Selwyn Kipa v Hansen Yuncken Pty Ltd

[2014] FWC 1307

[2014] FWC 1307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Selwyn Kipa
v
Hansen Yuncken Pty Ltd
(U2013/14063)

DEPUTY PRESIDENT BARTEL ADELAIDE, 20 FEBRUARY 2014

Termination of Employment

Introduction

[1] The applicant, Selwyn (Tom) Kipa was dismissed by Hansen Yuncken Pty Ltd (the employer) on 13 September 2013. He was engaged at the new Royal Adelaide Hospital (NRAH) project site, which is under the control of a joint venture between the employer and Leighton Contractors Pty Ltd (the HYLC Joint Venture) under contract with the South Australian Government.

[2] The reason for dismissal was set out in a letter from the employer dated 16 September 2013:

“I refer to our discussions regarding the allegations that on Sunday 1 September 2013 you cut five material straps attached to a [transi-deck] and that your actions in cutting the material straps was in direct contravention of an instruction from Chris Ashby, Site Manager, not to do so.

An investigation of the facts and circumstances relating to the allegations has been conducted, including an interview with yourself, at which time the full details of the allegations were discussed, material relating to the allegations was exhibited, and you were given the opportunity to respond.

Based upon your admission, 1 found that the allegation that you cut five material straps attached to a [transi-deck] proven.

I view the aforementioned action by you as a breach of your employment contract which amounts to wilful misconduct. In coming to this decision, all relevant information has been considered, including the mitigating circumstances argued by you.

Accordingly, I confirm that your employment with Hansen Yuncken Pty Ltd was terminated with effect Friday 13 September 2013, with payment of one (1) week in lieu of notice.” 1

[3] A transi-deck is a heavy steel platform on which material is loaded for transport to site. The straps in question (sometimes referred to in the evidence as “slings”) are attached to the transi-deck to secure the load during transport. Each strap is attached to the transi-deck by a pulley on one side and a hook device on the other. It is common ground that the straps are generally loosened when the transi-deck is delivered, and that the standard way to release the straps is by unhooking them. The value of the straps that were cut is approximately $1,000 although this was not a consideration in the employer’s decision to dismiss. 2

[4] The applicant was employed as a daily hire Tower Crane Chase/Driver under the terms of the Hansen Yuncken Pty Ltd Enterprise Agreement 2012. He commenced work at the NRAH site on 4 March 2013, and shortly thereafter became the Health and Safety Representative (HSR) for the afternoon shift.

[5] At the time of dismissal, he was a member of a four person crane crew on afternoon shift. The events leading to his termination occurred on 1 September 2013 while the applicant was fulfilling the role of ground rigger within his crew. This meant that he was stationed at the loading bay and was responsible for unloading materials and/or positioning them to be lifted by crane.

[6] At the outset it should be noted that the applicant freely admits that he cut five material straps on a transi-deck on the evening of Sunday 1 September 2013. However, he disputes the employer’s contention that Mr Ashby directed him not to cut the straps and argues that his actions were justified in the circumstances. The applicant is seeking re-employment in his previous position.

[7] The applicant is a person protected from unfair dismissal within the meaning of s.382 of the Fair Work Act 2009 (the Act), which provides that:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[8] The employer employs approximately 650 employees and there is no contest that the applicant has completed the minimum employment period and that he is covered by an enterprise agreement.

[9] Section 385 of the Act sets out when a person is unfairly dismissed as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

[10] It is common ground between the parties that the applicant was dismissed; that the Small Business Fair Dismissal Code has no application in this case and that the dismissal was not a case of genuine redundancy. As such, the primary issue that falls for determination is whether the dismissal was harsh, unjust or unreasonable and if I so find, to determine the appropriate remedy.

[11] The applicant was represented by Ms L Dooley of the Construction, Forestry, Mining and Energy Union, SA Branch (the CFMEU). The respondent was represented by Ms K Clark, solicitor, with permission of the Fair Work Commission (the FWC).

The evidence

[12] The applicant gave evidence. He called two witnesses: Mr John Chynoweth, Health, Safety and Environmental Coordinator on the afternoon shift; and David Bolton of the CFMEU. Mr Chynoweth had some dealings with the applicant on the evening of 1 September 2013 in relation to the incident in question and also gave evidence concerning a “pre-start” meeting that took place the following afternoon. Mr Bolton attended the investigation interview conducted by officers of the employer with the applicant on 13 September 2013, at the conclusion of which the applicant was dismissed. A witness statement for Jack Merkx, a labourer at the NRAH site, was admitted by consent.

[13] The respondent called two witnesses: Chris Ashby, the Site Manager for the employer who has been assigned to work for the HYLC Joint Venture; and David Johns, Industrial Relations Manager for Leighton Contractors Pty Ltd and who has also been assigned to work for the HYLC Joint Venture. Mr Ashby’s evidence went to his interactions with the applicant and other events that took place on the evening of 1 September 2013, and also his involvement in the subsequent investigation of the incident. Mr Johns conducted the investigation into the allegations against the applicant and implemented the decision to dismiss.

[14] Issues of witness credibility and findings of fact are considered in the narrative set out shortly.

