Soper v Teekay Shipping (Australia) Pty Ltd

[2016] FWC 2288

[2016] FWC 2288

The attached document replaces the document previously issued with the above code on 5

May 2016.

This is to correct the solicitor’s name on behalf of the Applicant. The appearance should read

Mr P Mullally.

Suzie Kairouz

Associate to Deputy President Gostencnik

Dated 5 May 2016 [2016] FWC 2288

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Soper
v
Teekay Shipping (Australia) Pty Ltd
(U2015/14232)
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 5 MAY 2016

Application for relief from unfair dismissal; dismissal of marine engineer after failing

competency assessment; reason related to capacity; valid reason; dismissal in the

circumstances not unfair; application dismissed.

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[1] Mr John Soper (Applicant) is a qualified marine engineer of many years standing. He

migrated to Australia in 1982 and commenced casual employment with Teekay Shipping

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(Australia) Pty Ltd (Respondent) for an initial period of approximately twelve months. The

Applicant commenced full time employment with the Respondent on 24 September 2009 and

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was employed as a chief engineer.

[2]        The Applicant was stood down from his employment with the Respondent on 22

October 2015 after he was required to participate in an assessment of his capacity to

undertake aspects of his duties, and was dismissed on 26 October 2015, with immediate

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effect.	The reason for his dismissal related to the Applicant’s capacity rather than his
conduct.
[3]	On 16 November 2015, the Applicant applied under s.394 of the Fair Work Act 2009

(Act) for an unfair dismissal remedy. Turning first to deal with the initial matters which must

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be decided before the merits of an application are considered.	These matters were not in
dispute, and I find that:

 The application was made within the time prescribed in s.394(2) of the Act;

[2016] FWC 2288

 The Applicant was, at the date of his dismissal, protected from unfair dismissal

within the meaning of s.382 of the Act;

 the Teekay Shipping (Australia) Pty Ltd/AIMPE Port Hedland Towage Operations

Engineers Fair Work Agreement 2014 (Teekay Agreement) covered the Applicant in

his employment with the Respondent;

 The Respondent was not a small-business employer within the meaning of the Act

and so the Small Business Fair Dismissal Code did not apply; and

 The dismissal was not effected for reasons of redundancy, and so it was not a case of

genuine redundancy within the meaning of s.389 of the Act.

[4]        I have concluded that the Applicant’s dismissal was not unfair. These are my reasons

for that conclusion.

Background and factual findings

[5]        As earlier indicated, the Applicant was employed as a chief engineer for the

Respondent from 24 September 2009 until 26 October 2015. This together with the earlier

period of casual employment meant that the Applicant had completed nearly seven years of

service with the Respondent at the time of his dismissal. The Applicant’s position required a

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minimum qualification of a Marine Engineer class 2 Certificate, of which the Applicant was

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a holder.

[6]        The Applicant was advised of his dismissal by letter dated 26 October 2015

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(Termination Letter). The Termination Letter was handed to the Applicant following a

meeting held with the Applicant on 26 October 2015 attended by Ms Jacqui Bryne, Human

Resource Marine Specialist and Mr Luke Westlake, Operations Manager. Although the

dismissal was effective immediately, the Termination Letter makes clear that the Applicant

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would receive eight weeks’ pay in lieu of notice, in accordance with the Teekay Agreement.

[7]        The Termination Letter contains the reasons for the Applicant’s dismissal. It asserts

concerns previously raised with the Applicant through a written warning, the establishment of

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a performance improvement plan (PIP) and a final written warning. The Termination Letter

states that the Applicant undertook an assessment on 22 October 2015 in relation to aspects of

his role as a marine engineer, on which he had specifically been trained or taken through in

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the last few months, and asserts that the Applicant had not benefited from the training and

remained below the work standard required of marine engineers employed by the

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Respondent.

[2016] FWC 2288

[8]        The validity of the reasons for dismissal given to the Applicant by the Respondent is

in dispute. In particular, the circumstances and conduct of the competency test undertaken by

the Applicant on 22 October 2015 is contested, as is the existence of valid concerns about his

performance and the adequacy of the PIP and mentoring said to have been undertaken for the

Applicant’s benefit.

[9]         The Applicant contends that the reasons given are not valid reasons for a dismissal

and that, even if there is a valid reason for dismissal, the application of the criteria set out in

s.387(b)–(g) of the Act “would result in a finding that the Applicant had done all in his power

to satisfy an employer which seemed determined to performance manage the applicant out of

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its business”.

[10]      The Respondent’s case is that the reason for the Applicant’s dismissal is a valid reason

and that overall the dismissal of the Applicant was not unfair. The Respondent says that

despite repeated training and mentoring, the Applicant was unable to adequately perform the

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fundamental responsibilities of his role. The Respondent submits that the Applicant’s

deficiencies were such that it lost faith in the Applicant’s ability to discharge the safety

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critical functions associated with his role.

[11]      There is no dispute that prior to 2015 there is no indication or record that the Applicant

performed his duties as a marine engineer in anything but a competent fashion.

Incident on 20 February 2015

[12]      On 20 February 2015, the Applicant was involved in an incident during which it is

said that he failed to find and rectify a fault on board his assigned vessel, the RT Force

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(February Incident). The Applicant says that the concerns raised by the Respondent about

his work performance as a marine engineer working with the tug fleet in Port Hedland in

February 2015 had been dealt with comprehensively. There is no dispute that the written

warning arising from the February Incident had been withdrawn and removed from the

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Applicant’s file. The Applicant says that the first warning arising from the February Incident

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cannot be relied upon to support a valid reason for terminating the Applicant’s employment.

Presumably also, it follows from the Applicant’s position that the February Incident warning

cannot be relied upon to support any finding that the Applicant had been previously warned

about his performance.

[13] The Respondent’s evidence is that the February Incident resulted in 12 hours of

unplanned out of commission for the vessel, which, from the perspective of both the
[2016] FWC 2288

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Respondent and the Respondent’s clients, was a significant event. Mr Luke Mowat is the

Operations Superintendent of KT Maritime Services Australia Pty Ltd (a joint venture

company established by Teekay and another company). His evidence suggests that the

February Incident demonstrated that the Applicant:

“ had not adequately attempted to fault find on board …;

 appeared not to be aware of the need to reset the system, which, based on the alarms

present on the alarm screen, was a standard requirement to rectify the fault;

 made no attempt to discuss the problem with other engineers or shore based

electricians in an attempt to rectify the fault and ensure the vessels availability;

 did not appear to be aware of the AC and DC control system circuit breakers; and

 did not attempt to interpret the list of alarms on the engine room panel that would

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have assisted local and immediate rectification of the fault. ”

[14]      Mr Mowat gave evidence that there was a particular fault that was identified that could

have been rectified on the night, had a particular procedure been followed. The Applicant’s

evidence was that he followed the fault-finding process as required by him but the error was

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still present.

[15]      Although it is not in dispute that the warning in relation to the February Incident was

removed from the Applicant’s file, the Respondent’s evidence was that, notwithstanding the

removal of the written warning, it felt that the Applicant would benefit from spending some

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time with other experienced Teekay engineers and undertaking 5 days of mentoring. An

email from Mr Mowat to the Applicant dated 15 May 2015 explained the Respondent’s

concerns as follows:

“The length of time between the occurrence and the investigation has made it very difficult to

thoroughly investigate.

Based on the information available and your response, I will remove the Formal Warning from

your file but will keep a note of the event along with your response.

We still have some concern around the extent of your familiarity with the Tugs, particularly

the Rotor Tugs in order to provide adequate fault finding and rectifications as required, as such

I require you to complete the 5 day mentoring.

We will continue to monitor to ensure we are satisfied with your ability to meet the business

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requirements.”

[2016] FWC 2288

[16]      I accept that the February Incident warning cannot be relied upon to found a valid

reason nor can it be suggested, given the warning was withdrawn, that the Applicant had been

warned on this occasion about his performance in being unable to rectify the fault that arose

during the February Incident. But, it does not follow that the February Incident is altogether

irrelevant in the factual matrix that ultimately led to the Applicant’s dismissal. The February

Incident marks the first occasion on which the Respondent became concerned about the

Applicant’s capacity as a chief marine engineer.

