismissal – breach of safety procedures – valid reason – warnings considered – termination harsh – compensation.

[1] On 22 December 2015 Mr Atkinson lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with BGC Contracting Pty Ltd (BGC). This application was the subject of a hearing, in Adelaide, with a video-link to Whyalla, on 5 May 2016. Both parties provided written submissions and submissions in reply following this hearing.

[2] At this hearing, Mr Swan, of counsel, represented Mr Atkinson and Mr Bakewell, as an agent, represented BGC pursuant to unopposed grants of permission made under s.596(2)(a) of the FW Act.

[3] The background to the matter is simply set out. BGC is a major contractor at a large open cut mine in the Middleback Ranges. Mr Atkinson was engaged as a Dump Truck DT220 Operator from the start of the BGC contract in October 2012. He was engaged under the terms of the BGC Contracting Mining Employees Enterprise Agreement 2012.

[4] The incident which led to the termination of Mr Atkinson’s employment occurred on 26 November 2015. Mr Atkinson was driving a dump truck and had only just left the area where the heavy equipment was parked during shift breaks. Mr Atkinson was distracted as he reached for a banana from his bag on the seat beside him. His truck mounted what is called a windrow at the edge of the track designated for heavy vehicles. A windrow is a barrier of loose earth to prevent or arrest vehicles from driving off roadways. In this case, the windrow divided the heavy vehicle track from the track used by light vehicles. The windrow in question is approximately 1.6 metres high. The parties disagree over the extent to which Mr Atkinson’s truck mounted the windrow.

[5] Mr Atkinson was aware that he had hit the windrow but did not report the matter at the time. The damage to the windrow was reported by another dump truck driver by radio shortly afterwards. At that point, Mr Atkinson acknowledged that he was responsible for the damage.

[6] Mr Atkinson subsequently provided BGC with a statement about the matter and was drug tested. He was stood down from work. On the following day Mr Atkinson was interviewed by Mr Moschos, the BGC Mining Superintendent and Ms Cumner, the BGC Compliance Supervisor. He was advised that BGC considered the matter to be serious because of the incident itself and because of Mr Atkinson’s failure to report it.

[7] The drug and alcohol test returned negative results and was not taken into account in the termination of employment decision.

[8] Mr Atkinson was asked to attend a disciplinary meeting on 2 December 2015. He was invited to have a support person present but asked BGC to nominate such a person. This was done. In the course of this meeting, Mr Atkinson’s employment was terminated.

[9] Mr Atkinson asserts that the termination of his employment was harsh, unjust and unreasonable. He asserts that his action in not immediately reporting the incident was appropriate in that he intended to report the matter at the next scheduled break and to make an assessment of the damage to the windrow when he next passed it. Mr Atkinson took into account that an immediate report of the matter would have stopped work so as to enable an inspection.

[10] Mr Atkinson asserts that his actions were consistent with the BGC operating procedures given his assessment of the nature of the incident. Consequently, he asserts that there was no valid reason for the termination of his employment, or, alternatively, that termination of employment was disproportionate to the incident itself.

[11] Mr Atkinson asserts that the termination of his employment was procedurally unfair in that he was not advised that dismissal was a possible result of the 2 December 2015 meeting. Furthermore, he asserts that he understood that he was dismissed because of his failure to manage fatigue and that his failure to properly report the incident has only been relied upon as a later factor. Mr Atkinson also asserts that, at the time of the 2 December 2015 meeting, he was under substantial emotional strain due to his brother’s terminal illness.

[12] Mr Atkinson gained alternative employment some nine weeks after the termination of his employment with BGC. This employment was at a lower remuneration level but did not involve shift work. He seeks an amount of compensation in lieu of reinstatement.

[13] The BGC position is that it has implemented a rigorous safety regime on the mine site, in concert with its employees. This regime requires the immediate reporting of all safety risks, incidents and near misses. This policy has been implemented through extensive employee training and Mr Atkinson’s failure to report the windrow incident breached this policy about which he had been extensively trained. Mr Atkinson’s failure to comply with this policy represented a significant policy breach and was a valid reason for the termination of his employment.

