Roy Finnis v Tasmania Ports Corporation Pty Ltd T/A Tasports

[2017] FWC 3054

[2017] FWC 3054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roy Finnis
v
Tasmania Ports Corporation Pty Ltd T/A Tasports
(U2016/15397)

DEPUTY PRESIDENT WELLS HOBART, 2 JUNE 2017

Application for unfair dismissal remedy – whether valid reason for dismissal – application dismissed.

Introduction

[1] Mr Roy Finnis (the Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) following the termination of his employment as a Tug Master with Tasmanian Ports Corporation Pty Ltd (ABN 82 114 161 938) (TasPorts) on 9 December 2016. Mr Finnis sought reinstatement pursuant to s.392 of the Act.

[2] Following the grounding of a tug in the Tamar River, a letter of termination dated 9 December 2016 was issued to Mr Finnis. It cited a serious breach of safety and a loss of trust and confidence in Mr Finnis’ “ability to operate safely and comply with TasPorts’ expectations including its policies and procedures in performing your duties as Tug Master”.¹

[3] At the hearing of this matter on 10 and 11 April 2017, both parties sought and were granted leave to have legal counsel. Mr J Kennedy of Hall Payne Lawyers appeared for the Applicant. Ms S Sealy of HWL Ebsworth Lawyers appeared for TasPorts.

[4] Mr Finnis contended his dismissal was unfair, as there was no valid reason for termination and it was harsh in the circumstances.

[5] The terms and conditions of Mr Finnis’ employment were generally regulated by the Tasports Towage AMOU & MUA Enterprise Agreement 2013.² In the alternative to reinstatement to his former position as a Tug Master based at the Port of Burnie in Tasmania, Mr Finnis sought compensation. At the time of dismissal, Mr Finnis earned a salary of approximately $155,000 per annum.³

Initial matters to be considered

[6] Section 396 of the Act requires I decide four matters before considering the merits of Mr Finnis’ application. There is no dispute between the parties and, on the evidence, I am satisfied that:

(a) Mr Finnis’ application was made within the period required by s.394(2);

(b) Mr Finnis was a person protected from unfair dismissal;

(c) TasPorts is not a small business employer as described in s.23 of the Act, therefore the Small Business Fair Dismissal Code is not relevant to this application; and

(d) Mr Finnis’ dismissal was not a case of genuine redundancy.

Hearing

[7] The matter was heard on 10 and 11 April 2017 in Hobart. Mr Finnis⁴ gave evidence on his own behalf. In addition, the applicant presented witness evidence from Tug Master Mr Larry Wells,⁵ and retired Tug Master Mr Bernard Smith.⁶

[8] Mr Matthew Johnston,⁷ General Manager – Marine Services for TasPorts, and Captain Charles Black,⁸ Marine Consultant and formerly the Harbour Master for TasPorts, gave evidence on behalf of TasPorts.

Was the dismissal unfair?

[9] Section 387 of the Act requires a number of matters to be considered by the Commission in determining whether Mr Finnis’ dismissal was harsh, unjust or unreasonable. I address each of those matters as follows.

Was there a valid reason for the dismissal (s.387(a))?

[10] An employer must have a valid reason for the dismissal of an employee, which is “sound, defensible and well founded”⁹ and that reason should not be “capricious, fanciful, spiteful or prejudiced.”¹⁰

[11] In determining the existence or otherwise of a valid reason, it is not for the Commission to stand in the shoes of the employer and determined\ what it would do if it was the employer.¹¹ The matter to be determined by the Commission is whether there was a valid reason for the dismissal regarding the capacity or conduct of the employee.¹²

[12] TasPorts is a private company fully owned by the Tasmanian Government. It operates and owns ports infrastructure throughout Tasmania.¹³ Mr Finnis had worked out of the Hobart Port previously, and at the time of his dismissal, was based at the Burnie Port.¹⁴

[13] TasPorts relied on Mr Finnis’ serious breach of safety and a loss of trust and confidence in his ability to operate safely as a Tug Master and comply with TasPorts’ expectations. It contended this reason is a “valid reason” for dismissal.

[14] Relevantly, the termination letter, dated 9 December 2016 provides:¹⁵

“Termination of Employment

I refer to my letter to you dated 11 November 2016 which:

(a) confirmed that the investigation had been completed in relation to an incident that occurred with the ‘Korimul’ near Shear Reef on 13 October 2016;

(b) outlined a previous serious safety incident that you were involved in on 3 October 2011;

(c) required you to respond to the letter in writing and attend a meeting to discuss your response;

(d) notified you that TasPorts were seriously considering termination of your employment.