[17]      The Respondent’s concerns appear to me to be soundly based. The fault was not able

to be rectified by the Applicant. Subsequently, the fault was rectified by the Respondent’s

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marine electrician, Mr Damian Green. Mr Green’s report to Mr Mowat by email on 21

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February 2015 about the fault and his rectification of it indicates that rectification of the

fault required, inter-alia, a resetting of the system, which based on the alarms that were

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visible on the alarm screen was part of the standard procedure required to rectify the fault. It

is not in dispute that a chief engineer holding a class 2 certificate qualification is required to

be aware of and familiar with such procedure or have the capacity to locate and consult the

relevant procedure in order to rectify a fault of the kind involved in the February Incident.

Although I note the Applicant’s evidence that he took all steps to rectify the fault, followed

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procedure and consulted others about rectification of the fault it remains the case that Mr

Green appears to have rectified the fault by following established procedure. That he did so,

and that the Applicant could not, seems to me to be a sufficient basis for the Respondent to

hold the concern that it had, and in my view, it would have been irresponsible for the

Respondent to have simply ignored the incident without satisfying itself that the Applicant

was adequately trained and competent.

[18]      As earlier indicated, the warning issued in relation to the February Incident, which was

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not issued until 19 March 2015, was withdrawn by the Respondent upon a review of the

investigation and concerns by the Respondent as to the passage of time between the February

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Incident and the investigation leading to the issuing of the warning. Although, as I have

already indicated, the Respondent’s concerns about the Applicant’s capacity arising out of the

February Incident were in my view soundly based, its reference to those concerns having been

raised through a written warning in the Termination Letter is misplaced and factually

incorrect since the warning was withdrawn. The Respondent’s concerns were raised with the

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Applicant during the investigation of the February Incident, and in the email advising him

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that the warning issued on 19 February 2015 had been withdrawn. Its response to those

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concerns was to implement a peer mentoring plan for the Applicant.
[2016] FWC 2288
Mentoring

[19]      The mentoring of the Applicant involved the Applicant spending time with engineers

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on various vessels for a period of five days between 23 May and 27 May 2015. The

Applicant gave evidence about the mentoring undertaken by him and the tenor of his evidence

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was to downplay the quality, importance and the timeframe of the mentoring. In essence,

the Applicant said in his evidence that the mentoring period was for a lesser period than that

which the Respondent asserted, was delayed in its implementation and he was generally not

happy with the quality of the mentoring although he did not raise any concerns with the

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Respondent following the conclusion of the mentoring.

[20]      I do not accept the Applicant’s evidence as to the quality or duration of the mentoring

program. First, as the Applicant ultimately had to concede, the duration of the training was in

fact for the period asserted by the Respondent and not for a shorter period alleged by the

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Applicant. Secondly, the Applicant’s evidence as to the quality of the mentoring must be

viewed in light of his conduct at the time and in the immediate aftermath of the mentoring.

The Applicant conceded that, despite his knowledge of the Respondent’s reason for

implementing the mentoring program, he did not raise with the Respondent concerns about

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the quality or adequacy of the mentoring program. Thirdly, the Applicant did not suggest in

his witness statement filed in these proceedings that the mentoring he had received was

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inadequate or otherwise deficient, nor did the Applicant seek permission to lead evidence in

chief about the adequacy of the mentoring at the time he adopted his witness statement during

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his evidence before me. Fourthly, the issue of the adequacy of the mentoring was not a

matter canvassed in the Applicant’s outline of submissions filed before the commencement of

the hearing. Fifthly, in order to accommodate the availability of a witness for the Respondent,

Mr Mowat gave evidence before the Applicant, and despite Mr Mowat, during cross

examination giving evidence on several occasions about the mentoring that had been provided

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to the Applicant, at no stage was the proposition that the mentoring undertaken was in some

way deficient or inadequate put to Mr Mowat by the Applicant’s representative.

[21]      The cumulative effect of all of this suggests that the criticism levelled by the Applicant

of the mentoring program amounts to no more than a recent invention by him made in the heat

of cross examination. When combined with the Applicant’s inaccurate evidence as to the

duration of the mentoring program, this renders his evidence about the mentoring program

wholly unreliable. It also raises, more generally, serious questions about the Applicant’s

credibility as a witness. So far as the mentoring program undertaken is concerned, I accept the

Respondent’s evidence that a five day mentoring program was implemented for the Applicant

for the purposes of providing him with support and training to enable him to competently
[2016] FWC 2288

carry out the duties required of his position. Furthermore, I accept that the mentoring program

undertaken by the Applicant in May 2015 was implemented by the Respondent because of

well-founded concerns about the Applicant’s capacity.

Performance improvement plan (PIP)

[22]      On 6 August 2015, the Applicant was placed on a PIP. The purpose of the PIP was to

provide the Respondent with an opportunity to highlight to the Applicant, the areas in which

his performance was lacking and to provide the Applicant with an opportunity to improve his

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performance in these areas. The decision to place the Applicant on a PIP appears to have

been taken following concerns raised about the Applicant’s performance and capacity by Mr

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Shawn DeWit, the Respondent’s Reliability and Maintenance Supervisor. These concerns

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are set out in an email to Mr Mowat from Mr DeWit of 22 June 2015.

[23]       It is strictly not necessary for me to make findings as to the veracity of the matters

raised in Mr DeWit’s email. Ultimately, the concerns raised in that email served no other

purpose than to have led the Respondent to implement a PIP. It cannot seriously be argued

that a PIP is anything other than a positive initiative designed to assist a person in improving

his or her performance or in addressing possible shortcomings in a person’s capacity.

Although I note the Applicant has variously suggested that the PIP was a form of

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victimisation, beyond that bare allegation there is no probative evidence which would

suggest that the PIP was implemented for reasons other than reasonable concerns held by the

Respondent about the Applicant’s capacity.

[24]      In any event, I note that the Applicant responded to the concerns raised by Mr DeWit

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in correspondence of 11 August 2015. In that response, the Applicant requested an urgent

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review in light of his response and a reconsideration of the need for him to have a PIP. Ms

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Byrne gave evidence that an independent engineer review was subsequently undertaken. Ms

Byrne collated the responses of the engineers who conducted the review and without

traversing the particular responses, it seems to me clear that the responses would have

reinforced rather than abated the concerns held by the Respondent about the Applicant’s

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capacity. In light of those responses, it seems to me that the earlier implementation of the

PIP was not only reasonable but necessary, in the circumstances.

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[25] The Applicant contended that an examination of the PIP reveals it to be a “vague”

and “generic” document without key performance indicators or milestones and review

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periods. I do not agree. The PIP covers four general areas of required performance, sets out

[2016] FWC 2288

the actions that are to be taken or the competencies that the Applicant is required to

demonstrate in relation to each area, sets out how these actions or competencies will be

assessed and makes clear that a review of his progress will take place at the end of each swing

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over the next two swings. On receiving the PIP document, the Applicant should have been

under no illusion as to that which was being assessed and reviewed, how feedback would be

gathered and when reviews of his performance and competence would take place.

[26]      In addition to the PIP document, Ms Byrne provided to the Applicant by email on 7

August 2015, a list of the Respondent’s concerns about his performance and it is not disputed

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that these concerns were discussed during the meeting with the Applicant on 6 August 2015.

[27]      The Respondent contends that the Applicant continued to demonstrate that he could

not competently and safely fulfil the duties of a chief engineer. The events which followed the

commencement of the PIP seem to me to bear out that submission.

Incidents on 10 August 2015 and Final Warning

[28]      The Respondent’s evidence is that the Applicant failed to properly complete safety

critical tasks in accordance with the Respondent’s safety management procedures on 10

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August 2015 (August Incident). The Respondent alleges that the Applicant did not make full

use of the lock out-tag out gear and that the he did not understand the pre dive JHAs and

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equipment isolations. These matters were raised in an email to Ms Byrne from Mr Chris

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Rubly, a Project Engineer employed by the Respondent. The Applicant gave evidence “that

the only thing that can hurt the divers as far as we are concerned is rotation of the pods or

rotation of the propellers or suction of water into the vessel. All of those things have been

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taken care of in my isolations”. The Applicant’s letter to Ms Byrne, written in response to

the final warning issued to the Applicant following the August Incident, indicates that his

“isolations were adequate” and that the “Daria crew carried out JHA and completed it

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correctly”.