[14] BGC asserts that Mr Atkinson’s safety record demonstrated that he had not previously complied with reporting requirements such that it could no longer have confidence that he would comply with its safety requirements. BCG asserts that Mr Atkinson had received warnings relative to safety breaches and a failure to report reportable incidents.

[15] BGC asserts that the investigation process it implemented was both fair and appropriate in that the allegations were put to him, he had an opportunity to respond and access to a support person.

The evidence

[16] Whilst I have considered all of the material put to me in reaching a conclusion in this matter, I have briefly summarised the evidence of the three witnesses.

[17] Mr Atkinson’s evidence went to his employment history, and the work he undertook for BGC. On the day of the incident he acknowledged that he had been present at a pre shift briefing about a worker at another mine who had died when his vehicle overturned. He explained that, soon after he left the Go Line he reached across to his bag on the seat beside him and caused the truck to veer into the windrow. He did not conclude that the matter was so serious that he should immediately report it so as to stop the other trucks whilst an investigation was undertaken. His evidence was that he intended to report the matter at the next break and decided to check on the damage when he next passed that point. When the windrow damage was reported by another driver, Mr Atkinson radioed in that he had likely caused that damage. His evidence was that he discussed with his supervisor whether the matter should be reported and agreed this should be done.

[18] Mr Atkinson’s evidence was that he was told the matter would be investigated and that he should expect to be required to undergo retraining. Mr Atkinson’s evidence was that he ‘was not in a good frame of mind’ 1 at that time because his brother was terminally ill and close to dying.

[19] Mr Atkinson acknowledged that he had been extensively trained in the BGC safety policy but asserted that his decision not to immediately report the windrow incident was consistent with the discretion available to him under that policy.

[20] In terms of the meeting on 2 December 2015, Mr Atkinson’s initial recollection was that he did not seek to resign and was surprised when told that he would be dismissed.

[21] Mr Atkinson confirmed the alternative employment that he obtained since he had been dismissed.

[22] Mr Moschos’ evidence went to the safety policies implemented by BGC and the extent to which these were an integral part of the mining operations. He also addressed the BGC drug and alcohol and fatigue management policies. His evidence went to the extent to which Mr Atkinson had been extensively trained in these policies.

[23] Mr Moschos detailed the investigation process, including his discussions with Mr Atkinson and his concerns over both the circumstances of the incident and the manner in which it was reported. Mr Moschos arranged the meeting for 2 December 2015 and gave evidence about the matters put to Mr Atkinson and his behaviour and responses. His evidence was that, early in the meeting, Mr Atkinson indicated that he wanted to be made redundant or to resign, but that he then advised that, as he had an income protection policy he would not resign. Mr Moschos’ evidence went to the advice he provided to Mr Atkinson about the reasons for the termination of his employment.

[24] Mr Moschos advised that whilst he was the decision maker, he consulted with the Acting Quarry Manager in the absence of the BGC Senior Project Manager and with BGC Human Resources personnel before concluding that the termination of Mr Atkinson’s employment was appropriate. He advised that the dismissal decision took into account Mr Atkinson’s failure to report the incident and the history of warnings given to him over the duration of his employment.

[25] Mr Ruwiza is the BGC Senior Project Manager. His evidence also went to the BGC attitude to safety and its safety management systems. Mr Ruwiza was absent when the incident and the investigation occurred but confirmed that BGC would approach matters such as this from a consistent perspective.

Findings

[26] Before considering the factor in s.387 of the FW Act, I have set out my conclusions about the relevant facts.

[27] Mr Atkinson was dismissed because of a combination of the significance of the incident and his failure to immediately report it.  2 I accept the evidence of Mr Moschos, to the effect that no drug or fatigue issues were taken into account in the termination decision.

[28] I am satisfied that the evidence before me establishes that BGC has an extensive safety policy framework and that employees, including Mr Atkinson, have been comprehensively trained in this policy. That policy specifically incorporates a requirement that near misses be reported. This is enshrined in the Reporting and Investigation Work Procedure 3 and in the Life Saving Rules – South Middleback Ranges which states:

‘I am committed to Identifying and Reducing Hazards by using tools such as START, risk assessments and prestart checks, and I will report immediately any hazards, incidents or near misses’ 4

[29] Despite some competing contentions about how a near miss is defined and understood, I have concluded that the BGC policies and practices required a common sense approach such that an event or incident which could have given rise to an accident should be regarded as a near miss.

