Steven Hawkins v Boral Cement Ltd T/A Boral

[2018] FWC 2746

[2018] FWC 2746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Hawkins
v
Boral Cement Ltd T/A Boral
(U2017/13394)

COMMISSIONER MCKENNA SYDNEY, 23 MAY 2018

Application for an unfair dismissal remedy.

[1] Steven Hawkins (“the applicant”) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (“the Act”) concerning his dismissal by Boral Cement Ltd T/A Boral (“the respondent”). The respondent has cement manufacturing operations in Berrima, New South Wales (in the Southern Highlands region, approximately 130km from Sydney).

[2] As to preliminary matters, there was no issue, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business employer, so applicability of the Small Business Fair Dismissal Code does not arise; and the dismissal did not involve a case of genuine redundancy.

Background

[3] The applicant commenced employment with the respondent in June 2005, as a labourer. Around the time of his dismissal, the applicant had responsibilities as a production operator advanced (Level 3). The applicant was dismissed on 28 November 2017, on the basis of serious misconduct. The immediate circumstances relevantly concerned the applicant printing his name on a particular record, but not also signing that record.

[4] As with other employers, the respondent has workplace safety obligations; and, as with other employees, the applicant also has his own obligations with respect to workplace safety including compliance with matters such as the respondent’s standard operating procedures (“SOP”), and measures associated with rescue plan contingencies and the standards by which confined work is to be undertaken.

[5] The applicant was expected to, and has been given past training as to the need to both write his name and his signature (albeit the respondent’s submissions indicated that initials in lieu of a signature would be acceptable for its purposes) upon a sheet of paper recording persons entering/exiting a particular confined space at the workplace – in this case, a diaphragm within one of the cement mills. The respondent’s specification as to the need for an employee’s signature (or initial) in addition to an employee writing/printing in plain text his or her name on the relevant document is a matter within the respondent’s managerial prerogative, and the requirement is also consonant with adherence to workplace safety record-keeping.

[6] On 6 November 2017, despite being asked to do so by a contract employee who was, as the acting standby person, charged with the responsibility for maintaining the In/Out log sheet (or register) for a confined space at the workplace, the applicant, for his own reasons, wrote his name in a box on the log sheet, but declined, when asked by the standby person, to write his signature in the adjoining box. Apparently, the applicant (laughingly, on the evidence of the standby person) said words to the effect he never signed - albeit that was not the case, or at least was not uniformly the case.

[7] The standby person asked a more senior employee of the respondent (the yard team leader) what he should do after the applicant declined to sign the log sheet. The standby person was informed by the yard team leader, in effect, to “let it go”. In consequence, the applicant entered the confined space to perform work having printed his name but without also signing the log sheet.

[8] The applicant re-entered the confined space later that same day; he again printed his name in a box on the relevant sheet, but, once again, did not also write his signature.

[9] It was stemming from these circumstances of writing his name, but not also signing his name in the adjacent box in the log sheet in connection with the confined space work, that the applicant was to be dismissed by the respondent. I say “stemming from”, because other factors influenced the decision-making concerning the dismissal. Those other matters included, but were not limited to, the respondent’s dissatisfaction with the applicant’s recount during the investigation/show cause process of what he said to the standby person in relation to the non-signing, and other matters such as an examination of records which had been signed or initialled in the past by the applicant.

[10] The Australian Workers’ Union (“the union”), of which the applicant was a member, became involved in the processes the respondent subsequently embarked upon in connection with the non-signing of the log sheet. Rather than the union telling its member, the applicant, to - put colloquially - pull his head in and sign documents he was lawfully and reasonably asked and/or expected by the respondent to sign, the union appears to have taken a somewhat highhanded approach to the matter of signing documents – including at least one most regrettably-worded comment made by a union official as to signing requirements. Among other matters, the evidence indicated that the union had provided the applicant with some form of prior advice about signatures on documents. Moreover, the union continued to support the applicant in not signing the log sheet, as opposed to just printing his name. I consider, with respect, that the applicant was led into error by advice from his union.

[11] Separately, the standby person and the yard team leader were themselves the subject of counselling given the respondent’s concern about the applicant entering for work in the confined space when he had only printed his name rather than also signing the log sheet.

Consideration - Criteria for considering harshness etc.

[12] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account certain matters. I turn now to consider those matters.