[29]      Ms Byrne gave evidence that the JHA was incomplete and that it did not identify

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hazards in the JHA. She said that the JHA was considered deficient because “there were no

items listed on the JHA which addressed the risks which the divers could be exposed to, so

those gentlemen who undertake the diving operations are in the water and actually have no

control of anything that happens on the surface in the shore underwater in that tug haven. So

it's up to Teekay. We have that responsibility and that duty of care to insure anybody in that

vicinity is under the jurisdiction of our control. So they would be electrical, mechanical
[2016] FWC 2288

isolations, communication between any vessels entering the tug haven and the divers - those

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would generally be the three main items”.

[30]      These matters were raised with the Applicant in a meeting held in the context of a PIP

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interim meeting on 12 August 2015.

[31]      As a consequence, the Applicant was provided with a final written warning by letter

dated 18 August 2015 (Final Warning Letter). The Final Warning Letter identifies issues with

the Applicant’s performance and indicates that should similar incidents occur in the future,

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disciplinary action would be taken. The issues identified were as follows:

“ Engineer failed to adequately complete isolation process in accordance with company

isolation procedure. Isolation procedure had been provided for reference one day prior to

high risk activities commencing.

 Engineer failed to identify high risk hazards and adequate controls when completing Job

Hazard Process, Permits and PPE. Further coaching and guidance through the hazard

analysis and also a draft JHA was provided for reference purposes.

 Verification of the isolations conducted by the engineer identified inadequate isolations

completed and was the only barrier which prevented commencement of high risk activities

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with inadequate isolations.”

[32]      The Applicant denies all the allegations referred to in relation to the August Incident

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and says that the allegations were made without foundation. The Applicant provided a

written reply in response to the Final Warning Letter requesting that it be withdrawn. After a

review of the Applicant’s amended response, the Respondent concluded that its position had

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not changed and the Final Warning Letter and PIP would remain in place.

[33]      It seems to me clear that the Applicant failed to properly identify risks to divers in the

preparation of the JHA. His protestations that “the only thing that can hurt the divers as far as

we are concerned is rotation of the pods or rotation of the propellers or suction of water into

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the vessel” and that all “those things have been taken care of in my isolations”, simply serves

to reinforce the fact that he did not, as alleged, properly identify risks and hazards of the

operation of the vessel to divers. That which was required in a properly completed JHA was

the consideration of the hazards and risks to persons other than the crew arising from the

operation of the vessel. In the instant case such other persons included divers. It is clear that

the JHA did not address, in terms of the position of the divers vis-à-vis, the operation of the

vessel. That the Applicant does not understand the import of this requirement was made plain

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in an exchange with me during the hearing.	As a matter of undisputed fact, the JHA
[2016] FWC 2288

prepared by the Applicant was rejected, and it is apparent that it was rejected because it did

not expressly address the position of the divers. It is plain to me that the Applicant simply

does not understand why this is important. The criticism made by the Respondent as to his

performance in this regard, was in my view, justified.

[34]      As to the issue of the isolations, noting that the Applicant says that he performed the

isolations correctly, that proposition was never put by the Applicant to any of the

Respondent’s witnesses. Moreover, Ms Byrne gave evidence to the effect that the Applicant

had, during the meeting on 12 August 2015, acknowledged that he had not followed the

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prescribed procedure but felt that what he had done was just as good. Ms Byrne was not

challenged in cross examination about this evidence. I accept Ms Byrne’s evidence and I

accept that the evidence overall establishes that the Applicant did not perform the isolations in

accordance with the Respondent’s procedure.

[35]      In light of the Respondent’s concerns about the Applicant’s capacity, arising from the

February Incident, and that it had only recently implemented a PIP which was motivated by

concerns as to the Applicant’s capacity identified in Mr DeWit’s email of 22 June 2015, the

warning issued to the Applicant was, in my view, justified.

[36]      The Respondent gave evidence that the Applicant had an opportunity to respond to the

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concerns in a meeting which was held on 12 August 2016. The Applicant gave evidence that

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he did not “think I did have the opportunity to respond to them”. His evidence was that:

“…I couldn't believe that a document could be so wrong, that's why I consulted the engineer of

the Darwin - chief engineer of the Darwin to ask him why (indistinct) had been included -

because they asked me - you see they said my document was inadequate, so it went back and

they reviewed it and then they brought another document down which had been used

previously on another tug called the Darwin. Now I noticed that there was many things on

there that shouldn't have been, and I phoned the chief engineer of the tug Darwin and asked

him why he had included divers JHA on our stuff. His answer was on the day that they did

their JHA the diver had forgotten his so they included the diver's stuff on our JHA and they

allowed the dive to go ahead. So what they asked us to do was copy the Darwin's document

which was a formal document. Now it took me a lot of time to research that - when I say a lot

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of time, a couple of days.”

[37]      Again, Ms Byrne gave evidence about the meeting on 12 August 2015 and the

Applicant’s response. It seems clear that the Applicant did respond to the concerns during the

meeting of 12 August 2015. It is simply the case that the Respondent did not accept that

response as addressing the concerns it held. I accept Ms Byrne’s evidence in preference to

that of the Applicant. It was not put to Ms Byrne that her evidence about the Applicant’s

response was not true or accurate, and as I have earlier indicated I have reservations about the

Applicant’s credibility as a witness, the result of which is that Ms Byrne’s account of the 12

August 2015 meeting is much more persuasive, and is preferred.

[2016] FWC 2288

[38]      A further issue that arose on 10 August 2015, was that the Applicant had been

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observed, while on board the Tug Haven without wearing his high visibility clothing. This

was despite an apparent direction given to him on 7 August 2015 about the requirement to

wear high visibility clothing while on board the Tug Haven in accordance with the

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Respondent’s personal protective equipment procedure.

[39]      Ms Byrne gave evidence that during the meeting on 12 August 2015 to discuss the

issues that have been identified on 10 August 2015, the Applicant had said he was not

wearing high visibility clothing because he did not believe he needed to wear high visibility

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clothing in certain areas.

[40]      During his evidence before me, the Applicant gave a different explanation but could

not remember whether he gave that explanation to the Respondent during the 12 August 2015

meeting. His evidence about this issue was, on the whole, unconvincing as is evident from the

following extract from the transcript:

“Is it correct that at that meeting one of the things raised with you was the fact that you weren't

wearing a high vis in the tug haven?---Yes, I'd say it was. I have been told about wearing high

vis in the tug haven.

You were told that you were seen not wearing high vis, correct?---Well, if they say that yes, but

I can explain why I wasn't.

Mr Soper, that's not my question. Did they say to you that one of the issues with you on 12

August is you weren't wearing a high vis in an area where you should have been wearing a high

vis?---Well, that was because (indistinct) suddenly decided you needed to wear it in the car park

and the signage displayed showed that you only actually needed to wear it when you entered

into the tug haven.

Which is where they said they saw you, Mr Soper?---Yes, but I took my high vis vest off when I

climbed down into the dive boat to stop it catching around my neck.

That is your explanation for it. I'm asking you whether they raised it?---I can't remember.

Maybe they did, yes.

Did you give a response, the response you're giving me now that I wanted to stop my high vis

catching me round the neck?---Well I took it off for that and I also took it off when I climbed

underneath the engine room plates to put my selections on. Nobody could see me down in the

engine room anyway.

THE DEPUTY PRESIDENT: Mr Soper?---Yes.

[2016] FWC 2288

Mr Wade has asked you a question on several occasions, different occasions and you've given a

different response. Do you want to just listen to what he's asking and respond to the

question?---Yes.

MR WADE: You've said you think this could have been raised. My only question is did you

provide your explanation in response to the allegation that you weren't wearing a high vis in the

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tug haven?---I don't remember saying that.”

[41]      The Applicant accepts that he was not wearing a high visibility vest at some point on

10 August 2015 whilst on board the Tug Haven. I accept the Respondent’s evidence that it

had a clear policy requiring high visibility clothing to be worn at all times on the Tug Haven.

It seems to me clear that the Applicant did not give the explanation that he gave during his

evidence to the Respondent during the meeting on 12 August 2015, and I accept Ms Byrne’s

evidence that he gave a different explanation.

Request for further training

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[42] The Applicant requested further training in an email dated 21 September 2015. Mr

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Mowat gave evidence that he found the request to be “ridiculous”. Mr Mowat believed the

Applicant’s request was concerning and believed that any engineer should have had an

understanding of the type of tasks that the Applicant was requesting training on. The

Applicant submits that it was prudent for him, as a worker on a PIP, to ask for additional

77

training. The Applicant was provided with an extra day of mentoring as the Respondent

considered it was part of its duty of care to ensure that the Applicant was performing the

78

requirements of his position properly.