You provided a written response on 16 November 2016 (response) and attended a meeting with me, Belinda Beltz Manager Human Resources with your chosen support person Jarrod Moran (AMOU) on 9 December 2016.

Your response
Your response sets out a number of factors that TasPorts has taken into account and responds to as follows:

(a) Nature of incident – TasPorts notes that you are humbled by the incident and that you momentarily made a wrong move. As you are aware, TasPorts has a strong safety culture and to uphold this, is required to take a no tolerance approach to mistakes that result in a serious breach to safety.

(b) Your length of service with TasPorts – TasPorts acknowledges your period of service, commitment and passion for your role and experience. Whilst these factors are relevant and mitigating to the outcome, TasPorts does not consider that they justify and excuse your serious safety breaches.

Outcome
I have given serious consideration to each of the matters you have raised in your Response and in mitigation of termination of your employment.

TasPorts has a duty of care to provide a safe workplace for all its employees. Your actions on 13 October 2016 posed a serious and imminent risk to yourself and your crew. You agreed that the incident arose due to inattention and a lack of judgment in performing your duties.

Your conduct must be viewed in light of the fact that you had previously been involved in a similar serious safety incident on 3 October 2011 which arose due to you being distracted in your role as Master. Following this incident, you were on notice of TasPorts’ expectations and the need to be particularly safety conscious.

TasPorts has lost trust and confidence in your ability to operate safely and comply with TasPorts’ expectations including its policies and procedures in performing your duties as Tug Master.

Accordingly, a decision has been made to terminate your employment. Your termination will take effect as at the date of this letter. You will receive a payment of 8 weeks’ pay in lieu of notice…”

[15] On 13 October 2016 Mr Finnis was the Master in charge of the tug vessel known as the ‘Korimul’. He and his crew were tasked with navigating the Korimul from Burnie to Beauty Point. The Korimul, which was not Mr Finnis’ usual operational vessel, was to be dry docked and undergo significant maintenance.¹⁶

[16] The Korimul is approximately 33 metres in length and therefore, in accordance with industry regulation of vessels under 35 metres, there is no requirement for a marine pilot to be on board when operating this vessel within a port.¹⁷

[17] All pre-departure checks and radio reports were undertaken by 7.50am. Mr Finnis had a passage plan and he laid down a course on the paper chart from Burnie to the Tamar River. Mr Finnis switched the vessel steering to autopilot and set a waypoint on the GPS [global positioning system] plotter to just off the entrance to the Tamar River, half a mile north of Hebe Reef.¹⁸ The vessel arrived at that point at 11am. The weather and visibility was good.

[18] Mr Finnis’ evidence was that during the voyage, he found that the GPS plotter and echo sounder were only operating intermittently, and that he did not have confidence in the equipment.¹⁹

[19] The evidence established that the Tamar River is a difficult body of water to navigate due to it being surrounded by reefs and having large variations in depth and strong tidal flows.²⁰

[20] Mr Finnis entered the Tamar River, observing a ship and a small yacht, and proceeded on autopilot through the channel toward Yellow Rock Beacon. At that point Mr Finnis was aware he was off the leads (tracks plotted on the marine charts), but was unconcerned. He passed the Yellow Rock Beacon with the beacon being on his starboard side and the Middle Bank Beacon on his port side.

[21] At that time Mr Finnis had the deckhand and the engineer in the wheel house with him.

[22] The Korimul was then approaching the East Cardinal Beacon at Shear Rock, which was to be passed on the starboard side of the vessel. At this time Mr Finnis was discussing the upcoming dry docking of the Korimul with the engineer. It was his evidence that during this discussion he visually picked up the North West Bank Beacon and assumed he had already passed the East Cardinal Beacon at Shear Rock. Mr Finnis then believed he was on course to the North West Bank Beacon. He then heard a loud scraping noise which was the grounding of the tug on Shear Rock.

[23] Mr Finnis and the crew then followed usual grounding procedures to ascertain the integrity of the vessel and informed Port Control. Following discussions, and due to the falling tide, the decision was taken to vacate the vessel. The crew returned at 5.30pm and with the assistance of another tug, the Korimul was re-floated and towed to Beauty Point.

[24] As a result of the grounding, the repair claim costs for the Korimul were $333,043.91. TasPorts insurance paid $298,043.91 toward those costs. TasPorts paid an excess of $25,000.00 under its insurance claim and received $10,000.00 in scrap value for the propellers.²¹

[25] The Korimul grounding was reported as was required under legislation (to Marine and Safety Tasmania (MAST)) and Mr Finnis participated fully in that reporting.