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)

[13] On 6 November 2017 the applicant declined the standby person’s request to sign the log sheet in addition to printing his name on that document, in connection with entering the confined space. The applicant should have done what he was asked and/or otherwise expected to do, because signing (or, the respondent submitted would be acceptable, initialling) is part of the relevant SOP. The failure to comply with the SOP, and in circumstances where he was asked by the standby person to sign the log sheet as well as printing his name, grounded a valid reason for dismissal. Considered in context, however, the dismissal seems disproportionate to the infraction that was involved in the applicant printing but not also signing his name in the log sheet.

[14] The respondent’s evidence and submissions highlighted various concerns and potential scenarios arising from the applicant not writing his signature (or initials) to the log sheet in addition to printing his name (e.g. in an emergency situation a person reviewing the log sheet may consider, absent the signature together with the printed name, that the applicant was not in the confined space). The letter advising as to the dismissal read in part: “Your refusal to comply with the Company’s safety requirements on 6 November 2017, placed you at serious and imminent risk of injury having regard to the nature of the work you were doing on that day.” The evidence did not, however, establish that lack of affixing by the applicant of his signature (or initials) in addition to his adjacent, hand-written inclusion of his name had an effect on the safety and welfare of other employees, or his own. As noted in the applicant’s initiating process concerning the application for an unfair dismissal remedy, the applicant printed his name to indicate that he understood the content of the form; no harm was caused to any person of the respondent’s business by the applicant (only) printing his name to indicate he understood the contents of the form.

[15] As I have noted earlier, when the applicant declined to write his signature on the first occasion, he entered the confined space; and the standby person who sought advice from the yard team leader about the matter was told, in effect, to let it go. In consequence, when the applicant re-entered the confined space for a second time on 6 November 2017, there had been, in effect, some form of condonation - at least at the yard level - earlier that same day of the applicant entering the confined space without signing and printing his name in the relevant segments in the log sheet. The evidence as to what occurred on 6 November 2017 – with the matter being “let go” – stands in somewhat of a contrast with the advice in the letter concerning the dismissal in as much as it read: “Moreover, your blatant disregard for your obligations as an employee in the form of your refusal to co-operate with the Company’s safety processes constitutes a separate ground of serious misconduct.”

[16] There was no evidence the applicant had, prior to 6 November 2017, ever been taken to task in any way for only printing his name rather than also signing documents. There was sufficient material in evidence to indicate other circumstances of what appears to have been a somewhat haphazard or inconsistent approach to the full and/or proper completion of documents - not only by the applicant but others as well (albeit, here, the refusal to sign by the applicant was in circumstances of a specific request from the standby person, whereas the circumstances of the other deficiencies concerning document completion to which reference was drawn in the proceedings were unclear).

[17] To avoid doubt, there is no suggestion that the applicant’s failure to place his signature (on the evidence of it, an indecipherable “scribble” - as against the legible printing of his name) rather than just printing his name in plain text was connected in any way with, for example, misrepresenting time and wages records; misrepresenting work or duties undertaken by the applicant; or any of the more familiar issues that are sometimes presented in relation to completion of employment-related documents. Rather, it seems that the applicant engaged in some form of contrariness in his interaction with the standby person and without realising the seriousness with which the respondent’s management would view matters.

[18] It seems the applicant or his union, or both – apparently not realising the level of seriousness with which the respondent viewed matters – initially took a somewhat cavalier approach to the matters which concerned the respondent, despite the legitimately-based expectation of the respondent’s managers that the applicant should sign documents he was reasonably asked or otherwise expected to sign. The union initially had proposed (at least to the time of the commencement of the hearing proper) to take some form of issue about the matter, for example, in proposing that the applicant’s preparedness to sign (or initial) in the future should be conditional on certain matters, such as determinations by the Commission, WorkSafe NSW or the like. A better approach would have been for the union to advise the applicant to do what his employer reasonably expected of him, rather than embarking into debate or dispute about matters such as the legalities of what was expected by the respondent of the applicant in relation to no more than affixing a signature on a log sheet as well as printing the name.

[19] I have no wish whatsoever to cast any criticism on the standby person and the yard team leader - who unfortunately got caught-up, to their detriment, in an issue of the applicant’s making – whereby they were the subject of counselling. As to this counselling outcome for the standby person and the yard team leader, I note and accept the submissions for the applicant as to the disparity in action taken by the respondent concerning the three individuals in relation to what the respondent treated as including workplace safety-related issues and lapses. In noting the different outcomes as between the three individuals, the applicant was an employee of some 12 years’ standing. As to that, and to the applicant’s credit concerning workplace safety, it also may be noted that the respondent provided the applicant with multiple safety bonus coupons, being coupons issued in respect of safety-related recognition.