[15] It is convenient at this point to deal with the failure of either the applicant or the employer to call other members of the applicant’s crane crew to give evidence. It is the applicant’s case that he advised Mr Ashby that he was going to cut the straps on the transi-deck and that there was no objection or contrary direction from Mr Ashby in response. Relevantly, the applicant stated that other members of the crane crew, Mr Dave Kjestrup (Kjestrup) and Mr Daryl Martin (Martin) were present when the exchange with Mr Ashby took place.

[16] Ms Dooley argued that it was the employer’s responsibility to call the crane crew as it bore the evidentiary onus to substantiate that serious misconduct occurred. She submitted that employer’s case was based on the refusal of the applicant to obey a lawful direction from Mr Ashby and the onus was on the employer to make out its case that this occurred. On the employer’s case, Kjestrup and Martin were present when Mr Ashby told the applicant not to cut the straps in the course of a phone call at around 8.00pm on 1 September 2013.

[17] The transcript does not support Ms Dooley’s view of Mr Ashby’s evidence. Mr Ashby stated that after he concluded the phone call “... I had to walk to the west end of the building ... and I actually went past ... David Kjestrup and Daryl Martin ...”. 3

[18] Ms Dooley later submitted that the failure to call the crane crew members was not a calculated decision but “... a reflection on [the] individuals involved in the preparation of the matter”. 4 There was no further elaboration.

[19] I am required to consider whether I should draw an adverse inference in accordance with the rule in Jones and Dunkel 5 arising from the failure of the applicant to call the crane crew members, i.e., to make a finding that the evidence of Kjestrup and Martin would not have been favourable to the applicant’s case.

[20] The rule in Jones and Dunkel is conveniently summarised in Xiu Zhen Huang v Rheem Australia Pty Ltd 6, where a Full Bench of the Australian Industrial Relations Commission noted that the rule is breached “by the unexplained failure of a party to call evidence on a fact in issue that the party might have reasonably have been expected to call”. The Full Bench stated that:

“[33] ... A breach of the rule in Jones v Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party’s case: not an inference that the uncalled evidence would have been positively unfavourable to the party’s case or positively favourable to the opposing party’s case. A breach of the rule in Jones v Dunkel may also result in a more ready acceptance of the opposing party’s evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.”

[21] While the overall evidentiary burden may fall upon the employer to establish that serious misconduct occurred in circumstances where it is denied by the employee, 7 the onus to establish a particular fact falls to the party who asserts the fact. On the employer’s evidence in this case there was no one present when Mr Ashby directed the applicant not to cut the straps. Accordingly the rule in Jones v Dunkel has no application to the employer’s case in relation to this issue.

[22] I appreciate that Ms Dooley is relatively inexperienced in the presentation of cases before the FWC, albeit that I have some difficulty accepting her explanation for the failure to call the members of the crane crew on an issue which is central to the applicant’s case. In all the circumstances I consider that the failure to call Kjestrup and Martin is a matter to be taken into account and in particular it lends weight to Mr Ashby’s contention that no other members of the crane crew were present when the key conversation between he and the applicant took place.

[23] Mr Ashby and the applicant are the only witnesses to give direct evidence of what transpired between them on the evening of 1 September 2013. There are a number of inconsistencies in Mr Ashby’s account of the events that took place on this evening as set out in various emails he provided in the course of the respondent’s investigation and in evidence to the FWC. I consider that this reflects a lack of clarity in his recollection of certain conversations and that inconsistencies have arisen as he has attempted to reconstruct what actually occurred. Where his evidence conflicts with that of the applicant, I have generally preferred the applicant’s evidence unless otherwise stated.

1 September 2013

[24] The first area of dispute between the parties is whether the applicant called Mr Ashby on his mobile phone around 8.00pm on 1 September. The applicant disputes that he did. The call is of particular relevance to the respondent’s case because Mr Ashby asserts that the applicant said he intended to cut the straps because he was unable to access the hooks to undo them, and in response Mr Ashby told the applicant not to do so. 8

[25] The respondent did not provide a record of calls received on Mr Ashby’s mobile, submitting that only calls made from the mobile phone are recorded on the account provided by the service provider, a copy of which was the subject of an order to produce documents. However a forensic investigation of the mobile phone would have identified the calls received. Nonetheless I am inclined to accept that there was a phone discussion between the applicant and Mr Ashby because it would explain why he then approached the applicant in the loading bay. However, Mr Ashby’s evidence indicates that the phone discussion focussed on a different issue, being the applicant’s concern that several bundles of liggages had been stacked on the transi-deck in a way that made it impossible to loop the chains underneath them so that they could be lifted by crane.

[26] Liggages are rectangular shaped steel rods. The liggages in issue were stacked in large bundles and wrapped in plastic to secure them.

[27] I doubt whether the issue of the straps was discussed at all in the phone conversation, but if it was raised by the applicant I am satisfied that there was no direction issued by Mr Ashby that the applicant not cut them. In two statements prepared by Mr Ashby for Mr Johns on 4 and 5 September 2013 9, he states that he approached the applicant at approximately 8.30pm to talk to him about lifting some liggages as Mr Ashby had been advised by Kjestrup and Martin that he was not prepared to lift them. Mr Ashby mentions, almost as an aside, that he received a phone call from the applicant prior to attending Loading Bay 1B, and that the lifting of liggages as well as the applicant’s intention to cut the straps was discussed at that time. There is no mention that Mr Ashby directed the applicant not to cut the straps.