[26] TasPorts arranged for the grounding of Korimul to be investigated²² by Captain Charles Black. Mr Finnis was advised of the investigation. He was directed to, and did, participate in that investigation.²³

[27] During the investigation, Captain Black recorded that Mr Finnis was navigating using visual references as he considered that the GPS plotter and the echo sounder were not working well at the time.²⁴ Mr Finnis admitted to making a serious mistake by way of a lapse in concentration and an error in judgment. Mr Finnis, at all times, accepted responsibility for the grounding.

[28] In his investigation report, Captain Black found that three errors in Mr Finnis’ navigation occurred between a position north of Hebe Reef in the Tamar River, and the vessel’s grounding position. These errors were described as follows:²⁵

“a. As previously stated, the 1100 position marked on the chart does not align with the GPS plot and was most likely placed on the course line without actually taking a fix as the vessel rounded Hebe Reef. On this occasion this didn’t present a significant problem however it did give a false impression on the vessels position.

b. When the vessel reached “Position 3” shown in Figure 5, on a course of 134˚, the Master made a small alteration of course to starboard to a heading of 138˚. At this point the vessel was just north of the main leads with Yellow Rock Beacon on the starboard bow. Very shortly after this position (approx. 300m) the vessel was on the Lagoon Bay leads where the Master should have altered course to 123˚ true, placing Shear Beacon fine on the starboard bow. The course alteration was not executed and the vessel remained on the 138˚ heading.

c. Whilst on the 138˚ heading and passing Middle Bank to port, the Master incorrectly assessed the next turn mark to be Northwest Bank Beacon, neglecting to recognise the existence of Shear Beacon on the port bow, which should have been passed on the vessels starboard side.”

[29] Captain Black said that the errors in b and c above directly contributed to the grounding of the vessel. He also noted that Mr Finnis had taken the Korimul to Bell Bay on two previous occasions and had taken other tugs to the same location on several other occasions.

[30] With the exception of whether certain pieces of navigation equipment on board the Korimul had been correctly working, Mr Finnis’ evidence did not take issue with the content of the investigation report. Captain Black interviewed Mr Finnis as part of his investigation and had regard for the information provided to him by Mr Finnis.²⁶

[31] In addition, Mr Finnis confirmed that he had grounded the tug vessel known as ‘Fullerton Cove’ on Middle Bank in the Tamar River on 3 October 2011. Captain Black also investigated that grounding and produced a report.²⁷

[32] Relevantly, Captain Black found that the grounding of the Fullerton Cove was caused by a combination of factors which included inadequate passage planning on the part of Mr Finnis (no set courses on the chart); reliance on visual navigation with little reference to electronic equipment; and distraction and eventual disorientation of the Master in relation to the vessel’s course and position.²⁸

[33] In 2011 Mr Finnis also accepted full responsibility for the grounding of the Fullerton Cove. He advised that that grounding occurred at a time when his mother was hospitalised for palliative care and that he had been distracted by taking a mobile phone call when navigating near Middle Bank in the Tamar River. Captain Black determined, in both his investigation reports, that he considered the cause of both accidents were errors in navigation by Mr Finnis.

[34] It was Captain Black’s evidence that Mr Finnis had appropriate and sufficient knowledge to be able to navigate the Tamar River, and that any statement to the contrary by Mr Finnis was inconsistent with statements made by Mr Finnis during the two investigations.²⁹ The evidence established that Mr Finnis had not requested an experienced Master on any of his transits of the Tamar River and had not sought training on any equipment.³⁰ I am satisfied that Mr Finnis had enough knowledge of the Tamar River to navigate it safety as he had done so on numerous occasions.

[35] The evidence of Mr Finnis’ work colleagues was that Mr Finnis worked professionally and methodically, always having safety at the forefront;³¹ and that Mr Finnis was well respected with a very sound knowledge and history in some of the most difficult ports in Tasmania.³²

[36] Mr Smith provided evidence of a grounding of the ‘Wyunna’ (the Australian Maritime College training ship) on Shear Rock in the Tamar River in October 2000,³³ during a night training voyage. This grounding was investigated by the Australian Transport Safety Bureau.³⁴ Mr Smith stated that as the Wyunna was captained by a Master Mariner (Class 1), this showed how difficult, at times, the Tamar River can be to navigate; and that this difficulty was increased when it was not frequently navigated by the Master.³⁵

[37] The Maritime industry is heavily regulated, with the Marine Services division of TasPorts having systems developed in line with relevant marine and occupational health and safety legislation. Mr Johnston’s evidence was that safety is paramount in the operations of TasPorts and that Mr Finnis’ safety policy briefing;³⁶ safety and risk training, and site inductions were current as at October 2016.³⁷ It was not in dispute that Mr Finnis had completed all the required training and regulatory requirements to hold his Master Class 4 qualification and was able to work as a Master on vessels for TasPorts.