[43]      I must say that, given the tenor of the Applicant’s evidence before me, I find some

difficulty in accepting that the request was a genuine one. The Applicant maintained

throughout his evidence that he was competent, that he benefited little from the mentoring and

that he knew more than some of the engineers who had been assigned to mentor him in May

2015. The following extract from the transcript makes good this point:

“But Mr Soper, I'm trying to understand something. You say to the Commission, and my very

first series of questions to you was you believed that your performance was entirely appropriate

and you have no deficiencies in relation to your functions as a chief engineer. Now you're

telling me that you actually felt you had deficiencies but you didn't the company what they

were?---Not to the level that I couldn't operate the vessels, certainly not. In-depth knowledge of

census, setting them up and that kind of thing was something I very much wanted to learn

because I'd only recently become a resident engineer as previously I was a principal engineer. I

was a principal engineer, I didn't take any part in maintenance so much as you know the tugs

were out of service and the resident engineers dealt with that. So my primary role was just

keeping the tugs going and we were flat out doing that. Now I've changed to resident I certainly

wanted to know in much greater depth testing and alarms and how you set the census up and all

[2016] FWC 2288

this kind of thing, which was never done when I was aboard because it was always done when

the vessel was taken out of service. So it was a whole new sort of era for me to come into.

But Mr Soper, any person confronted with that situation and with that deficiency in expertise or

experience would do one of two things surely. Why didn't you emphasise that during the four

day mentoring program and ask for instruction and induction on that, why not? Do you have an

answer for that?---I asked every engineer I went on board the tugs with, I asked them to help me

as much as they could, which they did.

Yes?---You've got to understand the vessel doing towage and obviously they had their own

maintenance issues and on one occasion we spent a whole day fixing a generator. So it was

limited, very limited in achieving probably what I and the company wanted.

Then the better question is why didn't you come off the four day mentoring and say to the

company thank you for that opportunity, I've learnt a lot regarding practical matters. This is an

area where I feel I'm still deficient. Could you arrange for focus training on that area?---No,

because I'd been in the job for many years, I've done - I didn't - like I say I've never had to bring

the tug in because I couldn't sort the problems and of course we were going around so many

different vessels. So I felt comfortable with it but I didn't really want to go along and say you

know so and so couldn't teach me this, or he couldn't teach me this. I didn't really think that was

the appropriate thing to do.

Mr Soper, that answer with respect to you makes absolutely no sense. If you were a person

entrusted with the safety of a vessel and you've got deficiencies in your areas of

competence?---Yes.

You recognise that, the obvious thing to do without implicating anybody else is to ask for

focused training?---Yes.

You didn't do that?---(Indistinct) and if there was any deficiency that I saw in a safety related

matter, I certainly would have done that. The deficiencies, if there were any, were just in other

things that were not likely to cause the vessel to endanger it in any way.

Well how do you know whether it would cause the vessel to be endangered if you don't actually

know what you're talking about?---Because (indistinct) tested me and found me to competent.

That’s how I know.

79

Yes, but you've identified an area of incompetence?---No, I haven't.”

[44]      Ultimately, nothing of any great moment turns on this request. The Respondent

responded to it by providing further mentoring to the Applicant.

Competency Assessment on 22 October 2015

[45]      Central to the cases advanced by both the Applicant and Respondent is the

competency assessment to which the Applicant was subjected on 22 October 2015. The

competency assessment was carried out in relation to aspects of the Applicant’s role as a

marine engineer on which he had specifically been trained or taken through in the last few

[2016] FWC 2288

80

months. The Applicant was asked to bring a support person and on the day, Mr Griggs, a

Chief Engineer and AIMPE delegate attended.

[46]      It is not in dispute that the tasks which formed part of the competency assessment

were not complicated tasks from a chief engineer’s perspective and were tasks which would

be regarded as fairly routine functions that a chief engineer would from time to time be

81

required to perform.

[47]      The Applicant’s version of events of the morning on which he was advised that he was

required to undertake a competency assessment was as follows:

nd

“The competency test on the 22 October 2015 was my worst nightmare. I had no previous

warning that I was to be subjected to a practical assessment. I was awakened by a telephone

call at 06:56hrs. The respondent’s operations manager Luke Westlake was on the telephone

and he directed me to be on board the Boodarie in one hour with a support person for

assessment. I explained that as I lived in South Hedland it did not leave me much time to find a

support person and get there. He said that the tug was on one hour’s notice and I am to be

there. I was stressed by this and tried to find a support person and did manage to arrange one

but he pulled out shortly before the assessment was to begin. There was no time for a shower,

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breakfast or even a cup of tea.”

[48] The Applicant submits that the competency assessment was undertaken in

83

circumstances which can only be described as “procedurally fundamentally flawed”. The

Applicant contends that he had no notice of the assessment and submits that he was not

provided with enough time to perform basic necessities and was unable to mentally prepare

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for a practical test. The Applicant maintains that he should have been informed in advance

85

of the assessment as he was on a PIP.

[49]      Ms Byrne gave evidence that “the assessment was based on basic day to day tasks and

to provide somebody that had just had some training with prior notice to allow them to kind

of brush up on something, it wouldn't have met our requirements to actually see if he could do

the task without, how do I put that - we wanted to see if he could do the job, not read and then

see if he could do the job. We wanted to know that he could do the job. It's part of his job

description, it's what he's employed to do. I'm not sure that even providing him prior notice

86

would have actually assisted at that point.”

[50]      The use of the manual during the competency test and the amount of time allocated to

complete the competency test remains in dispute. Mr Mowat gave evidence that he informed

87

the Applicant that he could spend as long as he needed to get the job done. Mr Westlake

gave evidence to the same effect agreeing that the Applicant was made aware that the tasks
[2016] FWC 2288

88

were to be performed as if it were a “real life situation”. Mr Westlake added that he advised

the Applicant that there was no time limit on what he was to perform and that the tug was not

89

required in service.” Mr Westlake said that the vessel was not to be called on for a 12-hour

90

period.

[51]      The Applicant contends that the Respondent’s witnesses, Mr Mowat and Mr Westlake,

were adamant in cross-examination that they had made it clear that the assessment was to be

carried out as if it was a “real life situation”, but failed to include this in either of their witness

91

statements. However, the Applicant’s representative did not put to the Applicant in chief

examination that he was not told that the assessment was to be carried out as if it was a “real

life situation”. This is significant given that, as earlier indicated, Mr Mowat gave evidence

before the Applicant and the Applicant was present to hear that evidence. Further, during

cross examination the Applicant’s recollection of the conversation was incomplete as he could

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not recall what was actually said to him. Moreover, the evidence of Mr Mowat was elicited

93

through a proposition put to him by the Applicant’s representative and Mr Westlake, who

was not present when Mr Mowat gave his evidence, corroborated Mr Mowat’s version of

events. I accept the evidence of Mr Mowat and Mr Westlake.

[52]      Mr Westlake gave evidence that the Applicant “kept making excuses, saying, you

know, he's not familiar with that tug; he's not familiar with that task, he's going to have to

read up on the manual to do that. We would say, “Well, do that; read up on the manual”, and

then he would find a way - and in the end he would say, “I'd like to move to the next task.”

[53]      The Applicant further contends that the Respondent did not afford him an opportunity

to respond to what Mr Mowat recorded against his competencies in the assessment and did

not allow the Applicant the opportunity to justify why he did not do some of the tests being

94

inappropriate for a tug which was on one hour’s notice. This contention is simply not made

out by the Applicant’s own evidence given during cross-examination extracts of which are set

out below:

“. . . You have seen the results of the competency test; is that correct?---I have now, yes.

You would have seen them a long time ago when you read the material in preparation for

today's proceedings?---Yes.

Out of the 18 basic tasks you were required to accomplish, you failed 15 of them;

correct?---Who says? Mr Mowat?

Mr Mowat and Mr Westlake?---Mr Westlake doesn't know anything.

[2016] FWC 2288

The difficulty I have, Mr Soper, is the substance of the company's assessment was not

challenged at all during the course of cross-examination. Are you saying Mr Mowat is wrong in

saying that you could not properly execute 15 of 18 basic tasks?---Many of them couldn't be

even attempted in the time allocated.