The applicant’s evidence concerning the events at or near Loading Bay 1B

[28] It is agreed that there was a face to face discussion between Mr Ashby and the applicant at approximately 8.30pm. The applicant’s evidence is that he had noticed that the transi-deck was in close proximity to a concrete barrier, with the hook device for the straps on the side of the transi-deck nearest the barrier.

[29] He said that the transi-deck had been placed at an angle and that, at its widest point, the gap between the transi-deck and the concrete barrier was approximately 300mm. The gap was too narrow for the applicant to be able to position himself between the transi-deck and the barrier in such a way that he could reach the hooks and exert sufficient force undo the straps. The barrier was about 1 metre high and between 2.8 and 3 metres long, weighing several tonnes. Various photos were put in evidence as to the distance between the transi-deck and barrier, which are referred to later.

[30] The applicant stated that Mr Ashby approached him while he was discussing the proximity of the barrier to the transi-deck with other members of the crane crew. He stated that he complained to Mr Ashby about the lack of anyone who was licensed to operate a forklift that could have moved the barrier and the bundles of liggages. 10 According to the applicant, Mr Ashby was insistent that the steel reinforcing rods on the transi-deck had to be lifted that evening, to which the applicant stated that the only way they could be moved is if he cut the straps on the transi-deck. The applicant stated that there was no response from Mr Ashby, who then walked away.11

[31] The course of events that next took place is described by the applicant as follows:

“21 The Crane Driver then went up the crane and the two Dogmen went on to the deck. I stayed down in the loading bay, as I had volunteered on that shift to look after the transi-deck.

22 I then cut the straps. There were 5 straps around the load of steel reinforcing rods.

23 Whilst I was cutting the straps I saw Mr Ashby standing about 5 metres away looking in my direction.

24 I then started loading the steel rods as usual. I think I did six lifts to empty the [transi-deck].

25 After the second lift, I called the site Safety, Health and Environmental Coordinator, Mr Jack Chynoweth, on his mobile phone to tell him I had cut the straps because I couldn’t get my hand down to open the straps, because the [transi-deck] was too close to the barrier. I asked him to come out a have a look. ....

26 ... He asked whether there was a safety issue with [the straps] at the moment. I said ‘No, but there was before’ or words to that effect.

27 I continued the lifts until the [transi-deck] was empty.

28 Then I went over to the [liggages] but refused to lift them without a forklift as per the SWMS [SH&E Work Method Statement] ....”. 12

[32] An excerpt from the relevant SWMS was attached to the applicant’s witness statement and records that rebar liggages require specialised lifting devices. 13

Mr Chynoweth’s evidence

[33] Mr Chynoweth’s evidence is that the applicant phoned him at around 8.30pm and advised him that he had cut the straps on the transi-deck so that he could move the steel to the site deck. According to Mr Chynoweth, the applicant referred to the proximity of the transi-deck to the barrier and that he could not access the hooks. He also told Mr Chynoweth that Mr Ashby was aware of the fact that he had cut the straps. 14

[34] Mr Chynoweth stated that he subsequently viewed the positioning of the transi-deck relative to the barrier and stated that “I could see that the [transi-deck] was very close to the barrier and that you would struggle to get a bar between them to undo the straps as was the usual practice that I had observed.” 15

Mr Ashby’s evidence

[35] Mr Ashby provided confusing evidence concerning a discussion he had with Kjestrup and Martin on his way to the loading bay after he took the call from the applicant. He indicated that he spoke briefly with them and told them about the phone call he had taken but in other evidence stated that that they had advised him of the applicant’s issue with the liggages. A further version of the conversation was that Kjestrup and Martin advised him about the applicant’s issues with the straps on the transi-deck. 16

[36] In his witness statement and oral evidence Mr Ashby said that as he approached the applicant in Loading Bay 1B he noticed that part of the load had been moved from the transi-deck and that the crane was undertaking a lift. He said that he therefore assumed that the applicant must have got the straps undone. 17

[37] Mr Ashby stated that when he arrived at the loading bay the applicant was throwing timber bearers across the loading bay and “swearing and cursing” 18 at the way the liggages had been loaded. Mr Ashby disagreed that there was insufficient room to loop the chains underneath the liggages and suggested that the applicant remove the plastic wrap on the bundles of liggages and repackage them in smaller bundles to be lifted.

[38] Mr Ashby said that the applicant complained that he could not access the hooks to undo the straps, and that he, Mr Ashby, then walked between the transi-deck and barrier and reached to the ground to demonstrate that the hooks could be accessed. He said that it was dark and he did not notice the straps at the time. He became frustrated at what he saw as the applicant making excuses and told him, “You’re being a pain in the arse - you just don’t want to do it”. He also said that he told the applicant that he could organise a forklift to lift the barrier. When he left the loading bay it was his impression that moving the liggages was the only outstanding issue, because the applicant had said to him “The next time this happens I will cut the slings period”, to which Mr Ashby responded that the applicant should not do that. 19

[39] I have difficulty reconciling Mr Ashby’s evidence that he approached the discussion with the applicant in the belief that the straps were undone, with his evidence of what actually transpired in the conversation. There is no reference in the statements Mr Ashby provided to Mr Johns on 4 and 5 September to the crane lift or to part of the load having been moved from the transi-deck at the time he approached the applicant. Mr Ashby’s evidence that the applicant complained about being unable to do the straps and that he, Mr Ashby, offered to get a forklift to move the barrier, 20 is not consistent with his earlier evidence.