[30] There can be no real dispute that BGC is both obligated and entitled to rigorously promote and advance a responsible workplace safety strategy and that employees have real and enforceable obligations in this respect. Mr Atkinson acknowledged this training and the significance of safety. 5 He also acknowledged that he had participated in a safety discussion on the day of his near miss, about an accident where a truck had overturned.6

[31] I am satisfied that Mr Atkinson was aware that he had a near miss when he reached into his bag on the seat beside him for a banana and veered into the windrow. I have accepted the evidence of Mr Moschos, to the effect that the truck tyre marks showed that Mr Atkinson had driven most of the way up the windrow and nearly over it. 7 I have concluded that the photographic evidence confirms this assessment. I consider that the magnitude of the damage to the windrow meant that Mr Atkinson must have been aware of the significance of the near miss. Further, I have accepted Mr Moschos’ evidence that the truck must have been at a significant risk of overturning at that point and that mounting the windrow to that extent must have been extremely disconcerting for the driver.8 I have concluded that the extent to which the truck went most of the way up the windrow, and nearly over it, exposed a risk that the truck may have collided with another person or vehicle, but consider that the more substantial risk was associated with overturning.

[32] Mr Atkinson’s decision not to immediately report that near miss is particularly significant in this matter. I have preferred the evidence of Mr Moschos in this respect, to the extent that, in the 2 December 2015 interview, Mr Atkinson acknowledged that he did not have control of his truck when it mounted the windrow and that the incident was abnormal and significant. 9 He was aware that he should have immediately reported the near miss but decided not to do so.10 I am not satisfied that the BGC investigation of the incident detracts from significance of Mr Atkinson’s failure to immediately report it.

[33] I accept Mr Atkinson’s evidence that, as soon as the damage to the windrow was reported on the radio, he acknowledged that he was the likely source of that damage. Further, that he agreed with his supervisor that the matter should be reported.

[34] I have concluded that Mr Atkinson was aware that he should have immediately reported the windrow incident and that his failure to do so was contrary to the expectations of him. Furthermore, that the advice he gave Mr Moschos about the incident raised serious questions about his appreciation of safety issues. I accept Mr Moschos’ evidence that Mr Atkinson advised him that he took calculated risks, that driving up the windrow didn't feel that bad and that he regularly reached into his bag. 11

[35] I am not satisfied that Mr Atkinson’s placement of his bag on the seat beside him, rather than in a dedicated storage area in the track cabin was a fundamental factor in this matter. In this respect, I am not satisfied that specific instructions in this respect had been issued or that the location of his bag was regarded as being particularly relevant to the employment termination circumstances. However, to the extent that Mr Atkinson indicated that his practice of reaching into his bag for items was commonplace, 12 this contributed to legitimate doubts about Mr Atkinson’s safety commitment.

[36] Mr Atkinson had been counselled or warned about safety issues three times. The first occasion was in 2013 and involved Mr Atkinson not stopping at a stop sign. I have concluded that this related to a safety breach but is not properly described as a failure to report an incident, as I have accepted Mr Atkinson's evidence that he was unaware of the stop sign. 13 Nevertheless I have taken into account that this was a first and final written warning.14 The second matter related to Mr Atkinson's failure to report an incident when a large rock rolled against his truck. He was given a verbal warning relative to this matter.15 Thirdly, Mr Atkinson was counselled with respect to his failure to report damage to a light vehicle tow bar device in November 2015.16 In this respect, I have accepted Mr Atkinson's evidence17 to the effect that he was not aware of any damage. Information that establishes that Mr Atkinson’s safety record was comparatively poor relative to other employees is not before me. Further, I have considered his disciplinary history in the context of the BCG policies and procedures.18 I have concluded that the disciplinary action applied to him does not establish that he consistently failed to report safety matters. Further, that the relatively lower level disciplinary advices given to him in 2015 could reasonably give rise to concern about his commitment to safety processes, but did not put him clearly on notice about the consequences of employment termination associated with a further failure to report a near miss.