Do you agree that Mr Mowat said to you, "You must take your time, the tug is not operational,

use whatever resources you have at your disposal, any manuals, do what you must; all you must

try and do is accomplish the tasks"?---He may have said that. Like I say, I don't exactly

remember a lot of what was said to me. It was just a - I was just in an extremely, extremely

distressed state after everything I'd done and my tug was going so well. I knew why this was

being done.

THE DEPUTY PRESIDENT: Mr Soper, you have had an opportunity to have a look at these

assessments before this?---Yes. Do you want me to look at them now?

I want you to tell me which of them you disagree with and why.

MR WADE: Which of the tasks that Mr Mowat and Mr Westlake say you failed do you

disagree with? The document should be part of exhibit 2 at item 58. I did insert one, Deputy

President.

THE DEPUTY PRESIDENT: Do you have some spreadsheets?

MR WADE: If you look at item 58, tab 58.

THE DEPUTY PRESIDENT: What I might do, Mr Wade, is I might stand the matter down for

ten minutes and allow Mr Soper without distraction to read those documents.

MR WADE: Certainly, perfect, thank you.

THE DEPUTY PRESIDENT: Mr Soper, I am just going to adjourn for ten minutes so you can

sit there and read those documents again and refresh your memory and then we will resume the

examination after we adjourn. We will adjourn.

<THE WITNESS WITHDREW	[3.07 PM]
SHORT ADJOURNMENT	[3.07 PM]
RESUMED	[3.21 PM]
THE DEPUTY PRESIDENT: Yes, Mr Wade?
MR WADE: Thank you, Deputy President.

Mr Soper, have you had an opportunity to reflect on, in particular, Mr Mowat's comments in

relation to your performance at the competency assessment held on 22 October?---I've read it,

yes.

Would you agree with me those are fair comments as to what you did in response to each of the

requests comprising the competency assessment?---I would say they are totally unfair because

[2016] FWC 2288

my state of mind at the time was so anxious I couldn't even think straight and, if I could, I

would like this total piece of evidence to be withdrawn completely. I think it's totally unfair to

put anybody through any kind of test under these conditions.

Mr Soper, two things. One is, let's assume for a moment that you were in a state of angst and it

wasn't a good time, why did you not confer with your support person and request more time?---I

suppose by then I had given up. I thought, "I'm on this performance improvement plan", I had

done everything so well, I thought, and I thought, "No, there was never an assessment in there",

I never expected one and I just thought, "This is it, this is the end of my career" and I was so

distressed about it, like I say, I couldn't think properly and I think I would have made a lot of

errors because I certainly couldn't focus on what I was doing.

Mr Soper, let's leave aside that for a moment, your angst that you say you had, which you didn't

raise. My question really is, given that, do you accept that what Mr Mowat sets out in

describing how you executed these respective tasks is an accurate, objective account of what

actually happened on the day? That is my question?---No, I don't think so.

You don't?---No.

In what respects, Mr Soper, is it inaccurate, because I think that is the reason that the Deputy

President asked you to reflect on the document? Do you want to respond to that question, Mr

Soper?---I'm not sure if I can. Could you say it again, please?

The question is: the Deputy President asked you to reflect upon the assessment tool, and in

particular we are confined to Mr Mowat's at the moment, and to indicate the respects in which

you disagree with what Mr Mowat records was your performance in response to each of the 18

competency tasks?---Well, if I just go to practical assessment task number 3, "Engine

(indistinct) top up lube oils in the steering (indistinct) other key elements of the system", I

mean, "No JHA and take 5 completed when directed to task without checking prior (indistinct)

correct lube oil." I mean, that particular task is a task I do every day when I start the tug

(indistinct). I know what the oil is, I know how to do it. I've (indistinct) down the system and

therefore I don't need to (indistinct) out valves. Now, because it's not done in the way that he

thinks it should be, although I do it in a very safe way and all the other engineers I have worked

with do it in the same way, because Luke doesn't seem to think that's the right way to do it, he

failed me on the procedure.

You failed on two scores, Mr Soper, you failed because you didn't actually do a take 5 and you

didn't complete a JHA, which are prerequisites for any operation of this sort, and you failed

because you couldn't locate the correct oil. I think what the Deputy President wants you to do is

to ask the question, "Is Mr Mowat correct?" Did you do a JHA? The answer is "No" -

correct?---Well, some of these are so routine that the JHA, if you like, is done already because

I've done it before, I know exactly what I am doing.

But that is not what the company procedures require. They have got an exacting standard for

safety reasons. You had to do a JHA; correct?---If I did that every time I started the tug, I

would be going there two hours early just to start it.

Mr Soper, can we confirm you did no JHA for that task?---No, I did not.

You did not take 5 for that task?---I did do a take 5.

[2016] FWC 2288

So Mr Mowat is wrong when he says you did not?---Yes, he is.

And you did not locate the correct oil?---I did locate - I did put the correct oil in because I knew

where it was, I've used it many times before.

Anything else you want to point out which is wrongly recorded, Mr Soper?---I don't really want

to talk about that document at all, it's not even really part of my memory.

I want to say something else. My second point about you saying you were filled with so much

angst that you couldn't do these tasks and that is your reason for not doing them, I understood

your case to actually be quite different. I understood your case to be that you thought the tug

was still operational and some of these tasks you refused to do because they would take too long

and the tug might be put into service. So which is it, Mr Soper?---It's not one or the other

If you have got so much angst that you can't do the functions, how is it you don't have that much

angst that you can actually, in your own mind, raise issues about the operational service of the

tug and raise issues about the length it will take to complete certain tasks as reasons not to do

the tasks?---Well, certainly I found it extraordinarily - you see, I didn't think I was going down

there - when somebody says they are going to assess you, I thought he was just going to ask me

"How do you do that?" and I was going to tell him. I didn't think he actually wanted me to pull

all these filters out on the tug on an hour's notice because I thought, "That's a crazy thing to do.

Why would you do it?"

You know why, Mr Soper, because the only way that you can get rid of arguments about

whether a person can or cannot do a task is to make them do it, not tell you how they do it, but

to make them do it?---Well, I would put to you that I have changed oil filters on many, many

vessels in many, many ports around the world. It is not a big deal, but on this particular engine,

I know it was four in a line, I know the last one from what Ben Reid had told me, it was a very

difficult one to get out, he had made up a special tool for it and I knew a lot of oil came out

when you did this. I knew I had to cover the alternator to make sure I - and you've got to be

careful it doesn't go in the bilge. These jobs, I just thought they were so ridiculous. "Why did

you ask me to do them? I can tell you how I do them, but if we are going to do all this and then

a crankcase inspection, that's a four-hour job."

But you are being paid to do it and you have been told to take your time, use whatever resources

you need to use, but to demonstrate to the company that you could do it. You understood that

instruction; correct?---No, I was so distressed and upset that this was the end of my career after I

had done such a great (indistinct). I would say that I could be (indistinct).

But Mr Soper, there is only one reason why you would feel like that?---(Indistinct reply)

There is only one reason why you would feel like that and that is because you couldn't actually

perform these basic tasks?---I could. I can perform all of those tasks. Apart from these. Look,

if you want to talk about NS5, yes, some of the tasks there with requisitions that I hadn't been

trained on the latest upgrade and prior to my move to the Boodari, I had phoned Mr Zacharias

because he was the man who did the training, and said that I wasn't up to speed with the latest

edition and he had agreed that I would - he would come and train me. Because, remember, I

have been a principal engineer prior to this. I didn't have my own tug and principal engineers

[2016] FWC 2288

were not allowed to (indistinct). So of course I wasn't familiar with that part of the work on the

computer and it is very interesting to see that so much of it is put in there.

Mr Soper, not to be disparaging, you couldn't even grease the tow winch; is that correct?---Yes,

to say I couldn't grease it means - are you saying that I can't get hold of a grease cutter and put it

on a nipple?

That is what you were asked to do and you couldn't do it?---Well, it is not as though I couldn't

do it. I just thought, "I'm not going to do it." I can't. I am not going to see the end of my career

where I have been a senior engineer on some of the most complex cable laying ships in the

world end with me greasing a winch with somebody like Mr Westlake, who knows nothing,

watching me. It was just all too much for me by then.

But, Mr Soper, that is not the reason you gave for not greasing the winch. You didn't say, "This

is beneath my station." What you actually said is, "I have never done this before." What was

then pointed out to you is, "How can you possibly supervise a subordinate on the correct

execution of a safety critical function when you yourself can't do it?"?---I would suggest to you

that greasing a winch is not safety critical.