[40] I consider that the applicant’s version of the conversation with Mr Ashby is a less than complete description of the exchange that took place. I do not consider it to be credible that the applicant would not have discussed the liggages with Mr Ashby.

[41] I accept Mr Ashby’s evidence that the applicant was upset when he approached him. It is reasonable to conclude that the applicant would be concerned that the liggages were not able to be lifted, and that he became agitated when Mr Ashby suggested that he unpack and re-bundle the liggages because of the additional work involved. Moreover, the applicant was concerned at the placement of the transi-deck, and his evidence that he had brought this issue to management’s attention in the past was not challenged.

[42] The applicant’s evidence under cross-examination was that it was physically impossible for him to reach the hooks on the transi-deck, not that it was unsafe for him to do so and he conceded that the load on the transi-deck was stable. 21 As I understand it, he is referring to the fact that there was no safety issue involved in unhooking the straps by leaning over the outer side of the barrier, just that it was physically impossible to reach the hooks from this position. The safety issue was associated with attempting to undo the straps from between the transi-deck and the barrier where there was a potential for the steel reinforcing rods to fall while he did so. If this happened he would be effectively trapped. His other evidence that the reinforcing rods were stable on the transi-deck on 1 September 2013 may have been his view after the fact.

[43] Taking all the evidence into account including the consistency and credibility of the respective evidence, it is my view that the discussion between the applicant and Mr Ashby included Mr Ashby impressing upon the applicant that the rods had to be lifted that evening and the applicant protesting that he was unable to undo the hooks and/or that it was unsafe for him to do so. At some point the applicant indicated that, as the barrier could not be moved the only way to get the rods lifted that evening was to cut the straps.

[44] Mr Ashby attempted to persuade the applicant that he could undo them, including by moving at least part way between the transi-deck and the barrier to demonstrate the space between them.

[45] Despite the inconsistencies and revisions in Mr Ashby’s evidence - and there are many - his evidence that he told the applicant that he was not to cut the slings was consistent, from his first reporting of the matter to more senior management, through his various statements prepared for Mr Johns and in his witness statement and oral evidence before the FWC.

[46] I find that the applicant cut the straps shortly after this discussion. It is possible that Mr Ashby was in the vicinity when this occurred, although given the evidence about the position of the transi-deck and the barrier, the location of the hooks, and that it was dark, I doubt if he could see what the applicant was doing even if he was looking in his direction. The applicant’s advice to Mr Chynoweth that Mr Ashby was aware that he cut the straps was, at best, an assumption on his part.

[47] Based on the photographs and other evidence, it is unlikely that the applicant could reach the hooks from over the concrete barrier, or at the least it is unlikely that he could exert sufficient force to undo the straps from that position. 22 Mr Chynoweth’s assessment - that it would be a struggle to undo the hooks given the space available between the transi-deck and the barrier - is the only independent view of the placement of the transi-deck relative to the barrier on that evening and is consistent with the photographs taken by Mr Ashby.23

[48] If the applicant could physically reach the hooks from between the transi-deck and barrier he would be unable to adopt a lifting position which would minimise the risk of injury. Undoing the straps in a confined space on the basis of a visual inspection of the load on the transi-deck did not take into account the potential for the load to move if accidentally knocked. The applicant under cross-examination referred to the fact that a load that appeared stable could sometimes be precariously balanced. 24 I also note Mr Johns’ evidence that if this was the applicant’s concern, then he was placing himself at risk by leaning over the barrier to cut the straps, because his arm, at least, could become trapped by any steel rods that fell.

[49] Mr Ashby stated that at around 11.00pm he overheard the applicant tell Kjestrup and Martin that “I cut those fucking straps down on that [transi-deck] and that should teach them a lesson for dropping the [transi-deck] so close to the traffic barrier.” He says he was approximately 12 metres away from the applicant at the time, and as he approached the applicant said “Here he fucking is” and left. There was some inconsistency in Mr Ashby’s evidence as to when and how he found out that the applicant cut the straps. 25

[50] The applicant disputes that he made the statement attributed to him by Mr Ashby, saying it was impossible as Kjestrup would have been in the crane at the time and that he did not speak to the crane crew members about cutting the straps until the following day.

[51] I have trouble with both of these accounts, because of the inconsistency in Mr Ashby’s evidence and the unlikelihood that the applicant would not tell the crane crew about cutting the straps on the night in question.

[52] Even if the applicant did make the statement it does not shed light upon whether he cut the straps in contravention of a direction from Mr Ashby or whether it was safe and/or possible for him to undo the straps. At best it indicates the applicant’s displeasure at the way the transi-deck was positioned, and this is not in dispute.

[53] In the absence of any supporting evidence for the applicant’s version of events as to what occurred at the loading bay I find that Mr Ashby made it known to the applicant that he did not support cutting the straps on the transi-deck.

