Stephen Bowers v L2 Project Management Norseman Pty Ltd

[2013] FWC 4893

[2013] FWC 4893

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Bowers
v
L2 Project Management - Norseman Pty Ltd
(U2012/10337)

COMMISSIONER WILLIAMS PERTH, 23 JULY 2013

Termination of employment.

[1] This matter involves an application made by Mr Stephen Bowers (Mr Bowers or the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent employer is L2 Project Management - Norseman Pty Ltd (L2 Project Management or the respondent). The application was made on 11 June 2012.

[2] The application lodged identified the employer of Mr Bowers as Central Norseman Gold.

[3] Around 21 June 2012 a form F3−Employer’s Response to Application for Unfair Dismissal Remedy (the employer’s response) was lodged which identified the respondent employer as L2 Project Management.

[4] The employer’s response explained in detail the circumstances leading up to the dismissal of Mr Bowers. That response was signed by a Ms Young in the capacity of the State Site HR and Admin Manager.

[5] A conciliator convened a conference of the parties on 28 June 2012 however the matter was not resolved at that stage and was referred to myself for determination.

[6] In late July 2012 the Commission was notified that Mr Bowers was represented by McKenzie and McKenzie Solicitors.

[7] On 2 August 2012 the parties were sent a notice of listing advising that the hearing of the matter would be heard in Kalgoorlie on 7 November 2012 and directing the parties to provide written materials.

[8] On 11 October 2012 the Commission was advised by an email from Ms Young on behalf of the respondent that the “company” was going into voluntary administration. She advised the Administrator had advised that the company cannot proceed with any court action or court matter without prior approval from the Administrator. Attached to the email was a notice to employees dated 4 October 2012 from RJ Dean Willcocks−Administrator. The notice explained that Mr Richard Short had been appointed voluntary Administrator of the company being Central Norseman Gold Corporation Ltd

[9] This information was passed on to the applicant’s solicitors who advised on 15 October 2012 that they believed that Central Norseman Gold Corporation Ltd was not the employer of Mr Bowers nor was it the employer whom had filed the employer’s response.

[10] On 18 October 2012 the Commission received a letter from a Ms Christine Davis for and on behalf of L2 Project Management which asserted that at “...all times L2 Project Management - Norseman Pty Ltd were only ever authorised to act as an agent for The Project for and on behalf of The Client, Central Norseman Gold Corporation Ltd which was in accordance with the Contract”.

[11] In light of this on 22 October 2012 all parties being the applicant, L2 Project Management and the Administrator of Central Norseman Gold Corporation Ltd were advised by email that the hearing on 7 November 2012 in Kalgoorlie would proceed as previously notified and the question of the true identity of Mr Bowers’ employer would be determined as part of those proceedings.

[12] On 25 October 2012 Mr Cameron Gray on behalf of the Administrator emailed my Chambers and advised that on the information available he was unable to advise whether Mr Bowers was an employee of L2 Project Management or of Central Norseman Gold Corporation Ltd and requested any copies of materials the Commission had that may assist in this.

[13] My associate forwarded copies of the form F2−Application and the form F3−Employer’s Response that had been filed.

[14] On 1 November 2012 DLA Piper lodged a Notice of Representative Commencing to Act giving notice that they acted for L2 Project Management in this matter. At the same time DLA Piper wrote to the Commission advising they were instructed to seek an adjournment of the 7 November 2012 hearing and that they had been in discussions with the applicant’s solicitors who would consent to an adjournment and explaining a number of reasons why the adjournment was sought.

[15] The next day Mr Bowers’ representatives confirmed by phone that they consented to the adjournment requested by the respondent and accordingly I agreed to and did cancel the hearing listed for 7 November 2012. The parties were directed to provide an update on the status of the matter in due course.

[16] McKenzie and McKenzie Solicitors subsequently advised the Commission that they had contacted DLA Piper several times following the 1 November 2012 request to have the hearing adjourned, that DLA Piper had repeatedly advised that they were seeking instructions and that there had been no meaningful discussions with the respondent’s solicitors apparently because DLA Piper were unable to get instructions from the respondent.

[17] On 3 January 2013 DLA Piper filed a form F54 being a Notice of Representative Ceasing to Act advising that they no longer acted for the respondent.