[37] In terms of the investigation into the windrow incident, and particularly the meeting of 2 December 2015, I prefer Mr Moschos’ evidence about the manner in which that meeting proceeded. I think it is clear that Mr Atkinson was given the opportunity to have a support person present but declined this offer. I have concluded that Mr Atkinson was given informal advice that the outcome of the BGC investigation into the matter was that he was to undergo some remedial training but that it was clear to him by at least early in the meeting on 2 December 2015 that BGC was considering termination of his employment. I have accepted that Mr Moschos’ evidence that Mr Atkinson sought a redundancy package or that he anticipated termination of his employment confirms that Mr Atkinson was well aware of the possibility, or indeed the likelihood, of employment termination at the commencement of that meeting. Mr Atkinson did not seriously dispute Mr Moschos’ version of the conduct of the meeting, and I have concluded that, at an early point in that meeting Mr Atkinson reconsidered his initial position because of his concerns about his income protection insurance.

[38] I am not satisfied that Mr Atkinson alerted Mr Moschos to his brother’s illness such that the disciplinary process should have been deferred. Again, in this respect, I prefer the evidence of Mr Moschos 19 to the effect it was only after Mr Atkinson was advised of the termination of his employment that he referred to his brothers terminal illness, and that he made no reference to fatigue.

Section 387

[39] Section 387 states:

“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.”

[40] I have considered each of these factors in reaching a conclusion in this matter.

Valid reason

[41] Notwithstanding the subsequent legislative changes, I have applied the general principles set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd. 20

[42] I have applied the approach set out by a Full Bench in Parmalat Food Products Pty Ltd v Tran 21 in the following terms:

“[10] In this case the Commission found that the applicant breached its safety policy. The Commission then found that this did not constitute a valid reason for dismissal for reasons including that the applicant had not received a written warning, there were rational reasons for breach of policy, the applicant was honest and contrite, the applicant’s good service, the need to avoid differential treatment of employees, and ‘there were lesser punishments open to the Respondent which would have been appropriate’. The Deputy President said:

“[54] The Respondent has established that the Applicant breached its safety policy and practices on 5 March. However, I am not satisfied that this constitutes a valid reason for his dismissal. I have come to this view because:

● There is, to say the least, uncertainty about the status of the Respondent’s response to the 19 February incident. At the highest level, the Applicant had received a verbal counselling and had been stood down from forklift duties for a week while the investigation took place. He had not received a written warning. When the 5 March incident occurred he was driving forklifts.

● Even though the Applicant breached policy, there were rational explanations for his actions.

● The Applicant was honest and contrite in co-operating in the investigation.

[55] The Applicant’s service with the Respondent, taking account casual employment, was over ten years. He had a good work and performance record. Dismissal, in the circumstances, was not a proportionate response to the breach.

[56] I accept that a comparison of differential approaches to employees needs to be undertaken with caution (see: Wayne Darvell v Australian Postal Corporation [2010] FWAFB 4082, Sexton v Pacific National (ACT) Pty Ltd (PR931440), Daly v Bendigo Health Care Group (PR973305). However, both the Applicant and Mr Tiqui had long and good service. Given that Mr Tiqui was the Leading Hand and therefore should be expected to accept greater responsibility, it is hard to see that the Applicant should receive a harsher punishment. The evidence is the Applicant was co-operative at all times.

[57] I find therefore that although there was a breach of the Respondent’s health and safety policies and practices, it did not represent a valid reason for dismissal. In all the circumstances, there were lesser punishments open to the Respondent which would have been appropriate.

…

[71] Having found that there was no valid reason for the dismissal, the factors I have taken into account pursuant to s.387(h) support the finding that the dismissal was harsh, unjust or unreasonable. The Applicant was not accorded “a fair go” in the sanctions imposed by the Respondent in response to his actions. Accordingly, I find that the dismissal was unfair within the terms of s.385.”

[11] The Commission conflated the requirement to make a finding as to whether or not there was a valid reason with the requirement under s.387 to make a finding as to whether or not the termination was harsh, unjust or unreasonable. The Commission made a finding that there was no valid reason for termination of employment for various extenuating reasons which were relevant to whether or not the dismissal was overall harsh, unjust or unreasonable, but which were not relevant to whether or not there was a valid reason for termination of employment. This is an error of law which raises issues of public interest.