[20] The applicant’s period of approximately 12 years’ employment with the respondent was without incident, save for two incidents to which I will turn later in this decision.

Whether the person was notified of that reason

[21] By letter dated 28 November 2017, the respondent informed the applicant of the reasons for the dismissal in terms which read, in part, after setting out matters relevant to matters including the show cause process:

“ … The Company has made a decision to terminate your employment for serious misconduct involving your blatant and willful disregard for the Company’s safety requirements when you refused to sign the Sign In/Sign out” register on two separate occasions on 6 November 2017.

As an employee you have an obligation under work, health and safety legislation to comply with the Company’s directions that are aimed at fulfilling the Company’s obligation to ensure the health and safety of people in its workplace.

Your conduct in this matter demonstrates that as far as safety is concerned, you believe it is okay for you to decide what is sufficient when it comes to the Company’s safety requirements. Allowing employees to set their own standards in relation to what is sufficient when it comes to safety could have devastating results.

Your refusal to comply with the Company’s safety requirements on 6 November 2017, placed you at serious and imminent risk of injury having regard to the nature of the work you were doing on the day – on this basis your conduct amounted to serious misconduct.

Moreover, your blatant disregard for your obligations as an employee in the form of your refusal to co-operate with the Company’s safety processes constitutes a separate ground of serious misconduct.

Both of the above grounds of serious misconduct, together and separately, justify the termination of your employment. The Company notes that even if your conduct on 6 November 2017 did not amount to serious misconduct, which is in no way conceded by the Company, the termination of your employment is justified having regard to the history of warnings you have received including the final written warning issued to you on 20 February 2017 and the further final written warning issued to you on 4 July 2017.

Your employment is terminated effective 5.00pm today. As your employment is being terminated for serious misconduct, you are not entitled to notice or a payment in lieu of notice but the Company has elected to provide you with payment in lieu of notice. Your payment in lieu of notice and payment in lieu of your accrued, but untaken, annual leave and long service leave entitlements, will be deposited into the bank account that your wages were deposited into during your employment with the Company. …”

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[22] The applicant was given an opportunity to respond to matters related to his conduct, including through the discussions, with union involvement, related to the investigative/show cause processes that the respondent instigated. As I have noted earlier, the approach adopted contained some regrettable aspects by the applicant or his union, or both. I consider the applicant or his union, or both, took an ill-advised course in not simply indicating that, to the extent the applicant had taken a haphazard approach to printing and also signing (or initialing) documents in the past, that the applicant’s signature would always be affixed into the future in relation to any relevant documents. Those aspects of the approach did not assist the applicant in averting disciplinary action and, not unreasonably or unexpectedly, it seems to me, had the effect of in fact exacerbating the concerns of the respondent rather than assuaging them.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[23] There was no unreasonable refusal by the respondent to allow the applicant to have a support person present to assist during discussions relating to the dismissal; the union (comprising officials and delegates) was involved in such discussions.

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[24] The applicant’s performance appears to have been considered satisfactory over the dozen years or so of employment with the respondent.

[25] However, the applicant did receive written warnings in a short space of time concerning two matters earlier in 2017 (20 February and 4 July 2017) - each specified to be a final warning. These warnings seemed to turn more on conduct-related matters rather than “unsatisfactory performance” simpliciter as contemplated within s.387(e) of the Act.

[26] More generally, as to warnings, the question of the comparatively recent warnings given to the applicant is relevant – and the cases for the applicant and the respondent referred specifically to a range of matters, which I have fully considered, apposite to those warnings and the application before the Commission. In the first instance, the applicant was given a warning about matters including swearing and radio usage, in relation to which the applicant apologised. The second matter was about what was considered as involving, for example, disrespectful and disruptive interruptions during a training session - in relation to which the applicant also apologised, in writing.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/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

[27] The respondent has sizeable operations and the procedures it adopted were broadly consonant with the approach typically adopted by larger employers. Matters concerning the correspondence, notes of meeting and the like were detailed in the respondent’s case. Procedures consistent with affording procedural fairness were adopted by the respondent.