The week commencing Monday 2 September 2013

[54] The applicant attended an HSR training course from 2 – 6 September 2013 inclusive.

[55] He stated that his training course finished early on 2 September 2013 and that he attended the afternoon shift pre-start meeting at around 2.30 – 3.00pm, where he explained what happened with the transi-deck on 1 September 2013 and why he cut the straps. 26

[56] Pre-start meetings are held prior to the afternoon shift commencing work on the site. Mr Ashby is present to address production issues, the material being lifted by the cranes during the shift and which crews are located where. Mr Chynoweth is present to discuss how safety issues that had previously been raised had been addressed and to identify potential issues and/or hazards that the workers may confront on site. 27

[57] Mr Ashby observed the cut straps shortly after he commenced work and prior to attending the pre-start meeting. He stated that he took the photos at this time but in his email to Mr Norton at 11.00pm on 2 September 2013 he stated that “I cannot find the camera in Marcus’s top draw to take photos of these cut slings...” 28. I interpret this to be an indication to Mr Norton that no photos had been taken at that time. Little turns on the date the photographs were taken but this raises further issues about the reliability of Mr Ashby’s recollection.

[58] Mr Ashby stated that Mr Kipa was not present at the meeting, but that the issue with the transi-deck from the previous evening was being discussed among the other members of the applicant’s crane crew and the members of the other afternoon shift crane crew. Mr Ashby sought to quell the discussion and told the workers, “Okay, yes, it happened. It was a silly thing. We don’t damage property. We move on”. 29

[59] Mr Chynoweth stated that the applicant was present at the meeting at 3.00pm and raised the issue of the transi-deck and cutting the straps as an item to be actioned, and that Mr Chynoweth minuted the issue.

[60] The Pre-start Meeting Minutes from 2 September 2013 were put in evidence but the applicant’s signature does not appear as an attendee at the meeting and there is no record of the issue with the transi-deck. 30 Mr Chynoweth was unable to explain why there was no record of the matters raised by the applicant.

[61] The respondent produced a copy of an email received from the security company which monitors the swipe card usage of persons accessing and exiting the NRAH site. The email sets out the details of the applicant’s swipe card use on 2 September 2013, and records that the applicant accessed the site at 16.23 and left the site at 17.43. 31

[62] The applicant was adamant that he was in attendance at the pre-start meeting and was unable to explain the attendance times recorded for him, other than that the meeting may have possibly been delayed. Mr Chynoweth was equally adamant that the applicant was in attendance.

[63] I consider that the evidence of Mr Chynoweth and that of the applicant was genuine as to their respective belief. Whether their recollection is correct is not a matter that I need to determine, since it is accepted that the applicant at no stage denied or attempted to hide his actions. For example, it is agreed that the applicant raised the issue at a toolbox meeting on the morning of 6 September 2013.    32

[64] Toward the conclusion of Mr Ashby’s shift he reported the incident with the straps for the first time, in an email to Mr Ross. 33 During this week he provided a written record of what transpired in an email to Mr Johns on 4 September 2013, and following discussion with Mr Johns, provided an amended record on 5 September 2013.

The week commencing Monday 9 September 2013

[65] The applicant had a rostered day off on 9 September. He attended work on 10 September 2013 and was on sick leave on 11 September. 34 He was not contacted by the employer until 12 September, when Mr Johns rang the applicant prior to the commencement of his shift. According to the applicant, he was told only that he was being stood down pending a meeting. Mr Johns stated that he advised the applicant that he was suspended while an investigation takes place into an allegation that he cut the straps on the transi-deck and disobeyed a reasonable direction. The applicant told Mr Johns that he was already on his way to the site at the time, and was advised to see Mr Johns when he got there.

[66] When he arrived at the NRAH site, and prior to seeing Mr Johns, the applicant took a photo of a transi-deck placed near a barrier, 35 which he said was similar to the situation on the evening of 1 September 2013. On the applicant’s evidence there would be no reason to take the photo unless he suspected that management had an issue with the straps being cut, but in any event I find that the applicant was aware of the issue before he attended Mr Johns’ office. He was handed a letter36 which set out three allegations as follows:

● On Sunday 1 September 2013, you cut a number of material slings or straps attached to a [transi-deck];
● Your action in cutting the material slings or straps was in direct contravention of an instruction from Chris Ashby, Site Manager, not to do so; and
● You refused to carry out work tasked to you by Mr Ashby.

[67] The letter advised that a meeting would be held the following morning; that the applicant could be accompanied by a person of his choice; and that termination of his employment was a possibility.

[68] The applicant was accompanied at the meeting on 13 September by David Bolton of the CFMEU. The employer was represented by David Johns and Mark Rosenboom, Construction Director. Accounts of the meeting do not differ in any significant respect between the applicant and Mr Johns: the applicant maintained that there was no direction from Mr Ashby not to cut the straps and that he was unable to reach the hooks on the transi-deck to undo the straps. The applicant also referred to safety issues with the steel reinforcing rods. Mr Johns and Mr Rosenboom did not accept either as a reasonable explanation for the applicant’s actions. They dismissed the argument that the load was potentially unstable as a reason for the applicant’s actions because on this basis the applicant was placing himself at risk by cutting the straps.