[12] In addition, the evidence before the Commission, and the Commission’s own findings about the evidence, in our view compelled the Commission to find that there was a valid reason for dismissal, namely breach of the safety policies of the company. In applying s.387 of the Act the Commission must give consideration to the need to enforce safety standards to ensure safe work practices are applied generally at the workplace. This is both for the protection of employees and others, and to comply with legal obligations imposed on employers, which require them to take various actions, including establishing and enforcing safety policies.”

[43] I have concluded that the combination of the windrow incident and Mr Atkinson’s decision not to immediately report his near miss must be regarded as a valid reason for the termination of his employment. In reaching that conclusion, I consider that, mounting the windrow by itself may not constitute a valid reason for employment termination but the combination of this incident and the failure to report it, clearly represent a significant breach of the safety policies of BCG. I have noted the extensive training provided to Mr Atkinson and the extent to which the evidence of Mr Moschos makes it clear that Mr Atkinson was aware of the obligation to report a near miss. The fact that reporting of near misses was so clearly articulated as a “Life Saving” rule underlines the importance of this reporting requirement. I note that, had this not been so clearly articulated and had the training not been as rigorous, Mr Atkinson’s failure to immediately report the near miss would have been understandable.

[44] I do not accept Mr Atkinson’s position that his failure to immediately report the near miss reflected his personal responsibility for safety. That personal responsibility for safety was set out in the policy and “Life Saving” rules such that the discretion not to report a near miss was simply not available to him.

[45] Furthermore, I consider that the nature of Mr Atkinson’s responses to Mr Moschos’ concerns about his work safety practices, meant that Mr Moschos was entitled to conclude that he had lost confidence in Mr Atkinson’s commitment to work safely. I have accepted that, in the investigation discussion with Mr Atkinson on the day after the incident, Mr Atkinson referred to taking a “calculated risk” 22 and did not satisfactorily respond to concerns about the windrow incident. Consequently, Mr Moschos’ lack of confidence in Mr Atkinson’s commitment to safety also represented a valid reason for the termination of Mr Atkinson's employment.

Notification of the reason

[46] The evidence of Mr Moschos was that:

“54. I said ‘due to the nature of the incident and my concerns and lack of confidence moving forward, I am considering terminating your employment’. I gave Rodney a chance to respond.

55. Rodney appeared relieved and said ‘it’s a really good thing, I have been struggling with night shift and have been taking medication for sleep’. He also mentioned that his brother was quite ill and taking time off work was a blessing in disguise because he would have a fair bit of time to spend with his brother. This is the first and only time Rodney has mentioned his brother. He did not mention fatigue at all.

56. Rodney also stated ‘I’ve got no excuses for what I’ve done, I know the rules, I should have stopped.’ Rodney did not appear stressed or not in a fit state to respond and he acted normally and in character.” 23

[47] I am satisfied that Mr Atkinson was made aware of the reasons for the termination of his employment in the meeting on 2 December 2015.

Opportunity to respond

[48] In the meeting on 2 December 2015, Mr Atkinson was given an opportunity to respond to the possible termination of his employment. I have concluded that his responses indicated that he understood and accepted the reasons for that employment termination.

Unreasonable refusal to allow access to a support person

[49] Mr Atkinson was invited to have a support person present at the meeting on 2 December 2015. He declined the opportunity to nominate such a person and BGC then allocated a person as his support person.

Warnings relative to performance

[50] To the extent that Mr Atkinson was dismissed because he breached the BGC requirement to report near misses and because BGC no longer had confidence in him to work safely, this does not reflect a performance consideration. Notwithstanding this, it is clear that Mr Atkinson was disciplined relative to three separate safety issues. As I have already set out one of these, relating to an incident where a large rock fell against his truck, involved a deliberate failure to report a near miss. I am not satisfied that this verbal warning specified that termination of employment would follow from repetition of that behaviour. The first incident related to his failure to stop at a stop sign in 2013. Notwithstanding that it was a first and final warning, I do not think that warning could reasonably be relied on to underpin the termination of employment decision because of the significant time that then elapsed. The third incident involving a bent tow bar has not been established to me to be of sufficient significance or relevance to this matter, so as to represent a significant factor in the termination of employment decision.