Any other matters that the Commission considers relevant

[28] The respondent’s case went into detail about the range of concerns arising from the conduct of the applicant on 6 November 2017 in printing his name but not also signing his name on the log sheet in connection with the confined space entry. Nothing in this decision is to be construed as in any way understating my acknowledgment of the detailed concerns which were addressed in the respondent’s case. Similarly, nothing in this decision is to be construed as involving anything having the effect or potential effect of undermining the respondent’s serious and commendable approach to workplace safety processes - being matters in relation to which it lawfully, reasonably and responsibly expects collaboration and cooperation from its employees (and, one would hope and expect, also in partnership with employees’ union representatives through constructive guidance they may provide to members concerning workplace safety-related matters).

[29] In the end, in terms of the application for an unfair dismissal remedy before me, an employee 12 years’ standing was dismissed for reasons involving a misguided - impertinent even - notion that it was sufficient for him to only print his name in plain text on the relevant log sheet rather than also writing his signature (or initials) in the adjoining box, and despite being asked to do so in connection with the confined space entry. While the letter concerning the dismissal characterised matters as “a blatant disregard for your obligations as an employee in the form of your refusal to co-operate with the Company’s safety processes [and] constitutes a separate ground of serious misconduct”, I do not think matters can be put as highly as this, particularly when considered in the context of matters including the immediate local yard-level conclusion to let matters go; and also then not to escalate matters when there was a second entry to the confined space that same day again without affixing a signature to the log sheet. Those comments made, the applicant would be well-advised, in connection with his return to work flowing from this decision, to do what is reasonably expected of him in the future, rather than putting his own gloss on what is sufficient in such respects or cavilling about reasonable requests, instructions and expectations in relation to properly completing the log sheet and any other relevant materials or documents. As to that, I accept the submissions for the respondent that it cannot allow employees to decide for themselves which aspects of its safety-related requirements will be the subject of compliance and which will not be the subject of compliance.

[30] I find the dismissal was harsh in all the circumstances. In so concluding, I have also fully considered the earlier warnings and the circumstances surrounding those matters including as they dovetail with the approach taken by the respondent in relation to the circumstances that more immediately led to the dismissal on the basis of the respondent’s conclusion concerning serious misconduct. I have also noted the submissions for the respondent that matters including, but not limited to, the comparatively recent prior warnings gave rise to circumstances whereby the respondent was not prepared to, and not required to, give the applicant another chance.

Remedy

[31] I am satisfied the applicant was a person protected from unfair dismissal at the time of his dismissal and that he was unfairly dismissed by the respondent, and that he should have an order for an unfair dismissal remedy in his favour. The applicant seeks an order for reinstatement. I am satisfied that would be appropriate to make an order for the applicant’s reinstatement by reappointing the applicant to the position in which he was employed immediately before the dismissal. I also consider it is appropriate, collaterally, to make an order to maintain continuity.

[32] I have given particular consideration to the question of what the respondent relied upon as militating against an order for an unfair dismissal remedy, and specifically an order concerning a return to work – relevantly including as to matters related to trust and confidence. On matters as to specific and overall considerations, I am satisfied that reinstatement is appropriate in the exercise of discretion. I am satisfied the applicant now has a fully-formed appreciation of what is required of him in terms of the respondent’s expectations and what is to occur when given a lawful and reasonable instruction by the respondent, or one of its employees or delegates.

[33] The applicant was employed by the respondent for more than 12 years, and is now in his 50s. To the date of the hearing, the applicant had been unable to find alternative employment (in the area in which he lives as a single parent with his child, and where he has a mortgaged home) apart from some intermittent work. These matters tend to weigh in favour of reinstatement as opposed to other forms of remedy.

Form of order

[34] While I am satisfied that the applicant should have an order for reinstatement and continuity, I am not satisfied – given his own role in the matters leading to decision to dismiss – that the applicant should have an order for full lost wages in connection with the reinstatement. I have determined, having regard to principles associated with a “fair go all round”, that the order in such respects should be set at 50 per cent of lost wages. It would seem appropriate that the parties’ representatives should now confer about the calculation of such amounts considering, for example, the effect of payments made on termination of employment and necessary adjustments to the calculations thereto.

[35] The matter will be relisted to give the parties the opportunity to address the Commission on the form of the proposed draft order and/or to hear the parties on the potential need for any further evidence or submissions as may be relevant concerning matters such as the date for return to work in the order and/or the money amount in the order for lost wages.

[36] A notice of listing will issue separately.

COMMISSIONER

Appearances:

V Falconer, the Australian Workers’ Union, for the applicant.

J Donnelly, solicitor, for the respondent.

Hearing details:

2018.

Sydney:

March 23

May 1.

Printed by authority of the Commonwealth Government Printer

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