[69] The investigation meeting was adjourned so that Mr Ashby could be questioned on his whereabouts when the straps were cut. The meeting reconvened in the afternoon where the applicant was advised that Mr Ashby said he did not see him cut the straps. Mr Johns stated that he gave the applicant the opportunity to show some remorse or contrition but the applicant’s response was that he had done nothing wrong and would do the same again 37. I note that this evidence was not challenged by the applicant at the hearing, nor did he challenge two written statements appended to Mr Johns’ witness statement, to the effect that the applicant stated at the toolbox meeting on 6 September 2013 that he would cut the straps again if the transi-deck was placed too close to the barrier.38

[70] Mr Johns stated that management felt they had no alternative but to dismiss the applicant. He said that if the applicant genuinely held a concern over a safety risk he should have escalated the issue in accordance with the safety procedure. The applicant was dismissed with 1 weeks’ notice, which was later confirmed in writing. His refusal to lift the liggages was not cited as a reason for dismissal.

Post dismissal

[71] The applicant has been diligent in seeking work since his dismissal. He initially obtained same casual work and as at the date of the hearing had obtained permanent full time employment, albeit that he was still in the probationary period.

The applicant’s submissions

[72] Ms Dooley submitted that in order for there to be a valid reason for dismissal the Commission was required to find that there was an instruction given by the employer not to cut the straps on the transi-deck and that the applicant disobeyed the instruction. She argued that it is relevant that the employer has no policy or instruction on how to deal with the situation confronting the applicant on 1 September 2013 given that the applicant had raised the issue previously. Ms Dooley referred to the definition of serious misconduct in the Fair Work Regulations 2009 and suggested that in the absence of a contrary direction from the respondent the applicant’s actions in cutting the straps did not constitute serious misconduct.

[73] Ms Dooley also cited a number of mitigating circumstances surrounding the applicant’s actions in cutting the straps:

● The applicant had to do so to avoid a risk of injury;
● The value of the straps was not significant in the context of the NRAH project;
● There were no repercussions for the employer as a result of the applicant’s actions;
● The applicant had an unblemished record;
● The failure of management to address the issue when raised in the past; and
● The applicant was open and honest about his actions

[74] A submission was put by Ms Dooley to the effect that the culture at the NRAH site and the “... tension that appeared to exist between safety issues and productivity” 39, should be taken into account as a mitigating factor in the applicant’s actions. She submitted that there had been a past instance where workers who exercised their right to refuse to undertake work on health and safety grounds had their pay docked, and relied on a recent FWC decision which sanctioned the employer’s decision in this regard.40 It was also suggested that it was Mr Ashby’s role to take the issue to the next level of the health and safety procedure and that he failed to do so.

[75] A further argument advanced by Ms Dooley was that the applicant had received less favourable treatment than another employee who cut the straps on a transi-deck some weeks after the applicant, and who remained employed at the NRAH site.

[76] Ms Dooley referred to Mr Ashby’s evidence as a concoction and that it was fraught with inconsistency. She submitted that Mr Johns’ investigation was preoccupied with Mr Ashby’s version of events to the exclusion of the crane crew members and Mr Chynoweth. It was also submitted that Mr Johns failed to put the statements of Mr Lynch and Mr Norton to the applicant after he had obtained them during the adjournment of the meeting on 13 September 2013 and that Mr Johns failed to contemplate any sanction other than dismissal.

[77] Ms Dooley acknowledged that the reasons for termination were notified to the applicant, that he had an opportunity to respond to the allegations against him and that he had the opportunity to have a support person present at the meeting on 13 September 2013.

The employer’s submissions

[78] Ms Clark submitted that if the FWC found that the employer issued a direction to the applicant not to cut the straps on the transi-deck then there was a proper basis for his dismissal for serious misconduct. The employer does not accept that the applicant’s conduct was a proper response to any concern regarding workplace safety.

[79] The employer also submits that the damage inflicted by the applicant was deliberate and without reasonable justification. The applicant’s conduct during the investigation meeting - that he would act in the same manner again - indicated that even after being made aware that his conduct was unacceptable he was not prepared to follow the directions of the employer.

[80] Ms Clark submitted that the employer conducted a reasonable investigation and that it followed up on matters raised by the applicant in the course of the investigation. It was argued that dismissal was a proportionate response to the combined misconduct of wilful damage to property and disobeying a reasonable direction in the context of an employee with a short period of service.

[81] Ms Clark argued that the only criticism that could be levelled at the employer was that Mr Ashby’s earlier statements did not include information contained in his more comprehensive statement for the purpose of the proceedings, but that there were no inconsistencies in his evidence. As to the criticism that the respondent did not seek a statement from Mr Chynoweth, Kjestrup and Martin, Ms Clark stated that the employer only became aware of Mr Chynoweth’s involvement after the applicant had been dismissed. It considered that Kjestrup and Martin could only give indirect and after the fact evidence. The employer did not call these employees to give evidence because of their view that they did not wish to take sides.

[82] As to the applicant’s evidence, Ms Clark suggested that “We never seemed to really get to the bottom of whether his complaint was that it was unsafe for him to undo the hooks or whether it was simply impossible for him to do it ...” 41.