[38] TasPorts contended that the grounding of the Korimul posed a serious and imminent risk to the safety of Mr Finnis and his crew.

[39] Following the conclusion of Captain Black’s investigation into the grounding of the Korimul, Mr Finnis was provided with a copy of the report and written advice that TasPorts was considering terminating his employment.³⁸ Mr Finnis provided a written response to TasPorts on 16 November 2016³⁹ and with his support person, attended a meeting on 9 December 2016 with Mr Johnston and Ms Belinda Beltz, Human Resources Manager, to provide a further response.

[40] Following that meeting, Mr Johnston considered Mr Finnis’ further comments and his written response of 16 November 2016. Mr Johnston did not consider the grounding involved a momentary loss of concentration, but rather that a series of errors were made by Mr Finnis due to a lack of care and attention. Mr Johnston considered these failures, in light of similar failures displayed by Mr Finnis in the grounding of the Fullerton Cove in 2011, to be critical in terms of the expected safety behaviours of a Master.

[41] The evidence established that Mr Johnston had a duty of care to Mr Finnis, other employees and to TasPorts and that Mr Johnston considered that Mr Finnis lacked insight into the real cause of the grounding. He formed the view that Mr Finnis’ employment needed to be terminated.⁴⁰

[42] The letter of dismissal was provided to Mr Finnis later in the day on 9 December 2016.

[43] In the oft quoted principles of “valid reason” contained in Selvachandran,⁴¹ the following passage is relevant in the context of Mr Finnis’ dismissal:

“At the same time, the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements for the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and the privileges and duties and obligations conferred and imposed on them. The provisions must be applied in a practical and common sense way to ensure that the employer and employee are each treated fairly.”42

[44] This principle from Selvachandran recognises the unfair dismissal objectives, now contained in Part 3-2 of the Act, (s.381(2)) that both parties must ensure a fair go all round for the other. Section 381(2) provides:

(2) [“Fair go all round” to be accorded] The Procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

[45] This matter is, essentially, not one of contested facts, but rather whether the circumstances of Mr Finnis’ conduct gave rise to a valid reason for termination. Mr Kennedy contended that whilst Mr Finnis admitted to a serious mistake and a breach of safety policy, that does not automatically provide a valid reason for dismissal, referring to Bostik (Australia) Pty Ltd v Gorgevski (1992) 41 IR 452 at 460. Mr Finnis also sought to rely on the Full Bench decision of this Commission in B, C and D v Australian Postal Corporation[2013] FWCFB 6191 (Australia Post) which provided at [47] to [52]:

“[47] In Bostik (Australia) Pty Ltd v Gorgevski (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

“Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61])’ Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].

[49] In Jupiters an employee had breached a policy prohibiting gambling. The Full Bench observed:

“The fact that Jupiters regarded the prohibition on gambling as absolute and enshrined the prohibition in the contract of employment is not determinative. In each case all of the circumstances must be taken into account.”

[50] In Fearnley an employee was dismissed for breaching a policy against fighting. The Full Bench upheld the Commissioner’s finding that because the employee was acting in self-defence there was no valid reason and the dismissal was harsh unjust or unreasonable.

[51] The principle just stated is equally applicable in cases of dismissal for misconduct in accessing or emailing pornography contrary to an employer’s policy. Any notion that a clear and knowing breach of policy will always provide a valid reason for a dismissal that will not be harsh, unjust or unreasonable, no matter the employee’s length of service and other circumstances, is inconsistent with basic principle. Every case must be assessed by reference to its particular circumstances.

[52] In pornography cases there will typically be no contest in relation to whether or not the misconduct – the breach of policy – occurred because the sending or receipt of the offending material will usually be proved unequivocally by computer records. That is, in most cases there will be no contest as to the existence of a valid reason. But that is not the end of the inquiry. The bedrock principle to which we have referred means that an issue remains as to whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of that valid reason. Typically, as in this case, it will be the central issue.”

[46] Mr Finnis argued that there were mitigating circumstances that go to valid reason and probably more particularly, to the question of harshness. Those factors were said to be that Mr Finnis had at all times accepted responsibility for his actions in the grounding of the Korimul and the Fullerton Cove, that he had shown insight into the seriousness of his conduct, and the impact on TasPorts.⁴³

[47] Mr Kennedy submitted that Mr Finnis did not deliberately set out to breach TasPorts safety policy, but that he had undertaken normal navigational practice in a notoriously difficult passage of water and that a momentary lapse in concentration meant that Mr Finnis had made a mistake.⁴⁴ It was said that this could not constitute a valid reason for dismissal, particularly when you consider that in 38 years of service and 3000 voyages, Mr Finnis had only made the two navigational errors.