[18] In light of this I listed the matter for a hearing on 30 April 2012 with directions for the respondent to file their materials by 15 February 2013. This direction was not complied with.

[19] On 13 March 2013 a Mr Kim Gardner sent an email to my Chambers with an attached document which in his words was “...containing comments and an overview from L2 Project Management - Norseman Pty Ltd position”.

[20] This document includes a detailed explanation from Mr Gardner of his understanding of the arrangements between Central Norseman Gold Corporation Ltd and L2 Project Management. The document indicates that Mr Gardner was the Managing Director of “L2PM” which I assumed refers to L2 Project Management I note the second last entry on this document states as follows:

“L2PM is now a dormant company that has not operated since the 17 September 2012.”

[21] The document from Mr Gardner was provided to Mr Bowers’ solicitors and their reaction in correspondence to the Commission was that it does not address any of the circumstances relating to Mr Bowers’ application and was in any event nothing more than the opinion of Mr Gardner.

[22] Mr Bowers’ solicitors sought for the matter to proceed to the hearing as listed.

[23] The hearing proceeded as listed on 30 April 2013. However due to confusion on behalf of the applicant and his solicitors there was no appearance on behalf of the applicant. Nor was there any contact from the respondent or appearance on their behalf. The applicant’s solicitors contacted my Chambers later that day to explain their absence and their confusion and consequently the matter was relisted to 5 July 2013 for a hearing. The respondent was notified of this further date of hearing.

[24] Shortly before the date of hearing McKenzie and McKenzie Solicitors advised they were no longer representing Mr Bowers’.

[25] On 5 July 2013 the previously notified hearing proceeded with Mr Bowers self represented. There was no appearance on behalf of the respondent. Given the history of the matter I proceeded in the absence of the respondent to hear this application.

[26] I am satisfied that the respondent has had ample opportunity to provide written materials as directed on a number of occasions to reply to the submissions and witness statement of Mr Bowers but have failed to do so. I am further satisfied that the respondent has been properly notified of the hearings that were listed for 30 April 2013 and 5 July 2013 but has failed to attend both of those proceedings and has not contacted the Commission regarding the hearing of this matter for many months now.

[27] Turning then to the substance of this application, as noted above the employer named on the application was Central Norseman Gold Corporation Ltd however the employer’s response lodged identified the applicant’s employer as L2 Project Management. The applicant in response has confirmed that he accepts that the true identity of his employer was L2 Project Management. In the circumstances I am satisfied that the true identity of the applicant’s employer at the time of his dismissal was L2 Project Management.

The applicant’s case

[28] Mr Bowers confirmed his evidence was as provided in the witness statement that had been served on the respondent. I have no reason not to accept Mr Bowers’ evidence in full and do so.

[29] Accordingly I make the following findings.

[30] Mr Bowers commenced employment in April 2009 as a diamond driller at the Harlequin Mine (the Mine).

[31] In late 2011 he was shifted to the service crew.

[32] On Monday, 28 May 2012 he was told to bring a “mono” that was underground to the surface. He undertook this task by proceeding underground with a large fork lift truck. He loaded the mono on to the forks and proceeded to drive to the surface.

[33] The distance to the surface was approximately a 2 km drive and Mr Bowers was not assisted by any other employee.

[34] As he approached the portal near the surface he thought he was going to hit something with the mono so corrected his steering to the right and then thought he was going to hit the wall on the right so corrected back to the left and the mono hit the left-hand corner of the wall of the decline.

[35] Mr Bowers was travelling at 3 to 4 km/h. The mono did not come off the forks and he proceeded to the surface.

[36] Mr Bowers drove to lay down the mono in the yard at approximately 500 to 600 m from the portal and then stopped to see what had happened. The frame of the mono which he says was rusted out was damaged.

[37] He proceeded straight to the office and saw Nigel Driscoll the Mine Foreman. He told him he had hit the decline with the mono. Mr Driscoll gave Mr Bowers the incident report book and told him to complete an incident report. Mr Bowers filled out the incident report book put it on the Shift Boss’s desk and returned underground.

[38] Mr Bowers finished his shift that day and returned home.