It has safety implications. Are you saying there is no safety implications?---In greasing a

winch?

In incorrectly greasing a winch?---Well, I mean, I have checked my greaser's work many times

and I was very happy with what he did. Now, I didn't do it. He did it. He told me he greased

the winch. I inspected it. Where he kept his grease gun and where he kept his grease, I don't

know. I had only been on the tug 12 days, but he had greased the winch before and I went up

into the wheel house and I rotated the winch for him so he could do it. So I was up there, he

was down there. I wasn't actually with him when he did it. Now, if you are going to ask me do

I know where every single nipple is on that particular winch after being on the tug 12 days, no, I

don't. Do I know how to grease winches? Yes, I do.

The simple question is, Mr Soper, why didn't you do it in response to the express request that

you please demonstrate your awareness as to how to do it?---Because then I was just over it and

thought, "That's the end of my career." I was hot. I had nothing to drink. I didn't have

breakfast. I had been (indistinct) when it was 43 degrees. I had really just had enough of them.

I knew what they were doing to me.

Did you think it was a good point that was made by Mr Mowat, that you should be able to know

how to do it yourself in order to allow you to properly supervise somebody else or did you think

it was a stupid point?---I didn't even think about it at all.

Just to bring this issue to a head, Mr Soper, won't you please look at item 59, tab 59, in part 3 of

3. This was your response to the test. You will see it starts at page 205. Do you remember this

document?---Yes.

If you turn over the page to page 206, you actually refer to winch greasing and you make the

point: "Your point about a new GPH coming on board with no knowledge is valid and I will

accompany the GPH on his next greasing"?---Yes.

[2016] FWC 2288

It was a valid point?---Well, I had been on the tug 12 days. I don't exactly know how to grease

that winch, but don't worry, next time I will, if that is what you are going to do, come and test

the competency of a senior marine engineer on winch greasing, I will certainly put it in my

repertoire. That was my thoughts at the time, yes.

The point is you couldn't do it on the day?---I could have done it on the day, but it would have

taken me time to find his grease gun. I didn't know where he kept it. To me it was such a

menial task, I think Mr Westlake must have put it in there because I don't think Mr Mowat

would have done, but, anyway.

But, Mr Soper, what you are forgetting is that was the company's concern that you weren't able

to properly execute the most basic tasks and you proved them to be correct. If you can't find the

grease gun, that is not part of the exercise. You ask for it and then you - - -?---I was down for it.

- - - whoever is around or tell Mr Mowat, "I don't know where it is, but if you bring me one, I

will show you how to do the task." You couldn't show him how to do the task?---Well, I could

have gone around and said, "Yes, grease that and put grease in there, put grease in there." I

regarded the request as, to be honest, to ask a senior engineer to do that kind of thing, I had just

had enough and that is it.

Just in closing on that, you didn't even say to him, "I would grease there, there, or there", and

point to it. You just actually didn't do the exercise at all, either by demonstration or activity.

Any comment you wish to make, Mr Soper?---What I wish to say to you is at that point I just

felt that my career was over and whether I could grease a winch or something wasn't going to

make any difference.

The document I have just referred you to where you referred to the grease winching, that was

your response, as it were, to the competency assessment, your comments, is that

correct?---Which comment is that?

The document I have just referred you to at tab 59, part 3 of 3 of exhibit 2?---Fifty-nine?

Yes. You were tested on 22 October?---Yes.

On the 23rd, you sent in this, almost by way of explanation, regarding your performance;

correct?---Yes.

You knew where you had fallen short in your performance; is that correct?---Yes.

You didn't say in this letter - and that I find the most significant, Mr Soper - you didn't say in

this letter that, "I was significantly impeded in my performance of the 15 or 18 tasks on account

of the fact that I was called at short notice and I had angst and that is the explanation for me not

being able to do the tasks." Why didn't you say that?---Because I was on (indistinct) and, look,

I was doing this course - doing these things. There was times when I went around the back of

the engine and was dry retching with anxiety. Really, looking back, I should have just said,

"Look, I can't do this anymore", and I should have just walked off the tug. I realise that. I

wasn't in a state of mind to do any kind of testing, let alone this kind of testing.

Mr Soper, it does beg the question, in the cold light of day, two days later, when you write in

response commenting on what you were shortcomings in your performance, why is it you don't

[2016] FWC 2288

mention that as an explanation? I am going to put it to you because that wasn't the reason and it

wasn't the contributor to your performance?---Would you like to perform a test under those

conditions?

Do you have any comment to make further to what I have asked you, Mr Soper, about why you

didn't in this letter record your apparent angst and the way you were asked to conduct the

competency assessment as explaining your poor performance on it?---What I want to say is it is

the worst and most distressing test I have ever had in my life.

Mr Soper, I take no pleasure in the fact that you lost your employment. I take no pleasure in the

fact that you had angst. The issue was the safety of the vessel and its personnel. That was the

concern of the company?---Yes.

They had a test of you in normal operational circumstances and you didn't succeed in the test.

Would you agree with that as a summation of what happened on 22 October?---Well, the NS5,

the thing is none of that is – any of it is to do with my (indistinct) on the vessel. So if you are

going to talk around these things and say, you know, "Because he didn't top up the oil lubricator

of the clutch in the way he thinks I should have done", you know, which is something I do every

day, no, I don't do a JHA every day. No, I don't take five. I don't need to, you know. All the

NS5, that stuff, I requested requisitions because, as I said, principal engineers (indistinct) how

95

to do it. (Indistinct) that was coming, you know. The other stuff, I mean - - -.”

[54]       I consider that the Applicant had an opportunity to respond during the assessment. It is

apparent from the evidence above that he did not take up or make good use of the opportunity.

[55]      The Respondent submits that the Applicant’s evidence highlights his complete

intransigence and his unwillingness to accept that there were any deficiencies in his

96

performance. The Respondent says that rather than the Applicant improving areas of

obvious concerns, the Applicant’s response was to contest every allegation, often by

criticising either the qualifications or experience of those individuals that expressed the

97

concern. It further submits that ultimately it was the Applicant’s repeated refusal to

acknowledge any shortcomings which resulted in the Respondent taking the decision to

98

subject the Applicant to the competency assessment. I agree.

[56]      The Applicant contends that he was not specifically trained in the competencies that

were tested and that he was not given the opportunity to respond to the results of the

assessment. The Applicant also says that at the conclusion of the assessment he was not

99

provided with the outcome of the assessment or the results. The Applicant says that the

Respondent’s officers reached conclusions about his performance based on information

received from others, information which was never put to the Applicant or even the subject of

an investigation or the subject of any findings, but which finished up with the Applicant being

100

flooded with paper work as a fait accompli.
[2016] FWC 2288

[57]      These contentions do not stand up to the simplest of scrutiny by reference to the

evidence. None of the tasks assessed were complex. On his own evidence, with the exception

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of one matter, the Applicant said that he “can perform all of those tasks”. It remained the

case, however, that he failed to demonstrate competency in most of the tasks that were

assessed. The Applicant’s evidence that many of the tasks could not be attempted in the time

102

allocated is not accepted in light of the clear evidence of Mr Mowat and Mr Westlake, to

which earlier reference is made, to the effect that the vessel had been taken out of operation

and that the Applicant had been told that he had as much time as he required to complete each

task. There was nothing fait accompli about the competency assessment. The Applicant failed

the competency assessment because he was unable, whether by his design or inability, to

demonstrate to the Respondent that he was able to carry out competently the assigned tasks.

As is clear from the Applicant’s own evidence extracted above, the stress and anxiety reasons

he now advances for his failure to complete satisfactorily the assigned tasks, were not raised

with the Respondent during the competency assessment, and I reject those reasons now. That

assertion is also completely inconsistent with the evidence the Applicant gave in chief that he

had declined to do many of the tasks assigned during the assessment because he considered it

103

would be irresponsible given that the tug was on one hour’s notice.

104

[58] The Applicant failed 15 of the 18 assigned tasks of the competency test and as a

result was stood down with pay. The Applicant emailed Mr Westlake commenting on the

tasks that he was required to do during the competency test and the reasons for failing to

105

complete them. It is to be observed that the Applicant does not, in that response, make

reference to being stressed or anxious during the competency assessment. The Respondent

took the view that the explanations given by the Applicant were inadequate and did not

address the Respondent’s concerns.