Size of the BGC enterprise - impact on procedures

[51] BGC is a substantial employer and I am satisfied that it had procedures in place to both investigate and assess the circumstances that led to the termination of Mr Atkinson’s employment.

Size of the BGC enterprise - absence of human resource management expertise

[52] Again, as BGC is a substantial enterprise, it has specialist human resource management personnel, who were involved in the decision to terminate Mr Atkinson’s employment.

Other matters considered relevant

[53] I have accepted that Mr Atkinson was distressed around the time his employment was terminated because of his brother’s health. I also accept his advice that he had informed his supervisor of his brother’s situation. Had Mr Atkinson advised Mr Moschos of this before the termination of his employment, it may have given rise to questions about the fairness of continuing the disciplinary process. I have concluded that Mr Atkinson had the opportunity to advise Mr Moschos of this the day after the windrow incident but that he elected not to do so. Absent advice of his position in this respect, I do not think that Mr Atkinson’s family situation should be regarded as a relevant additional consideration. Further, I have concluded that, if Mr Atkinson had regarded his perfectly understandable distress over his brother’s condition to represent a limitation on his capacity to work safely, he was under an obligation to advise BCG of this. Notwithstanding that Mr Atkinson has advised that he informed his supervisor, before the windrow incident, that he would need to attend his brother’s funeral at some time in the near future, 24 I have not taken this to be advice of his inability to work safely.

[54] A further relevant factor goes to the extent to which the termination of Mr Atkinson’s employment was an appropriate response to his behaviour. I have concluded that the termination decision was founded, in some measure on Mr Atkinson’s past disciplinary record and safety incidents. 25 I am not satisfied that two of the three disciplinary advices given to him could be fairly characterised as relating to his failure to report safety incidents or near misses. In these respects, I have already recognised that Mr Atkinson was not aware that he went through a stop sign in 2013 or that he damaged a tow bar in 2015 such that he then failed to properly report those incidents. Consequently, there is an element of unfairness relative to the extent to which those matters were taken into account in the conclusion that Mr Atkinson’s past warnings for a failure to report matters, mitigated in favour of termination of his employment.

[55] Finally, the delay in the reporting of the windrow incident was not substantial and Mr Atkinson readily acknowledged that he caused this damage. This must be considered in the context that the windrow incident could have been catastrophic.

Conclusion - harsh, unjust or unreasonable

[56] In Byrne and Frew v Australian Airlines Pty Ltd 26 McHugh and Gummow JJ stated:

“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.”

[57] Mr Atkinson caused the windrow near miss and did not report it. Further, his responses to Mr Moschos’ concerns conveyed a clear message that he could not be relied on relative to safety issues. Given the substantial emphasis BGC has put on shared safety obligations, Mr Atkinson’s behaviour in these respects means that the termination of his employment was not unjust.

[58] The employment termination was not unreasonable in that it was determined on advice clearly available to BGC and Mr Atkinson did not dispute the allegations put to him in this respect. Further, the process followed by BGC ensured that Mr Atkinson had a fair opportunity to respond. However, to the extent that the termination decision was based on a conclusion that the previous disciplinary advices given to Mr Atkinson related to failures to report safety issues, this has not been fully made out in that only one of those disciplinary actions properly related to a failure to report a safety incident. Consequently I consider that the termination decision was unreasonable.

[59] The issue of harshness is more complex. I have considered the Full Bench decision in Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth. 27 I have also noted the submissions provided to me in this respect. Notwithstanding the majority nature of that decision, Mr Atkinson’s circumstances differ significantly. He did not have a long period of unblemished work history with BGC and he has been able to gain alternative employment within a relatively short period of time. Mr Atkinson was dismissed with notice in response to an incident that could have been catastrophic. Nevertheless, I have concluded that the termination decision was disproportionate to his behaviour relative to the windrow incident and that the circumstances of that matter were more appropriately addressed through disciplinary action other than employment termination. In this regard it is clear that the windrow incident by itself was not relied upon by BCG as the basis for Mr Atkinson’s dismissal. To the extent that I have indicated that I am not satisfied that Mr Atkinson was given a disciplinary advice which confirmed that termination of his employment would follow a further failure to report a near miss incident, this is indicative of harshness in that the gravity of the matter did not warrant employment termination.