[39] He returned to work as usual the next day Tuesday, 29 May 2012 and when he arrived he was taken to Mr Driscoll’s office.

[40] Mr Bowers says Mr Driscoll said he had to let him go. His evidence is Mr Driscoll said “We have to keep our standard. We can’t let one go and not the other”.

[41] Mr Bowers says Mr Driscoll then said that “Jack Murphy damaged the new mono at Spockpile 3 and we sacked Jack that night”.

[42] Mr Driscoll did not give Mr Bowers any paperwork nor any letter. Mr Bowers asked if he had to sign anything and Mr Driscoll said he would sort it out. Mr Bowers says he was in Mr Driscoll’s office less than one minute.

Earlier incidents

[43] Approximately 2 weeks prior to dismissal Mr Horst, the Shift Boss asked Mr Bowers to set up a development heading. Mr Bowers proceeded underground to do so however there was a bogger driver cleaning up the heading when he got there and later that bogger driver told Mr Bowers he had set the heading up.

[44] Later Mr Horst asked Mr Bowers why he hadn’t set the heading up and Mr Bowers told him it was still being cleaned up by the bogger driver. Mr Bowers says he kept telling Mr Horst it was done and says there were no raised voices however Mr Evans the Mine Foreman came into the room pulled Mr Bowers to one side and said “if you have an issue come and talk to me”.

[45] Mr Bowers says that was all that was said and he was not told anything further about any breach of policy or any disciplinary action.

[46] Mr Bowers says that on another occasion Mr Driscoll asked him why he was on the surface and he explained what he was doing there and Mr Driscoll was satisfied with the explanation.

[47] Mr Bowers says that on 20 May 2012 he was at work and received a message at lunchtime from his partner explaining she needed him to pick up their children because there was a family emergency.

[48] Mr Bowers spoke to Mr Evans and explained what had happened. Mr Evans asked if he would be back at work and Mr Bowers explained he would not because he would have the children.

[49] Mr Bowers says he took his tag off the board and went home.

[50] Mr Bowers says he rang the Mine the following day Monday around 8.00 a.m. and spoke to a male person on the phone and explained he wouldn’t be at work for the next couple of days and asked him to let the Shift Boss or Foreman know.

[51] He returned to work on Wednesday, 23 May 2012 and Mr Evans asked where he had been and Mr Bowers told him he had rung on Monday and spoke to someone but didn’t know who it was. Mr Bowers offered to show Mr Evans his phone where the call would be listed but Mr Evans said there was no need for that and for him to go to work.

Since the dismissal

[52] Since the dismissal Mr Bowers’ evidence was that he looked for work throughout June and July 2012 and commenced work for a new employer on 14 August 2012 as a Trades Assistant. His salary is $101 782.85 per annum gross and Mr Bowers has received $800 from Centrelink.

Submissions

The applicant

[53] It is submitted that all the applicant was told when he was dismissed by Mr Driscoll was that because another employee who had a similar accident with a mono had been dismissed so he must be dismissed.

[54] It is submitted that this is not a valid reason for the applicant’s dismissal and the manner in which he was dismissed by Mr Driscoll did not allow him any opportunity to respond to the dismissal.

[55] The applicant had not received any warnings regarding his performance of any kind related to the reason given for his dismissal.

[56] At the time of the applicant’s dismissal the employer engaged approximately 150 employees and so was a large employer who had dedicated human resources specialists on staff.

[57] It is submitted in the circumstances the dismissal was harsh, unjust or unreasonable.

[58] Mr Bowers does not seek reinstatement because he has gained alternative employment.

[59] The applicant at the time of dismissal had been employed for a little over three years.

[60] The applicant seeks an order that the respondent pay him compensation for his unfair dismissal.

The respondent

[61] The only material before the Commission from the respondent is the employer’s response.

[62] In this the respondent says the reasons for Mr Bowers’ dismissal were:

1. Arguing with the Shift Supervisor on three separate occasions.

2. Being found to be on the surface on several occasions and not performing his assigned duties.

3. Being absent for a length of time without notifying the Foreman or his Shift Boss when questioned about his absenteeism from work he would not advise whom he spoke to.