[48] Mr Kennedy asserted that misconduct by an employee must necessarily involve intentional wrongdoing referring to O’Connor v Palmer and Others (No 1) (1959) 1 FLR 397 where the Commonwealth Industrial Court Held at page 401:

“Without attempting to define exhaustively the word “misconduct” it involves something more than mere negligence, error of judgment or innocent mistake.”

[49] Ms Sealy, for TasPorts, submitted that both Mr Finnis and Mr Wells conceded in evidence that close monitoring of vessel position and progress is essential to safe navigation. She contended that given there were a series of navigational errors, Mr Finnis’ conduct was more than just a momentary lapse in concentration.

[50] TasPorts contended that as a result of the 2011 grounding of the Fullerton Cove, and the investigation report of Captain Black that had been provided to Mr Finnis, Mr Finnis was on notice of the need to properly passage plan and safely navigate. It was further submitted that in light of Mr Finnis’ previous grounding of the Fullerton Cove, he should have executed a more detailed passage plan, instead he chose not to do so.⁴⁵ Mr Kennedy submitted that Mr Finnis had carried out passage planning in the usual way of a tug master on short voyages. He also argued that the 2011 grounding happened in the context of Mr Finnis taking a phone call of one minute duration noting the letter of termination stated the 2011 grounding arose from him “being distracted…”⁴⁶;and that, following Captain Black’s recommendations that Mr Finnis be provided with training, no training was forthcoming.⁴⁷

[51] Ms Sealy argued that Mr Finnis’ own report to MAST⁴⁸ following the grounding of the Korimul provided that he knew the area, having been in and out of the area over the years. It was submitted that when entering the mouth of the Tamar River, Mr Finnis had acknowledged in evidence that he was some 800 metres wide of the leads; and that this, coupled with his knowledge of the navigational complexity of the area and his previous grounding, should have meant he had a heightened awareness.

[52] TasPorts further submitted that Mr Finnis was aware that Captain Black’s report into the Fullerton Cove grounding in 2011 recommended that passages outside normal harbour duties ought be properly planned, but he had failed to do so.⁴⁹

[53] TasPorts relied on the principle expressed in Hanley v Stramit Corporation Pty Ltd t/as Stramit Building Products [2016] FWC 1150 at [76] where it was held:

“Section 387(a) of the Act requires the Commission to have regard to “whether there was a valid reason for the termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees).” It appears to me that the kind of conduct exhibited by Mr Hanley is the kind of conduct that is intended to be captured by the Act. The conduct in question need not be wilful, malicious or intentional conduct. Conduct that results from carelessness, inattentiveness, deficient concentration in balancing both immediate operational responsibilities and wider situational safety environments, or lack of application of learned rules, are not excuses for non-compliance, but the cause of non-compliance (which in turn give rise to safety risks).”

[54] TasPorts contended that the “totality and cumulative effect” of Mr Finnis’ conduct established a valid reason for dismissal.⁵⁰

[55] TasPorts advanced an argument that Mr Finnis was required to use visual aids when operating a vessel and that he had failed to wear them on 13 October 2016. Mr Finnis provided evidence that he had undergone corrective laser eye surgery in early 2016, but had failed to update this information on his MAST Certificate of Competency at the time.⁵¹ This evidence was not challenged in any real way and I accept Mr Finnis’ evidence on this point. I have concluded that Mr Finnis was not required to wear visual aids on 13 October 2016 to assist his vision, and his failure to do so did not impact on his ability to navigate.

[56] I have considered the evidence and submissions of the Applicant as they relate to the recommendations made by Captain Black in the investigation report into the Fullerton Cove grounding. I accept the evidence of Captain Black that the recommendations he made to have an additional experienced Master to support unfamiliar Masters with river transits, was not a recommendation directed at Mr Finnis, but rather for Masters with less experience and who considered themselves unfamiliar with river voyages.

[57] I acknowledge Mr Finnis’ evidence that he participated in safety briefings following the 2011 grounding of the Fullerton Cove.⁵²

[58] The evidence disclosed there may have been operational difficulties with the depth sounder. However, in the report to MAST, Mr Finnis stated “In summary I would like to say that this was totally my mistake and momentary lack of judgment in a very unforgiving area, the machinery and wheelhouse equipment were all operational.”⁵³ (my emphasis).