[83] Ms Clark submitted that the other person who cut the straps on the transi-deck and remained employed, did so in completely different circumstances to the applicant and that it cannot be relied upon as sought by Ms Dooley. In that matter, the hooks on the transi-deck failed and the driver who delivered the transi-deck requested a knife to cut the straps. The dogman did not oblige but instead brought the site supervisor to the loading bay and it was the supervisor who made the decision to cut the straps.

[84] Ms Clark argued that that there was no foundation for the applicant’s submission of a tension between productivity and safety and the docking of pay, and the decision referred to by Ms Dooley was not handed down until after the applicant was dismissed in any event. She submitted that the applicant did not provide a satisfactory reason for not using the health and safety procedure and that he was well aware that he could refuse to undertake a task on health and safety grounds.

[85] Ms Clark referred to Mr Johns’ evidence where he stated that, contrary to Ms Dooley’s submission, he considered a lesser penalty but that the applicant’s protestations that he would do the same again left the employer with no reasonable option other than dismissal.

[86] In relation to whether there was a valid reason for dismissal, Ms Clark disagreed with the applicant’s submission and stated that either the damage to property or the failure to follow a reasonable direction would constitute a valid reason.

[87] Ms Clark argued that the following additional matters are relevant to a consideration of whether the dismissal was harsh, unjust or unreasonable:

● The applicant’s short period of service and good employment prospects; and
● The fact that enterprise agreement which covered the applicant’s employment specified only 1 days notice for a daily hire employee and that his employment could be terminated for no cause on 1 days’ notice.

Consideration

[88] Section 387 of the Act sets out the matters that must be taken into account when determining whether a dismissal was harsh, unjust or unreasonable, as follows:

“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

[89] The case law in relation to “a valid reason for the dismissal” includes support for the following propositions:

● In determining whether there is a valid reason for the dismissal, the FWC must objectively determine the facts and not rely upon the reasonable belief of the employer; 42

The FWC is not limited in its consideration to the reasons for dismissal relied upon by the employer; 43

The conduct need not be serious misconduct in order for there to be a valid reason; 44 and

The finding of a valid reason for dismissal does not preclude a finding that the dismissal was harsh, unjust or unreasonable. 45

[90] At the time of the incident on 1 September 2013, the applicant was upset about the placement of the transi-deck so close to the barrier and to the placement of the liggages. His decision to cut the straps rather than involve Mr Chynoweth at the point at which it became clear to him that there would be no’ meeting of minds’ on the issue of whether the straps should be cut, was an error of judgment on his part and he had insufficient regard for damaging another company’s property.

[91] I am not persuaded by the argument that the applicant had no viable alternative but to cut the straps because his pay would have been docked. The decision referred to by Ms Dooley, apart from the fact that it post-dated the applicant’s dismissal, relied in part on the fact that the workers in question had not followed the correct procedure. Similarly, I do not accept that the applicant had no alternative but to cut the straps in order to accommodate Mr Ashby’s concern that the reinforcing rods be lifted that night.

[92] The applicant’s statements at the toolbox meeting on 6 September 2013 and at the investigation interview on 13 September 2013 to the effect that he would do the same again have not assisted his case.

[93] I conclude that the applicant’s lapse of judgment in cutting the straps in opposition to the views expressed to him by Mr Ashby and his statement at the investigation interview that he would do the same again, constitute a valid reason for his dismissal.

Procedural issues

[94] There was a delay between Mr John’s becoming aware of the incident and the decision to suspend the applicant from employment. I accept the evidence of Mr Johns that there was no point suspending the applicant while he was attending the HSR course but this did not prevent management from bringing the allegations to his attention and advising of his suspension well before it did. Ultimately the applicant did not argue that he suffered any disadvantage as a result of the delay.

[95] I note that the applicant was allowed to work his shift on 10 September 2013, well after management became aware of the allegations and were in possession of the statements of Mr Ashby. Mr Johns indicated that he was busy dealing with pressing issues on that day but I do not accept that this is a reasonable explanation in view of the previous opportunities that he had to advise the applicant that he was suspended. In these circumstances it is reasonable to conclude that the allegations that formed the basis of his termination were not seen by the employer as inconsistent with the continuation of his employment.

[96] The applicant’s complaint that the employer declined his request to demonstrate the situation to them on site on 13 September 2013 is understandable. It may have provided the employer with some further insight into the situation from the applicant’s perspective. However, unless the situation on 1 September 2013 was replicated on that day it is unlikely to have resolved the controversies and would not have assisted in determining whether Mr Ashby issued a direction to the applicant not to cut the straps. I do not regard this as a significant procedural issue.

Any other matters

[97] I have taken into account that the applicant had no prior warnings but also that he had a relatively short period of service at the date of dismissal. I reject Ms Dooley’s submission that the employer’s decision not to dismiss another employee who cut a strap on a transi-deck is evidence of less favourable treatment of the applicant. The respective circumstances in which the actions occurred do not have a sufficient level of similarity to make out this argument.

Was the dismissal harsh, unjust or unreasonable?

[98] In the High Court decision in Byrne v Australian Airlines Limited, McHugh and Gummow JJ stated: 46

“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.”