4. Damaging equipment by not taking the proper care and respect for the company’s property.

[63] It was explained that the termination of Mr Bowers was not based on a single incident but on the accumulation of the events mentioned above.

[64] The respondent has not provided any evidence in support of these submissions. As mentioned earlier I have accepted the evidence of Mr Bowers in full.

Consideration

[65] The matters the Commission must take into account when considering an application such as this are set out below.

“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.”

[66] The submissions on behalf of the respondent as to the reasons for the dismissal are not supported by the evidence. The evidence is that Mr Driscoll when dismissing Mr Bowers referred only to the fact that on an earlier occasion another employee had damaged a mono and had been dismissed.

[67] Mr Driscoll told Mr Bowers therefore he had to be dismissed because the respondent had to keep a standard and couldn’t let one go and not the other.

[68] Considering the evidence the incident with the mono was not so serious as to warrant dismissal of itself in circumstances where Mr Bowers had three years service and there was no prior history of damaging the respondent’s equipment or similar failings. Mr Bowers did promptly report the accident to the Foreman and there is no basis for complaint by the respondent about his actions in this regard.

[69] Mr Bowers’ evidence regarding his prior interactions with the Shift Supervisor and the Foreman on other matters leads me to conclude that these were minor issues and/or instances where he was not at fault.

[70] In conclusion I am not satisfied that there was a valid reason for the dismissal of Mr Bowers related to his capacity or conduct.

[71] Whilst Mr Driscoll did notify Mr Bowers of the reason he was dismissing him that was not a valid reason for dismissal.

[72] The manner in which Mr Driscoll dismissed Mr Bowers I accept did not provide Mr Bowers in reality with an opportunity to respond to the reason for his dismissal.

[73] There was no refusal by the respondent to allow Mr Bowers to have a support person present during discussions relating to the dismissal.

[74] There is no evidence that Mr Bowers was informed about unsatisfactory performance before his dismissal.

[75] The employer is a large employer with dedicated human resource management specialists and there is no reason why it was not capable of following an appropriate procedure in dismissing Mr Bowers, however it did not.

[76] It is relevant that Mr Bowers was employed for just over three years at the time of his dismissal.

[77] In the circumstances I find that the dismissal of Mr Bowers by L2 Project Management was harsh, unjust and unreasonable. Mr Bowers was unfairly dismissed by L2 Project Management.

Remedy

[78] Having found that Mr Bowers was unfairly dismissed I must consider whether reinstatement is appropriate. I note that Mr Bowers does not seek reinstatement and has since gained alternative employment. In this case the circumstances of the respondent employer are unknown to the Commission. There is some suggestion that in fact L2 Project Management is no longer an operating business. Given these doubts and Mr Bowers having gained new employment I am satisfied that it would be inappropriate to reinstate him.

[79] I do consider it appropriate that the Commission makes an order for the payment of compensation.

[80] Section 392 of the Act sets out the criteria for deciding amounts of compensation as follows.

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[81] There is no evidence as to the viability of the employer’s enterprise.

[82] The length of service of Mr Bowers was just over three years.

[83] There is nothing to suggest that Mr Bowers would not have continued in his employment for an extended period had he not been dismissed and I find that period would be for a further 12 months.

[84] The remuneration Mr Bowers was receiving at the time of his dismissal was on average $5 695 gross per fortnight. Had he not been dismissed he would have received $148 070 gross per annum.

[85] I am satisfied that Mr Bowers had made appropriate efforts to mitigate his loss.

[86] Mr Bowers has been working since 14 August 2012. He has supplied pay slips that show he has been earning $101 782.85 gross per annum. Mr Bowers will continue to earn this amount between the making of this order for compensation and the actual compensation being paid. The amount earned since dismissal to when compensation will be paid is $97 868.15.

[87] There was no misconduct by Mr Bowers that would support a reduction in the compensation amount nor are there other contingencies to reduce the compensation.

[88] Accordingly the compensation to be paid is $148 070 minus $97 868.15 which amounts to $50 201.85 gross. This does not exceed the amounts in section 392(5)(b) or s.392(6) of the Act.

COMMISSIONER

Appearances:

S Bowers on his own behalf.

No appearance for the respondent.

Hearing details:

2013.

Perth:

July 5.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR539171>