[59] Mr Finnis led evidence that there was a power outage on the vessel on 13 October 2016, during the voyage to the mouth of the Tamar River, which resulted in equipment failure. This evidence had never been offered prior to the date of hearing – that is – Mr Finnis did not mention it in his report to MAST, he did not mention it to Captain Black during the investigation and it was not mentioned in his response to TasPorts dated 16 November 2016 or in his witness statement. For these reasons, I view this evidence with some scepticism.

[60] It is not disputed that Mr Finnis, as Master, was responsible for the safe operation of the vessel, the safety of the crew on board and the surrounding marine environment.

[61] I note that Captain Black found the GPS plotter to be operational, but was unable to test the depth sounder.⁵⁴ Regardless of whether the depth sounder and the GPS plotter were operational during the voyage, to the extent that they could be satisfactorily relied on, Mr Finnis determined that he would navigate the Korimul into the Tamar River. He was responsible for the safety of the vessel, crew and the environment and he chose to continue the voyage, on the assumption that it was safe to do so.

[62] Whilst Mr Finnis was navigating visually, using the channel markers (beacons) and the chart, he made a number of mistakes, which resulted in the grounding of the Korimul on Shear Rock.⁵⁵ It is uncontested that this grounding posed a significant safety and environmental risk to the crew and TasPorts.

[63] I am satisfied that Mr Finnis had received the relevant refresher safety briefings, inductions and was aware of his responsibilities under TasPorts Health and Safety Policy. I accept that certain training contained in recommendations 1 and 5 of Captain Black’s report produced following the grounding of the Fullerton Cove in 2011 was not afforded to Tug Masters. This is an unsatisfactory outcome from such a report. To the extent that the failure of TasPorts to deliver the training would have impacted on Mr Finnis’ navigation, I note that Mr Finnis did not request further training or indicate in the investigation conducted into the Korimul grounding, that he felt unprepared or undertrained to undertake such a voyage.

[64] Mr Finnis was ultimately responsible for the vessel, crew and the environment.

[65] I am of the view that Mr Finnis’ conduct, even on his own evidence,⁵⁶ amounted to him not navigating with due care and attention and therefore, Mr Finnis did not “[t]ake reasonable care to ensure the safety of [himself] and others at all times” in accordance with TasPorts’ Health and Safety Policy.⁵⁷

[65] I accept that this conduct was not deliberate, but it did result in a number of navigational errors and could not be considered a momentary lapse of concentration. This amounted to a serious safety breach and given the previous grounding of the Fullerton Cove on 3 October 2011, I am satisfied this established a valid reason for Mr Finnis’ dismissal.

Was there notification of the reason for the dismissal (s.387(b))?

[66] Notification of ‘the reason’ relates to the ‘valid reason’ for dismissal.⁵⁸ Notification of the valid reason to terminate must be given to the employee before the decision to terminate is made,⁵⁹ in explicit terms,⁶⁰ and in plain and clear terms.⁶¹ Although considering provisions in previous legislation, the Full Bench in Crozier v Palazzo Corporation Pty Ltd⁶² established:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond.”

[67] Mr Finnis was notified on 11 November 2016 that TasPorts was considering termination of his employment. The dismissal letter dated 9 December 2016 relied on the reason of a loss of trust and confidence in Mr Finnis’ ability to operate safely.

[68] Therefore, Mr Finnis was notified of the reason for his dismissal before the decision was taken by TasPorts to terminate his employment, with the exception of Mr Johnston’s lack of insight into his conduct, which I will deal with further below.

Was there an opportunity to respond to the reason for the dismissal (s.387(c))?

[69] In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, per Wilcox CJ, albeit a decision under the Industrial Relations Act 1988, considering the construction and application of s.170DC, the precursor to s.387(c), held that:

“In Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 243 I discussed the significance of s.170DC. I observed that the section imposed an important limitation on an employer's power of dismissal. Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, common sense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.”

[70] Mr Finnis participated in the investigation of the grounding of the Korimul and was provided with a copy of the investigation report. Mr Finnis received a letter dated 11 November 2016 from TasPorts which indicated his employer had “serious concerns about your ability to safely perform the requirements of your position and are considering terminating your employment”.⁶³ The letter requested a written response from Mr Finnis by 30 November 2016 and required him to attend a meeting with TasPorts on 9 December 2016 to further discuss his response.

[71] Mr Finnis provided a written response on 16 November 2016 and attended the meeting on 9 December 2016, to further discuss his response to the matters contained within the letter of 11 November 2016.

