Simon Vita v Downer EDI Mining Pty Ltd

[2014] FWC 8962

[2014] FWC 8962

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Vita
v
Downer EDI Mining Pty Ltd
(U2014/5006)

COMMISSIONER WILLIAMS PERTH, 12 DECEMBER 2014

Termination of employment.

[1] Mr Simon Vita (Mr Vita or the applicant) made an application under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Downer EDI Mining Pty Ltd (the respondent).

Procedural background

[2] This application was made by Mr Vita on 25 February 2014.

[3] Following an unsuccessful conciliation in May 2014 the Commission provided the parties a notice of listing advising that the application was listed for hearing on 24 October 2014. Directions attached to the notice of listing required Mr Vita to file and serve his witness statement(s) and an outline of submissions by 27 August 2014. Mr Vita did not comply with this direction and was sent a reminder letter extending the time to file and serve his materials to 11 September 2014.

[4] On 16 September 2014, after the second deadline had passed, Mr Vita contacted the Commission and requested a further extension to file and serve his written materials. The Commission allowed further time for Mr Vita to file and serve his written materials to 24 September 2014. Mr Vita did not comply with this direction.

[5] Given this history unsurprisingly the respondent made an application under section 399A of the Act for the Commission to dismiss Mr Vita’s application. The Commission heard this application on 27 October 2014. Mr Vita attended the hearing in person. The decision of the Commission on that application was not to immediately dismiss Mr Vita’s application but to direct Mr Vita to file and serve his written materials by 5.00 p.m. Wednesday, 29 November 2014 and that if he failed to comply with this direction the Commission would automatically dismiss his application.

[6] Mr Vita complied with this direction of the Commission and on 29 October 2014 provided an email to the Commission and to the respondent’s representatives which set out in one and a half pages what the Commission took to be his evidence and submissions in this matter.

[7] Consequently on 4 November 2014 a notice of listing was issued advising the parties that Mr Vita’s application was listed for hearing on Wednesday, 10 December 2014 at 10.00 a.m. This notice of listing was emailed and posted to Mr Vita. The respondent in accordance with the directions attached to that notice of listing then filed and served four witness statements and submissions in support of its case.

[8] At the hearing on 10 December 2014 Mr Vita did not appear nor did anybody appear on his behalf. The multiple notice of listing provided to Mr Vita in this matter each stated that all witnesses the parties have filed statements for are required to attend the proceedings. Mr Vita prior to the date and time of hearing did not contact the Commission to indicate there was any reason why he was unable to attend the hearing.

[9] Given the history of this matter and the Commission’s statutory obligations to deal these applications in a manner that is quick and to ensure all parties are given a fair go all around I advised I would proceed to hear and determine the application in the absence of Mr Vita.

[10] Mr Vita’s witness statement and submissions I accepted as evidence to be considered in this matter. I note that Mr Vita was not present to give this evidence under oath or to be cross-examined so accordingly the weight to be given to his evidence is reduced.

[11] The four witnesses for the respondent swore to the correctness of their witness statements under oath or affirmation. I accept their evidence in full as it is not challenged and to the extent that their evidence at any point is inconsistent with Mr Vita’s witness statement I prefer the evidence of the respondent’s witnesses.

[12] At the conclusion of the hearing I gave oral reasons for my decision that the dismissal of Mr Vita was not harsh, unjust or unreasonable. Mr Vita’s dismissal was not unfair and so his application was dismissed. I undertook to provide written reasons for this decision and these are those reasons.

The evidence

[13] Having considered all of the respondent’s witness evidence and Mr Vita’s statement I find as follows.

[14] The applicant was employed by the respondent on 1 February 2013.

[15] The applicant’s employment was terminated on 4 February 2014 for repeated breaches of the respondent’s Fitness for Work Standard, failing to report that he was suffering fatigue and for sleeping on the job during an incident on 2 February 2014.

[16] The Downer EDI Mining Christmas Creek Project Enterprise Agreement [AE896389] (the Agreement) applied to the applicant and he was required to adhere to the respondent’s Fitness Standard in accordance with clause 1.4.2 of the Agreement.

[17] The Fitness Standard provides at section 4 that:

“An employee shall be regarded as unfit for work at an operating site or company Premises based on the following:

...

5. Where the employee states they are fatigued or has been reasonably determined by the Company to be fatigued”

[18] In addition to the requirement not to attend work in breach of the Fitness Standard, it further provides a requirement to report fatigue at section 10:

“Employees who feel they are not fit for work, or who identify another employee whom they suspect is not fit for work, for any reason have a responsibility to notify their supervisor of this condition.”

[19] The applicant was well aware of his obligations under the Fitness Standard as he had received three prior written warnings in relation to breaches of the Fitness Standard, including sleeping on the job and for returning a positive alcohol reading.