[99] In my view, having found that there was a valid reason for dismissal and no substantial procedural defects, the issue that now falls for determination is whether the dismissal was disproportionate to the applicant’s actions. The statements made by the applicant at the investigation meeting that he would do the same again were an indication that the applicant believed his actions on 1 September 2013 were appropriate in the circumstances. He is entitled to his view, but his statements show a lack of insight into how he could have dealt with the matter on 1 September 2013 in a different way and reinforce the view that he has a tendency to act independently.

[100] I have had regard to the decision of Commissioner Lewin in Bodel v Glenorchy City Council 47 (Bodel) where the applicant was dismissed in circumstances that bear some similarity to the present matter. Mr Bodel was dismissed for installing an inverter on one of the Council’s trucks after his request that he be able to do so was declined. The employer held that his actions were unauthorised, that he was not qualified to undertake the installation and that he caused electrical damage to the crane on the truck. The employer also relied upon Mr Bodel’s failure to accept responsibility for his actions, and his accusation that the employer breached safety legislation. He was dismissed for serious misconduct.

[101] There was conflicting evidence as to whether Mr Bodel had been prohibited by management from fitting the inverter, and the Commissioner found that there was no prohibition and that Mr Bodel had undertaken his actions openly. Further, he was straight forward in his admission to his employer and there was no attempt to deceive them. However, the Commissioner concluded that installing the inverter without express authorisation was “... a well meaning, impulsive but inappropriate act, lacking judgement.” 48

[102] In relation to the ground that Mr Bodel failed to accept responsibility for his actions the Commissioner noted that “Mr Bodel should not be expected to suffer the termination of his employment on disputed grounds and his self defence in these respects was not unreasonable”. 49 The Commissioner concluded that the dismissal was harsh, unjust and unreasonable.

[103] In my view the key difference in the present matter is that I have found that the applicant not only acted without authorisation, but acted after having been made aware by his Site Manager that he was not to take the action that he did. It is also relevant that in Bodel, a number of the Council’s trucks were already fitted with inverters and the applicant had no intention to cause damage by his actions. The rejection by Mr Bodel of the outcome of the employer’s investigation was held to be not unreasonable in the circumstances given the findings of the Commissioner, but that is not the case here.

[104] Taking all matters into account I consider the combined effect of the applicant’s actions on 1 September 2013 and his statement at the interview on 13 September 2013 were sufficient to justify his dismissal and there is no basis on which to interfere with the employer’s decision.

[105]
The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms L Dooley, for the applicant

Ms K Clark with Mr T Kidman, for the respondent

Hearing details:

22 January 2014 and 23 January 2014

Adelaide

 1   Ex R3 Annexure DJ-8

 2   At PN697

 3   At PN 1022

 4   At PN 1475

 5 (1959) 101 CLR 298

 6   PR954993, 9 February 2005

 7   See for example Hinchey v North Goonyella Coal Mines Pty Ltd, [2009] AIRCFB 94 at [35]

 8   Ex R6 at par 15

 9   Ex R6 Annexure CA2 and CA3, respectively

 10   Tr PN201-2; Ex A2 at paras 12 and 14

 11   Ex A2 at paras 12 - 18

 12   Ex A2 at paras 21 - 28

 13   Ex A2, Annexure TK1

 14   Ex A3 at paras 4, 5

 15   Ex A3 at para 8

 16   Ex R6 at para 16; Ex R6 Annexure CA2; PN1022, respectively

 17   Ex R6 at para 29; PN1022

 18   Ex R6 para 18

 19   Ex R6 at paras 24 and 28

 20   Ex R6 at para 26. At tr PN1062 Mr Ashby acknowledged that there was no forklift available on that shift and that when he made this statement to the applicant on 1 September he had forgotten that this was the case.

 21   Tr PN170-180

 22   Ex R7, photographs taken by Mr Ashby

 23   The employer took no issue with Mr Chynoweth’s credibility, see PN1393

 24   Tr at PN205-6

 25   Ex R6 at para 32 and Annexure CA2

 26   Ex A2 at para 34

 27   At PN375

 28   Ex R6 Annexure CA1

 29   At PN1093

 30   Ex A4

 31   Ex R5

 32   Ex R2

 33   Ex R6 Annexure CA1

 34   PN239-241

 35   Ex A2 Annexure TK2

 36   Ex R3 Annexure DJ-5

 37   Ex R3 at para 41

 38   The statements of John Chynoweth, Ross Norton and David Lynch, respectively; Ex A3 Annexure DJ-6 and DJ-7.

 39   At PN1278

 40   Hansen Yuncken Pty Ltd: Hansen Yuncken Pty Ltd and Leighton Contractors Pty Ltd t/as HYLC Joint Venture; Leighton Contractors Pty Ltd v Gareth Deegan and Ors, [2013] FWC 7505

 41   At PN1397

 42   Rode v Burwood Mitsubishi, Print R4471 at [19]

 43   MM Cables (A Division of Metal Manufacturers Limited) v Zammit, Print S8106 at pn 42

 44   Potter v WorkCover Corporation, PR948009 at [53]

 45   IGA Distribution (Vic) Pty Ltd v Cong Nguyen, [2011] FWAFB 4070 at [26]

 46 (1995) 131 ALR 422 at [128]

 47   [2012] FWA 2002

 48   Ibid at [68]

 49   Ibid at [57]

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