[72] In his evidence, Mr Johnston stated that he considered Mr Finnis had failed to show insight into the nature of his conduct and this was part of the reason for dismissal. Mr Kennedy submitted that Mr Finnis was denied procedural fairness to respond to all of the reasons for dismissal, as Mr Johnston did not put that particular concern to Mr Finnis.⁶⁴

[73] It is clear on the evidence that the letter of 11 November 2016, seeking Mr Finnis’ response, was comprehensive and gave him opportunity to respond to TasPorts’ safety concerns, specifically mentioning Mr Finnis’ own admissions of error about the groundings in 2011 and 2016.⁶⁵ Mr Finnis had a number of opportunities to respond to the events of 13 October 2016, both in writing and in person.

[74] To the extent that Mr Johnston agreed, in his oral evidence, that Mr Finnis did not have an opportunity to respond to the specific consideration of lack of insight into the nature of his conduct, I have determined this was a flaw in procedural fairness on the part of TasPorts, although minor. I consider that Mr Finnis was given an adequate opportunity to defend the claims made against him as they related to the serious safety breach.

Was there an unreasonable refusal to allow a support person to be present (s.387(d))?

[75] If an employee protected from unfair dismissal requests a support person be present when discussions are occurring that relate to the dismissal, the employer should not unreasonably refuse that the support person be present.

[76] It should be noted that there is no obligation on an employer to offer or suggest that the employee have a support person present. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] provides:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”

[77] In the TasPorts letter of 11 November 2016, Mr Finnis was invited to bring a support person with him to the meeting on 9 December 2016. The evidence provided that Mr Finnis took a support person to this meeting.

[78] There was no unreasonable refusal by TasPorts to allow a support person to be present at the discussions which contemplated Mr Finnis’ dismissal.

Was there warnings about unsatisfactory performance (s.387(e))?

[79] Mr Finnis was not dismissed for unsatisfactory performance, so this consideration is not relevant.

Did the size of the employer impact on procedures followed in effecting the dismissal (s.387(f))?

[80] TasPorts are a large enterprise. I do not consider that the size of TasPorts’ enterprise impacted on the procedures it followed in effecting Mr Finnis’ dismissal.

Did an absence of human resource expertise impact on procedures followed in effecting the dismissal (s.387(g))?

[81] TasPorts has dedicated human resource management expertise, so I do not regard this consideration as relevant.

Any other relevant matters (s.387(h))

[82] Section 387(h) of the Act establishes a broad scope of matters for the Commission to consider in determining whether a dismissal is harsh, unjust or unreasonable. It was this sub-section of the Act which was mostly relied on by the applicant to argue that the dismissal had been harsh.

[83] The employee’s work performance or history is a factor that can be taken into account by the Commission when considering harshness.⁶⁶ A long unblemished record will weigh in an employee’s favour and may be relied on as a factor for the Commission to consider in determining if the termination of employment was harsh, unjust or unreasonable.⁶⁷

[84] Mr Finnis commenced employment with TasPorts predecessors on 22 January 1979. Accordingly he had been employed continuously for almost 38 years.⁶⁸ During this time there were no performance issues with Mr Finnis, however he was provided with a warning for deliberately damaging a boom gate at the Burnie Port in 2010.⁶⁹ Mr Finnis explained in evidence the context of that event; that damage had occurred to the boom gate; and that he had apologised for his actions. Mr Finnis received a warning following the grounding of the Fullerton Cove on 3 October 2011. The remainder of Mr Finnis’ employment saw him receive written acknowledgements of his good service from both his employer and stakeholders.⁷⁰

[85] I do not consider Mr Finnis’ employment was without incident.

[86] It is clear from the dismissal letter that TasPorts had regard for Mr Finnis’ long employment record and his readiness to accept responsibility for grounding both the Fullerton Cove and the Korimul. Mr Johnston stated the decision to terminate Mr Finnis had been a difficult one, and he acknowledged that the dismissal had been personally devastating for Mr Finnis.⁷¹

[87] The impact of the dismissal on the employee’s personal or economic situation may be taken into account by the Commission.⁷²

[88] Mr Finnis was aged 64 years at the time of his dismissal. He lives with his wife in Boat Harbour and is the sole income earner. His evidence was that he intended to work for another 5 years.⁷³ He stated that since dismissal he had experienced low mood and negative thoughts.

[89] Whilst Mr Finnis had applied for a number of positions following his dismissal, he had been unsuccessful in obtaining any employment.

[90] It is likely that Mr Finnis will find it difficult to obtain other employment due to the narrow nature of the industry in which he has worked and the fact that he is now aged 65 years. However, I am not satisfied, in all the circumstances of this matter that this alone results in Mr Finnis’ dismissal being harsh.

[91] Having regard to the evidence before the Commission and balancing that evidence, I do not consider that the termination of Mr Finnis’ employment was a disproportionate response to his conduct involving the grounding of the vessel on 13 October 2016. I consider that a fair go all round was afforded to Mr Finnis.