[20] A record of performance management issued to the applicant on 17 October 2013 related to circumstances similar to the events of 2 February 2014 in that the applicant on that earlier occasion had admitted to sleeping in a dump truck.

[21] Six days earlier than the incident on 2 February 2014 the applicant received a final warning for breaching the Fitness Standard by having a positive blood alcohol reading. The warning made clear a further breach of the Fitness Standard could result in his termination.

[22] On 2 February 2014 the applicant was working a night shift in the workshop.

[23] The evidence is the local temperature that day was a maximum of 39 degrees with an overnight low of 25.

[24] At 7.30 p.m. - 8.00 p.m. the applicant was found in the Supervisor’s office sitting in the air-conditioning to in his words “cool off”. He stayed there for approximately 20 minutes.

[25] The applicant returned to work and was later directed to clean up a workshop bay.Approximately 30 minutes later it was noticed the applicant was not completing the task and the Leading Hand commenced searching for him, which took between 15 and 30 minutes.

[26] At approximately 10.30 p.m. - 11.00 p.m. the Leading Hand notified the Field Maintenance Supervisor that he could not find the applicant.He asked another employee to assist in the search for the applicant at approximately 11.00 p.m.They searched extensively for the applicant.

[27] The applicant was found in an upstairs office in a relatively isolated area of the workplace which was not usually accessed. The applicant knew he could access the Supervisor’s office or the crib room as he had earlier that evening if he was unwell, in fact he would have walked past these facilities to gain access to this office.

[28] When the applicant was found in the office the lights were off and the door was closed however he could be seen through a window to be sitting in a chair and appeared to be asleep. When the office door was opened the applicant appeared to awaken and was startled. When asked what he was doing the applicant replied he felt “fucked”.

[29] During the investigation meeting on 3 February 2014 into the incident the applicant admitted that did not tell anyone he was going to the upstairs officeand that he “went upstairs to sit away from everybody”.

[30] Despite a range of methods to contact the Supervisor including mobile phone and two-way radioand the presence in the area of both the Leading Hand and Safety representative the applicant failed to notify anyone regarding his whereabouts.

[31] I am satisfied that Mr Vita had deliberately gone to a part of the respondent’s premises where he would not be seen by his Supervisors or other employees of the purpose of resting and on the balance of probability when he was found Mr Vita was asleep. Mr Vita was fully aware of the respondent’s requirements with respect to fatigue management and his obligations to notify the respondent’s Supervisors if he was fatigued or otherwise unable to work but he ignored these and did not advise anybody of his situation or his whereabouts.

Consideration

[32] Section 387 of the Act set out below specifies the criteria the Commission must take into account when determining whether Mr Vita’s dismissal was harsh, unjust or unreasonable.

“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

[33] Mr Vita’s actions in removing himself from his work area to a location where he could not be seen in order for him to rest and sleep was a valid reason for his dismissal.

[34] Further Mr Vita’s failure to comply with the requirements of the respondent’s Fitness Standards was a valid reason for his dismissal.

Notification of the reason

[35] Mr Vita was notified of the reasons he was being dismissed on 4 February 2014 and those reasons were confirmed in the termination letter of the same date.

Opportunity to respond

[36] Mr Vita had an opportunity to respond to the reasons for which he was dismissed during the investigation meeting on site on 3 February 2014 and during the telephone conversation the following day, the outcome of which was he was advised his employment was to be terminated.

Support person

[37] There was no refusal to allow Mr Vita to have a support person present during discussions that related to his dismissal.

Performance warnings

[38] The dismissal of Mr Vita was not related to his performance but rather to his conduct.

Size of the enterprise

[39] The respondent is a large enterprise and the procedure adopted in this case was as would be expected in an enterprise of this size.

Human resource specialists

[40] The respondent does have dedicated human resource specialists and these were involved in this matter and consequently the procedure adopted is also as would be expected.

Other relevant matters

[41] Mr Vita was employed for one year during which he received a verbal counselling for sleeping in a dump truck and two written warnings. One warning was for failing to attend a rostered shift and the other was for attending work with a positive blood alcohol reading.

[42] Mr Vita has maintained throughout that he did nothing wrong on 2 February 2014 and given my findings above has not accepted any responsibility for his actions nor shown any remorse.

Conclusion

[43] Considering the criteria above there is no basis on which the Commission could conclude that Mr Vita’s dismissal was harsh, unjust or unreasonable. Mr Vita was not unfairly dismissed.

[44] An order will now be issued dismissing this application.

COMMISSIONER

Appearances:

No appearance on behalf of the applicant.

J Goos on behalf of the respondent.

Hearing details:

2014.

Perth:

December 10.

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