[60] Consequently, I have concluded that the termination of Mr Atkinson’s employment was, on a very fine balance, both harsh and unreasonable.

Remedy

[61] As a consequence of this conclusion, s.390 establishes that a remedy may be awarded. Neither party have proposed that the primary remedy of reinstatement should be considered. Mr Atkinson has obtained alternative employment and seeks an amount in lieu of reinstatement. In these circumstances, I consider reinstatement not to be appropriate.

[62] Section 392 of the FW Act sets out the factors to which I must have regard in determining any amount of compensation. I have considered each of these.

[63] There is nothing to indicate that the amount being considered will impact on the viability of the BGC business. Mr Atkinson had been employed for three years. I do not consider that this was a long time or that it supports an extensive recognition in any amount being considered. Had Mr Atkinson not been dismissed, I have concluded that he would have been placed on a final warning and that the approach to safety issues which he had articulated to Mr Moschos would have resulted in the termination of his employment within a further six months. For the reasons which later follow, this estimate becomes somewhat academic.

[64] Mr Atkinson commendably obtained alternative employment within nine weeks of the termination of his employment. His new job has an annual salary which is some $25,000.00 per annum less than the salary he received from BGC. However, he is provided with a vehicle which has a reasonable private use component and is not required to work shift work. I have concluded that recognition of the private use element of the value of the vehicle increases his salary and that a true comparison of the current and former salaries should involve recognition of shift work premiums. Whilst the parties have not provided information in this respect, I have concluded that, at best, from Mr Atkinson’s perspective, his new salary closely approximates his previous salary.

[65] I have taken into account that Mr Atkinson was paid four weeks pay on the termination of his employment. There is nothing that indicates that Mr Atkinson’s new employment is of a short term or fixed nature, so I have assumed that this income will continue indefinitely.

[66] I do not consider any other matter to be relevant to the amount of compensation.

[67] I have applied the approach adopted in Sprigg v Paul’s Licenced Festival Supermarket 28such that I have concluded that an amount of five weeks pay is appropriate. I have not deducted any amount from this for contingencies because I am not satisfied that the basis for any such deduction has been made out in these circumstances. I consider that a 50% deduction is appropriate pursuant to s.392(3) because I am satisfied that Mr Atkinson’s misconduct in not immediately reporting the windrow incident contributed to the decision to terminate his employment.

[68] An Order (PR580042) providing for payment of the residual amount of two and a half weeks pay, less tax, will be issued commensurate with this decision.

Appearances:

N Swan counsel for the applicant.

S Bakewell counsel for the respondent.

Hearing details:

2016.

Adelaide (and Video-link to Whyalla):

May 5.

 1   Exhibit A2, page 4

 2   Exhibit R3, para 44

 3   Exhibit R2, Attachment GM5

 4   Exhibit R3, Attachment G10

 5   Audio, Transcript of 5 May 2016, 11:14 am

 6   Audio, Transcript of 5 May 2016, 11:53 am

 7   Audio, Transcript of 5 May 2016, 13:58 pm

 8   Audio, Transcript of 5 May 2016, 15:33 pm

 9   Audio, Transcript of 5 May 2016, 12:05 pm to12:08 pm

 10   Audio, Transcript of 5 May 2016, 12:11 pm

 11   Audio, Transcript of 5 May 2016, 13:51 pm

 12   Exhibit R3, para 40

 13   Audio, Transcript of 5 May 2016, 11:07 am

 14   Exhibit R3, Attachment GM25

 15   Exhibit R3, Attachment GM26

 16   Exhibit R3, Attachment GM27

 17   Audio, Transcript of 5 May 2016, 14:57 pm

 18   Exhibit R3, Attachments GM20, GM21 and GM22

 19   Exhibit R3, para 55

 20 (1995) 62 IR 371

 21   [2016] FWCFB 1199 (29 March 2016)

 22   Exhibit R3, para 40

 23   Exhibit R3, paras 54 - 56

 24   Exhibit A2, para 4

 25   Audio, Transcript of 5 May 2016, 14:57 pm

 26 (1995) 185 CLR 410, 465

 27   [2010] FWAFB 10089

 28 (1998) 88 IR 21

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