Conclusion as to harsh, unjust or unreasonable dismissal

[92] I am of the view that whilst I have determined there was a flaw in the procedural fairness offered to Mr Finnis, this flaw was minor and not of such moment for me to determine that the dismissal was unfair or unjust, when having regard to the existence of a valid reason for termination and the remainder of the considerations prescribed in s.387 of the Act.

[93] I am satisfied that TasPorts’ dismissal of Mr Finnis was not harsh, unjust or unreasonable, and therefore was not unfair.

Conclusion

[94] Having concluded that Mr Finnis’ dismissal was fair, I dismiss his application for unfair dismissal remedy.

DEPUTY PRESIDENT

Appearances:

Mr J Kennedy, for the Applicant

Ms S Sealy, for the Respondent

Hearing details:

Hobart

10 & 11 April 2016

Hobart

1 Exhibit R5, Statement of Matthew Johnston, attachment MJ9

2 Agreement ID AE407979

3 Exhibit R5, paragraph 18

4 Exhibit A2, Statement of Roy Finnis; Exhibit A3, Reply Statement of Roy Finnis

5 Exhibit A4, Statement of Larry Wells

6 Exhibit A5, Statement of Bernard Smith

7 Exhibit R5, Statement of Matthew Johnston

8 Exhibit R4, Statement of Charles Black

9 Selvachandran v Peteron Plastics (1995) 62 IR 371, p.373

10 Ibid

11 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

12 Ibid

13 Exhibit R5, paragraphs 6-7

14 Exhibit A2, paragraphs 10 and 12

15 Exhibit R5, attachment MJ9

16 Exhibit A2, paragraphs 49-54

17 Exhibit A4, paragraphs 30-32

18 Exhibit A2, attachment RF7

19 Exhibit A2, paragraphs 68-70

20 Exhibit A4, paragraph 24; Exhibit A5, paragraph 24

21 Exhibit R6, Statement of Agreed Facts

22 Exhibit R4, attachment CB2

23 Exhibit A2, attachment RF9

24 Exhibit R4, attachment CB2, page 6

25 Exhibit R4, attachment CB2, page 10

26 Exhibit R2, attachment CB2, page 6

27 Exhibit R4, attachment CB3

28 Exhibit R4, paragraphs 21-23

29 Exhibit R4, paragraph 29

30 Exhibit R5, paragraph 34-35

31 Exhibit A4, paragraph 16

32 Exhibit A5, paragraphs 15-16

33 Exhibit A5, paragraph 36

34 Exhibit A5, attachment BS1

35 Exhibit A5, paragraphs 37-38

36 Exhibit R5, attachment MJ1

37 Exhibit R5, paragraphs 8-10

38 Exhibit R5, attachment MJ7

39 Exhibit R5, attachment MJ8

40 Exhibit R5, paragraphs 50-52

41 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

42 Selvachandran v Peteron Plastics (1995) 62 IR 371, p.373

43 Transcript – PN1064-1066

44 Transcript – PN1070-1072

45 Transcript – PN1130-1132

46 Exhibit R5, attachment MJ9

47 Transcript – PN1092

48 Exhibit R2 – Report to Marine and Safety Tasmania

49 Transcript – PN1154

50 Exhibit R1 – Respondent’s Outline of Submissions, paragraph 57

51 Exhibit A2, paragraph 98

52 Transcript PN182

53 Exhibit R2

54 Transcript – PN422-426

55 Exhibit R3, photograph of the Korimul grounded on Shear Rock

56 Transcript – PN192

57 Exhibit R5, attachment MJ1

58 Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print 22679 [41]

59 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [70]-[73]

60 Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730

61 Ibid

62 (2000) 98 IR 137 [73]

63 Exhibit R5, attachment MJ7

64 Transcript – PN1207

65 Exhibit R5, attachment MJ7, page 2

66 Streeter v Telstra Corporation (2008) 170 IR 1 [25]; Cunningham v Australian Bureau of Statistics (2005) 148 IR 20

67 Streeter v Telstra Corporation (2008) 170 IR 1 [27]

68 Exhibit A1, Applicant’s Outline of Submissions, paragraph 3

69 Exhibit R5, paragraph 27

70 Exhibit A2, attachments RF2, RF3, RF4 and RF5

71 Exhibit R5, paragraphs 24-25

72 Ricegrowers Co-operative Limited v Schliebs (unreported, AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001) PR908351 [26]; citing Byrne v Australian Airlines Limited (1995) 185 CLR 410

73 Exhibit A2, paragraph 108

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