Dismissal meeting

[59]      On 26 October 2015, the Applicant was called to attend a meeting with Mr Westlake

and Ms Byrne. The Applicant was offered the opportunity to bring a support person, but

106

declined. The Applicant did not suggest in his evidence that he requested a support person

or that one was refused. Ms Byrne’s evidence about the meeting was as follows:

“At the commencement of the meeting, Mr Westlake told Mr Soper that, as he was aware,

Teekay had identified concerns with his performance, which dated back to February 2015 and

which had been raised with him through various meetings, written warnings and the PIP. He

also said that, despite the mentoring and training provided to him, the competency assessment

conducted on 22 October 2015 showed that Mr Soper's performance remained below the

standard required by Teekay.

[2016] FWC 2288

During the meeting, and drawing a comparison with previous meetings, Mr Soper was very

quiet. One of the things I do recall him raising was the Teekay engineer training induction,

which is what he felt he should have been measured on. A copy of that training induction

checklist is document 7 of the Exhibit Book. I started telling Mr Soper that the training

induction checklist was not an appropriate measure for permanent Teekay engineers, but was

rather a familiarisation checklist for new engineers. Mr Soper then started arguing this point,

at which time Mr Westlake said that I should leave the matter and we concluded the meeting.

At no stage did Mr Soper raise any other matters in an attempt to suggest that the competency

assessment was wrong.

At the conclusion of that meeting, Mr Westlake advised Mr Soper that Teekay had decided to

terminate his employment and provided him with a letter confirming the termination of his

107

employment.”

[60]      Ms Byrne’s account of the meeting was not challenged during cross examination and I

accept that it is an accurate account of the meeting. The Applicant was dismissed at this

meeting and was handed his Termination Letter.

Consideration and application of the statutory framework

Protection from Unfair Dismissal

[61]      An order for reinstatement or compensation may only be made if I am satisfied the

Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act.

[62]      Section 382 of the Act sets out the circumstances that must exist for the Applicant to

be protected from unfair dismissal as follows:

“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.”

[63]      There is no dispute, and I am satisfied, that the Applicant was, on 26 October 2015,

protected from unfair dismissal within the meaning of s.382.
[2016] FWC 2288
Was the dismissal unfair?

[64]      The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that

all of the circumstances set out in s.385 of the Act existed. Section 385 provides:

“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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see

section 388.”

[65]      There is no dispute that the Applicant was dismissed at the Respondent’s initiative

within the meaning of s.386 of the Act. As I have previously indicated, the Respondent is not

a small business employer so the issue of compliance with the Small Business Fair Dismissal

Code does not arise, and the dismissal of the Applicant was not a case of genuine redundancy

within the meaning of s.389 of the Act.

Harsh, unjust or unreasonable

[66]      It remains therefore, for me to consider whether the Applicant’s dismissal was harsh,

unjust or unreasonable. The matters that must be taken into account in assessing whether the

dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:

“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

[2016] FWC 2288

(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.”

108

[67] I am obliged to consider each of these matters in reaching my conclusion and I do

so below, having regard to the factual findings earlier made and taking into account the

109

helpful submissions filed by the parties.

[68]      The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal

110

was explained in Byrne & Frew v Australian Airlines Ltd	by McHugh and Gummow JJ as
follows:

“. . . 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

111

which the employer acted.”

[69]      Ultimately, however, it is the matters set out in s.387 of the Act to which regard must

be had.

Valid reason – s.387(a)

[70]      There must have been a valid reason for the dismissal related to the Applicant’s

capacity or conduct, although it need not be the reason given to the Applicant at the time of

112  113

the dismissal. The reason should be “sound, defensible or well-founded” and should not

114

be “capricious, fanciful, spiteful or prejudiced”. Where conduct of the Applicant is relied

upon to justify the decision to terminate employment, I would need to be satisfied that the

115

conduct as alleged, occurred. A mere suspicion of conduct does not amount to a valid

[2016] FWC 2288

116

reason. As I have earlier indicated, the Applicant was dismissed for reasons related to his

capacity and not his conduct.

[71]      For the reasons given earlier in this decision I am satisfied that on the evidence, the

Applicant failed a competency assessment that he was required to undertake and that he did

not then and has not during proceedings before me, provided any credible explanation for his

failure to pass the assessment. I am also satisfied for the reasons already given, that the

Respondent’s concerns as to the Applicant’s competency were reasonably based, and so I

conclude that the requirement for the Applicant to undertake the competency assessment was

reasonable. There is nothing in the evidence to suggest that the Respondent acted with caprice

or that it had anything other than the Applicant’s competency in mind when it dismissed him.

It seems to me that concerns about the Applicant’s competency were not fanciful, but as I

indicated were reasonably held. The Applicant was given a chance to demonstrate his

competency and he failed to do so. Dismissing the Applicant, in the circumstances of the

history leading up to the dismissal, because he failed to demonstrate competency during the

competency assessment, seems to me to be a valid reason for dismissal of the Applicant.

Therefore, in the circumstances, I am satisfied that there was a valid reason for the

Applicant’s dismissal relating to his capacity.

Notification of the valid reason – s.387(b)

[72]      Notification of a valid reason for termination should be given to an employee

117  118

protected from unfair dismissal before the decision is made, in explicit terms, and in

119

plain and clear terms. In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage

120

and Transport), a Full Bench of the Australian Industrial Relations Commission dealing

with a similar provision of the Workplace Relations Act 1996 observed:

“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 to the reason identified. Section

170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify

employees and give them an opportunity to respond after a decision had been taken to

121

terminate their employment. Much like shutting the stable door after the horse has bolted.”

[73]      There is no dispute that the Applicant was notified of the reason for his dismissal and I

am satisfied that the Applicant was notified of the Respondent’s reasons for dismissing him.

Opportunity to respond – s.387(c)

[74]      An employee protected from unfair dismissal should be given an opportunity to

respond to any reason for dismissal relating to the conduct or capacity of the employee. The

evidence in this instance, establishes that the Applicant responded to the outcome of the

[2016] FWC 2288

assessment the following day in an email to Mr Westlake in which he set out some

explanation. It also seems clear from the evidence of Ms Byrne that during the meeting on 26

October 2015, the Applicant was given an opportunity to respond and I am satisfied that the

Applicant was given an opportunity to respond to the reason for his dismissal.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[75]      If an employee protected from unfair dismissal has requested that a support person be

present to assist in discussions relating to the dismissal, the employer should not unreasonably

refuse to allow that person to be present. It is clear from the plain language of s.387(d) of the

Act that this consideration is directed to an employer’s unreasonable refusal to allow a

support person to be present. It is not concerned with whether an employer offered the

employee such an opportunity. In most cases, the section will be engaged if the employee

122

asks for a support person to be present and the employer refuses the request. It may well be

appropriate in some cases to consider the overall circumstances in which meetings to discuss

an employee’s performance, capacity and conduct or dismissal occurred to properly determine

whether there was an unreasonable refusal by the employer to allow the employee to have a

support person present.

[76]      As I have already indicated, Ms Byrne gave evidence that Mr Soper was offered an

opportunity to bring a support person to the meeting on 26 October 2015 but he declined. The

Applicant did not suggest that he asked for and was not allowed to have a support person. I

am satisfied that there was no unreasonable refusal by the Respondent to allow a support

person to be present. I also note that a support person was present during the competency

assessment.

Warnings regarding unsatisfactory performance – s.387(e)

[77]      If an employee protected from unfair dismissal is dismissed for the reason of

unsatisfactory performance, the employer should warn the employee about the unsatisfactory

performance before the dismissal. Unsatisfactory performance is more likely to relate to an

123

employee’s capacity than their conduct.

[78]      It seems to me, clear on the evidence earlier described, that the Applicant had

previously been warned about his performance or capacity. I do not take into account the

withdrawn warning issued following the February Incident. I am also satisfied on the

evidence that the Respondent took positive steps to bring to the attention of the Applicant,

areas of deficient competency, and set about assisting the Applicant to improve his

performance. This is evident in the implementation of the PIP and in the mentoring

arrangements that were put in place in August and May 2015 respectively for the benefit of

the Applicant.
[2016] FWC 2288
Impact of the size of the Respondent on procedures followed – s.387(f)

[79]      The Respondent is a large employer. There is no evidence that the Respondent’s size,

in and of itself, affected the procedure adopted in effecting the dismissal. In my view, the

procedure adopted by the Respondent in the lead up to the dismissal and in effecting the

dismissal was fair.

Absence of dedicated human resources management specialist/expertise on procedures

followed – s.387(g)

[80]      There was no absence of a dedicated human resources function. It is apparent that a

human resources management specialist was involved both in the mentoring, in the warning

issued, in the engineering review, in the competency assessment and in the dismissal of the

Applicant.

Other relevant matters – s.387(h)

[81]      Section 387(h) provides the Commission with broad scope to take into account any

other matters it considers relevant. I have also taken into account the following matters:

a) The Applicant’s employment history. I take into account that prior to 2015 there

is no evidence that the Applicant was anything other than a competent and

effective marine engineer;

b) The Applicant’s period of service. The period was almost 7 years. This is not

an insignificant period of employment. Nevertheless, continued employment,

particularly as a marine engineer, seems to me to be conditional on continued

demonstrable competence and lengthy service will not save the day;

c) The Applicant’s work record. There is no suggestion that the Applicant was

guilty of any misconduct either at the time of his dismissal or at any point

earlier. It is the Applicant’s capacity and his failure to demonstrate competence

when given an opportunity to do so that is at the heart of this case;

d) The summary nature of the dismissal. Although I have concluded that there was

a valid reason, I do not regard the Applicant’s capacity as justifying summary

dismissal. Had the Respondent not made a payment in lieu of notice, I would

likely have concluded that summary dismissal was harsh and that dismissal on

notice was more appropriate. However, the payment in lieu of notice has

mitigated that which might otherwise have been a harsh dismissal; and

e) The PIP and the mentoring. These are relevant matters because they

demonstrate, in my view, that the Respondent did not act hastily and that it

provided the Applicant with reasonable opportunities to improve areas of his

performance.

[82]      Taking all of these matters into account, most of which weigh against the Applicant,

and for the reasons given in this decision, I have come to the conclusion that the Applicant’s

dismissal was not harsh, unjust or unreasonable. Therefore it was not unfair.

[2016] FWC 2288

Conclusion

[83]      The Applicant’s dismissal from employment with the Respondent was not unfair. The

application for an unfair dismissal remedy is therefore dismissed. An order to that effect is

separately issued in PR579325.

DEPUTY PRESIDENT

Appearances:

Mr P Mullally solicitor on behalf of the Applicant.

Mr R Wade solicitor on behalf of the Respondent.

Hearing details:

2016.

Perth.

March 14.

March 15.

Final written submissions:

Soper, 29 March 2016

Teekay Shipping (Australia) Pty Ltd, 5 April 2016

Soper in reply, 8 April 2016

Printed by authority of the Commonwealth Government Printer

<Price code G, PR578965>

1

Exhibit 3 at [2].

2

Ibid at [2] and [3].

3

Ibid at [3].

4

Applicant’s Outline of Submissions dated 10 February 2016; Exhibit 3, Attachment 1.

5

Section 396 of the Fair Work Act 2009.

6

Exhibit 1 at [7].

7

Exhibit 3 at [2].

8

Ibid at Attachment 1.

9

Ibid.

10

Ibid.

11

Ibid.

12

Ibid.

13

Applicant’s Outline of Submissions dated 10 February 2016 at [13].

14

Respondent’s Outline of Submissions dated 2 March 2016 at [3].

15

Ibid.

16

Respondent’s Outline of Submissions dated 2 March 2016 at [11a].

17

Exhibit 3, Attachment 2A.

18

Applicant’s Outline of Submissions dated 10 February 2016 at [6.1].

19

Exhibit 5 at [10]; Exhibit 1 at [12]-[13].

20

Exhibit 1 at [17].

21

Transcript, PN90.

22

Exhibit 5 at [13].

23

Exhibit 2; Tab 18.

24

Exhibit 1 at [12].

25

Ibid at [15]; Exhibit 2; Tab 9.

26

Exhibit 1 at [17].

27

Exhibit 3 at [7] – [23].

28

Exhibit 2 at Tab 13.

29

Exhibit 1 at [26]; Exhibit 2 at Tab 18.

30

Exhibit 1 at [17].

31

Ibid at 26; Exhibit 2 at Tab 18.

32

Exhibit 1 at [27] – [28]; Exhibit 2 at Tab 18.

33

Exhibit 5 at 14; Exhibit 2 at Tab 18.

34

Transcript PN 687 - PN 696.

35

Ibid.

36

Transcript PN 1546 – PN 1549.

37

Transcript PN 692 – PN 697.

38

See Exhibit 3.

39

See Transcript PN 547 – PN 564.

40

See Transcript PN 309, PN 318 – PN 326, PN 346 – PN 358 and PN 382.

41

Exhibit 4 at [26]; Exhibit 5 at [24]; Respondent’s Outline of Submissions dated 2 March 2016 at [11f].

42

Exhibit 5 at [17] – [20].

43

Exhibit 2 at Tab 21.

44

See for example Exhibit 2 at Tab 28.

45

Exhibit 2 at Tab 28.

46

Ibid.

47

Exhibit 5 at [42], [53] – [59].

48

Exhibit 2 at Tab 45.

49

Exhibit 2 at Tab 22.

50

Applicant’s Outline of Submissions dated 10 February 2016 at [7.3].

51

Exhibit 2 at Tab 22.

52

Exhibit 5 at [31]; Exhibit 2 at Tab 25.

53

Respondent’s Outline of Submissions dated 2 March 2016 at [11g].

54

Exhibit 1 at [37].

55

Exhibit 2 at Tab 27.

56

Transcript PN1065.

57

Exhibit 3, Attachment 6.

58

Transcript PN1179.

59

Transcript PN1376.

60

Exhibit 2 at Tab 29

61

Exhibit 3, Attachment 5.

62

Ibid.

63

Exhibit 3 at [24.4].

64

Witness Statement of Jacqueline Byrne at [67].

65

Transcript PN 1065.

66

Transcript PN 1047 – PN 1073.

67

Exhibit 5 at [46]; Transcript PN 1384 – PN 1388.

68

Exhibit 5 at [45] – [49].

69

Transcript PN763.

70

Transcript PN764.

71

Exhibit 5 at [47].

72

Exhibit 2 at Tab 29; Transcript PN 773-PN774.

73

Exhibit 5 at [47].

74

Transcript PN 773 – PN 781.

75

Exhibit 2 at Tab 40.

76

Transcript PN309.

77

Transcript PN308.

78

Witness statement of Luke Mowat at [42]-[46].

79

Transcript PN 696 – PN 705.

80

Exhibit 3, Attachment 1.

81

Transcript PN850-PN52.

82

Exhibit 3 at [24.7].

83

Applicant’s Outline of Submissions dated 10 February 2016 at [8.1].

84

Ibid.

85

Transcript PN1450.

86

Transcript PN1456.

87

Transcript PN439.

88

Transcript PN1228-1230.

89

Transcript 1162.

90

Transcript PN1165.

91

Applicant’s Closing Submissions dated 5 April 2016 at [67.9].

92

Transcript PN854-856.

93

Transcript PN438.

94

Applicant’s Outline of Submissions dated 10 February 2016 at [8.4].

95

Transcript PN 869 – PN 928.

96

Respondent’s Closing Submissions dated 5 April 2016 at [43].

97

Ibid.

98

Ibid.

99

Exhibit 1 at [24.12].

100

Applicant’s Closing Submissions dated 5 April 2016 at [11].

101

Transcript PN 904.

102

Transcript PN 873.

103

Exhibit 3 at [24.8]

104

Exhibit 2, Volume 3 of 3 at Tab 57 and 58.

105

Exhibit 2 at Tab 59

106

Witness statement of Jacqueline Byrne at [95].

107

Exhibit 5 at [96] – [98].

108

Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14].

109

Applicant’s Outline of Submissions, 10 February 2016, Applicant’s Final Submissions, 29 March 2016, Applicant Reply

Submissions, 8 April 2016; Respondent’s Outline of Submissions, 2 March 2016 and Respondent’s Final Submissions, 8

April 2016.

110

(1995) 185 CLR 410.

111

Ibid at 465.

112

Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377–378.

113

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

114

Ibid.

115

King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213) at [23]–[26].

116

Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

117

Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

118

Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at 150–151.

119

Previsic v Australian Quarantine Inspection Services Print Q3730.

120

(2000) 98 IR 137.

121

Ibid at 151.

122

See also Fair Work Bill 2008 – Explanatory Memorandum at [1542].

123

Annetta v Ansett Australia (2000) 98 IR 233 at 237.